Torrent v. Arroyo
| Aude Marie-Laure Torrent |
| Guillermo Barusch Fajardo Arroyo |
| 8:2018cv02862 |
| October 22, 2018 |
| US District Court for the District of South Carolina |
| Timothy M Cain |
| Other Statutory Actions |
| 42 U.S.C. § 11601 |
| None |
Docket Report
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| Filing 58 TEXT ORDER: The parties shall submit to the court by January 2, 2019, a proposed consent order to govern the protocol for returning the passports in the Clerk's possession. If an agreement cannot be reached, the parties shall each submit to the court by January 2, 2018, a proposed order governing the protocol for returning the passports in the Clerk's possession. Entered at the direction of the Honorable Timothy M Cain on 12/19/18. (kmca) |
Filing 56
ORDER that Petitioner Aude Marie-Laure Torrent's Verified Petition for Return of the Children to Ireland (ECF No. #1 ) is GRANTED. (2) The Court FURTHER ORDERS that the minor children be returned forthwith to the Republic of Ireland in Respondent Guillermo Barusch Fajardo Arroyo's custody. The Respondent shall return the minor children to the Republic of Ireland no later than January 18, 2019. (3) The Court FURTHER ORDERS Respondent Guillermo Barusch Fajardo Arroyo to file with this court a status report by January 2, 2019, with a detailed travel itinerary, including proof of ticket purchases. (4) The Court FURTHER ORDERS that counsel for both parties promptly file with this court a verification of compliance after the minor children have been returned to Ireland. (5) It is FURTHER ORDERED that Petitioner is permitted 15 days to file an application for any attorneys' fees and expenses, and that Respondent has 15 days to respond. (6) The court's pre-trial restraining order (ECF No. 25 ) remains in place until this court specifically orders otherwise. (7) This court retains jurisdiction to issue such additional orders as may be necessary to implement and enforce the provisions of this order. Signed by Honorable Timothy M Cain on 12/17/18. (kmca)
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| Filing 55 Minute Entry. Proceedings held before Honorable Timothy M Cain: taking under advisement #4 Motion to Expedite; taking under advisement #4 Motion for TRO; taking under advisement #4 Motion for Preliminary Injunction. Bench Trial begun and completed on 12/11/2018. Court Reporter Deba Bull. (pbri, ) |
| Filing 54 Respondent's Exhibit List. (pbri, ) |
| Filing 53 Petittioner's Exhibit List. (pbri, ) |
| Filing 52 NOTICE of Hearing: Bench Trial set for 12/11/2018 10:00 AM in G Ross Anderson Jr Court House, 315 S McDuffie St, Anderson before Honorable Timothy M Cain. Email has been sent with video conference line for test and tomorrow's court. (pbri, ) |
| Filing 51 Minute Entry. Proceedings held before Honorable Timothy M Cain: Telephone Conference held on 12/6/2018 with all parties. Trial duration and logistics discussed. Parties are prepared for a 2 day trial if necessary. In the event of inclement weather, parties will receive an email if the bench trial start time is delayed. (pbri, ) |
| Filing 50 TEXT ORDER granting in part and denying in part #39 Motion in Limine. Petitioner filed a Motion in Limine to prohibit Respondent from (i) providing any evidence relevant to a best interest analysis; (ii) arguing that the habitual residence of the subject Children is not Ireland; and (iii) arguing that there is a grave risk of harm for the subject Children to return to Ireland. (ECF No. #39 ). In his Opposition to Petitioners motion (ECF No. #42 ), Respondent indicates he does not intend to present a best interest defense, but asserts that he is entitled to litigate the habitual residence issue and that he should be permitted to pursue the affirmative defense that returning the children to Ireland would present a grave risk of harm to the children. In view of the parties agreement, the court GRANTS Petitioners Motion in Limine #39 to preclude any evidence relevant to a best interest analysis. Petitioner claims that because Respondent in prior litigation took the position that Ireland is the habitual residence of the children, he is barred by the doctrines of judicial estoppel and collateral estoppel from asserting in this case that it is not the childrens habitual residence. Judicial estoppel applies only to inconsistent positions of fact taken in prior litigation. Emergency One, Inc. v. Am. Fire Eagle Engine Co. , 332 F.3d 264, 274 (4th