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Sandoval Quintana v. Quintana Dolores

United States District Court, D. Nevada

December 12, 2019

CESAR OMAR SANDOVAL QUINTANA, Petitioner,
v.
JOCELYN MERCEDES QUINTANA DOLORES, et al., Respondent.

          ORDER

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Petitioner Cesar Omar Sandoval Quintana, a citizen and resident of Peru, filed a petition and Verified Complaint against Respondent Jocelyn Mercedes Quintana Dolores under the Hague Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 (the “Convention”), as implemented by the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001-9011 (the “ICARA”). (ECF No. 1 (the “Verified Complaint”).) Petitioner seeks the return of his minor child, A.O.S.Q., to Peru, so that an ongoing custody dispute between Petitioner and Respondent may be resolved there. (Id.) Respondent is allegedly residing with A.O.S.Q. in Fallon, Nevada. (Id. at 2.) Before the Court is Petitioner's ex parte motion for entry of a temporary restraining order, which includes an application for a warrant seeking physical custody of A.O.S.Q., and a request for an expedited hearing (the “Motion”). (ECF No. 5.) The Court held a hearing on the Motion at 8 a.m. on Thursday, December 12, 2019 (the “Hearing”). (ECF No. 7.) Because Petitioner has demonstrated entitlement to a temporary restraining order, and as further explained below, the Court will grant the Motion.

         II. BACKGROUND

         The following facts are taken from the Verified Complaint. (ECF No. 1.) Petitioner and Respondent were married in Peru, and lived there with their son A.O.S.Q, who is currently nine years old. (Id. at 2.) They had been living separately, but sharing custody of A.O.S.Q., since 2012. (Id. at 3.) The parties were formally granted joint custody of A.O.S.Q. by a Peruvian court in 2014. (Id.) Petitioner paid child support to Respondent, and covered A.O.S.Q.'s expenses like school and insurance. (Id.)

         In March 2017, Respondent and her then-boyfriend Mariano admitted to psychologically abusing A.O.S.Q. by fighting in front of him, and Petitioner was awarded temporary sole custody of A.O.S.Q in April 2017. (Id. at 4.) In 2016, Respondent filed a request with a Peruvian court to take A.O.S.Q. out of Peru-to visit Respondent's mother in Oregon-but her request was denied in November 2017 after Respondent failed to attend a hearing. (Id. at 5.) Nonetheless, Respondent left Peru for the United States in September 2018 with A.O.S.Q. (Id.) In two emails to Petitioner, she alleged that Petitioner had abused her, mislead the Peruvian court that made the custody determinations, and attempted to turn A.O.S.Q. against her. (Id.; see also ECF No. 1-5 at 55-58.) She also stated she intended to keep A.O.S.Q. in the United States in those emails. (ECF No. 1-5 at 58.)

         Petitioner has not seen A.O.S.Q. since. (ECF No. 1 at 6.) In October 2018, he filed a criminal complaint against Respondent for child abduction in Peru, a separate criminal case for kidnapping was opened against Respondent, a court banned Respondent from travelling outside of Peru, and awarded Petitioner temporary sole custody of A.O.S.Q. (Id. at 6.) In April 2019, the U.S. Embassy confirmed to Peruvian officials that Respondent and A.O.S.Q. entered the U.S. in October 2018. (Id.) Petitioner alleges Respondent only had a tourist visa to enter the U.S. and thus committed fraud to enter the country because she intended to-and has-remained there. (Id.) Petitioner asserts that it took him several months to learn that Respondent had abducted their child and removed him to the United States, [1] and he has made efforts to locate them since. (Id. at 6, 8.) He has not had any contact with his child since and expressed concerns about the psychological damage that the separation has caused to his son. (Id. at 6.)

         Petitioner then requested A.O.S.Q.'s return to Peru through the Convention process, where his request to the Peruvian Ministry of Vulnerable Populations was transmitted to the U.S. State Department. (Id. at 6-7.) Petitioner then filed this petition, alleging that Respondent wrongfully took A.O.S.Q. to the U.S., and is wrongfully retaining him in Fallon, Nevada where Petitioner believes Respondent and A.O.S.Q. are residing with Respondent's mother-against Petitioner's wishes and in violation of the custody rights awarded to him by Peruvian courts. (Id. at 2, 7-10.) Petitioner also seeks recovery of his attorneys' fees and costs. (Id. at 10-12.)

         III. LEGAL STANDARD

         Federal Rule of Civil Procedure 65 governs preliminary injunctions and temporary restraining orders, and requires that a motion for a temporary restraining order include “specific facts in an affidavit or a verified complaint [that] clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition, ” as well as written certification from the movant's attorney stating “any efforts made to give notice and the reasons why it should not be required.” Fed.R.Civ.P. 65(b).

         Temporary restraining orders are governed by the same standard applicable to preliminary injunctions. See Cal. Indep. Sys. Operator Corp. v. Reliant Energy Servs., Inc., 181 F.Supp.2d 1111, 1126 (E.D. Cal. 2001). Further, a temporary restraining order “should be restricted to serving [its] underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 439 (1974).

         A preliminary injunction may be issued if a plaintiff establishes: (1) likelihood of success on the merits; (2) likelihood of irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “Injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22. The Ninth Circuit has held that “‘serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011).

         IV. DISCUSSION

         The Winter factors favor entering an ex parte temporary restraining order here. But the Court first addresses the notice requirement under Fed.R.Civ.P. 65(b).[2] Petitioner explains that he has not attempted to provide notice of the Motion to Respondent because Respondent removed Petitioner's son from Peru without his consent, and in contravention of a Peruvian court's denial of her request, and smuggled him into the U.S. on a visa that required her to return after six months, which she has not done. (ECF No. 5 ...


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