Guenther v. McPherson

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 25-CV-61838-DAMIAN/Valle
SEBASTIAN GUENTHER,
Petitioner,
v.
ELIZABETH VICTORIA MCPHERSON,
Respondent.
_________________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 15]
AND ENTERING TEMPORARY RESTRAINING ORDER
THIS CAUSE came before the Court on Magistrate Judge Alicia O. Valle’s Report
and Recommendation to District Judge, entered on October 20, 2025 [ECF No. 15 (the
“Report”)].
THE COURT has reviewed the Report and the pertinent portions of the record and
is otherwise fully advised.
Petitioner, Sebastian Guenther’s (“Petitioner”), initiated this action on September
12, 2025, by filing a Complaint and an Ex Parte Motion Under the Hague Convention
Requesting Injunctive Relief, for Entry of a Temporary Restraining Order, for Warrant
Seeking Physical Custody of Minor Child, and Scheduling an Expedited Hearing [ECF No.
3 (the “Motion”)]. The undersigned referred the matter to United States Magistrate Judge
Alicia Valle. [ECF No. 5].
Magistrate Judge Valle held a hearing and issued a Report and Recommendation on
September 24, 2025. [ECF No. 9 (the “Initial R&R”)]. In the Initial R&R, Magistrate Judge
Valle summarizes the relevant background and procedural history, and therefore, this Court
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will not set out the background in detail here, except to note that the Complaint [ECF No.
1] seeks the return of a four-year old child, Z.G.M. (the “Child”), whom Petitioner alleges
was wrongfully removed from Germany by her mother, Respondent, Elizabeth Victoria
McPherson (“Respondent”), and brought to Fort Lauderdale, Florida. Magistrate Judge
Valle recommended, inter alia, that the Motion for TRO be granted in part and denied in
part, that the Respondent be ordered to remain in the United States with the child, that the
United State Marshals Service be ordered to serve the Respondent, that the Respondent be
ordered to relinquish the child’s passport and that of the child. See Initial R&R. The
Magistrate Judge set a preliminary injunction hearing to be held on October 24, 2025, and
indicated that the TRO would expire in fourteen days, unless extended by the Court upon
Motion. Id. No party filed objections to the Initial R&R.1
This Court entered an Order on October 1, 2025, Adopting the Initial R&R and
ordering the relief recommended by the Magistrate Judge. [ECF No. 11].
Noting that the TRO expired on October 15, 2025, on October 16, 2025, the
Magistrate Judge required the parties to file a status report indicating the status of the
proceedings and whether the TRO should be extended. [ECF No. 13]. Petitioner filed a
Status Report on October 20, 2025, and explained, among other things, that the U.S.
Marshals had not yet been able to locate or serve the Respondent and requested that the
TRO be extended. See ECF No. 14.
The Magistrate Judge then issued the Second Report and Recommendation on
October 20, 2025. [ECF No. 15 (“Second R&R”)]. In the Second R&R, which is now before
1 Judge Valle held an ex parte hearing by Zoom on September 22, 2025. See Report. Because
Petitioner was the only party notified of and in attendance at the hearing and the Report
recommends granting the relief sought by Petitioner, it does make sense that no party would
file objections to the Report.
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this Court, Magistrate Judge Valle recommends that this Court issue a new Temporary
Restraining Order (“TRO”) to expire within fourteen (14) days of the date of issuance,
unless otherwise extended by the parties, and that the Court require, prior to the expiration
of the new TRO: (i) the U.S. Marshal continue to attempt to serve Respondent with all
filings in this case, including this Report and the initial R&R; and (ii) Petitioner file a
Supplemental Status Report including: (a) evidence by affidavit/declaration from the U.S.
Marshal regarding its efforts to serve Respondent; and (b) advising the Court of the
necessary next steps if Respondent cannot be served and/or is evading service, i.e., whether
Petitioner 	can 	seek 	an 	ex parte 	preliminary 	injunction, 	sanctions, 	or 	other 	relief 	to
expeditiously proceed in this action. See Second R&R at 2.
When a magistrate judge’s “disposition” has properly been objected to, district courts
must review the disposition de novo. Fed. R. Civ. P. 72(b)(3). When no party has timely
objected, however, “the court need only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory
committee’s notes (citation omitted). Although Rule 72 itself is silent on the standard of
review, the Supreme Court has acknowledged Congress’s intent was to only require a de
novo review where objections have been properly filed, not when neither party objects. See
Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to
require district court review of a magistrate [judge]’s factual or legal conclusions, under a de
novo or any other standard, when neither party objects to those findings.”).
