Sundberg v. Bailey

Filing 40

MEMORANDUM OF DECISION AND ORDER granting Petitioner's 39 Second Motion for Attorney Fees under ICARA (relating to Appeal), and Petitioner is hereby awarded the sum of $12,266.50 for necessary expenses arising out of these proceedings. Signed by District Judge Martin Reidinger on 6/19/2019. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:17-cv-00300-MR-DLH

KARL HENRIK SUNDBERG,

)
)
Petitioner,
)
)
vs.
)
)
LISA MICHELLE BAILEY,
)
)
Respondent.
)
___________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Petitioner’s Second
Application for Award of Expenses [Doc. 39], filed May 6, 2019, under the
Hague Convention on the Civil Aspects of International Child Abduction, Oct.
25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501, 51 Fed. Reg. 10494 (1986)
(hereinafter, “Hague Convention”) and the International Child Abduction
Remedies Act, 22 U.S.C. § 9001 et seq. (formerly 42 U.S.C. § 11601 et seq.)
(hereinafter, “ICARA”).
I.

PROCEDURAL BACKGROUND
The Petitioner Karl Henrik Sundberg (“Petitioner”) commenced this

action on November 1, 2017, against the Respondent Lisa Michelle Bailey
(“Respondent”), seeking the return of the parties’ child to Sweden. [Doc. 1].
On December 29, 2017, the Court entered an Order for the return of the Child

to Sweden in accordance with the terms of the Hague Convention. [Doc. 20].
The Petitioner then moved for an award of expenses under the Convention
and ICARA, 22 U.S.C. § 9007(b)(3). [Doc. 25]. On March 8, 2018, the Court
ordered an award to the Petitioner of all the claimed fees and expenses.
[Doc. 28]. The Respondent separately appealed the substantive Order on
Return [Doc. 20] and the Order on Expenses [Doc. 28], but they were
consolidated on appeal. The Fourth Circuit affirmed both Orders on appeal.
[Doc. 37]. The Fourth Circuit issued its mandate on April 22, 2019. [Doc.
38].
The Petitioner now moves for a second award of expenses under
ICARA for costs related to the Respondent’s unsuccessful appeal. [Doc. 39].
The Respondent has not responded to the Petitioner’s application, and the
time for such response has now passed.
II.

STANDARD OF REVIEW
The Hague Convention provides that “[u]pon 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 . . . to pay necessary expenses
incurred by . . . the applicant, including travel expenses, any costs incurred
or payments made for locating the child, the costs of legal representation of
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the applicant, and those of returning the child.” Hague Convention, art. 26.
ICARA provides as follows:
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 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.
22 U.S.C. § 9007(b)(3). An award of expenses under the Convention and
ICARA serves two primary purposes: “(1) to restore the applicant to the
financial position he or she would have been in had there been no removal
or retention and (2) to deter such removal or retention.” Neves v. Neves,
637 F. Supp. 2d 322, 339 (W.D.N.C. 2009) (citation and internal quotation
marks omitted).
“Although Article 26 of the Hague Convention provides that a court
‘may’ award ‘necessary expenses’ to a prevailing petitioner, [§ 9007(b)(3)]
shifts the burden onto a losing respondent in a return action to show why an
award of ‘necessary expenses’ would be ‘clearly inappropriate.’” Ozaltin v.
Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013). This burden shifting “retains the
equitable nature of cost awards, so that a prevailing petitioner’s presumptive
entitlement to an award of expenses is subject to the application of equitable
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principles by the district court.” Souratgar v. Lee Jen Fair, 818 F.3d 72, 79
(2d Cir. 2016) (citation and internal quotation marks omitted). Ultimately, the
award of expenses under the Hague Convention and ICARA is a matter
within the Court’s discretion. Ozaltin, 708 F.3d at 374-75.
III.

DISCUSSION
The only expenses in the instant Application for Fees relate to legal

fees and litigation costs.1 As before, the Respondent makes no objections
to these categories of expenses.

The Court has reviewed Petitioner’s

claimed legal fees [see Attorney’s Affidavit, Doc. 39-1] and finds that they
are reasonable based on the nature of the litigation and representation, the
experience and qualifications of the attorney, the amount of time spent on
this matter, and comparable rates for legal services with which this Court is
familiar. The legal fees charged for litigating the appeal totaled $11,720.00.
The other litigation costs totaled $546.50.2 Accordingly, the “necessary
expenses” incurred by or on behalf of the Petitioner relating to the appeal
total $12,266.50.

1

The Petitioner himself did not incur any direct expenses during the appeal, as he did not
need to travel to the United States and the Minor Child was already back in Sweden
during this timeframe.
Those expenses include the cost of copies of the transcripts; the costs the Petitioner’s
attorneys incurred traveling to Richmond, Virginia, for oral arguments before the Fourth
Circuit Court of Appeals (including lodging and mileage, but excluding food and other
incidentals); and other administrative expenses.
2

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Although the Respondent has not made any timely objection to the
instant motion, the Court has considered whether any of the Respondent’s
prior arguments would provide a rationale for finding an award of all the
necessary expenses to be “clearly inappropriate.” Namely, the Respondent
claimed that her prior actions were in good faith, and that the financial
burdens would be too great. In the prior Order awarding fees, this Court
found, in relevant part, that neither the Respondent’s claimed “good faith”
nor the financial burdens would render the Award of Expenses “clearly
inappropriate.” As noted, the Fourth Circuit affirmed this Order in its entirety.
The claimed expenses are the direct result of the Respondent’s
decision to initiate and litigate an appeal and thus are “necessary expenses.”
Because the Respondent has not presented any additional evidence to show
that the present circumstances are substantially different than they were at
the time of the prior award of fees, the Respondent has not shown that a
further award of fees would be “clearly inappropriate.” Accordingly, the
Petitioner’s application for an award of expenses incurred on appeal is
granted.

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ORDER
IT IS, THEREFORE, ORDERED that the Petitioner’s Second
Application for Award of Expenses [Doc. 39] is GRANTED, and the Petitioner
is hereby awarded the sum of $12,266.50 for necessary expenses arising
out of these proceedings.
IT IS SO ORDERED.
Signed: June 19, 2019

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