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This package of materials was transmitted to the U.S. Supreme Court on October 4, 2017, concerning amendments to the Federal Rules of Practice and Procedure to become effective on December 1, 2018.

This contains proposed amendments to Federal Rules of Appellate Procedure 8, 11, 25, 26, 28.1, 29, 31, 39, and 41, and Forms 4 and 7; Federal Rules of Bankruptcy Procedure 3002.1, 5005, 7004, 7062, 8002, 8006, 8007, 8010, 8011, 8013, 8015, 8016, 8017, 8021, 8022, 9025, new Rule 8018.1, new Part VIII Appendix, and Forms 417A and 417C; Federal Rules of Civil Procedure 5, 23, 62, and 65.1; and Federal Rules of Criminal Procedure 12.4, 45, and 49.

Additional information about these amendments is available at Amendments to the Federal Rules of Practice and Procedure (webpage).

Information about rules amendments and the rule-making process is available on uscourts.gov at United States Courts Rules & Policies.

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This page includes local rules and court procedures related to Chapter 9 bankruptcy, as well as information about related state law, including law regarding eligibility to file Chapter 9 bankruptcy.

State Law, Local Rules, and Court Procedures is one of several Chapter 9 Online Repository categories.

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A detailed description of the Mandatory Initial Discovery Pilot Project, which begins for participating judges in the Northern District of Illinois, Eastern Division, on June 1, 2017.

A Federal Judicial Center website displays additional information about the Mandatory Initial Discovery Pilot Project in the Northern District of Illinois.

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This pocket guide is designed to offer judges an introduction to the law and practice of securities litigation. It provides an overview of the types of legal and practical issues judges may confront in litigation arising under the securities laws, and, where possible, offers suggestions. This guide also identifies the areas of securities law most prone to circuit splits or frequent change, so that judges know where to be particularly vigilant about looking at up-to-date case law and legislation.

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A checklist itemizing the procedural requirements of the Mandatory Initial Discovery Pilot Project. The checklist is designed to be helpful to judges presiding over pilot cases and to attorneys participating in pilot cases as pilot requirements apply to the initial stages of discovery. The pilot project begins in the Northern District of Illinois, Eastern Division, on June 1, 2017.

A Federal Judicial Center website displays additional information about the Mandatory Initial Discovery Pilot Project in the Northern District of Illinois.

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The Northern District of Illinois has created a specific list of events dedicated to the filing of pleadings under the Mandatory Initial Discovery Pilot Project. The complete list of pilot events are:

   Joint Certification to Defer Initial Discovery Deadline (Settlement)(MIDP)
   Motion to Defer Initial Discovery Response Deadline (MIDP)
   Motion to Defer Responsive Pleading Deadline (MIDP)
   Notice of Service of Responses to Mandatory Initial Discovery (MIDP)
   Notice of Service of Supplemental Mandatory Initial Discovery Responses (MIDP)
   Rule 26(f) Report re MIDP
   Stipulation re No Discovery Will Be Conducted (MIDP)

A Federal Judicial Center website displays additional information about the Mandatory Initial Discovery Pilot Project in the Northern District of Illinois.

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Tann v. Bennett, 648 F. App’x 146 (2d Cir. 2016) (unpublished opinion)

Child’s Objection to Return

This case deals with whether the in camera testimony of a thirteen-year-old boy can sustain the child’s objection to return.

Facts

Mother petitioned for the return of her thirteen-year-old son to Northern Ireland. The district court conducted an in camera interview of the child and concluded that the child was “‘very intelligent and decent” and that the child’s “desire to remain in New York should be respected.’”[1] The young man also testified that he did not always feel safe in Northern Ireland, would feel badly if ordered to be returned, and might hurt himself or others if he were forced to return.

Discussion

The Second Circuit affirmed, holding that the district court’s findings of fact implied that the child was sufficiently mature to object to return. When the findings of the trial court rely upon personal observations of the child, its determinations are entitled to considerable deference.[2] The circuit court reiterated that a court “‘may refuse repatriation solely on the basis of a considered objection to returning by a sufficiently mature child.’”[3]

 

[1]. Tann v. Bennett, 648 F. App’x 146, 149 (2d Cir. 2016) (unpublished opinion) (citing Tann v. Bennett, No. 1:13-cv-00823 (JJM) (W.D.N.Y. Nov. 24, 2014), ECF No. 55).
[2]. Tann, 648 F. App’x at 149 (citing Blondin v. Dubois (Blondin II), 238 F.3d 153, 167 (2nd Cir. 2011)).
[3]. Id. (citing Blondin II, 238 F.3d at 167).

 

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

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Pliego v. Hayes, 843 F.3d 226 (6th Cir. 2016)

Intolerable Situation | Courts of Habitual Residence

This case addresses whether an “intolerable situation” under Article 13(b) includes the inability of the courts of the habitual residence to litigate child custody.

Facts

Mother was an American citizen. Father was a Spanish diplomat. The parties had one child, born in 2011. Since 2012 the family had been living in Ankara, Turkey, where father was an attaché at the Spanish Embassy. The marriage deteriorated, and in 2014 mother took the child from Turkey to Kentucky. Father filed his first petition for return of the child in the District Court for the Western District of Kentucky. That court found that the child had been wrongfully removed by the mother. Mother defended the case, alleging that there was a grave risk if the child was returned, alleging spousal and child abuse. The court found that mother did not put forward clear and convincing evidence of abuse and ordered the child returned to Turkey.

After the child’s return to Turkey, mother commenced custody proceedings in the Turkish courts and obtained an order granting her temporary custody of the child. Father moved to dismiss mother’s temporary order, asserting that he had diplomatic immunity and that Turkish courts could not adjudicate custody of the child. The Turkish courts acceded to father’s objection based on diplomatic immunity and dismissed mother’s temporary custody order. Shortly thereafter mother went into hiding with the child and again abducted the child to the United States.

Father filed his second petition for return of the child in the same district court in Kentucky. Pending a hearing on the merits, the court granted father temporary custody of the child and gave mother visitation with the child in public places. At trial, mother’s defense to the return petition was the allegation that father still retained diplomatic immunity for non-custody matters and that as a diplomat, he had “undue influence” with Turkish authorities. Father then waived his diplomatic immunity in the Turkish courts, thus allowing the Turkish courts to adjudicate the custody issue. The district court granted father’s petition for return and awarded him $100,471 in attorneys’ fees. Mother appealed.

Discussion

The Sixth Circuit addressed the following questions: 1) Is a case is moot after the child has been returned and custody adjudication continues in the courts of the habitual residence? 2) Does an “intolerable situation” exist when the courts of the habitual residence are unable to adjudicate the underlying custody dispute? 3) Is a parent who obtains an order for return of a child entitled to an award of fees, costs, and expenses for successfully defending the return order on appeal?

Mootness. Mother’s appeal effectively requested the court to order a re-return of the child. Despite the difficulty of enforcing such an order, the court concluded that the absence of the child did not moot the case, citing Chafin v. Chafin.[1]

Intolerable Situation. Article 13(b) of the 1980 Convention provides a defense to return of a child when “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

Mother contended that the child faced an intolerable situation because Turkish courts would not be able to adjudicate custody or protect the child in the event of abuse. She also argued that the combined effect of father’s diplomatic status, his influence on Turkish authorities, and the previous allegations of physical abuse of the child compelled reversal of the order of return. Father objected to mother’s interpretation of the term “intolerable situation” as unsupported by the case law and an unwarranted extension of the Article 13(b) defense. The circuit court rejected father’s argument, noting that an “intolerable situation” may encompass situations “where the courts of the state of habitual residence are practically or legally unable to adjudicate custody.” [2]

The Sixth Circuit invoked Supreme Court precedent[3] and the Vienna Convention on the Law of Treaties,[4] interpreting the term “intolerable situation” by looking to the plain text of the Convention, its objectives, and the interpretation of this phrase by sister state courts. An “intolerable situation” does not necessarily involve the infliction of physical or psychological harm, but is nevertheless serious in nature. The Sixth Circuit concluded that the inability of the courts of a child’s habitual residence to adjudicate custody issues may indeed rise to the level of an intolerable situation.[5]

However, the circuit court agreed with the district court that mother failed to prove the existence of an intolerable situation in this case: father waived diplomatic immunity; there was no evidence proffered that Turkish courts were unduly influenced by father; and mother had failed to prove abuse in the earlier proceedings.

Attorneys’ Fees, Costs, and Expenses. Father petitioned for an award of attorneys’ fees, costs and expenses incurred during the appeal. Citing to cases from the Second and Tenth Circuits,[6] the court declined to make this award, finding that the fee award provisions in both the Convention and ICARA applied to trial courts, not courts of appeal.

