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W.D. Tex.

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Defenses | General Denial

In this case, a father presented a prima facie case for the return of his child, but the mother waited until her opening statement at trial to present her affirmative defenses.

Holding

The district court held that the mother’s general denial to the father’s petition for return waived her right to present affirmative defenses when she attempted to raise them for the first time in her opening statement. The father was prejudiced by her failure to raise the defenses earlier.

Facts

A mother and father, an unmarried couple, lived in Cancún, Mexico. Their only child, E.A.O., was born there in 2014. The parents’ relationship began to deteriorate when their daughter was a toddler, and the couple separated in January 2018. The father moved to a nearby apartment after the separation, and he continued to see his daughter frequently and be involved in her life, paying for piano lessons, private school tuition, and sometimes rent for the mother’s apartment. In July 2019, the mother took their child to Texas, where she took up residence with a boyfriend in Odessa. The child had been a resident of Mexico her entire life up to the time her mother took her to Texas.

In response to the father’s timely petition for return of the child, the mother filed a general denial and did not raise any affirmative defenses. At trial, however, she raised the following affirmative defenses for the first time as part of her opening statement: (1) the child was settled in her new environment; (2) the father had consented to the child’s removal from Mexico; and (3) a return would subject the child to grave risk due to the father’s violence toward the mother.

Discussion

The trial court ruled that pursuant to Federal Rule of Civil Procedure 8(c)(1),[1] the mother’s failure to assert her affirmative defenses prior to trial constituted a waiver, and this delay resulted in the father not having “pragmatically sufficient time”[2] to respond. The court noted that

failure to timely plead an affirmative defense may result in waiver and the exclusion of the defense from the case. However, “a technical failure to comply with Rule 8(c) is not fatal.” A defendant does not waive a defense if it is raised with “pragmatically sufficient time” and does not prejudice the plaintiff in its ability to respond. A district court has discretion to determine whether the party against whom the defense was raised suffered prejudice or unfair surprise as a result of the delay in asserting the defense.[3]

The court found that the mother failed to present any defenses to the prima facie case established by the father. Although this constituted a waiver, as a matter of caution, the district court allowed the mother to present evidence of her untimely affirmative defenses. After the evidence was heard, the court found that her defenses lacked merit and ordered the child returned.


[1]. “In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense.”
[2]. Leon v. Ruiz, No. MO:19-CV-00293-RCG, 2020 U.S. Dist. LEXIS 43758, at *17 (W.D. Tex. Mar. 13, 2020) (quoting Rogers v. McDorman, 521 F.3d 381, 386 (5th Cir. 2008).
[3]. Id. (citations omitted).

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

In late 2017, the Committee on Defender Services (Committee) asked the Federal Judicial Center to generate a white paper on the potential effects on the federal courts and the defender services program of a determination that states have “opted in” to special expedited procedures created by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

After a brief discussion of some of the changes under “opt-in,” as Chapter 154’s procedures are called, this white paper discusses the potential impact of opt-in for the federal district and appellate courts with jurisdiction in Arizona and Texas, the two states that have applied for opt-in status thus far.

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Davis v. Perry (Orlando L. Garcia, W.D. Tex. 5:11-cv-788)
On September 22, 2011, six days after a three-judge redistricting bench trial on legislative and congressional districts in Texas, voters filed a federal complaint alleging dilution of minority voting strength in their districts. The court ordered the defendants to respond by October 3, and the case was consolidated with a collection of cases already underway. Seven years after the litigation began, the Supreme Court approved districting plans that reflected the political judgments of the state legislature as much as possible, modified by the district court only as necessary to cure legal defects.
Subject: District lines. Topics: Malapportionment; three-judge court; case assignment; section 2 discrimination; section 5 preclearance; intervention; attorney fees; removal; pro se party.

One of many Case Studies in Emergency Election Litigation.