Cir. 2003). The issue of habitual residence is a mixed question of fact and law, see Calixto v. Lesmes, No. 17-15364, 2018 WL 6257410, at *7 (11th Cir. Nov. 30, 2018), so judicial estoppel does not apply here. The court also concludes that collateral estoppel does not prevent Respondent from making arguments regarding the habitual residence issue. The prior Hague decision determined the habitual residence of the children at the time Petitioner wrongfully removed them to France in September 2016. In the instant case, this court must determine the childrens habitual residence at the time that Respondent took the children to the United States in March 2018. The issue decided previously is not identical to the one before this court, as required by the collateral estoppel doctrine. See Trinity Marine Prod., Inc. v. United States, 812 F.3d 481, 491 (5th Cir. 2016). Accordingly, the court DENIES Petitioners Motion in Limine #39 to the extent it seeks to bar Respondent from challenging the childrens habitual residence. Finally, Petitioner contends that, by virtue of a decision of the Riom Court of Appeal in France (ECF No. #15 ), Respondent is barred by the doctrine of res judicata from arguing that there is a grave risk of harm in returning the minor children to Ireland. Res judicata prevents the relitigation of issues that were or could have been raised in the prior action. Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004) (internal quotation marks omitted). Respondent, however, claims his grave risk defense is based on facts that arose after the decision of the French court and that such a claim was therefore unavailable at the time. Moreover, in the prior Hague Convention case, Respondent was seeking the return of the children to Ireland and had no occasion to assert a claim of grave risk. Accordingly, the court DENIES Petitioners Motion in Limine #39 to the extent it seeks to bar Respondent from raising a grave risk affirmative defense. Respondent is admonished, however, that he must produce clear and convincing evidence showing that the risk to the child is grave, not merely serious, and consists of more than the trauma associated with uprooting and moving the child back to the country of habitual residence. Luis Ischiu v. Gomez Garcia, 274 F. Supp. 3d 339, 350 (D. Md. 2017). The court reminds the parties that a pretrial ruling on a motion in limine is preliminary and is subject to change based on developments at trial. See generally Luce v. United States, 469 U.S. 38, 40 (1984). Signed by Honorable Timothy M Cain on 12/05/2018.(hima, ) |
| Filing 49 TEXT ORDER granting #40 Motion in Limine. Respondent filed a motion in limine for an order prohibiting Petitioner "from asserting any argument, or in any way advocating a change in custody of the minor children." (ECF No. #40 ). Petitioner responds that "all applicable case law and statutory law, as well as the Hague Convention itself, prevent either party from litigating the underlying custody matter which is currently pending in Ireland." (ECF No. #44 ). It appears, therefore, that the parties agree that the merits of the underlying custody dispute are not at issue in this case. Accordingly, the court GRANTS Respondents Motion in Limine #40 . Signed by Honorable Timothy M Cain on 12/05/2018.(hima, ) Modified on 12/6/2018: to add "text" (kmca). |
| Filing 48 TEXT ORDER granting #23 Motion to Take Judicial Notice of the Children and Family Relationships Act of 2015. Signed by Honorable Timothy M Cain on 12/05/2018.(hima, ) Modified on 12/6/2018: to add "text" (kmca). |
| Filing 47 NOTICE to review electronic courtroom on December 6, 2019 at 10:00 AM at the G. Ross Anderson, Jr. Federal Building, 315 South McDuffie Street, Anderson, South Carolina without the presence of IT. (pbri, ) |
| Filing 46 REPLY by Aude Marie-Laure Torrent to #31 Answer to Complaint,,, . (Attachments: #1 Exhibit Affidavit of Irish Solicitor)(Lounsberry, Jonathan) |
| Filing 44 RESPONSE in Opposition re #40 MOTION in Limine Response filed by Aude Marie-Laure Torrent.Reply to Response to Motion due by 12/10/2018 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Lounsberry, Jonathan) |
| Filing 42 RESPONSE in Opposition re #39 First MOTION in Limine By Aude Marie-Laure Torrent Response filed by Guillermo Barusch Fajardo Arroyo.Reply to Response to Motion due by 12/7/2018 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Burns, James) (Main Document 42 replaced on 11/30/2018: as requested by and provided by filing user) (kmca). |
