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Eubanks v. Eubanks

United States District Court, E.D. Louisiana

July 31, 2017

IVAN EUBANKS
v.
SASKIA O. EUBANKS

         SECTION: “E” (1)

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          SUSIE MORGAN UNITED STATES DISTRICT JUDGE.

         Before the Court is Petitioner Ivan Eubanks' Verified Complaint for Return of Children to Cayman Islands.[1] Mr. Eubanks' case arises pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”).[2] Mr. Eubanks claims that Respondent, Ms. Eubanks, wrongfully removed E.E. and P.E. from the Cayman Islands and is wrongfully retaining them in the United States, in violation of the Convention. As relief, he seeks the immediate return of E.E and P.E. to the Cayman Islands.

         This matter was tried before the Court, sitting without a jury, on May 11th and May 12th of 2017, on the claims of Ivan Eubanks against Saskia O. Eubanks.[3] Having considered the evidence admitted at trial and the arguments of counsel, the Court announces its Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure. To the extent a finding of fact constitutes a conclusion of law, the Court adopts it as such. To the extent a conclusion of law constitutes a finding of fact, the Court adopts it as such.

         After due consideration and for the reasons that follow, the Court is of the opinion that Mr. Eubanks' request for the return of the children should be DENIED.

         FINDINGS OF FACT

         I. Jurisdiction

         1. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, as this matter arises under the Convention and ICARA, the implementing legislation. Pursuant to ICARA, state and federal district courts have concurrent original jurisdiction over actions arising under the Convention.[4] A Hague petitioner, however, is “free to choose between state or federal court.”[5] Venue is proper because the Court “is authorized to exercise its jurisdiction in the place where the child[ren] [are] located at the time the petition is filed, ” which was the Parish of Orleans, Louisiana, within the jurisdiction of the United States District Court for the Eastern District of Louisiana.[6]

         II. Credibility of Witnesses

         In Hague Convention cases, such as the one before this Court, in which the Court's determination of the children's habitual residence turns on the intention of the parents, the district court often “face[s] . . . a choice as to whom it [finds] more believable.”[7] During the bench trial of this matter, the Court had the opportunity to observe the demeanor of Mr. and Ms. Eubanks and to hear their testimony and, on that basis, assess their credibility. As explained below, the Court has found Ms. Eubanks to be the more credible witness, and, therefore, gives more weight to her testimony in its finding of fact.

         Prior to trial, Ms. Eubanks, in her Interrogatories and Requests for Production of Documents dated March 3, 2017, asked Mr. Eubanks to produce: “. . . each and every email or other correspondence between you and any prospective employer from January 1, 2015, to present, including the Curriculum Vitae(s) sent” and for Mr. Eubanks to:

[I]dentify each and every individual or entity you have contacted for purposes of obtaining employment since January 1, 2015. For each, please state the date(s) of contact, the type of contact, outcomes of said contact, the name of any entity contacted, including the name of any individual contacted with that entity, and a description of any representations made by you to that entity regarding your qualifications and when you have been able to start such job opportunity.[8]

         Ms. Eubanks' Interrogatories and Requests for Production were clearly not limited to only applications submitted during this time period but also covered any correspondence between Mr. Eubanks and a prospective employer. Mr. Eubanks' response to the requests for production and his responses to the interrogatories do not include the names of any individuals or entities he corresponded with regarding employment during 2016 or 2017 or copies of correspondence between himself and any prospective employer during 2016 or 2017.[9] Because of the expedited nature of this type of proceeding, the discovery period before trial was truncated, and Ms. Eubanks did not have a full opportunity to conduct discovery.[10]

         On the first day of trial, Mr. Eubanks testified on direct that he did not apply for any jobs during 2016. On cross-examination, Mr. Eubanks admitted that he applied for a job with the United States Department of State in March 2016.[11] At the conclusion of the first day of trial, the Court ordered Mr. Eubanks to perform another search for any emails responsive to Ms. Eubanks' request, specifically, for any correspondence between Mr. Eubanks and any prospective employer from January 1, 2016 through that date. The next morning Mr. Eubanks produced three documents: (1) an email he received on January 5, 2016 from the University of San Diego, setting up a follow-up Skype interview; (2) an email he received from the University of San Diego on January 18, 2016 mentioning that the follow-up interview occurred the week before and notifying Mr. Eubanks that he had not been chosen for the applied to position; and (3) a letter, dated June 10, 2016, stating that the University College of the Cayman Islands, Mr. Eubanks' current employer, was offering him the position of Acting Dean of Academic Affairs. Mr. Eubanks offered no explanation for his earlier failure to produce these emails and information in response to Ms. Eubanks' Interrogatories and Requests for Production.

         At the end of the second day of trial, after the Court questioned Mr. Eubanks' counsel regarding the method used to identify Mr. Eubanks' responsive correspondence, it became clear that Mr. Eubanks had performed the search of his emails himself and that neither his attorneys nor a professional third-party vendor had supervised or assisted Mr. Eubanks in his search. The Court ordered Mr. Eubanks to retain a third-party vendor to perform a complete search of his emails to identify any correspondence with potential employers during 2016.[12] The Court held the record open for the introduction into evidence of these emails and filing of post-trial briefs.[13]

         On June 13, 2017, pursuant to the Court's Order, the third-party vendor hired by Mr. Eubanks to perform this search produced over 1, 800 emails to the Court and Ms. Eubanks that were responsive to the discovery requests.[14] Included in those 1, 800 emails are countless communications between Mr. Eubanks and potential employers during 2016 that had not been previously produced in response to discovery requests, or by Mr. Eubanks at the direction of the Court at the end of the first day of trial.

         These emails directly refute Mr. Eubanks' testimony that he did not continue to seek employment in the United States after moving to the Cayman Islands in early January 2016. They also refute his testimony that he had no correspondence regarding employment after January 1, 2016. Mr. Eubanks can blame only himself for his loss of credibility. For example, on January 13, 2016, Mr. Eubanks received an email from Georgia Southern University expressing an interest in conducting a telephone interview with him regarding his application for the position of Assistant Professor Writing and Linguistics with Specialty in Assessment. On January 16, 2016, Mr. Eubanks sent his response in which he stated, “I am most pleased and excited to participate in a telephone interview.” According to the emails, it appears a telephone interview was held on January 21, 2016. On March 5, 2016, Mr. Eubanks received an email from Northwestern State University, in Natchitoches, Louisiana, stating that the search committee for the department head in English, Foreign Languages and Cultural Studies was ready to move forward with online interviews with the remaining candidates and inquiring as to whether Mr. Eubanks was still interested in the position. On that same date, Mr. Eubanks responded, “I am still very interested in the position as department head . . . and I'm pleased to be invited for an interview.” An online interview occurred on March 16, 2016. On April 8, 2017, Mr. Eubanks received another email from the search committee at Northwestern State University stating that the committee was interested in bringing him to campus for an in-person interview. The next day, Mr. Eubanks responded stating, “I'm thrilled that the search committee would like to hold a second interview with me . . .” Further, included in the emails are numerous rejection letters in response to Mr. Eubanks' “recent application.”[15]

         In addition, the Court, at the end of the second day of trial, also ordered that Mr. Eubanks produce emails regarding his application for a position as a Regional English Language Officer (RELO) with the State Department.[16] To expedite production, these emails were produced on June 5, 2017 under an agreed protective order. The produced emails corroborate Ms. Eubanks' testimony that Mr. Eubanks was very actively pursuing a position with the State Department from January of 2016 to August of 2016. In fact, despite testifying at trial that he was happy with his job in the Cayman Islands and was not applying for other jobs, the emails show that Mr. Eubanks was corresponding with employees at the State Department regarding his pending application both shortly before and after the trial in this matter.[17]

         The Court makes its findings of fact below with this credibility finding in mind.

         III. Findings of Fact - Habitual Residence

         1. E.E. and P.E. are the only children of Mr. and Ms. Eubanks. The parties are both American Citizens.[18]

         2. The parties were married on December 1, 2007, in the Parish of Orleans, Louisiana.[19]

         3. In 2008, the parties moved to Boston, Massachusetts after Mr. Eubanks accepted a teaching position at Boston University.[20]

         4. E.E. and P.E. were born on April 18, 2013 in Boston, Massachusetts.[21]

         5. E.E. and P.E. are United States citizens.[22]

         6. Mr. Eubanks has a Ph.D. in Russian and Slavic Languages.[23]

         7. Shortly after the birth of E.E. and P.E., Mr. Eubanks secured a job as a professor in Moscow, Russia. Mr. Eubanks moved to Moscow in August of 2013. Ms. Eubanks and the two children followed in October of 2013.[24]

         8. When they moved to Russia, the parties decided not to bring all of their personal belongings and instead stored personal items in a storage unit in New Orleans, Louisiana.[25]

