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
- 3 -
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
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