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Park v. Parnell (Timothy M. Burgess, D. Alaska 3:16-cv-281), James v. Cascos (Robert Pitman and Jeffrey C. Manske, W.D. Tex. 6:16-cv-457), Conant v. Oregon (Marco A. Hernandez, D. Or. 3:16-cv-2290), and Barnes v. Wisconsin (William C. Griesbach, E.D. Wis. 1:16-cv-1692)
A pro se complaint sought to enjoin on a vote-dilution theory a state’s Electoral College votes’ going to the prevailing presidential candidate in the state, because although that candidate earned a majority of electoral votes, an opposing candidate earned more votes nationwide. Four days later, the district judge ruled against the plaintiff. Although the judge granted the plaintiff in forma pauperis status during the emergency phase of the litigation, the judge denied in forma pauperis status on appeal because the plaintiff did not present supplementary financial information as ordered. Pro se actions in Virginia, Oregon, Texas, and Wisconsin challenging winner-take-all allocations of Electoral College votes also were unsuccessful.
Subject: Voting irregularities. Topics: Electoral College; pro se party.

One of many Case Studies in Emergency Election Litigation.

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Republican Party of Texas v. Pablos (Andrew Austin and Sam Sparks, 1:17-cv-1167) and Texas Democratic Party v. Republican Party of Texas (Lee Yeakel, 1:17-cv-1186) (W.D. Tex.)
A member of Congress withdrew from reelection consideration after the statutory deadline for removal from the primary election ballot. His party filed a federal action to keep him off the ballot, but the state’s secretary of state said that he would not interfere with the removal. The opposing party filed a federal case to keep the incumbent on the ballot, but the judge declined to order immediate relief. Both actions were withdrawn voluntarily.
Subject: Getting on the ballot. Topics: Getting on the ballot; primary election; party procedures; case assignment; enjoining elections.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

LULAC of Texas v. Ramon (Alia Moses Ludlum, Jerry E. Smith, and Xavier Rodriguez, W.D. Tex. 2:10-cv-58)
A three-judge district court enjoined a special election set by a state court for lack of preclearance pursuant to section 5 of the Voting Rights Act. Once an uncontested schedule had received preclearance, the district court dissolved the injunction.
Subject: Election dates. Topics: Section 5 preclearance; three-judge court; enjoining elections; matters for state courts; primary election.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

Stockman v. Williams (Lee Yeakel and Sam Sparks, W.D. Tex. 1:06-cv-742)
On September 19, 2006, an independent candidate for Congress filed a federal action to get his name on the ballot. The assigned judge was away that week, so another judge presided over a temporary restraining order hearing. Because absentee ballots would be issued in a few days’ time, and because the plaintiff did not name all necessary defendants, immediate relief was denied. The originally assigned judge determined the following week that the case was filed too late to obtain relief.
Subject: Getting on the ballot. Topics: Getting on the ballot; laches; case assignment.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

Vasquez-Lopez v. Medina County (Orlando L. Garcia, W.D. Tex. 5:11-cv-945)
Eighteen days before the beginning of a ballot qualification period, a federal complaint challenged post-census county redistricting as not precleared pursuant to section 5 of the Voting Rights Act. Thirteen days later, the district judge approved a districting plan proposed by the parties, and later the judge awarded the plaintiffs $35,546.93 in attorney fees and costs.
Topics: Section 5 preclearance; malapportionment;attorney fees.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

Ramos v. City of San Antonio (Royal Furgeson, W.D. Tex. 5:05-cv-500)
A federal complaint challenged a switch from touch-screen voting machines to paper optical scan ballots, because of the impact on the ability of voters with vision impairments to vote in secret. A claim pursuant to section 5 of the Voting Rights Act was mooted when the Justice Department precleared the change after the case was filed. The district judge opined that the plaintiffs would prevail on the merits, but a workaround procedure mitigated the impact on vision-impaired voters for the impending election, so the judge denied immediate relief. Three years later, the case settled.
Topics: Voting technology; section 5 preclearance; three-judge court; recusal; case assignment.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

Rodriguez v. Bexar County (H.F. Garcia and William Wayne Justice, W.D. Tex. 5:01 cv 1049)
A district judge issued a temporary injunction against the redistricting of justice of the peace and constable precincts, eliminating one of the five precincts, without preclearance pursuant to section 5 of the Voting Rights Act. After the county obtained preclearance, the judge found Hispanic vote dilution in violation of section 2 of the Voting Rights Act, but the court of appeals reversed the nullification of an election to the new precincts.
Topics: Section 5 preclearance; section 2 discrimination; enjoining elections; three-judge court; case assignment.

One of many Case Studies in Emergency Election Litigation.

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