Mendoza v. Silva

987 F. Supp. 2d 910, 2014 U.S. Dist. LEXIS 20402, 2014 WL 658068
CourtDistrict Court, N.D. Iowa
DecidedFebruary 19, 2014
DocketNo. C 13-4108-MWB
StatusPublished
Cited by14 cases

This text of 987 F. Supp. 2d 910 (Mendoza v. Silva) is published on Counsel Stack Legal Research, covering District Court, N.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mendoza v. Silva, 987 F. Supp. 2d 910, 2014 U.S. Dist. LEXIS 20402, 2014 WL 658068 (N.D. Iowa 2014).

Opinion

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND EXPENSES

MARK W. BENNETT, District Judge.

Plaintiff Maria Guadalupe Aguilar Mendoza, a citizen of Mexico, filed this action pursuant to the Convention On Civil Aspects Of International Child Abduction (the 1980 Hague Convention or the Convention) and the International Child Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601-11610, to secure the return of her daughters, five-year-old K.G.M.A. and four-year-old M.K.M.A. Ms. Mendoza alleged that the children were, without her consent or acquiescence, wrongfully retained in the Northern District of Iowa, away from their habitual residence in Mexico, by the children’s father, defendant Moisés Medina Silva. After a consolidated trial on the merits and preliminary injunction hearing, I issued a Memorandum Opinion And Order (docket no. 33) on December 10, 2013, 987 F.Supp.2d 883, 2013 WL 6491479, on the merits of Ms. Mendo[913]*913za’s claims, in which I ordered Mr. Medina to transfer the minor children, K.G.M.A. and M.K.M.A., to the custody of Ms. Mendoza at the United States/Mexico border in Nuevo Laredo, Mexico, not later than 12:00 p.m. (noon) on January 10, 2014. No appeal was taken, and Mr. Medina transferred the children to their mother as ordered.

This case is now before me on Ms. Mendoza’s December 20, 2013, Motion For Attorney’s Fees And Expenses (docket no. 35). In her Motion, Ms. Mendoza seeks attorney’s fees totaling $32,265.00 and expenses totaling $3,084.62, which she contends are reasonable fees and out-of-pocket expenses of the kind normally charged to clients by attorneys. Ms. Mendoza also argues that, in addition to normal case preparation, her attorney spent significant time coordinating video and telephone conferencing between the court’s Information Technology (IT) staff and Ms. Mendoza and her computer technician in Mexico, and that her attorney had to ensure that Ms. Mendoza understood and received information in Spanish, which involved translation of numerous documents. In his Resistance (docket no. 37), filed December 23, 2013, Mr. Medina .contends that no award of fees or expenses is appropriate in this case, because he believed (and still believes) in good faith that the parties had an agreement for the children to come to and remain in the United States to start school; the attorney’s fees and costs claimed by Ms. Mendoza are not reasonable and, indeed, are approximately three times his own attorney’s fees; and he is earning only approximately $9.00 per hour, so that he cannot possibly afford to pay any attorney’s fees or expenses in this matter.

Article 26 of the 1980 Hague Convention provides, in pertinent part, as follows:

Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.

The pertinent provision of ICARA, implementing the obligations of the United States under the 1980 Hague Convention, provides as follows:

Any court ordering the return of a child pursuant to an action brought under section 11603 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.

42 U.S.C. § 11607(b)(3) (emphases supplied); see also Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir.1995).

There is a relatively small, but significant group of decisions of the Circuit Courts of Appeals concerning the standards for awards of fees and expenses under these provisions. As the Second Circuit Court of Appeals has explained, “The District Court, as the court ordering the return of the child, is responsible in the first instance for determining what costs, if any, should be assessed against [the respondent], with respect to both the District Court and [any] Court of Appeals proceedings.” Hollis v. O’Driscoll, 739 [914]*914F.3d 108, 113 (2d Cir.2014) (citing Ozaltin v. Ozaltin, 708 F.3d 355, 377 (2d Cir.2013), as explaining; “[T]he District Court is in a better position to assess ... an appropriate fees award.”). As the Tenth Circuit Court of Appeals recently explained,

Article 26 of the Convention provides that upon ordering the return of a child, the court “may, where appropriate,” also order the respondent to pay petitioner “necessary” fees, costs, and expenses incurred as a result of the wrongful removal or retention. 1988 WL 411501, at *7. ICARA, however, shifts the burden to a respondent to show why an award of fees, costs, and expenses would be “clearly inappropriately.]” [ (quoting 42 U.S.C. § 11607(b)(3)).] The First Circuit has explained that under § 11607(b)(3), the district court “has a duty ... to order the payment of necessary expenses and legal fees, subject to a broad caveat denoted by the words, ‘clearly inappropriate.’ ” Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir.2004). Such caveat provides the district court “broad discretion in its effort to comply with the Hague Convention consistently with our own laws and standards.” Id.; see also Chafin [v. Chafin], [— U.S.-,] 133 S.Ct. [1017,] 1022[, 185 L.Ed.2d 1 (2013) ] (recognizing that under § 11607(b)(3), a court ordering the return of a child “generally must require” respondent to pay the fees, costs, and expenses associated with the return).

West v. Dobrev, 735 F.3d 921, 932 (10th Cir.2013).

As to how the district court executes this duty to determine whether or not to award fees and expenses pursuant to the 1980 Hague Convention and ICARA, the Second Circuit Court of Appeals has explained,

A district court’s costs award under the Hague Convention is reviewed for abuse of discretion, see Norinder v. Fuentes, 657 F.3d 526, 536 (7th Cir.2011); Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir.2004), keeping in mind that “[a] district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions,” In re Sims, 534 F.3d 117

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Cite This Page — Counsel Stack

Bluebook (online)
987 F. Supp. 2d 910, 2014 U.S. Dist. LEXIS 20402, 2014 WL 658068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mendoza-v-silva-iand-2014.