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Monday, June 23, 2008

Ninth Circuit Adopts Equitable Tolling

In Duarte v Bardales, 526 F.3d 563 (9th Cir. 2008) the main issue was whether the district court properly denied Duarte's Rule 59(e) motion to vacate judgment. Emilia Duarte and Hector Bardales ("Bardales") entered the United States from Mexico in 1990. Together they hade four children--age 17, age 16, age 11, and age 9. Duarte and Bardales never married. In January 2000, they separated and Duarte returned to Mexico with their four children. In 2002, the two oldest children visited Bardales in California. After expressing that they did not want to live with Duarte, they established residency with Bardales in San Diego, California. The two youngest children remained with Duarte in Mexico. (Because the Hague Convention does not apply once a child reaches the age of sixteen, the two older siblings were dropped from the case in December 2006.) On July 8, 2003, Duarte brought the two youngest children to visit with Bardales in Tijuana, Mexico. While there, Bardales removed them from Mexico and brought them to California to live with him. Bardales took the two youngest children without Duarte's knowledge or permission. Bardales then immediately filed petitions in California Superior Court for emergency child custody and to establish paternity. The state court awarded Bardales sole custody until Duarte appeared in state court. In September 2003, Duarte filed a Hague Petition with the Central Authority in Mexico. For reasons unknown, Duarte's petition was not filed in California state court until April 2005. Duarte's state Hague Petition was consolidated with Bardales's paternity petition, and the case was set for a hearing in California Superior Court on April 25, 2005. Duarte appeared at that hearing without counsel. The court granted a continuance to permit Duarte to retain counsel. Duarte, however, failed to show up at two subsequent court dates and as a result, the court removed Duarte'spetition from the calendar without prejudice and awarded Bardales sole custody of the children. Duarte appealed this decision to the California Court of Appeal. While her appeal was pending, Duarte filed the present Hague Petition in federal court. The California Court of Appeal stayed Duarte's appeal pending adjudication of her Hague Petition in federal court. The district court scheduled a hearing on Duarte's Hague Petition for September 1, 2006. At the hearing, Duarte's counsel requested a continuance because Duarte could not enter the United States. Her counsel explained that two days prior to the scheduled hearing date, her bag, containing her passport and visa, was stolen as she was leaving a train station in Mexico. The district court denied the request for a continuance on the grounds that Duarte's counsel failed to offer sufficient proof that Duarte's purse was stolen, and Duarte had a "record of non-appearance" before both the federal and state courts. The district court tentatively denied Duarte's Hague Petition because she was not present to establish a prima facie case of unlawful removal or retention. The court stayed entry of judgment for two weeks to give Duarte an opportunity to file with thecourt a certified police report. If Duarte failed to provide a certified policereport by September 15, 2006, the court would enter judgment denying Duarte'spetition. On September 15, 2006, Duarte filed, as proof that her purse was stolen, adeclaration from a Transit Authority Agent and a copy of the police report. Duartealso indicated that it was not possible to obtain a certified police report inMexico because transit authority agents are not permitted to have such documentsnotarized. Duarte requested that the district court accept the declaration andcopy of the police report in lieu of a certified police report. The districtcourt rejected Duarte's offer of proof finding the declaration and traffic reportinsufficient. The district court lifted the stay on September 15, 2006 and entered final judgment denying Duarte's petition. On September 29, 2006, Duarte timely filed a motion to alter or amend the judgment of the district court pursuant to Rule 59(e). Duarte argued that the district court committed manifest error in entering judgment denying Duarte's petition. Specifically, Duarte claimed that it was impossible for her to comply with the court's order to provide a certified police report because suchreports are not issued in Mexico. In support of her motion, Duarte presentedevidence from several attorneys and government officials in Mexico declaring thatDuarte reported to the police that her purse was stolen on August 29, 2006, andthat the Transit Authority in Mexico does not issue certified or non-certifiedpolice reports. In a written order, the district court practically conceded that it may havecommitted clear error when, as a result of Duarte's failure to submit a certifiedpolice report, it entered judgment against her. The instead ruled on the merits ofDuarte's Hague Petition. The court concluded that because Duarte's Hague Petitiondid not entitle her to any relief, the production and acceptance into evidence ofa police report would not have affected the outcome of the case. The court denied Duarte's Rule 59(e) motion. The Ninth Circuit reversed. The Ninth Circuit held that it was error not to set aside the judgment. Also it was clearly improper for the district court not to follow through with its representation that if Duarte submitted proof that her purse was stolen it would reschedule the hearing. Finally, it was error for the district court to decide the merits of Duarte's petition when the only issue before it was whether, under Rule 59(e), the court should vacate the previously entered final judgment. With respect to the merits of Duarte's Hague Petition, the record was incomplete. A significant dispute existed between the parties as to whether the filing period for Duarte's Hague Petition should be tolled. This was acritical issue in determining the merits of Duarte's petition. If tolling did not apply, Duarte had filed her petition more than a year from wrongful removal, and Bardales could assert the affirmative defense that the children are well settled and should not be returned. If, however, tolling did apply then the "well settled" affirmative defense was not available to Bardales. Duarte contended that the court should toll the period between September 1, 2003 and June 2, 2005, because during that time Bardales hid the children from her. She claimed that she did not know their whereaboutsor have any contact with them until Bardales's attorney contacted her on June 2, 2005 and gave her Bardales's phone number. Duarte argued that during this period she made genuine efforts to locate Bardales and the children to no avail. Bardales contended that he did not hide the children from Duarte. The Ninth Circuit pointed out that the one-year filing period is of particular importance under the Convention because the "well settled" affirmative defense is only available if the petition for return was filed more than a year from wrongful removal. The potentially prejudicial effect of failing to file within a year from removal has led courts to apply equitable principles to toll the one-year period, notwithstanding the factthat both the Convention and ICARA are silent as to whether such principles apply. (Citing Furnes v. Reeves, 362 F.3d 702, 723 (11th Cir.); Giampaolo v. Erneta, 390 F.Supp.2d 1269, 282 (N.D.Ga.2004); Belay v. Getachew, 272 F.Supp.2d 553, 562-64 (D.Md.2003); Bocquet v. Ouzid, 225 F.Supp.2d 1337, 1348 (S.D.Fla.2002); Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1362-63 (M.D.Fla.2002). It noted that the Eleventh Circuit was the only Circuit to have decided whether equitabletolling is applicable under the Convention. In Furnes, the court held that the one-year filing requirement could be tolled under circumstances where the abducting parent took steps to conceal the whereabouts of the child. In so holding, the court adopted the district court's reasoning in Mendez Lynch. In Mendez Lynch, the court reasoned that "[i]f equitable tolling does not apply to ICARA and the Hague Convention, a parent who abducts and conceals children for more than one year will be rewarded for the misconduct by creating eligibility for an affirmative defense not otherwise available." The Ninth Circuit agreed with Furnes and held that equitable principles may be applied to toll the one-year period when circumstances suggest that the abducting parent tooksteps to conceal the whereabouts of the child from the parent seeking return andsuch concealment delayed the filing of the petition for return. It held that equitable tolling is available under the Hague Convention and ICARA because applying equitable principles to toll the one-year filing period in circumstances where the abducting parent hides the child is consistent with the purpose of the Convention to deter child abduction.