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 SIXTH
REPORT AND RECOMMENDATION [ECF NO. 47]
HOLDING RESPONDENT IN CONTEMPT
THIS CAUSE is before the Court on Magistrate Judge Alicia O. Valle’s Report and
Recommendation to District Judge, entered on January 9, 2026 [ECF No. 47 (the “Sixth
Report”)].
THE COURT has reviewed the Sixth Report and the pertinent portions of the record
and is otherwise fully advised.
I. 	BACKGROUND
Petitioner, Sebastian Guenther (“Petitioner”), initiated this action on September 12,
2025, by filing a Complaint and an Ex Parte Motion Under the Hague Convention
Requesting Injunctive Relief, Entry of a Temporary Restraining Order, a Warrant Seeking
Physical Custody of Minor Child, and Scheduling of 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 Report”)]. In the Initial Report, Magistrate
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Judge Valle summarized the relevant background and procedural history, and, therefore,
this Court will not set out the background in detail here, except to note that, in the
Complaint [ECF No. 1], Petitioner 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
Temporary Restraining Order (“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 States
Marshals Service be ordered to serve the Respondent, and that the Respondent be ordered
to relinquish the child’s passport. See Initial Report. 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. This Court entered an
Order on October 1, 2025, adopting the Initial Report and ordering the relief recommended
by the Magistrate Judge. [ECF No. 11].
No party filed objections to the Initial Report.1
On October 20, 2025, Petitioner filed a Status Report in which he explained that the
U.S. Marshals had not yet been able to locate or serve the Respondent and requested that
the TRO be extended. [ECF No. 14]. The Magistrate Judge then issued a Second Report
and Recommendation on October 20, 2025 [ECF No. 15 (“Second Report”)], in which she
recommended that this Court issue a new TRO to expire within fourteen (14) days of the
date of issuance, unless otherwise extended by the parties, and that the Court require that,
prior to the expiration of the new TRO, (i) the U.S. Marshal continue to attempt to serve
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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Respondent with all filings in this case, including the Second Report and the initial Report;
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 Report at 2.
This Court adopted and affirmed the Second Report on October 27, 2025, and entered a
Second TRO, which was set to expire on November 10, 2025. [ECF No. 17].
On 	November 	21, 	2025, 	the 	Magistrate 	Judge 	issued 	the 	Third 	Report 	and
Recommendation, in which she again recommended that this Court issue a new TRO to
expire within 14 days and require Petitioner to file a status report as previously directed.
[ECF No. 21 (the “Third Report”)]. On December 1, 2025, this Court adopted and affirmed
the Third Report and entered a Third TRO which was set to expire on December 15, 2025.
[ECF No. 24].
On December 15, 2025, Magistrate Judge Valle entered the Fourth Report and
recommended that this Court extend the prior TRO, set to expire that same day, until the
next hearing, set for December 18, 2025. See [ECF No. 27 (“Fourth Report”]. The
Magistrate Judge then held a hearing on December 18, 2025. See ECF No. 28. At the
December 	18, 	2025 	hearing 	before 	the 	Magistrate 	Judge, 	Petitioner 	testified 	about
communications 	between: 	(i) 	Respondent's 	mother 	and 	Petitioner's 	counsel; 	and 	(ii)
Respondent's mother and a mutual friend. See ECF No. 30 (“Fifth Report”)]. Petitioner also
cited the Declaration of U.S. Deputy Marshal David Steinberg regarding his attempts at
service, including one occasion when the Deputy returned to the residence and found that
documents he had previously left in the mailbox had been retrieved. Id.
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Following the December 18, 2025 hearing, the Magistrate Judge issued the Fifth
Report that same day. In the Fifth Report, the Magistrate Judge explains that the above-
described information, which was introduced into the record at the hearing, provided
convincing circumstantial evidence upon which to determine that Respondent is, at best,
evading service or, at worst, has fled the jurisdiction with the minor child. Id. Judge Valle
continued the hearing on the Petition to January 5, 2026, to allow for Respondent's
appearance and the taking of additional testimony. Id. This Court adopted the Fourth and
Fifth Reports on December 22, 2025. [ECF No. 34]. In advance of the January 5th hearing,
Petitioner filed several Notices regarding service on Respondent and third parties, including
Kathy Horsford. [ECF Nos. 35, 37, 40].
On January 5, 2026, Judge Valle held the continued evidentiary hearing. [ECF No.
42]. Although Petitioner, counsel, and private investigator Daniel Reimer appeared, no one
else appeared at the hearing. The Magistrate Judge heard testimony and took evidence.
Following 	the 	January 	5 	hearing, 	Judge 	Valle 	recommended 	that 	this 	Court 	find
Respondent in Contempt, issue warrants for the arrests of Respondent and Kathy Horsford,
order that Respondent and Horsford be held in custody until they purge themselves of
contempt, instruct the proper authorities to add the minor child to the national police
computer missing persons section, instruct that a national police officer bring the minor
child before this Court, find any person knowingly acting in concert with Respondent in
contempt, and extend the TRO through January 25, 2026. [ECF No. 47 (“Sixth Report”)].