| Filing 41 TEXT ORDER directing the parties to respond to #39 First MOTION in Limine and #40 MOTION in Limine by 12:00 pm (noon) on Monday, 12/3/2018. Entered at the direction of the Honorable Timothy M Cain on 11/28/18. (kmca) |
| Filing 40 MOTION in Limine by Guillermo Barusch Fajardo Arroyo. Response to Motion due by noon, 12/3/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Burns, James) (Main Document 40 replaced on 11/28/2018: to replace with corrected document as provided by filing user) (kmca). Modified on 11/28/2018: to change response date per 41 Order (kmca). |
| Filing 39 First MOTION in Limine by Aude Marie-Laure Torrent. Response to Motion due by noon, 12/3/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Lounsberry, Jonathan) Modified on 11/28/2018: to change response date per 41 Order (kmca). |
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Filing 37
ORDER denying Petitioner's request for an Access Order (ECF No. #29 ) and/or for temporary custody (ECF No. #1 at 13) pending the final hearing on the merits. Signed by Honorable Timothy M Cain on 11/15/2018. (abuc)
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| Filing 35 TEXT ORDER Respondent filed a motion for appointment of a Guardian ad Litem for the parties minor children citing Fed. R. Civ. P. 17(c)(2). (ECF No. #33 ). The motion asserts that a Guardian ad Litem would be invaluable in helping the parties arrange visitation times and other contacts with the minor children. Rule 17(c)(2) provides that a minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a Guardian ad Litem. The court must appoint a guardian ad litem--or issue another appropriate order--to protect a minor or incompetent person who is unrepresented in an action. Fed. R. Civ. P.17(c)(2).This is an action brought pursuant to The Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act (the Hague Convention), 22 U.S.C. 9001 et. seq., for a determination as to the country of habitual residence of the minor children. The courts authority in such cases is limited to effecting the purposes of the Hague Convention and, at the most, imposing provisional remedies to protect the well-being of the child involved or to prevent the childs further removal or concealment before the final disposition of the petition. 22 U.S.C. 9004(a). At the hearing on November 2, 2018, the court encouraged the parties to work together to resolve the issue of Petitioners access to the children during this pending litigation, without court involvement. A trial is scheduled for December 11, 2018. Respondent has made no showing that the appointment of a Guardian ad Litem is necessary as a provisional remedy to protect the childrens well-being or to prevent their further removal or concealment. The court encourages the parties to continue to work together to agree upon terms of access pending further order of the court. However, given the nature of this action, the timeline for trial of the case, and in light of the previous order of this court, the court finds the appointment of a Guardian ad Litem to facilitate visitation is unnecessary at this time. Accordingly, the court DENIES Respondents Motion to Appoint a Guardian ad Litem (ECF No. #33 ). Signed by Honorable Timothy M Cain on 11/15/2018. (hima, ) |
| Filing 34 NOTICE of Hearing: Bench Trial set for 12/11/2018 09:30 AM in G Ross Anderson Jr Court House, 315 S McDuffie St, Anderson before Honorable Timothy M Cain. Please read the attached notice for relevant deadlines pertaining to the hearing.(pbri, ) |
| Filing 33 MOTION to Appoint Guardian ad Litem by Guillermo Barusch Fajardo Arroyo. Response to Motion due by 11/26/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Burns, James) |
| Filing 32 PRETRIAL MEMORANDUM by Guillermo Barusch Fajardo Arroyo. (Burns, James) |
| Filing 31 ANSWER to #1 Complaint/RESPONDENTS ANSWER TO EMERGENCY VERIFIED PETITION FOR WARRANT IN LIEU OF WRIT OF HABEAS CORPUS AND VERIFIED PETITION FOR RETURN OF THE CHILDREN TO IRELAND AND IMMEDIATE ISSUANCE OF SHOW CAUSE ORDER; AND RESPONDENTS REPLY TO PEITIONERS MOTION TO MAKE A DETERMINATION OF IRISH LAW OR TO TAKE JUDICIAL NOTICE THEREOF by Guillermo Barusch Fajardo Arroyo. (Attachments: #1 Exhibit #1 Irish Court Order, #2 Exhibit #2 Irish Hague Petition, #3 Exhibit #3 French Terminal Appellate Order, #4 Exhibit #4 Petitioner's Press Interview, #5 Exhibit #5 US State Department, #6 Exhibit #6 Petitioner's Irish Pleadings)(Burns, James) (Attachment 2 replaced on 11/8/2018: to redact the photograph of the children per direction of the court) (kmca). |