         9. The parties lived in Moscow for almost three years.[26]

         10. While in Russia, Mr. Eubanks applied for over ninety different jobs, almost all of which were teaching positions in the United States. At some point prior to January 2016, Mr. Eubanks, having not yet received an offer of employment in the United States, accepted a position teaching freshman English at the University College of the Cayman Islands.[27]

         11. Mr. Eubanks' teaching contract with the University College of the Cayman Islands was for two-years but the only penalty for leaving before the end of the term of the contract was that the school would not pay for the family's move off the island.[28]

         12. Mr. Eubanks told Ms. Eubanks that the move to the Cayman Islands would be a temporary move for the duration of one semester, until he received a position in the United States. Ms. Eubanks agreed to the move because the parties were desperate to leave Russia and because Mr. Eubanks promised their stay in the Cayman Islands was to be temporary and that it would provide an opportunity for them to decompress after leaving Russia. Mr. Eubanks specifically told Ms. Eubanks that he was 100 percent positive he would be offered a teaching position at the University of San Diego by the end of the semester.[29]

         13. The parties moved from Moscow, Russia to the Cayman Islands on or about January 1, 2016.[30]

         14. E.E. and P.E. lived in the Cayman Islands, with both Mr. and Ms. Eubanks, from January 1, 2016 until August 26, 2016.[31]

         15. Neither Mr. Eubanks nor Ms. Eubanks has any relatives residing in the Cayman Islands.[32]

         16. Mr. Eubanks did not change the mailing address on his credit cards or bank statements to the Cayman Islands and, instead, they are mailed to his father's address in South Carolina.[33]

         17. Mr. Eubanks is registered to vote in Florida.[34]

         18. The parties rented a furnished condominium in the Cayman Islands and continued to store their personal belongings in their storage facility in New Orleans, Louisiana. The lease agreement for the condominium contained, at the parties' request, an “escape clause” allowing the parties to break to break the lease, without penalty, at any time prior to May 31, 2016.[35]

         19. The escape clause was included in the lease so that the parties could break the lease if Mr. Eubanks received an offer to work in the United States.[36]

         20. Shortly after moving to the Cayman Islands and participating in a Skype interview, Mr. Eubanks learned on January 18 that he was not chosen for the teaching position at the University of San Diego.[37]

         21. After learning he did not get the job at the University of San Diego, Mr. Eubanks assured Ms. Eubanks his chances of getting hired by the State Department were good.[38]

         22. In June 2016, Mr. Eubanks accepted a position as Acting Dean of Academic Affairs with his current employer, the University College of the Cayman Islands.[39] Mr. Eubanks told Ms. Eubanks that accepting this position would make him a more desirable applicant in his job search.[40]

         23. After Mr. Eubanks accepted the position as Acting Dean of Academic Affairs, the parties, in order to reduce their monthly expenses, attempted to identify a waterfront home to use as their residence, but which could be used as a rental property or be easily sold when they left the Cayman Islands. Ultimately, however, the parties did not find a property they could agree fit their criteria for an investment.[41]

         24. E.E. and P.E. were registered but had not started school in the Cayman Islands as of August 26, 2016.[42]

         25. Both Mr. Eubanks and Ms. Eubanks wanted E.E. and P.E. to be raised and educated in the United States.[43]

         26. From the time of arrival in the Cayman Islands to the date of this trial, Mr. Eubanks actively sought employment in the United States.[44]

         27. Ms. Eubanks did not intend for the children's habitual residence to be in the Cayman Islands.[45]

         28. Ms. Eubanks removed E.E. and P.E. from the Cayman Islands to New Orleans, Louisiana on August 26, 2016, without the consent of Mr. Eubanks.[46]

         29. E.E and P.E. continue to reside in New Orleans, Louisiana with Ms. Eubanks.[47]

         30. On February 10, 2017, Mr. Eubanks filed his Verified Complaint for the Return of Children to the Cayman Islands.[48]

         IV. Conclusions of Law

         1. The Hague Convention: Background

         The Convention was adopted in 1980 in response to the emerging problem of international child abductions perpetrated by parents, guardians, and close family members.[49] The Convention specifically was adopted to address “the problem of international child abductions during domestic disputes.”[50] “The Convention seeks ‘to secure the prompt return of children wrongfully removed to or retained in any Contracting State, ' and ‘to ensure that rights of custody and of access under the laws of one Contracting State are effectively respected in the other Contracting States.'”[51]Further, the drafters of the Convention sought to “discourage forum shopping in international child-custody disputes when it takes the form of removing a child to the jurisdiction preferred by one of the parents.”[52]

         The Convention's stated purpose is “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence . . .”[53] “The Convention was designed to ‘restore the ...


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