United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
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.
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. 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.
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 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.
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.
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.
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).
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.
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
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.