 

[1]. 133 S. Ct. 1017, 1023–26 (2013).
[2]. Pliego v. Hayes, 843 F.3d 226, 232 (6th Cir. 2016).
[3]. Lozano v. Montoya Alvarez, 134 S.Ct. 1224, 1229, 1232–33 (2014); Abbott v. Abbott, 560 U.S. 1, 10, 16, 20 (2010).
[4]. May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (“VCLT”).
[5]. In Caro v. Sher, 296 N.J. Super. 594 (1996), a New Jersey chancery court reviewed evidence of a Spanish courts’ four-year delay in hearing an appeal of a Hague petition involving the relocation of children to the United States. The court declined to find that the delay amounted to a violation of Article 20 of the Convention, which provides a defense to return if contrary to “human rights and fundamental freedoms.” The court found the protracted appeals process to be systemic in the Spanish judicial system and noted that mother failed to show she would be refused an expedited hearing if an emergency arose. “In the final analysis, there is nothing that leads this court to conclude that the Spanish courts would not address the respondent's present, specific custody concerns in the best interests of the children. If these concerns could not be addressed by the foreign courts, this court would still have to consider whether the exceptions under Article 13(a) and (b) of the Convention should be applied, and have required proofs presented by the respondent.” Id. at 607.
[6]. Hollis v. O’Driscoll, 739 F.3d 108, 113 (2d Cir. 2014); West v. Dobrev, 735 F.3d 921, 933 n.9 (10th Cir. 2013).

 

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

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Martinez v. Cahue, 826 F.3d 983 (7th Cir. 2016)

Habitual Residence | Custody Rights

This case addresses the fundamental principles of habitual residence and discusses the significance of establishing custody rights and habitual residence when only one parent has the legal right to custody of the child.

Facts

Mother and father were unmarried and had a son in common. Father executed a declaration of paternity at the time of the child’s birth. The parties lived in Illinois, though mostly separate and apart during their ten-year relationship. The child lived exclusively with mother, and father had frequent visitation. In 2010 the parties memorialized a private arrangement for custody and visitation, but the child was never the subject of any court orders. When their son was seven years old, mother moved to Mexico and took the child with her. Approximately one year later, father convinced mother to send the child to him for a visit in Illinois but then refused to return the child. Mother filed a petition for return of the child to Mexico. The district court found that the child’s habitual residence was Illinois and ordered mother’s petition dismissed.

The Seventh Circuit reversed, finding that father did not have sufficient custody rights.

Discussion

Custody Rights. Under Illinois law, the written memorandum that provided father with visitation rights was unenforceable. Moreover, father’s rights were for visitation only. Under the Convention, visitation rights are insufficient to establish an action for return of a child, and father did not benefit from a ne exeat provision. Father argued that the acknowledgment of paternity was sufficient to confer custody rights, but the Seventh Circuit rejected the claim. A judgment of paternity, under Illinois law, does not mean that custody or visitation rights are automatically conferred. Although an acknowledgment of paternity may have legal consequences for certain purposes, it does not confer custody rights. Mother had the absolute right to determine the child’s location and habitual residence.

Habitual Residence. The Seventh Circuit reiterated its Redmond v. Redmond[1] adoption of a hybrid Mozes v. Mozes[2] approach—habitual residence determined by parental intent[3] and acclimatization[4]—as follows:

The two most important factors in the analysis are parental intent and the child’s acclimatization to the proposed home jurisdiction. [Redmond] at 744–45. Courts have differed on the weight each factor should receive. We have tended to privilege the parents’ perspective, but even so, we have stressed that this emphasis is dependent on the circumstances. Id. at 746. We also have noted that “[t]he intention or purpose which has to be taken into account is that of the person or persons entitled to fix the place of the child’s residence.” Id. at 747 (quoting Mozes, 239 F.3d at 1076). Importantly, shared intent “has less salience when only one parent has the legal right” to determine residence. Id.[5]

 

[1]. 724 F.3d 729 (7th Cir. 2013).
[2]. 239 F.3d 1067, 1070 (9th Cir. 2001).
[3]. Redmond, 724 F.3d at 745 (“‘[T]he intention or purpose which has to be taken into account is that of the person or persons entitled to fix the place of the child’s residence’—usually, the parents. When parents jointly intend to raise a child in a place and actually live there, that place becomes the child’s habitual residence. The child’s habitual residence may change later if the parents mutually intend to abandon the residence in favor of a new one, but only a shared intent will do; the unilateral intent of a single parent will not.” (citations omitted) (quoting Mozes, 239 F.3d at 1076)).
[4]. Id. at 745–47.
[5]. Martinez v. Cahue, 826 F.3d 983, 990 (7th Cir. 2016).

