St. Denis v. St. Denis

Filing 152

ORDER granting 146 Motion to Dismiss. The Court dismisses the case with prejudice and orders the parties to reimburse Attorney Welty for her services as guardian ad litem. Signed by Judge Victor A. Bolden on 12/16/2016.(Ghosh, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
THOMAS J. ST. DENIS,
Petitioner

v.

DAELTE LIMA ST. DENIS,
Respondent.

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No. 3:16-cv-00441-VAB

ORDER
Petitioner, a citizen of Brazil and the United States, filed this action on March 16, 2016 under
the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S.
No. 11,670, 1343 U.N.T.S. 89 (the “Hague Convention”) and its implementing legislation, the
International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq. ECF No. 1. Petitioner
sought the return of his two children, who, he alleged, had been taken to Connecticut in violation of
the Hague Convention.
After delaying several hearings in the case, Petitioner moved to dismiss it on October 25,
2016. See Motion to Dismiss under F. R. Civ. P. 41(a)(2), ECF No. 135. On November 10, 2016,
Mr. St. Denis submitted an amended motion to dismiss the case, this time requesting the Court to
dismiss the case with prejudice. See Amended Motion to Dismiss, ECF No. 146. In a subsequent
filing responding to an Order from his Court, Mr. St. Denis suggested that the parties split the cost of
the Guardian ad Litem. See Pl.’s Mem. re: Order to Show Cause, ECF No. 148.
Mr. St. Denis also argued that attorneys’ fees “would not be appropriate,” given that
Respondent herself had delayed the case by moving for appointed counsel. Id. In response, Ms. St.
Denis contended that Petitioner bore the primary responsibility for the delay, particularly for the
period from June 15, 2016, when Petitioner moved to testify remotely at the hearing scheduled for

June 20, to October 26, 2016, when he moved to dismiss the case. Respondent’s Reply, ECF No.
149. At a hearing on November 28, 2016, the parties each represented a preference for the case to be
dismissed with prejudice. The parties also agreed that it would be appropriate to share the fees for
the guardian ad litem.
Rule 17(c) gives district courts the authority to appoint a guardian ad litem to protect the
interests of a minor or incompetent party. F. R. Civ. P. 17(c)(2). When a court appoints such a
guardian, the costs and expenses of the guardian ad litem may be charged to the parties as the court
orders. Id. See also 10-54 Moore’s Federal Practice - Civil § 54.102 (2016). The court also has the
discretion to tax the costs of the guardian ad litem to the “prevailing party.” Whitfield v. Scully, 241
F.3d 264, 269 (2d Cir. 2001).1
Because Petitioner was responsible for delaying the resolution of this case from June until he
moved for dismissal in October, he should be solely responsible for the fees that Attorney Welty
incurred relating to proceedings scheduled after June 20. These costs represent the time that
Attorney Welty spent preparing for and attending hearings scheduled for July 13, 2016 and October
26, 2016, both of which were postponed by Petitioner. The parties will split equally the fees incurred
by Attorney Welty before June 20, 2016. See Guardian ad Litem’s Revised Affidavit re: Attorney’s
Fees, ECF No. 145.

1
 Because the parties have agreed to share the cost of the guardian ad litem, the Court does not need
to analyze whether Ms. St. Denis is the “prevailing party” under F.R. Civ. P. 54, or whether guardian
ad litem fees are properly taxed as costs, although both propositions are likely true. See Balance
Point Divorce Funding, LLC v. Scrantom, 305 F.R.D. 67, 71 (S.D.N.Y. 2015) (holding that “because
the action was voluntarily dismissed against [defendant] with prejudice, [defendant is] a ‘prevailing
party’ under Rule 54(d)(1)”); Gaddis v United States, 381 F.3d 444, 454-55 (5th Cir. 2004) (en banc)
(“[U]nder Rule 17(c), the district courts have inherent authority and discretion to determine ...
[w]hether the compensation payable to the guardian ad litem will be treated (1) as a court cost to be
taxable against the nonprevailing party or (2) as an expense to be payable out of any funds recovered
by or payable to the minor or incompetent person on whose behalf the guardian ad litem was
appointed.”)  

More specifically, Petitioner will be solely responsible for compensating Attorney Welty for
9.6 hours of work, and the parties will equally split the fees associated with the remaining 15.5 hours
of work. Petitioner is ordered to pay $8,241.25 and Respondent is ordered to pay $3,681.50. Each
party is responsible for directly reimbursing Attorney Welty and must file a representation with the
Court indicating that they have done so by December 30, 2016.
Rule 41(a)(2) governs a plaintiff’s voluntary dismissal of her complaint after an answer has
been filed. The Rule allows for voluntary dismissal, but “only by court order, on terms that the court
considers proper.” Fed. R. Civ. P. 41(a)(2). In this case, parties and the Court agree that dismissal
with prejudice is appropriate. The Court dismisses the case with prejudice. The Clerk of Court is
directed to close this case.
SO ORDERED at Bridgeport, Connecticut this 16th day of December, 2016.
__/s/ Victor A. Bolden_____________________
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE