Duarte v. Bardales

• Decision Date: 20 May 2008
• Docket Number: No. 06-56808.,06-56808.
• Citation: 526 F.3d 563
• Parties: Emilia DUARTE, Plaintiff-Appellant, v. Hector BARDALES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

526 F.3d 563

Emilia DUARTE, Plaintiff-Appellant, v. Hector BARDALES, Defendant-Appellee.

No. 06-56808.

United States Court of Appeals, Ninth Circuit.

Argued November 6, 2007.

Submitted January 11, 2008.

Filed May 20, 2008.

Beverly Baker-Kelly, Oakland, CA, and Howard Moore, Jr., Berkeley, CA, for the appellant.

Victor Mordey, Chula Vista, CA, for the appellee.

Appeal from the United States District Court for the Southern District of California; Thomas J. Whelan, District Judge, Presiding. D.C. No. CV-06-00158-TJW.

Before: MYRON H. BRIGHT,^* HARRY PREGERSON, and CARLOS T. BEA, Circuit Judges.

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 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, 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...