Botello De La Riva v. Soto

Filing 74

OPINION AND ORDER granting in part and denying in part 60 Motion for Attorney Fees, as supplemented by 73 Memorandum to Supplement, in the amount of $686.45 in costs and expenses, plus the $400 filing fee. The Clerk shall enter judgment in favor of petitioner as set forth in the Opinion and Order. Signed by Judge John E. Steele on 1/17/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARIANA BOTELLO DE LA RIVA,
Petitioner,
v.

Case No: 2:15-cv-615-FTM-29MRM

ABEL VALDEZ SOTO,
Respondent.
OPINION AND ORDER
This matter comes before the Court on review of petitioner’s
Motion for Attorney Fees (Doc. #60) filed on May 11, 2016, to which
respondent filed a Response (Doc. #64) on May 23, 2016.

Petitioner

was granted leave to supplement, and a Memorandum to Supplement
the Motion for Costs (Doc. #73) was filed on January 6, 2017.

For

the reasons stated below, the motion is GRANTED in part and DENIED
in part.
I.
Petitioner’s

Motion,

filed

on

the

Motion

costs.
Motion

contained

no

records

2016,

requests

(Doc. #60, ¶ 5.)

$2,593.79 in attorney costs and fees.

May

11,

However,

substantiating

the

requested

Accordingly, on December 12, 2016, the Court found the
inadequate

petitioner

leave

substantiating

the

and

issued

to

supplement

requested

an

Order
the

costs.

(Doc.

#70)

granting

Motion

with

records

On

January

6,

2017,

petitioner filed the Memorandum to Supplement the Motion for Costs

(Doc. #73) requesting only $686.45 because these are the only costs
petitioner’s counsel 1 can substantiate at this time.
II.
Under Federal Rule of Civil Procedure 54(d), costs “should be
allowed

to

otherwise.

the

prevailing

party”

unless

the

court

provides

Petitioner seeks recovery of costs incurred in the

course of the litigation of this case from respondent pursuant to
the International Child Abduction Remedies Act (ICARA), 42 U.S.C.
§ 11607(b)(3), which provides:
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.
These costs are awarded to deter the unlawful removal of children
and to restore the petitioner to the financial position that she
would have been in prior to the unlawful removal.

Hamprecht v.

Hamprecht, No. 2:12-CV-125-FTM-29, 2013 WL 1155675, at *1 (M.D.
Fla. Mar. 14, 2013).

Furthermore, ICARA provides the Court with

“broad discretion” to determine the fees, expenses, and costs
incurred in the course of litigation, unless the respondent can
establish

that

the

Court’s

1

determination

is

“clearly

Petitioner’s original counsel no longer represents petitioner.
Petitioner’s current counsel has taken over the responsibility of
supplementing the Motion for Attorney Fees. (Doc. #71.)
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inappropriate.”

Id. (citing Whallon v. Lynn, 356 F.3d 138, 140

(1st Cir. 2004)).
Respondent argues that an award granted under petitioner’s
Motion

would

be

“clearly

inappropriate”

because

the

Motion

contains no affidavits regarding the reasonableness of the costs,
no breakdown of the costs, and because respondent is simply unable
to pay.
although

(Doc. #64, ¶¶ 4, 5, 7.)
courts

can

reduce

an

As to the last objection,

award

on

account

of

financial

inability, see Neves v. Neves, 637 F. Supp. 2d 322, 345 (W.D.N.C.
2009), the Court declines to do so here because respondent does
not provide any evidence tending to show that he would be unable
to pay the requested costs.

Furthermore, petitioner now requests

only a fraction of the amount requested in the Motion to which
respondent raised his objections.

(See Doc. #64).

Respondent’s other objections are addressed by petitioner’s
Affidavit (Exh. A), which petitioner’s counsel attached to the
Memorandum to Supplement (Doc. #73).

The Affidavit itemizes the

requested costs, reduced to an amount that can be substantiated.
The Court finds that the Affidavit is sufficient under ICARA to
support

petitioner’s

requested

$686.45

in

costs

and

expenses

incurred by petitioner in the course of the litigation of this
case.
Finally, the Court considers the costs requested in the
supplement to be “necessary” within the meaning of ICARA — the
interpreter, service of summons, and service of motion costs were
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all expenses necessary to the litigation of this case.

See

Saldivar v. Rodela, 894 F. Supp. 2d 916, 943-44 (W.D. Tex. 2012)
(finding

fees

for

filing

the

action,

service

of

summon,

and

compensation of interpreter used at trial necessary under ICARA).
Accordingly, it is hereby
ORDERED:
1.
GRANTED

Petitioner’s Motion for Attorney Fees (Doc. #60) is
in

part

and

DENIED

in

part,

as

supplemented

by

the

Memorandum to Supplement (Doc. #73) as follows:
A. The Court GRANTS costs and expenses in favor of petitioner
in the amount of $686.45.
B.

All

other

requested

costs

and

fees

requested

in

the

original Motion for Attorney Fees (Doc. #60) are DENIED.
C. The filing fee in the amount of $400, which was temporarily
waived, shall be payable by respondent to the Clerk of Court
pursuant to the Court’s Order (Doc. #8).
2. The Clerk shall enter judgment accordingly in favor of
petitioner and against respondent.
DONE and ORDERED at Fort Myers, Florida, this
of January, 2017.

Copies:
Counsel of Record

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17th

day