Duarte v. Bardales , 526 F.3d 563 ( 2008 )

Opinion by Judge BRIGHT; Dissent by Judge BEA.

BRIGHT, Circuit Judge:

On January 23, 2006, Emilia Duarte (“Duarte”) filed in United States District Court for the Southern District of California a petition for the return of her children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), as implemented by the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (“ICARA”). After Duarte failed to appear before the court for a scheduled hearing, the district court entered judgment denying Duarte’s Hague Petition. Duarte timely filed a motion to vacate the judgment under Fed.R.Civ.P. 59(e) (“Rule 59(e)”), which the district court denied. Duarte now appeals the district court’s order denying her motion to set aside judgment. We reverse and remand, ruling that the district court abused its discretion by denying Duarte’s Rule 59(e) motion.¹

Because the district court must decide the merits of Duarte’s petition on remand, we also address whether equitable tolling of time requirements under the Hague Convention is available to Duarte. We hold that it is available and therefore the district court may consider whether to apply equitable tolling to Duarte’s Hague Petition.

I.

A. Factual Background

Emilia Duarte and Hector Bardales (“Bardales”) entered the United States from Mexico in 1990. Together they have four children — age 17, age 16, age 11, and age 9.² 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.

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. It is undisputed that Bardales took the two youngest children without Duarte’s knowledge or permission. Bardales then immediately filed petitions in California Superi- or 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, which was transmitted to the Central Authority in the United States a month later.³ In December 2003, Duarte’s petition was turned over to the San Diego District Attorney’s Office and in August 2004 was assigned to a Deputy District Attorney. For reasons unknown, Duarte’s petition was not filed in California state court until nearly a year later in 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’s petition 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.⁴ The California Court of Appeal stayed Duarte’s appeal pending adjudication of her Hague Petition in federal court.

B. Proceedings Before the Federal District 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 the court a certified police report. If Duarte failed to provide a certified police report by September 15, 2006, the court would enter judgment denying Duarte’s petition.

On September 15, 2006, Duarte filed, as proof that her purse was stolen, a declaration from a Transit Authority Agent and a copy of the police report. Duarte also indicated that it was not possible to obtain a certified police report in Mexico because transit authority agents are not permitted to have such documents notarized. Duarte requested that the district court accept the declaration and copy of the police report in lieu of a certified police report. The district court rejected Duarte’s offer of proof finding the declaration and traffic report insufficient because: (1) there was no evidence that an agency generated the written report; (2) Duarte’s counsel represented to the court that obtaining a certified police report would be “no problem”; and (3) it was highly improbable that the report was filed on the day of the theft. The district court lifted the stay on September 15, 2006 and entered final judgment denying Duarte’s petition.⁵

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 such reports are not issued in Mexico. In support of her motion, Duarte presented evidence from several attorneys and government officials in Mexico declaring that Duarte reported to the police that her purse was stolen on August 29, 2006, and that the Transit Authority in Mexico does not issue certified or non-certified police reports.

In a written order, the district court practically conceded that it may have committed clear error when, as a result of Duarte’s failure to submit a certified police report, it entered judgment against her. The court, however, did not grant Duarte’s Rule 59(e) motion on that basis, but instead ruled on the merits of Duarte’s Hague Petition. The court concluded that because Duarte’s Hague Petition did not entitle her to any relief, the production and acceptance into evidence of a police report would not have affected the outcome of the case. Accordingly, the court denied Duarte’s Rule 59(e) motion. This appeal followed.

II.

“A denial of a motion for reconsideration under Rule 59(e) is construed as one denying relief under Rule 60(b) and will not be reversed absent an abuse of discretion.” Pasatiempo v. Aizawa, 103 F.3d 796, 801 (9th Cir.1996) (citing Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir.1994); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1441 (9th Cir.1991)).

It is appropriate for a court to alter or amend judgment under Rule 59(e) if “(1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law.” Zimmerman v. City of Oakland, 255 F.3d 734, 740(9th Cir.2001). After reviewing the record, we determine that the court’s denial of the motion was clear error or manifestly unjust and thus an abuse of discretion.

First, in denying Duarte’s Rule 59(e) motion, the district court seemed to recognize that it was a mistake to enter judgment against Duarte because she failed to provide a certified police report when it was impossible for her to obtain such certification. Once the court acknowledged that the basis underlying its original judgment was wrong, it was error not to set aside the judgment.

