Monterossa Salguero v. Franco Argueta

Filing 125

ORDER - Petitioner's Motion for Payment of Costs 117 is GRANTED. Petitioner Jose Gustavo Monterrosa Salguero is awarded costs in the amount of $12,174.76 pursuant to 22 U.S.C. § 9007. These costs are taxed against respondent and shall be included in the judgment. Signed by Peter A. Moore, Jr., Clerk of Court on 10/6/2017. (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-125-FL
JOSE GUSTAVO MONTERROS
SALGUERO,
Petitioner,
v.

MADONNA ALEXANDRA MARCE
FANCOARGUETA,
Respondent.

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ORDER

This matter is before the clerk on petitioner Jose Gustavo Moneterros Salguero's motion
for payment of costs [DE-117] following the court's order to return his minor child to El Salvador
pursuant to The Convention of the Civil Aspects of International Child Abduction, October 25,
1980, T.I.A.S., No. 11670 et seq. ("Hague Convention") and the International Child Remedies
Act, 22 U.S.C. § 9001 et seq. ("!CARA"). Respondent has not filed a response, and the deadline
for doing so has since passed. This matter is therefore ripe, and has been referred to the clerk for
ruling at the direction of the presiding judge.

BACKGROUND
Petitioner initiated this action in the Southern District of Texas by filing a verified petition
seeking the return of his minor child pursuant to the Hague Convention and ICARA.

On

petitioner's motion, the Southern District of Text transferred the action to this court on March 14,
2017.
Following the transfer, petitioner filed an amended verified petition. After ruling on a
variety of motions, the court held a hearing on the petition from April 17-19, 2017. After the

parties filed post-hearing briefs, the court granted the amended verified petition and awarded
petitioner physical custody, for the purpose of returning the child to El Salvador. The court
allowed petitioner 14 days to file an application for attorney's fees and expenses. Petitioner timely
filed the motion for payment of costs.
ANALYSIS

ICARA provides:
Any court ordering the return of a child pursuant to an action brought under section
9003 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 the proceedings in the action, and transportation costs
related to the return of the child, unless the respondentrestablishes that such order
would be clearly inappropriate.
22 U.S.C. § 9007(b)(3). Accordingly, under the plain language of the statute, this court has the
duty to order the payment of necessary expenses and legal fees unless respondent satisfies her
burden of showing that such an order would be clearly inappropriate.
In this case, respondent has failed to offer any response, and therefore the clerk cannot find
that she has met her burden in establishing that an award of expenses to petitioner is clearly
inappropriate. Accordingly, the clerk will consider only whether the expenses requested by
petitioner constitute a "necessary expense" related to the return of the minor child and are
reasonable. See Dawson v. McPherson, No. 1:14CV225, 2014 WL 4748512, at *2 (M.D.N.C.
Sept. 23, 2014); Trudrung v. Trudrung, No. 1:10CV73, 2010 WL 2867593, at *1 (M.D.N.C. July
21, 2010).
Petitioner seeks $2,064.20 for expenses incurred by him personally, and submits
supporting receipts. His expenses include the costs he incurred in purchasing a visa and passport
to travel to the United States ($219.00), a round trip flight from El Salvador ($777.60), a one-way

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flight to El Salvador for the child ($426.60), and his lodging in North Carolina during the custody
exchange of the child ($641.00). These costs are all necessary expenses related to the return of
the child and are reasonable. See Hirst v. Tiberghien, Civil Action No., 6:}3-00729-JM, 2012 WL
6827813, at *5 (D.S.C. Dec. 20, 2013) (awarding a petitioner expenses including roundtrip airfare
for petitioner, lodging, and return airfare for children); Judge v. Williams, No. 4:11-CV-119-F,
2011 WL 3759476, at *2 (E.D.N.C. August 25, 2011) (awarding expenses for petitioner's
roundtrip airfare, lodging, and return airfare for child).
Petitioner also seeks expenses incurred by counsel on his behalf, in the amount of
$12,427.36.

