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Rodriguez v. Alvarez

United States District Court, D. Maryland, Southern Division

June 5, 2019

ELMER RAFAEL RODRIGUEZ, Plaintiff,
v.
KEISIYULIZA ZAMBRANO ALVAREZ, Defendant.

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge.

         Plaintiff Elmer Rafael Rodriguez, a citizen of Honduras, filed this action in the Circuit Court for Prince George's County seeking an order requiring the return of his five-year-old son pursuant to the Hague Convention and the International Child Abduction Remedies Act ("ICARA"). Defendant Keisi Yuliza Zambrano Alvarez, the child's mother, removed the case to federal court after unsuccessfully contesting the petition at a show cause hearing held by the circuit court. Mr. Rodriguez now has filed an emergency motion to remand the case to the circuit court, arguing the notice of remand was untimely. Mot. to Remand, ECF NO.7.

         For purposes of the pending motion, the relevant facts are undisputed and are reflected in court dockets that are judicially noticeable. See Fed. R. Evid. 201, 803(8)(A)(i), 902(5). The parties have fully briefed the motion. See ECF Nos. 7, 9.[1] No. hearing is required. See Loc. R. 105.6. As I agree with Mr. Rodriguez that the notice of removal was not timely under 28 U.S.C. S 1446(b), I grant his emergency motion to remand this case.

         FACTUAL BACKGROUND

         Ms. Alvarez, who, like Mr. Rodriguez, is a Honduran citizen, entered the United States with their five-year old son on January 20, 2019, through the Hidalgo, Texas Port of Entry. USCIS R. 2, ECF No. 1-9. Ms. Alvarez sought asylum to escape threats of violence from Mr. Rodriguez, who has a serious criminal record[2] in Honduras and whom she has described as a "dangerous man." USCIS R. 1-11; see also Carcamo Aff. 2, ECF. No. 1-4 (transcribing sworn statement from child's grandmother describing violent threats made by Mr. Rodriguez). On January 31, 2019, the Department of Homeland Security found that Ms. Alvarez had presented a credible fear of persecution, allowing her to move forward in the asylum process. USCIS R. 5. She is residing in Maryland with her child while that process is ongoing. Return Order 25, ECF No. 1-9.

         On April 11, Mr. Rodriguez filed in the Circuit Court for Prince George's County a verified petition for the child's return under the Hague Convention and ICARA and an ex parte motion under the Hague Convention for entry of a temporary restraining order. See Circuit Ct. Docket 97, ECF No. 1-9. Ms. Alvarez was served on the same day. Aff. of Service 8, ECF No. 7-3. On April 29, 2019, the circuit court held a show cause hearing (at which Ms. Alvarez was represented by counsel, who since has been replaced), then entered a return order to immediately return the child to Honduras. Return Order 25.

         Ms. Alvarez then obtained new counsel and filed a notice of appeal to the Maryland Court of Special Appeals, as well as an emergency motion to stay the circuit court's return order. See Emergency Mot. to Stay 2, ECF No. 7-8; Notice of Appeal 1, ECF No. 7-9. Four days later, Mr. Rodriguez filed a response in opposition to the emergency motion. Opp'n to Emergency Mot. to Stay 18, ECF No. 1-9. Ms. Alvarez filed an Amended Emergency Motion to Stay on May 24, 2019. Am. Emergency Mot. to Stay 7, ECF NO.1-1. Finding the claims in Ms. Alvarez's emergency motion sufficiently serious to consider, the circuit court prudently scheduled a post-judgment motions hearing on May 28, 2019. ECF NO.1-1. On May 28, 2019, Ms. Alvarez notified the circuit court and Mr. Rodriguez that she had removed the case to federal court. Notice of Removal 1, ECF No. 1. The circuit court sua sponte postponed the hearing until June 7, 2019. See Pl's Mem. 4, ECF NO.7-1. On May 30, 2019, Mr. Rodriguez filed his emergency motion to remand the case to the circuit court. Mot. to Remand. I ordered expedited briefing on the motion. See ECF NO.8. Ms. Alvarez missed the deadline to respond to the motion, but I have accepted her late-filed response.

         DISCUSSION

         There is no question that this Court has subject matter jurisdiction over petitions brought under the Hague Convention and ICARA. See 22 U.S.C. § 9003(a) ("The courts of the States and the United States district courts shall have concurrent original jurisdiction of actions arising under the Convention."). The issue presented here is whether Ms. Alvarez's removal was proper under 28 U.S.C. S 1446. Under this provision, "[t]he party seeking removal bears the burden of demonstrating that removal jurisdiction is proper." In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006).

         Mr. Rodriguez argues that removal was improper because (a) removal was not timely under 28 U.S.C. § 1446(b)(3); (b) a longer time allowance for removal in cases of diversity is not available, as this suit does not satisfy the requirements of 28 U.S.C. § 1332; and (c) even if removal had been timely, Ms. Alvarez waived her right to remove the case because she did not seek removal until the circuit court had already entered a return order. I address each of these arguments in turn before addressing Ms. Alvarez's claim that the state court lacks jurisdiction.

         A. Timeliness

         The first issue is whether removal was timely. Under 28 U.S.C. § 1446(b), a defendant has 30 days from receiving notice of the suit to remove the case. See S 1446(b). The 30-day limit serves two purposes: first, to preclude gamesmanship by preventing defendants from taking a "wait and see" approach in state court, and, second, to avoid the waste of judicial resources that would follow if defendants could seek to start their case anew after "substantial proceeding"" have already taken place in state court. See Gorman v. Abbott Labs., 629 F.Supp. 1196, 1999 (D.R.I. 1986). Here, Ms. Alvarez received notice of the suit on April 11, 2019, but did not file a notice of removal until 47 days later, on May 28, 2019. See Aff. of Service 8; Notice of Removal 1.

         And while §1446(b)(3) carves out an exception to the 30-day limit where a defendant learns about a basis for removal at some point after receiving notice, see § 1446(b)(3), that exception surely does not apply here. Mr. Rodriquez's April 11, 2019 petition plainly sought relief under the Hague Convention and ICARA, a federal law. Pursuant to 22 U.S.C. § 9003(a), federal courts have concurrent jurisdiction over actions arising from the Hague Convention. Ms. Alvarez therefore was on notice on April 11, 2019, that the case was removable, and as she waited 47 days to file the requisite notice, her removal must be considered untimely.

         B. ...


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