The undersigned has reviewed the Report, the record, and the applicable law to
assure herself that no clear error appears on the face of the record.
This Court is aware this proceeding is currently ex parte, and neither the Magistrate
Judge nor the undersigned has established an objections period within which Respondent
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can file objections pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Rule 4(b). Since
this Court adopts the Second R&R and issues a new TRO, Respondent may file any
objections she might have upon her appearance in this case. Having reviewed the record and
the Magistrate Judge’s thorough and well-reasoned analyses throughout, for the reasons laid
out by the Magistrate Judge in her Reports and Recommendations, it is
ORDERED 	AND 	ADJUDGED 	that 	the 	Second 	R&R 	[ECF 	No. 	15] 	is
AFFIRMED AND ADOPTED, and Petitioner’s Motion for a TRO is GRANTED anew,
and a renewed Temporary Restraining Order is entered in favor of Petitioner and against
Respondent, as set forth in this Court’s October 1, 2025, Order Adopting Report and
Recommendation and entering Temporary Restraining Order. [ECF No. 11]. 	Pursuant to
this Temporary Restraining Order:
1. 	Respondent and Child shall REMAIN in the Southern District of Florida
pending resolution of this action. Further, Respondent (or any person acting in
concert with Respondent) shall be PROHIBITED from removing the Child from
the jurisdiction of the Southern District of Florida and shall take no action to
remove the Child from the jurisdiction of the Southern District of Florida,
pending further Order of the Court.
2. 	Respondent shall RELINQUISH the Child’s passport to the United States
Marshals Service at the time she is served with the documents above (if she has
the Child’s passports with her at that time). Alternatively, if Respondent does not
have possession of the Child’s passport at the time of service, she shall tender the
Child’s passport to the District Court by delivering it to the Clerk of Court at the
Fort 	Lauderdale 	Federal 	Courthouse, 	299 	E. 	Broward 	Boulevard, 	Fort
Lauderdale, Florida 33301, by 4:00 PM the next business day.
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3. 	The United States Marshals Service SHALL CONTINUE TO ATTEMPT TO
SERVE Respondent with a copy of the Verified Petition, the Motion and
accompanying 	memorandum 	of 	law, 	the 	Magistrate 	Judge’s 	Reports 	and
Recommendations [ECF Nos. 9 and 15], this Order, and any other documents
filed by Petitioner in this action. Service should be made to 25 Spinning Wheel
Lane, Tamarac, Florida, 33319, ATTN. Elizabeth Victoria McPherson. The
United States Marshals Service shall be authorized and directed to take all
reasonable efforts to serve and enforce this Order in the daytime or the nighttime,
to effectuate the provisions of this Order, including inquiring about Respondent’s
location if she is not found at the above address.
This TRO shall expire fourteen (14) days from the date of the instant Order.
Prior to the expiration of this TRO:
Petitioner SHALL FILE a Supplemental Status Report including: (a) evidence by
affidavit/declaration from the U.S. Marshal regarding its efforts to serve Respondent; and
(b) advising the Court of the necessary next steps if Respondent cannot be served and/or is
evading 	service, i.e., whether Petitioner can 	seek 	an ex parte 	preliminary 	injunction,
sanctions, or other relief to expeditiously proceed in this action.
The parties shall comply with all Orders by the Magistrate Judge regarding the
scheduling of a Preliminary Injunction hearing. Prior to the Preliminary Injunction hearing
before the Magistrate Judge, the parties shall make all efforts to telephonically meet and
confer in good faith to: (i) renew contact between Plaintiff and the Child; (ii) confirm
Defendant’s availability to attend the hearing on the Preliminary Injunction; (iii) discuss
whether Defendant consents to any necessary extension of the TRO; and (iv) discuss a
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potential date to attend a settlement conference before a Magistrate Judge or mediator in
this District to avoid prolonged proceedings before the Court.
DONE AND ORDERED in Chambers in the Southern District of Florida this 24th
day of October, 2025.
_________________________________
MELISSA DAMIAN
UNITED STATES DISTRICT JUDGE
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