Second, 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. At the September 1, 2006 hearing, the court stated, “Failure to supply me with a certified copy of that report will result in the entry of that judgment which I just indicated as a[sic] tentative.” Sept. 1, 2006 Hr’g Tr. at 5. The district court went on to state, “And so if we see that on the 15th, if you’ve got that on the 15th, then I’ll put the matter back on the calendar for a status [sic] and we’ll address any depositions or anything else that you want to address.” Id. at 9. In our view, the district court could not have been any clearer: If Duarte provided sufficient proof that her purse was stolen, the court would not enter judgment and would place the September hearing back on the calendar. At the very least, to preserve the fairness and the integrity of the judicial proceedings, the district court should have followed its own representations and put the case back on the calendar once Duarte provided a certified copy of the police report (or its equivalent). At the time the court denied Duarte’s Rule 59(e) motion, it was apparent that the proof submitted by Duarte served the purpose of providing a certified copy of the police report.

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. Specifically, a significant dispute existed between the parties as to whether the filing period for Duarte’s Hague Petition should be tolled.⁶ This was a critical 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. See infra Part III. If, however, tolling did apply then the “well settled” affirmative defense was not available to Bardales.

In denying Duarte’s Rule 59(e) motion, the district court determined that Bardales did not hide the children from Duarte and therefore equitable tolling did not apply. In so doing, the court disregarded the fact that the record was incomplete on the issue of tolling. Indeed, Duarte provided the district court with the names of witnesses and a list of exhibits she intended to introduce at the September hearing on the issues of tolling and removal. Because the court ruled on the merits sua sponte and without notice to the parties when it denied the Rule 59(e) motion, Duarte was never given the opportunity to introduce this additional evidence and complete the record on tolling. This, we hold, was error.

Accordingly, Duarte is entitled to relief from the judgment.

On remand the district court will have to decide whether to toll the one-year filing period. Therefore, we must now address whether equitable tolling is available under the Hague Convention and ICARA, an issue of first impression in this Circuit.

III.

“The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty among the United States and fifty other countries .... [and] only applies when both countries are parties to it.”⁷ Gonzalez v. Gutierrez, 311 F.3d 942, 944 (9th Cir.2002) (citing Hague Convention art. 35). The Convention is intended to “secure the prompt return of children wrongfully removed or retained.” Hague Convention art. 1. “It is designed to restore the ‘factual’ status quo which is unilaterally altered when a parent abducts a child and aims to protect the legal custody rights of the non-abducting parent.” Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir.1995) (citing Hague International Child Abduction Convention, 51 Fed.Reg. 10,494, 10,505 (Dep’t of State March 26,1986) (Pub.Notice)). In addition, the Convention is intended to “deprive parties of any tactical advantages gained by absconding with a child to a more favorable forum.” Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir.2004). “[A] judicial proceeding under the Convention is not meant, however, to inquire into the merits of any custody dispute underlying the petition for return.” Gonzalez, 311 F.3d at 945; Hague Convention art. 19.

Article 12 requires the judicial or administrative authority to “order the return of the child” who has been wrongfully removed or retained within the meaning of the Convention if “at the date of the commencement of the proceedings ... a period of less than one year has elapsed from the date of the wrongful removal or retention.” Hague Convention art. 12. A person seeking the return of a child under the Convention may do so by filing a petition in a court where the child is located. 42 U.S.C. § 11603(b). The petitioner has the burden of proving by a preponderance of the evidence that “the child has been wrongfully removed or retained within the meaning of the Convention.” § 11603(e)(1)(A). Removal is wrongful when:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Hague Convention art. 3.

“Return is not required, however, if the abductor can establish one of the Convention’s narrow affirmative defenses,” Gaudin v. Remis, 415 F.3d 1028, 1034-35 (9th Cir.2005), which includes the “well settled” affirmative defense under Article 12. Article 12 provides that return will not be required if the abductor establishes by a preponderance of the evidence that the petition for return was filed more than a year from the wrongful removal and the child is well settled in her new environment. Hague Convention art. 12; § 11603(e)(2)(B).

This 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 fact that both the Convention and ICARA are silent as to whether such principles apply. See Furnes v. Reeves, 362 F.3d 702, 723 (11th Cir.), cert. denied, 543 U.S. 978, 125 S.Ct. 478, 160 L.Ed.2d 355 (2004); Giampaolo v. Erneta, 390 F.Supp.2d 1269, 1282 (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); but see Anderson v. Aeree, 250 F.Supp.2d 872, 875 (S.D.Ohio 2002) (holding equitable tolling does not apply to petitions filed under the Hague Convention); Toren v. Toren, 26 F.Supp.2d 240, 244 (D.Mass.1998), vacated on other grounds, 191 F.3d 23 (1st Cir.1999) (same).