| Filing 30 TEXT ORDER: Any response to Petitioner's #29 Pretrial Memorandum shall be filed by November 12, 2018. Entered at the direction of the Honorable Timothy M Cain on 11/7/18. (kmca) |
| Filing 29 PRETRIAL MEMORANDUM by Aude Marie-Laure Torrent. (Lounsberry, Jonathan) |
| Filing 26 NOTICE of Hearing: Final Hearing set for Tuesday, 12/11/2018, 09:30 AM in G Ross Anderson Jr Court House, 315 S McDuffie St, Anderson before Honorable Timothy M Cain. (kmca) |
| Filing 25 TEXT ORDER: A hearing was held on November 2, 2018. On a temporary basis, the parties agreed to the following: 1) Both parties shall be restrained and enjoined from bothering, threatening, harassing or abusing the other; 2) There shall be no formal discovery. However, the parties shall engage in the voluntary exchange of information and shall exchange witness lists and exhibit lists prior to trial; 3) At the final hearing, the parties may present witnesses located in other countries by way of video conferencing. The parties also agreed to proceed with a final hearing on December 11, 2018. Further, based upon the pleadings and information submitted, the court directs that the Clerk of Court shall retain possession of the passports of the parties and the minor children pending further order of the court. Additionally, both parties, and any persons acting on their behalf, shall be restrained and enjoined from removing the minor children who are the subjects of this action from the District of South Carolina. The parties agreed that contact and visitation between the minor children and the Petitioner is appropriate, but were unable to agree upon the terms and conditions thereof. The parties may provide additional briefing on this issue. The parties are encouraged to continue their efforts to reach an agreement on this issue pending further order the court. The final hearing is scheduled for December 11, 2018 at 9:30 AM. IT IS SO ORDERED. Entered at the direction of the Honorable Timothy M Cain on 11/2/18. (kmca) |
| Filing 24 Minute Entry. Proceedings held before Honorable Timothy M Cain: taking under advisement #4 Motion to Expedite; taking under advisement #4 Motion for TRO; taking under advisement #4 Motion for Preliminary Injunction; taking under advisement #23 motion for determination of final law. Motion Hearing held on 11/2/2018. 10 passports are retained by the clerk.French Interpreter: Nicolas Brindel. Court Reporter Debra Bull. (pbri, ) |
| Filing 23 MOTION to Make a Determination of Irish Law (or to Take Judicial Notice Thereof) by Aude Marie-Laure Torrent. Response to Motion due by 11/15/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: #1 Exhibit Irish Statues)No proposed order.(Lounsberry, Jonathan) (Main Document 23 replaced on 11/1/2018: to replace with corrected document as provided by filing user) (kmca). |
| Filing 21 NOTICE of Appearance by James Tyler Burns on behalf of Guillermo Barusch Fajardo Arroyo (Burns, James) (Main Document 21 replaced on 11/1/2018: to replace with corrected document as provided by filing user) (kmca). |
| Filing 20 ***DOCUMENT MAILED 19 Order, placed in U.S. Mail to Guillermo Barusch Fajardo Arroyo, per chambers. (kmca) |
| Filing 19 TEXT ORDER: A hearing has been scheduled for November 2, 2018 at 10:00 AM. Petitioner shall bring any passports and travel documents, that are in her possession, of the minor children who are the subjects of this action and shall arrive and be present in the courtroom no later than 9:30 AM. Entered at the direction of the Honorable Timothy M Cain on 11/1/18. (kmca) |
| Filing 17 CERTIFICATE OF SERVICE by Aude Marie-Laure Torrent re #15 Additional Attachments to Main Document (Lounsberry, Jonathan) (Main Document 17 replaced on 10/31/2018: to replace with corrected document as provided by filing user) (kmca). |
| Filing 15 Additional Attachments to Main Document #1 Complaint. First attachment description: Exhibit E, English Translation . (Lounsberry, Jonathan) Modified on 10/31/2018: see #17 Certificate of Service (kmca). |
