Colleen Silverman v. Richard Silverman , 703 F. App'x 596 ( 2017 )

FILED
NOT FOR PUBLICATION
NOV 21 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
COLLEEN SILVERMAN, No. 16-55221
Petitioner-Appellee, D.C. No.
3:15-cv-02108-AJB-BLM
v.
RICHARD SILVERMAN, MEMORANDUM*
Respondent-Appellant,
and
NICHOLAS SILVERMAN, by and
through his guardian ad litem, Maria
Silverman; JON SILVERMAN, by and
through his guardian ad litem, Maria
Silverman,
Real-party-in-interest-
Appellants.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
page 2
Submitted November 17, 2017**
Pasadena, California
Before: KOZINSKI and IKUTA, Circuit Judges, and GETTLEMAN,***
District Judge.
Respondents “cannot, merely by injecting a federal question into an action
that asserts what is plainly a state-law claim, transform the action into one arising
under federal law.” Caterpillar Inc. v. Williams, 482 U.S. 386, 399 (1987).
Respondents justified their removal from state to federal court by claiming that the
Hague Convention on the Civil Aspects of International Child Abduction applies.
But “[t]he Convention shall cease to apply when the child attains the age of 16
years.” Hague Convention on the Civil Aspects of International Child Abduction
art. 4, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89. Because Jon was 16
at the time of removal, respondents lacked an objectively reasonable basis for
removal. Respondents’ argument that the Hague Convention establishes the rule
that minors older than 15 may not be returned to a foreign country is meritless.
And their further argument that this alleged rule preempts state law does not give
rise to federal question jurisdiction, because it is merely a defense to state law
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert W. Gettleman, United States District Judge for
the Northern District of Illinois, sitting by designation.
page 3
claims. See Opera Plaza Residential Parcel Homeowners Ass’n v. Hoang, 376
F.3d 831, 839 (9th Cir. 2004). The district court didn’t abuse its discretion in
granting petitioner’s request for attorney’s fees under 28 U.S.C. § 1447(c). See
Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005).
AFFIRMED.