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In Rowe v Vargason, 2011 WL 6151523 (D.Minn.) the
Respondent moved for a stay pending appeal. The district court noted
that it may stay enforcement of a judgment while an appeal is pending
pursuant to Fed.R.Civ.P. 62(c) if the following factors support such a
stay: "(1) whether the stay applicant has made a strong showing that [s]he
is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770,
776 (1987). The party seeking such a stay has a difficult burden.
Haimdas v.. Haimdas, 720 F.Supp.2d 183,210 (E.D.N.Y.2010) (citing United
States v. Private Sanitation Indus. Ass'n, 44 F.3d 1082, 1084 (2d
Cir.1994)). The most important factor is the likelihood of success on
the merits. Brady v. National Football League, 640 F.3d 785, 789 (8th
Cir.2011). The Court found that the proper standard is a strong showing
of success on the merits or substantial case on the merits, as set forth
in the Hilton decision. The court analyzed the factors and denied the
motion. It found, inter alia, that the
Respondent had not made a substantial case on the merits and rejected
her argument that a conflict of law exists as to whether evidence of
abuse of the mother is sufficient to establish the Article 13(b)
defense. The Court disagreed that a conflict of law exists in the
circuit courts of appeal as to the relevance of evidence concerning
abuse of the mother in determining whether a grave risk of harm exists
as to the child. The cases cited by Respondent on this issue applied the
same standard as the Eighth Circuit. See Walsh v. Walsh, 221 F.3d 204
(1st Cir.2000); In re Adan, 437 F.3d 381 (3d Cir.2006); Simcox v. Simcox,
511 F.3d 594, 608-09 (6th Cir.2007); Van de Sande v. Van de Sande, 431
F.3d 567, 570 (7th Cir.2005); Baran v. Beaty, 526 F.3d 1340, 1346 (11th
Cir.2005). The applicable standard in the Eighth Circuit, and in the
cases cited above, is whether Respondent demonstrated, by clear and
convincing evidence, that there exists a grave risk that the child would
be exposed to harm if returned to Australia. Accordingly, the argument
that a conflict of law existed had no merit.
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