893 F. Supp. 2d 755
E.D. Va.2012Background
- Petitioner Malcolm White (UK) and Respondent Soudabeh White (Swiss/Iranian) are married; their child is a Swiss citizen born in Geneva and lived there until removal to the United States in 2011.
- Respondent obtained sole physical custody in Switzerland; Petitioner had visitation rights and joint parental authority remained in place.
- Respondent left Switzerland with the child in 2011 for medical care in the U.S.; habitual residence was Switzerland at removal.
- Swiss court orders around 2011-2012 addressed removal rights and jurisdiction; subsequent rulings recognized Respondent’s sole custody and lack of Swiss jurisdiction over removal.
- Petitioner sought return of the child under ICARA; bench trial found removal did not violate Swiss law and there was no grave risk upon return; Petitioner prevailed on the ICARA claim.
- The court awarded costs under Rule 54(d)(1) and §1920 but denied attorney’s fees under ICARA; some requested costs (translations, courier, certain admin fees) were disallowed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICARA allows attorney’s fees for a prevailing respondent. | White argues ICARA §11607 allows fee shifting to the prevailing party. | Respondent argues ICARA provides one-way fee shifting only. | No; ICARA does not permit fees to a prevailing respondent. |
| Whether the court may award attorney’s fees under the court’s inherent powers. | White contends inherent powers allow fees. | Respondent argues only in exceptional circumstances. | Not appropriate; no bad faith or abuse by Petitioner. |
| Whether costs should be awarded under Rule 54(d)(1). | Costs should be awarded to the prevailing party. | Costs should be limited by §1920 and not all requested items are recoverable. | Costs awarded to Respondent, but limited to items enumerated in §1920. |
| Which specific costs are recoverable under §1920 and §1920(6) in this case. | Petitioner seeks translations, deposits, courier, admin copying fees. | Some categories are not recoverable under 28 U.S.C. §1920. | Only deposition costs and physician deposition costs recoverable; translation, courier, and admin copying fees denied. |
Key Cases Cited
- Alyeska Pipeline Svc. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975) (fee shifting requires statute or inherent power with limits)
- United Food and Commercial Workers, Local 400 v. Marval Poultry Co., 876 F.2d 346 (4th Cir. 1989) (prevailing party generally not entitled to attorneys’ fees unless authorized)
- Hensley v. Alcon Laboratories, Inc., 277 F.3d 535 (4th Cir. 2002) (inherent-power awards require bad faith or abuse exceptional circumstances)
- Cherry v. Champion Int’l Corp., 186 F.3d 442 (4th Cir. 1999) (considerations for awarding costs under Rule 54(d)(1) and related factors)
- Teague v. Bakker, 35 F.3d 978 (4th Cir. 1994) (context for costs and fee shifting in civil litigation)