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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 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. 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 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 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. 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 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. 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 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 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 fact that 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 equitable tolling 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 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. 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.
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