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Alcala v. Hernandez

United States District Court, D. South Carolina, Florence Division

April 27, 2015

Fernando Contreras Alcalá, Petitioner,
v.
Claudia García Hernández, Respondent.

ORDER ALLOWING PETITIONER AND WITNESS TO APPEAR REMOTELY

R. BRYAN HARWELL, District Judge.

Petitioner Fernando Contreras Alcalá ("Petitioner"), with the consent of Respondent Claudia García Hernández ("Respondent"), has requested that the Court allow him and his father, Antonio Contreras Monterosas ("Mr. Monterosas") to appear at trial telephonically or by live video (Skype) pursuant to Federal Rules of Civil Procedure Rule 43(a). (ECF No. 69.}[1] Based on the compelling circumstances of a Hague Convention trial, the Court finds that good cause exists to allow Petitioner and Mr. Monterosas to appear and testify remotely and, therefore, GRANTS Petitioner's Motion to Appear Remotely.

FACTUAL BACKGROUND

On October 27, 2014, Petitioner filed his Verified Petition in the Federal District Court for the District of South Carolina located in Florence, South Carolina. As explained in the Verified Petition, Petitioner, a citizen of Mexico currently residing in Cosolapa, Oaxaca, Mexico, brought the federal court action to secure the return of his two children, F.C.G., his nine-year old son, and A.C.G., his two-year-old son (collectively the "Children"). Petitioner alleged that the Children were, without his consent or acquiescence, wrongfully removed from Mexico and brought into the United States illegally by the children's mother, Respondent.

Because of his inability to be present in Court to testify, Petitioner filed the present Motion, requesting the Court permit him and Mr. Monterosas to testify, if necessary, by Skype or telephone under Rule 43(a). As good cause for permitting him to do so, Petitioner argued that he and Mr. Monterosas cannot travel because:

• They likely would be unable to obtain a passport or visa to travel to the United States, and;
• Both are financially unable to travel to the United States.[2]

Furthermore, Petitioner argued that appropriate safeguards would be present to ensure compliance with the mandates of Rule 43(a), such as his accurate identification by consular officials, his seclusion during the testimony to prevent outside influence, and his willingness to arrive early to test the technology involved so as to avoid interruptions during the trial.

DISCUSSION

The drafters of the Hague Convention directed that "[t]he judicial... authorities of Contracting States shall act expeditiously in proceedings for the return of children." Hague Convention, art. 11. Because of this directive, Courts have adopted flexible procedural approaches to ensure that cases are handled expeditiously, including allowing remote testimony. Specifically, Rule 43(a) permits a court to take remote testimony "[f]or good cause in compelling circumstances and with appropriate safeguards." Fed.R.Civ.P. 43(a). Courts within this jurisdiction have applied Rule 43(a) to allow parties and witnesses to testify remotely. United States v. Baker, 45 F.3d 837, 843-44 (4th Cir. 1995); Lopez v. NTI, LLC, 748 F.Supp.2d 471, 480 (D. Md. 2010); Edwards v. Logan, 38 F.Supp.2d 463, 466 (W.D. Va. 1999). Although a party's live testimony is generally the rule, an exception can be made in certain circumstances- the facts of this case present one such circumstance.

A. Good Cause in Compelling Circumstances

Courts applying Rule 43(a) have established several situations justifying a court in permitting remote testimony. One such situation is the inability to obtain a visa to enter the country. See, e.g., El-Hadad v. United Arab Emirates, 496 F.3d 658, 668-69 (D.C. Cir. 2007) (finding remote testimony from Egypt appropriate when the witness could not obtain a visa to enter the United States); Haimdas v. Haimdas, 720 F.Supp.2d 183, 187 (E.D.N.Y. 2010) (testifying from London because of the inability to obtain a visa), aff'd, 401 F.Appx. 567 (2d Cir. 2010). Other justifications include the burden of international travel, e.g., Lopez v. NTI, LLC, 748 F.Supp.2d 471, 480 (D. Md. 2010), [3] and even the impact that traveling will have on one's business, e.g., Dagen v. CFC Grp. Holdings Ltd, No. 00 CIV. 5682, 2003 WL 22533425, at *1 (S.D.N.Y. Nov. 7, 2003).

Coupled with the general relaxation of procedural rules to promote conformity with the overarching goals of the convention, i.e., the expedient return of the children, sufficient cause exists for the Court to grant the Parties' request. First, Petitioner and Mr. Monterosas are likely unable to obtain a visa, both for reasons outside of their control and due to their indigent status. As explained by Sarah Buffet, an experienced immigration attorney who submitted a declaration in response to Petitioner's first request to testify remotely, Petitioner would be required to travel to the nearest consular office to apply for a visa. Once he arrived and paid the application fee, there is no guarantee that he would have received a visa. In fact, Buffett opines that is likely that Petitioner would be denied a visa outright because of his limited financial resources. Furthermore, because Petitioner currently does not have a valid passport, he would not be able to even apply for the visa.

Therefore, the Court finds Petitioner and Mr. Monterosas' inability to obtain a visa and their financial inability to travel satisfies the "good cause in compelling circumstances" to permit ...


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