| Filing 14 TEXT ORDER: Petitioner has filed several documents in French, and all but one included an English translation. A document attached as Exhibit E to the initial pleading and described as a decision of the French Court of Appeal is not accompanied by an English translation. (ECF No. #1 -5). Plaintiff is directed to file a full English translation of this document which the translator has certified as complete and accurate with a certification of the translator that he or she is competent to translate from French into English. Petitioner shall file the translation with the court on or before October 30, 2018, and forward a copy to the Respondent at his last known address. Entered at the direction of the Honorable Timothy M Cain on 10/26/18. (kmca) |
| Filing 13 USM 285 RETURN OF SERVICE re #9 Order Motion for Order to Show Cause with certified copies of all pleadings. Respondent served 10/25/18.(kmca) Modified on 11/5/2018: to correct date served (kmca). |
| Filing 10 NOTICE of Hearing on Motion #4 MOTION to Expedite, MOTION for Order to Show Cause, MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction: Motion Hearing set for Friday, 11/2/2018, 10:00 AM in G Ross Anderson Jr Court House, 315 S McDuffie St, Anderson before Honorable Timothy M Cain. (kmca) |
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Filing 9
ORDER granting #4 Motion for Order to Show Cause as set out; deferring ruling on Motion to Expedite, Motion for Temporary Restraining Order, Motion for Preliminary Injunction. It is ORDERED that: Respondent is prohibited from removing the minor children from the District of South Carolina; Respondent shall appear before this Court on 11/2/18 at 10:00 a.m. with the minor children and with any and all passports and travel documents; if Respondent fails to appear or removes the minor children, the court shall issue a warrant for the arrest of Respondent; the Clerk shall print certified copies of all pleadings and such certified copies shall be served on Respondent by the U. S. Marshal on or before 10/26/18. Signed by Honorable Timothy M Cain on 10/24/18.(kmca)
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| Filing 8 TEXT ORDER granting #7 Motion to Appear Pro Hac Vice. Attorney Richard Min added for Petitioner. Entered at the direction of the Honorable Timothy M Cain on 10/24/18.(kmca) |
| Filing 7 MOTION to Appear Pro Hac Vice by Richard Min ( Filing fee $ 250 receipt number 0420-8071001) by Aude Marie-Laure Torrent. Response to Motion due by 11/7/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: #1 Pro Hac Vice Application, #2 Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel.(Lounsberry, Jonathan) |
| Filing 5 Summons Issued as to Guillermo Barusch Fajardo Arroyo. (kmca) |
| Filing 4 Petitioner's MOTION for Expedited Consideration of Verified Petition for Return of Children to Ireland and Issuance of Show Cause Order, Including Temporary Restraining Order, Preliminary Injunction and Expedited Scheduling Order by Aude Marie-Laure Torrent. (Response to Motion due by 11/5/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45.) (Attachments: #1 Affidavit of Jason Alexander and Marty Henderson, #2 Declaration of J. Benjamin Stevens and Jonathan W. Lounsberry)Proposed order is being emailed to chambers.(kmca) (Attachment 1 replaced on 11/8/2018: to redact the photographs of the children per direction of the court) (kmca). |
| Filing 3 Local Rule 26.01 Answers to Interrogatories by Aude Marie-Laure Torrent.(kmca) |
| Filing 1 EMERGENCY VERIFIED PETITION FOR WARRANT IN LIEU OF WRIT OF HABEAS CORPUS AND VERIFIED PETITION FOR RETURN OF THE CHILDREN TO IRELAND AND IMMEDIATE ISSUANCE OF SHOW CAUSE ORDER against Guillermo Barusch Fajardo Arroyo (Filing fee $400 receipt number 0420-8067387), filed by Aude Marie-Laure Torrent. Service due by 1/22/2019. (Attachments: #1 Exhibit 1 Hague Convention, #2 Exhibit 2 ICARA, #3 Exhibit 3 Birth Certificates, #4 Exhibit 4 Respondent Irish Residence Permit, #5 Exhibit 5 April 4 2007 French Appellate Decision, #6 Exhibit 6 July 19 2017 Police Report, #7 Exhibit 7 July 26 2017 Social Services Report, #8 Exhibit 8 March 16 2018 Email, #9 Exhibit 9 July 12, 2017 Irish Decision, #10 Exhibit 10 April 4 2018 Letter Regarding Abduction, #11 Exhibit 11 Return Application)(kmca) Modified on 10/29/2018: see #15 Exhibit E, English Translation (kmca). |
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| Petitioner: Aude Marie-Laure Torrent | |
| Represented By: | Jonathan William Lounsberry |
| Represented By: | J Benjamin Stevens |
| Represented By: | Richard Min |
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| Respondent: Guillermo Barusch Fajardo Arroyo | |
| Represented By: | James Tyler Burns |
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