Mata-Cabello v. Thula

• Court: Court of Appeals for the First Circuit
• Decided: April 28, 2023
• Docket: 21-1538
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-1538

ASDRÚBAL SIMÓN MATA-CABELLO,

Petitioner, Appellee,

v.

TAILI TEE THULA,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Barron, Chief Judge, Lipez and Montecalvo, Circuit Judges.

Victor M. Rivera-Rios for appellant. Rubén T. Nigaglioni, with whom Nigaglioni Law Offices P.S.C. was on brief, for appellee.

April 28, 2023 BARRON, Chief Judge. Taili Tee Thula ("Thula") appeals

from the denial of her request for an award of attorney's fees,

pursuant to the inherent power of the United States District Court

for the District of Puerto Rico, and the costs of translation

services, pursuant to 28 U.S.C. § 1920(6). We affirm.

I.

The challenges on appeal arise out of a pair of actions

-- one filed by Thula in the Puerto Rico courts and one filed by

her husband, Asdrúbal Simón Mata-Cabello ("Mata-Cabello"), in

federal court. We thus recount the travel of the two actions.

Thula's action in the Puerto Rico courts began when she

filed a complaint against Mata-Cabello, then residing in Colombia,

in the Court of First Instance of the Commonwealth of Puerto Rico

on February 20, 2020. The complaint alleged causes of action for

divorce under Article 96 of Puerto Rico's Civil Code, P.R. Laws

Ann. tit. 31, § 321, custody of the couple's two minor children,

child support, alimony, and "the division of the marital estate,"

as well as claims under Puerto Rico's Domestic Abuse Prevention

and Intervention Act, P.R. Laws Ann. tit. 8, § 601 et seq. Thula

sought further relief under the Convention on the Civil Aspects of

International Child Abduction, done at The Hague on October 25,

1980 ("Hague Convention"), and its implementing legislation, the

International Child Abduction Remedies Act ("ICARA"), 22 § U.S.C.

9001 et seq.

- 2 - In response, Mata-Cabello moved to dismiss Thula's

divorce and custody claims on the ground that the Court of First

Instance lacked jurisdiction under Puerto Rico law to hear them

because Thula had not been a resident of Puerto Rico for one full

year prior to filing her complaint. Mata-Cabello also requested

relief pursuant to ICARA and the Hague Convention. Specifically,

he requested that the minor children be returned to their "habitual

place of residence" in Colombia so that "the divorce and minor

custody proceedings" could be resolved in accord with Colombia

law.

On October 30, 2020, the Court of First Instance granted

the motion to dismiss, explaining that it lacked jurisdiction "to

hear the merits of the divorce [c]omplaint filed by [Thula]." The

Court of First Instance also dismissed Thula's other claims. In

doing so, the court did not address the parties' requests for

relief under ICARA and the Hague Convention. Thula filed a timely

motion for reconsideration that was denied.

Following the Court of First Instance's denial of

Thula's motion for reconsideration, on December 4, 2020,

Mata-Cabello filed a petition under ICARA and the Hague Convention

in the United States District Court for the District of Puerto

Rico that named Thula as the respondent. The petition requested

that the District Court order the return of the minor children to

- 3 - their "habitual residence" in Colombia for resolution of the

custody proceedings under Colombia law.

Mata-Cabello asserted in the petition that the District

Court had jurisdiction over the Hague Convention petition under 22

U.S.C. § 9003. That provision grants "[t]he courts of the States

and the United States district courts . . . concurrent original

jurisdiction of actions arising under the [Hague] Convention."

Meanwhile, on December 28, 2020, Thula timely appealed

the Court of First Instance's dismissal of her action to the Puerto

Rico Court of Appeals. And, then, soon thereafter, on January 11,

2021, she moved in the District Court to dismiss Mata-Cabello's

Hague Convention petition in that court on the ground that "the

Hague Convention [p]etition ha[d] been raised by both parties and

[was] currently being litigated in the Puerto Rico courts for the

past eleven (11) months."

The Puerto Rico Court of Appeals, on March 12, 2021,

decided Thula's appeal from the Court of First Instance's

dismissal. It ruled that the Court of First Instance had erred by

"dismissing [Thula's] complaint in its totality, without having

addressed and resolved all the claims under [its] consideration."

Accordingly, the Puerto Rico Court of Appeals ordered the Court of

First Instance to:

determine whether it has jurisdiction over the matter [or] the authority to address the whole matter under the protection of the Hague

- 4 - Convention [ ] and [ICARA]. If said forum were to determine that it has the authority over the above cited laws, it shall resolve: (1) whether Puerto Rico is the habitual resident of the minor children procreated by the parties, and (2) establish a provisional legal precedent related to custody, parent-child relationships, provisional child support and litis expensas.