 

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

Available Online Only

Hernandez v. Pena, 820 F.3d 782 (5th Cir. 2016)

Delay Defense | Settlement | Immigration Status

This is a case of first impression in the Fifth Circuit, addressing the meaning of the term settled in the context of a delay defense.

Facts

Mother and father are married citizens of Honduras. Their child, D.A.P.G., was born in 2009. The parties separated but did not obtain a divorce or custody order regarding the child. Mother was the child’s primary custodian and father maintained regular contact with the child. In May 2014 mother secretly removed the child and illegally entered the United States. Mother and the child were apprehended by U.S. authorities and placed in removal proceedings, but in the meantime, they were released from custody and settled in New Orleans. D.A.P.G. lives with mother, mother’s boyfriend, and their four-and-a-half-month-old baby.

Father located his child through the U.S. State Department in May 2015. Father filed a petition for return in August 2015, fourteen months after the child’s removal from Honduras. At trial, mother agreed that the child had been wrongfully removed from Honduras, but she relied upon the defense that the child was now settled in his new environment and that the child would suffer a grave risk of harm should he be returned to Honduras. Mother presented testimony that D.A.P.G. was happy and well-adjusted and had formed new friendships at church, school, and at home. Mother failed to appear for her immigration proceedings, however, and her failure to attend potentially triggered an order for removal. The district court found that the child was well-settled and denied father’s petition.

Discussion

The Fifth Circuit reversed. Since this was a matter of first impression in the Fifth Circuit, the court looked to the Second and Ninth Circuits’ analyses of what factors to consider when assessing whether a child has become settled.[1] These factors include (1) the child’s age, (2) the stability and duration of the child’s residence in the new environment, (3) whether the child attends school or day care consistently, (4) whether the child has friends and relatives in the new area, (5) the child’s participation in community or extracurricular activities, (6) the respondent’s employment and financial stability, and (7) the immigration status of the respondent and the child. The Fifth Circuit noted that although other circuits agree on some aspects of these analyses, there is no consensus on the relevance of immigration status when determining a child’s being settled.

The Second Circuit has taken the position that immigration status is not dispositive, but is one of many factors to be taken into account in a fact-specific inquiry that may include (1) the likelihood of deportation or the ability to obtain legal status, (2) the age of the child, and (3) the extent of harm to the child due to the inability to obtain government benefits.[2] On the other hand, the Ninth Circuit has declined to announce a formula for weighing the issue of immigration and has found that immigration status is relevant only if an “immediate threat of deportation” exists.[3] The Fifth Circuit chose to follow the Second Circuit:

We join the Second and Ninth Circuits in concluding that immigration status is neither dispositive nor subject to categorical rules, but instead is one relevant factor in a multifactor test. This approach recognizes that immigration status alone does not necessarily prevent a child from developing significant connections in a new environment, and is consistent with the text of the treaty, the State Department’s guidance, and the purpose of the well-settled defense. Like the other factors, however, immigration status should not be considered in the abstract. In other words, proper application of the framework does not assign automatic treatment to any particular type of immigration status. Instead, we agree with the Second Circuit that an individualized, fact-specific inquiry is necessary in every case.[4]

The Fifth Circuit rejected the district court’s consideration of immigration status as an abstract concept rather than looking to the actual facts surrounding the status of the abducting parent. The court undertook a de novo review of the facts relating to the claim of settlement and considered the implications of the actual removal proceedings facing mother. After balancing all of the factors put forth by the Second and Ninth Circuits, the Fifth Circuit was not persuaded that the child had become settled in the new environment, and it vacated the order of the district court, ordering instead that the child be returned to Honduras.

 

[1]. Lozano v. Alvarez, 697 F.3d 41 (2d Cir. 2012), aff’d sub nom. Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014); In re B. Del C.S.B., 559 F.3d 999, 1008 (9th Cir. 2009).
[2]. Lozano, 697 F.3d at 42–43.
[3]. In re B. Del C.S.B., 559 F.3d at 1012–14.
[4]. Hernandez v. Pena, 820 F.3d 782, 788–89 (5th Cir. 2016).

 

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

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