The Magistrate Judge directed Petitioner to serve a copy of the Sixth Report on
Respondent 	and 	Kathy 	Horsford 	“by 	all 	available 	means” 	and 	to 	file 	a 	Notice 	of
Compliance. Id. at 15. The Magistrate Judge also set forth the deadline for the parties to file
objections to the Report as follows:
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Within 	14 	days 	after 	being 	served 	with 	a 	copy 	of 	this 	Report 	and
Recommendation, any party may serve and file written objections to any of
the above findings and recommendations asvprovided by the Local Rules for
this District. 28 U.S.C. § 636(b)(1); S.D. Fla. Mag. R. 4(b). Failure to timely
object waives the right to challenge on appeal the District Court’s order based
on unobjected-to factual and legal conclusions contained in this Report and
Recommendation. 11th Cir. R. 3-1 (2025); Thomas v. Arn, 474 U.S. 140, 149
(1985).
Id.
This Court is mindful that the instant proceeding is presently ex parte. As noted
above, 	the 	Magistrate 	Judge 	established 	a 	period 	for 	objections, 	during 	which 	the
Respondent was permitted to file objections pursuant to 28 U.S.C. § 636(b)(1) and Local
Magistrate Rule 4(b) and appear before the Court in the Southern District of Florida to
adjudicate the merits of the Petition. That objection period expired fourteen (14) days after
service of the Report and Recommendation.
On January 22, 2026, non-party Kathy Horsford filed Objections to the Magistrate
Judge’s Sixth Report. [ECF No. 53]. The undersigned directed Petitioner to respond to the
Objections by January 26, 2026. Respondent, however, did not file Objections, and the time
to do so has passed. Therefore, this Court addresses the Sixth Report insofar as it pertains to
Respondent below. This Court will address non-party Kathy Horsford by separate Order.
II. CONCLUSION
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
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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.”).
Since Respondent has not filed any response, this Court need only satisfy itself that
there is no clear error on the face of the record in order to accept the recommendation. See
Fed. R. Civ. P. 72 advisory committee’s notes (citation omitted).
The undersigned has reviewed the Sixth Report, the record, and the applicable law to
assure herself that no clear error appears on the face of the record. As set forth above, in the
Sixth Report, the Magistrate Judge recommends that this Court (1) find Respondent in
Contempt; (2) issue a warrant for the arrest of Respondent; (3) order that Respondent be
held in custody until she purges herself of contempt; (4) instruct the proper authorities to
add the minor child to the national police computer missing persons section; (5) instruct that
a national police officer bring the minor child before this Court; (6) find any person
knowingly acting in concert with Respondent in contempt; and (7) extend the TRO through
January 25, 2026. See Sixth Report.
Having reviewed the record in its entirety and upon consideration of the Magistrate
Judge’s thorough and well-reasoned analyses, this Court finds that there is no clear error in
the Sixth Report and Recommendation and agrees with the Magistrate Judge’s reasoning
and conclusions.
Accordingly, it is hereby ORDERED AND ADJUDGED that:
1. 	The Sixth Report [ECF No. 47] is APPROVED AND ADOPTED.
2. 	Plaintiff/Petitioner's 	Ex 	Parte 	Motion 	Under 	Hague 	Convention 	Requesting
Injunctive Relief; For Entry Of A TRO, Application For Warrant Seeking Physical
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Custody Of The Minor Child, And Scheduling Of An Expedited Hearing; And
Federal Rule 65(B) And Certificate Of Counsel [ECF No. 3] is GRANTED;
3. 	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;
4. 	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.
5. 	This Temporary Restraining Order shall expire on February 7, 2026 at midnight,
unless otherwise extended by this Court.
6. 	This Court finds that Respondent, Elizabeth Macpherson, is in CIVIL CONTEMPT
for 	failure 	to 	comply 	with 	this 	Court’s 	lawful 	orders 	requiring 	her 	personal
appearance to address the merits of the Petition;
7. 	This Court shall by separate Order issue the warrant of arrest described above.
8. 	Respondent will be HELD IN CUSTODY until she purges herself of contempt by
complying with Court Orders, including bringing the Child before the Court to
address the merits of the Petition;
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9. 	The parties, including Respondent and Petitioner, shall appear before this Court
to be heard on February 4, 2026 at 4:00 PM in Courtroom 205C at the U.S.
Courthouse, 299 East Broward Boulevard, Fort Lauderdale, Florida 33301, at
which time Respondent will be given the opportunity to purge herself of contempt.
10. The name of the minor child shall be entered into the national police computer
system (N.C.I.C.) missing persons section.
11. This Court shall by separate Order issue a separate warrant allowing any United
States peace officer to bring the minor child into this Court without consent of
Respondent. If the minor child is delivered to this Court pursuant to such Warrant,
and Respondent has not purged herself of contempt, this Court may grant temporary
custody of the child to Petitioner pending the resolution of these proceedings; and
12. This Court further finds that any third-party knowingly acting in concert with
Respondent as being in CONTEMPT OF COURT.
Upon location of the minor child, this Court will hold a Hague Convention hearing
to determine if the child should be immediately returned to the custody of the Petitioner.
Petitioner shall assure this Order is served on Respondent and file a Notice of
Compliance in the record indicating he has done so.
DONE AND ORDERED in Chambers in the Southern District of Florida, this 24th
day of January, 2026.
_________________________________
MELISSA DAMIAN
UNITED STATES DISTRICT JUDGE
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