In declarations, petitioner's current and prior counsel state that although they

represented petitioner pro bono, and are not seeking attorney's fees, their retention agreements
with petitioner require him to reimburse counsel's law firms for costs incurred on his behalf during
the representation of him in this action. See Deel. of Counsel [DE-117-10]
[DE-117-11]

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3; Deel. of Counsel

3. In support of his request for these expenses, petitioner submits declarations of

counsel, and for some expenses, supporting invoices.
The expenses for which petitioner submitted supporting receipts or invoices include the
costs for court interpreters for the hearing in this matter ($3,682.00), costs for translation of
documents offered as exhibits in the case ($2,149.29), fees for the transcripts of the hearing on the
petition ($1,695.75), lodging for his counsel and some meals during the hearing on the petition
($873.03), lodging for his counsel during the custody exchange ($208.69), the services of a private
investigator to confirm the location of the child within the Eastern District ($731.80), the costs of
subpoenaing airline records ($20.00, and the fee for an expert witness ($350.00). The clerk finds
that these constitute necessary expenses related to the return of the child. See Cuellar v. Joyce,
603 F.3d 1142-43 (9th Cir. 2010) (finding the expenses incurred by attorney for lodging and meals

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during oral argument and post-argument mediation to be "necessary expenses incurred by or on
behalf of petitioner); Dawson, 2014 WL 4748512, at* 8 (awarding petitioner expenses for, inter
alia, the cost of a private investigator to locate the abducted children in the United States); Saldivar
v. Rodela, 894 F. Supp. 2d 916, 945 (W.D. Tex. 2012) (awarding costs for expert witness fees);
Neves v. Neves, 637 F. Supp. 2d 322, 344 (W.D.N.C. 2009) (awarding petitioner translation
expenses); Friedrich v. Thompson, No.

~:OO-GV-772,

1999 WL 33951234, at *2 (M.D.N.C. Nov.

26, 1999) (awarding petitioner the cost of translating documents from German to English). See
also 28 U.S.C. § 1920 (providing for the taxation of costs of fees of court reporters for transcripts
necessarily obtained for use in the case, compensation of interpreters, and fees for copies of papers
necessarily obtained for use in the case); Saldivar, 894 F. Supp. 2d at 943 (concluding that costs
taxable under 28 U.S.C. § 1920 are "per se awardable" under ICARA). The clerk also finds that
these requested expenses, supported by invoices, are reasonable .

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Petitioner also seeks expenses incurred by his counsel on his behalf which are not
supported by invoices; rather, his current and prior counsel state in declarations that invoices are
not available. These expenses include costs for counsel's travel for trial and the custody exchange
($1,034.45); meals during the trial and custody exchange ($243.02); 1 postage, telephone, and
courier costs ($843.36); color copies, scanning, and printing costs ($31.40); long distance phone
charges ($24.26); filing fee ($400.00), and attempted service of process costs ($140.31 ). With the
exception of the filing fee, which is documented in the record [DE-I], these remaining expenses
are not awarded.

Without supporting invoices, additional documentation, or some further

explanation from counsel, the clerk cannot find that the costs for postage, telephone, courier costs,

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Although petitioner's current counsel states that invoices for the meal expenses are not available, the invoices for
counsel's lodging during the hearing includes charges for meals and beverages. See Mot. for the Payment of Costs,
Ex. 6 [DE-117-6].

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copies, scanning, printing or long distance phone charges were necessary, nor can the clerk find
any of the other expenses are reasonable. See Whallon v. Lynn, No. Civ.A. 00-11009-RWZ, 2003
WL 1906174, at * (D. Mass. April 18, 2003) (declining to award petitioner "inadequately
documented" expenses), affd, 356 F.3d 138 (1st Cir. 2004); Dawson, 2014 WL 4748512, at *9
(refusing to award expenses for which a petitioner provided no documentation because "[i]f the
Court cannot assess the validity of the expenses, it cannot begin to address whether such expenses
were in fact reasonable or necessary"). Accordingly, petitioner's request for expenses incurred on
his behalf by counsel shall be reduced by the amount of $2,316.80.
In sum, petitioner's motion for payment of costs is GRANTED, and pursuant to 22 U.S.C.
§ 9007(b)(3), petitioner is awarded costs in the amount of $12,174.76.
CONCLUSION

Petitioner's Motion for Payment of Costs [DE-117] is GRANTED. Petitioner Jose Gustavo
Monterrosa Salguero is awarded costs in the ~ount of $12,174.76 pursuant to 22 U.S.C. § 9007.
These costs are taxed against respondent and shall be included in the judgment.
SO ORDERED. This the_£_ day of October, 2017.

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