MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND EXPENSES
Plаintiff 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,
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 Sрanish, 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 rеmain 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 prevеnted 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 pertinеnt 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,
There is a relatively small, but significant group of decisions of the Circuit Courts of Apрeals 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 thе District Court and [any] Court of Appeals proceedings.” Hollis v. O’Driscoll, 739
Article 26 of the Convention provides that upon ordering the return of a child, the court “may, where approрriate,” 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 оur 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,
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 Seсond 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 decisiоn that cannot be located within the range of permissible decisions,” In re Sims,534 F.3d 117 , 132 (2d Cir.2008) (internal citations, quotation marks, and alterations omitted).
Ozaltin,
[Section] 11607(b)(3) retains what we have previously described as the “equitable” nature of cost awards: Moore v. County of Delaware,586 F.3d 219 , 221 (2d Cir.2009).... [A] prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court. Absent any statutory guidance to the contrary, the appropriateness of such costs depends on the same general standаrds that apply when “attorney’s fees are to be awarded to prevailing parties only as a matter of the court’s discretion.” Fogerty v. Fantasy, Inc.,510 U.S. 517 , 534,114 S.Ct. 1023 ,127 L.Ed.2d 455 (1994). “There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the [relevant] considerations.” Id. (internal quotation marks omitted).
Ozaltin,
The Circuit Courts of Appeals have also provided guidance on specific considerations that go into the district court’s exercise of its discretion and equi
On the othеr hand, where the respondent had a “reasonable basis for thinking at the time of removing the children to the United States ... that her actions were consistent with [the law of the country of habitual residence],” that belief, even if mistaken, “is a relevant equitable factor when considering whether a costs award is appropriate.” Ozaltin,
Because of [losing respondent] Mrs. Rydder’s straitened financial circumstances, however, we find thе award of fees and legal costs to Mr. Rydder so excessive as to constitute an abuse of discretion. An award of $10,000, rather than $18,487.42, is more equitable in thisparticular case. We leave undisturbed the district court’s award of expenses in the amount of $9,667.40.
Rydder,
Several district courts have not simply reduced awards of costs in light of a respondent’s inability to pay, but have declined to awаrd costs at all, where the losing respondent would be unable to pay any amount of an award, on the ground that any award would be “clearly inappropriate” in such circumstances. See, e.g., Montero-Garda v. Montero, No. 3:13-cv-00411-MOC,
After careful consideration of equitable principles and pertinent factors in this case, see Ozaltin,
Just as importantly, I find that Mr. Medina’s financial cirсumstances make it “clearly inappropriate” to award aiiy substantial amount of attorney’s fees against him. Doing so would interfere with his ability to provide other support to his children. See Norinder,
I reach а somewhat different conclusion as to Ms. Mendoza’s claimed expenses. Although I find it inequitable and “clearly inappropriate” to award any attorney’s fees, I note that the claim for expenses is far more reasonable and that awarding at least some expenses against Mr. Medina is not “clearly inapproрriate,” as a matter of equity. This is so, in part, because Mr. Medina’s defense of this case also benefitted to some extent from Ms. Mendoza’s translations of various documents; in part, because, even considering Mr. Medina’s financial condition, awarding some share of Ms. Mendoza’s expenses is consistent with the goals of Article 26 of the 1980 Hague Convention and 42 U.S.C. § 11607(b)(3); and, in part, because Ms. Mendoza has some obligation to pay these expenses out-of-pocket, even if her legal representation was pro Bono. See Vale,
THEREFORE, Ms. Mendoza’s December 20, 2013, Motion For Attorney’s Fees And Expenses (docket no. 35) is granted in part, and denied in part. Specifically, the part of her Motion seeking attorney’s fees totaling $32,265.00 is denied, and the part of her Motion seeking expenses totaling $3,084.62 is granted only to the extent that I award her one-half of her claimed
IT IS SO ORDERED.
Notes
. An award of fees under the Convention and ICARA may also properly be denied, where the prevailing petitioner did not comply with applicable local rules concerning the timing or other requirements for seeking such an award. Pesin v. Rodriguez,