Following the Puerto Rico Court of Appeals' ruling, the

District Court entered the following order on April 23, 2021:

It has come to the Court's attention that the Puerto Rico Court of Appeals has entered its ruling on [Thula's] appeal related to the instant matter. [Thula] is to file the resolution entered by the Puerto Rico Court of Appeals dated April 5, 2021 in case no. KLAN202001039 by April 28, 2021. A [c]ertified translation of said document is to be filed no later than May 3, 2021.

After the District Court received the translated

resolution, it ruled on May 4, 2021, that it would abstain because

the ICARA and Hague Convention remedies "ha[d] been raised by both

parties, [were] currently being litigated in the Puerto Rico

[c]ourts for the past fourteen (14) months and [were] included in

the [r]esolution of the Puerto Rico Court of Appeals."

Accordingly, the District Court dismissed Mata-Cabello's action

without prejudice on abstention grounds.

Following the District Court's order dismissing

Mata-Cabello's action, on May 18, 2021, Thula filed a "Motion for

an Award of Attorney Fees and Costs to Prevailing Party Pursuant

- 5 - to Rule 54 of the Federal Rules of Civil Procedure and Applicable

Law." The motion sought an award of $28,937.50 in attorney's fees

and costs totaling $5,480.20 for "[i]nterpreter [s]ervices to

translate Spanish [d]ocuments and copies" under 28 U.S.C.

§ 1920(6).

Rule 54(d) provides, in relevant part:

Costs; Attorney's Fees.

(1) Costs Other Than Attorney's Fees. Unless a federal statute, these rules, or a court order provides otherwise, costs--other than attorney's fees--should be allowed to the prevailing party. But costs against the United States, its officers, and its agencies may be imposed only to the extent allowed by law. The clerk may tax costs on 14 days' notice. On motion served within the next 7 days, the court may review the clerk's action.

(2) Attorney's Fees. (A) Claim to Be by Motion. A claim for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.

(B) Timing and Contents of the Motion. Unless a statute or a court order provides otherwise, the motion must: (i) be filed no later than 14 days after the entry of judgment; (ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the award; (iii) state the amount sought or provide a fair estimate of it; and (iv) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made.

- 6 - Thula identified 22 U.S.C. § 9007(b) as the statute

"entitling [her] to the award [of attorney's fees]." That

provision states:

Costs incurred in civil actions

(1) Petitioners may be required to bear the costs of legal counsel or advisors, court costs incurred in connection with their petitions, and travel costs for the return of the child involved and any accompanying persons, except as provided in paragraphs (2) and (3).

(2) Subject to paragraph (3), legal fees or court costs incurred in connection with an action brought under section 9003 of this title shall be borne by the petitioner unless they are covered by payments from Federal, State, or local legal assistance or other programs.

(3) Any court ordering the return of a child pursuant to an action brought under section 9003 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate.

Thula also moved, in the alternative, for the attorney's

fees to be awarded based on the inherent power of the District

Court. She did so due to what she contended was Mata-Cabello's

"bad faith" filing of the action against her in the District Court,

given that a district court has the inherent power to order a

- 7 - losing party to pay the "prevailing party" attorney's fees, even

in the absence of a statutory provision, when the losing party has

"acted in bad faith, vexatiously, wantonly, or for oppressive

reasons," Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S.

240, 258-59 (1975).

As to the costs of translation services, Thula moved for

them pursuant to 28 U.S.C. § 1920(6). That statute provides that

"[a] judge or clerk of any court of the United States may tax as

costs the following: . . . Compensation of court appointed

experts, compensation of interpreters, and salaries, fees,

expenses, and costs of special interpretation services under

section 1828 of this title."

On June 8, 2021, the District Court denied Thula's

request for the award of attorney's fees because: (1) 22 U.S.C.

§ 9007(b) "provides for fees only to a prevailing petitioner; the

section does not provide for fees to a prevailing respondent, and

indeed, does not even mention prevailing respondents"; and (2)

Mata-Cabello's action in federal court was "brought in good faith

in an attempt to defend what he believed were the father's rights

in a Hague Convention and ICARA proceeding." Mata-Cabello v.

Thula, No. 20-1687, 2021 WL 3040959, at *5 (D.P.R. June 8, 2021).

The District Court at that same time also denied Thula's

request for the costs of translation services. It did so based on

Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560 (2012), in

- 8 - which the Supreme Court of the United States held that "costs

stemming from the translation of written documents do not qualify

as [']compensation of interpreters,['] as that term is used in 28

U.S.C. § 1920(6), and, therefore, may not be taxed as costs against

a non-prevailing party." Thula, 2021 WL 3040959, at *2 (quoting

Davila-Feliciano v. Puerto Rico State Ins. Fund, 683 F.3d 405, 406

(1st Cir. 2012) (per curiam)).

This appeal followed.

II.

