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 FOURTH AND FIFTH
REPORTS AND RECOMMENDATIONS [ECF NO. 27, 30]
AND ENTERING RENEWED TEMPORARY RESTRAINING ORDER
THIS CAUSE came before the Court on Magistrate Judge Alicia O. Valle’s Report
and Recommendation to District Judge, entered on December 15, 2025 and December 18,
2025, respectively [ECF Nos. 27 (the “Fourth R&R”) and 30 (the “Fifth R&R”)].
THE COURT has reviewed the Fourth and Fifth R&Rs and the pertinent portions of
the record and is otherwise fully advised.
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 R&R”)]. In the Initial R&R, Magistrate Judge
Valle summarized the relevant background and procedural history, and, therefore, this
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Court 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, and that the
Respondent be ordered to relinquish the child’s passport. 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.
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].
No party filed objections to the Initial R&R.1
On October 20, 2025, Petitioner filed a Status Report and 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 R&R”)], in which she
recommended 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 that, 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
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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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. This Court adopted and affirmed the Second R&R 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 R&R”)]. On December 1, 2025, this Court adopted and affirmed
the Third R&R, and entered a Third TRO which was set to expire on December 15, 2026.
[ECF No. 24]. As Judge Valle explains in the Fourth and Fifth R&Rs, which are now before
this Court, the Marshals continue to be unable to locate and serve the Respondent. [ECF
No. 27, 30].
On 	December 	15, 	2025, 	the 	Magistrate 	Judge 	entered 	the 	Fourth 	R&R 	and
recommended that this Court extend the prior R&R, set to expire that same day, until the
next hearing, set for December 18, 2025. See Fourth R&R. 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 Fifth
R&R. Petitioner also referenced the Declaration of U.S. Deputy Marshal David Steinberg
regarding his attempts at service, including one occasion when the Deputy returned to the
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residence and found that documents he had previously left in the mailbox had been
retrieved. Id.
Following the December 18, 2025, the Magistrate Judge issued the Fifth R&R that
same day. In the Fifth R&R, 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. 	Under 	these
circumstances, and given the evidence that Respondent may be actively evading service,
Judge Valle recommends that this Court extend the TRO through January 5, 2026. [ECF
No. 30].
No party has filed objections to the Magistrate Judge’s Fourth and Fifth R&Rs.
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.”).
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The undersigned has reviewed the R&Rs, 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, as indicated above,
neither the Magistrate Judge nor the undersigned has established an objections period
within which Respondent can file objections pursuant to 28 U.S.C. § 636(b)(1) and Local
Magistrate Rule 4(b). Since this Court adopts the Fourth and Fifth R&Rs 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 Fourth and Fifth R&Rs [ECF No. 27 and
30] are AFFIRMED AND ADOPTED, 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
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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.
This TRO shall expire on January 5, 2026, unless otherwise extended by this
Court.
Petitioner shall assure this Order is served on Respondent.
DONE AND ORDERED in Chambers in the Southern District of Florida, this 22nd
day of December, 2025.
_________________________________
MELISSA DAMIAN
UNITED STATES DISTRICT JUDGE
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