The Eleventh Circuit is the only Circuit to have decided whether equitable tolling is applicable under the Convention. Furnes, 362 F.3d at 723. In Fumes, 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. Id. In so holding, the court adopted the district court’s reasoning in Mendez Lynch. Id. (“We agree ... that equitable tolling may apply to ICARA petitions for the return of a child where the parent removing the child has secreted the child from the parent seeking return.”) (citing Mendez Lynch, 220 F.Supp.2d at 1362-63).

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.” Id. at 1363. On the other hand, courts rejecting equitable tolling have reasoned that there is nothing in the Convention or ICARA to suggest that the one-year period is a statute of limitations subject to tolling principles. Anderson, 250 F.Supp.2d at 875. And furthermore, tolling the one-year period would defeat the purpose of the “well settled” affirmative defense, to “put some limit on the uprooting of a settled child.” Toren, 26 F.Supp.2d at 244.

We agree with Fumes and hold that equitable principles may be applied to toll the one-year period when circumstances suggest that the abducting parent took steps to conceal the whereabouts of the child from the parent seeking return and such concealment delayed the filing of the petition for return. While we recognize the serious concerns with uprooting a child who is well settled regardless of whether the abducting parent hid the child, and that both the Convention and ICARA are silent on whether equitable tolling applies, we must give significant consideration to the overarching intention of the Convention — deterring child abduction. See Young v. United States, 535 U.S. 43, 49-50, 122 S.Ct. 1036, 152 L.Ed.2d 79 (2002) (“It is hornbook law that limitations periods are customarily subject to equitable tolling unless tolling would be inconsistent with the text of the relevant statute. Congress must be presumed to draft limitations periods in light of this background principle.”) (internal quotations and citations omitted).

Logic and equity dictate that awarding an abducting parent an affirmative defense if that parent hides the child from the parent seeking return would not only encourage child abductions, but also encourage hiding the child from the parent seeking return. See Belay, 272 F.Supp.2d at 561(“[C]ourts must be wary of rewarding an abductor for concealing the whereabouts of a child long enough for the child to become ‘well settled’; to reward the abductor as such would be to condone the exact behavior the Convention seeks to prevent.”). Indeed, this concern was reflected in the State Department’s public notice on the Hague Convention, which states, “If the alleged wrongdoer concealed the child’s whereabouts from the custodian necessitating a long search for the child and thereby delayed the commencement of a return proceeding by the applicant, it is highly questionable whether the respondent should be permitted to benefit from such conduct absent strong countervailing considerations.” Hague International Child Abduction Convention, 51 Fed.Reg. 10,494, 10,505 (Dep’t of State March 26, 1986) (Pub.Notice).

We therefore hold 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.

IV.

For the reasons stated above, the district court abused its discretion in denying Duarte’s Rule 59(e) motion. We also hold that equitable tolling is available under the Hague Convention and ICARA to toll the one-year filing period. In so holding, we express no opinion on whether the one-year filing period should be tolled in this case. We leave that determination to the district court after conducting further proceedings and finalizing the record on this issue.

As we read the record, it appears that Duarte has not seen or visited her children for an extended period of time. Should Duarte seek temporary visitation rights pending final resolution of this case, we suggest that the district court take such action as may be appropriate.

REVERSED and REMANDED.

1 . The primary issue in this case is whether the district court properly denied Duarte’s Rule 59(e) motion to vacate judgment. Footnotes 1 and 2 in Judge Bea’s dissent refer to issues that are not before us. The district court made no findings on the matters referred to in those extraneous footnotes — matters that might prove to be harmful to the children.

2 . The birthdays of the children from oldest to youngest are: October 16, 1990, October 25, 1991, October 26, 1996, and June 6, 1998. 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. See Hague Convention art. 4.

3 .Article 6 of the Convention requires every "Contracting State [to] designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities." Hague Convention art. 6.

4 . The federal and state courts have concurrent jurisdiction under ICARA. 42 U.S.C. § 11603(a).

5 . The order denying Duarte’s offer of proof and entering judgment was entered on the court's docket on Monday, September 18, 2006.

6 . Duarte contended that the court should toll the period between September 1, 2003 and June 2, 2005, because during that time Bar-dales hid the children from her. She claims that she did not know their whereabouts or have any contact with them until Bardales’s attorney contacted her on June 2, 2005 and gave her Bardales’s phone number. Duarte argues 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. He argued that because he and the children continued to reside at the same address where Bardales and Duarte lived prior to their separation in 2000, Duarte could have easily located the children.

7 . Mexico became a party to the Convention on October 1, 1991. See http://travel.state. gov/family/abduction/country/country_508. html (last visited Jan. 28, 2008).