Thula challenges the District Court's denial of her

request for an award of attorney's fees on a single ground. She

contends that the District Court abused its discretion, see In re

San Juan Dupont Plaza Hotel Fire Litig., 111 F.3d 220, 228 (1st

Cir. 1997), by not exercising its inherent authority to grant her

request that the fees be awarded.

To support that contention, Thula argues that the record

establishes that Mata-Cabello acted in "bad faith" in filing the

action in the District Court. She argues, in that regard, that

the record shows that, at the time of his federal court action

against her, Mata-Cabello had requested similar relief in the Court

of First Instance in response to Thula's claims in that court,

previously "submitted himself to the [jurisdiction of the] Puerto

Rico [c]ourts," and "had full knowledge that [Thula's] [p]etition

- 9 - pursuant to the Hague Convention and ICARA was still pending before

the Puerto Rico [c]ourts."

The District Court pointed out, however, that, at the

time that Mata-Cabello filed his ICARA and Hague Convention

petition in federal court, the Court of First Instance had

dismissed Thula's action in its entirety without having addressed

the merits of either Thula's or Mata-Cabello's requested relief

under ICARA and the Hague Convention. See Thula, 2021 WL 3040959,

at *5. Thus, we see no basis for concluding that the District

Court abused its discretion in determining that Mata-Cabello

"chose to file in federal court mainly because the issues of the

Hague Convention and ICARA were not considered by the First

Instance Court of San Juan," and thus "in good faith in an attempt

to defend what he believed were the father's rights in a Hague

Convention and ICARA proceeding," id.

Thula bases her challenge on appeal to the District

Court's denial of her request for costs of translation services

pursuant to 28 U.S.C. § 1920(6) on a single ground as well. The

District Court based the denial on the Supreme Court's

determination in Taniguchi that "the compensation of interpreters

that may be awarded under [§ 1920(6)] is limited to the cost of

oral translation and does not include the cost of document

translation." Id. at *2. Thula contends that the District Court

erred in doing so because it failed to "take into account the Jones

- 10 - Act," which requires that "[a]ll pleadings and proceedings in the

United States District Court for the District of Puerto Rico shall

be conducted in the English language," 48 U.S.C. § 864. She

contends that is so because:

Congress'[s] mandate pursuant to the Jones Act makes it mandatory that all Spanish documents must be translated to English, any party that is forced to translate any Spanish documents to English should be able to benefit from requesting reimbursement for translator costs in the territory of Puerto Rico pursuant to the Jones Act.

But, although Thula asserts to us that the District Court

should have "evaluate[d] the case under the legal framework of the

Jones Act," she did not make this argument to the District Court,

which means the challenge is at least forfeited, see Igartúa v.

United States, 626 F.3d 592, 603 (1st Cir. 2010). And, to the

extent that she may be said to have adequately developed the

challenge on appeal, United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990) ("It is not enough merely to mention a possible argument

in the most skeletal way, leaving the court to do counsel's work,

create the ossature for the argument, and put flesh on its

bones."), she fails to explain how, given Taniguchi, the "legal

framework of the Jones Act" bears on whether she is entitled to

the costs that she seeks under § 1920(6). She instead simply

asserts, in conclusory fashion, that the Jones Act somehow requires

§ 1920(6) to be read differently with respect to cases that are

- 11 - brought in Puerto Rico federal court than Taniguchi requires it to

be read with respect to cases that are brought in all other federal

courts. And, she advances that conclusory contention even though

Congress enacted § 1920(6) sixty-one years after it enacted the

Jones Act, and the customary rule is that all federal court

proceedings in the United States must be conducted in English, see

United States v. Rivera-Rosario, 300 F.3d 1, 5 (1st Cir. 2002)

("It is clear, to the point of perfect transparency, that federal

court proceedings must be conducted in English. Even if this

practice were not intuitively obvious in Puerto Rico, Congress

enacted section 42 of the Jones Act." (emphasis added)). We

therefore reject Thula's Jones Act-based challenge to the District

Court's rejection of her request for the costs of translation

services.1

1 The District Court noted that the 2017 Taxation of Costs Guidelines of the District Court for the District of Puerto Rico state: "[o]ther expenses not specifically allowed by statute but necessary for the case may be taxed as costs only with prior authorization granted by the Court." § II.I. But, the Taxation of Costs Guidelines also provide: "The following expenses are not taxable as costs: . . . The costs of translating into the English language all documents filed with the District Court or presented as evidence at trial, since they are not interpreter services under 28 U.S.C. § 1920(6)." § II.H.2.a. https://www.prd.uscourts.gov/sites/default/files/Taxation%20of%2 0Costs%20Guidelines%202007%20rev%2008.10.2017_0.pdf

- 12 - III.

For these reasons, the judgment of the District Court is

affirmed.

- 13 -