United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Petitioner Fernando Silva de Souza ("de Souza") seeks an order from this Court awarding costs and fees for expenses incurred in securing the return of his minor son, G.N.S., to Brazil pursuant to the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. § 9007(b)(3) (formerly 42 U.S.C. § 11607(b)(3)). D. 46. Respondents Fania Luiza Negri ("Negri") and Jorge Nobre Sinoura ("Sinoura") (collectively, the "Respondents") oppose de Souza's motion. D. 49. For the reasons discussed below, the Court ALLOWS IN PART the motion.
II. Factual and Procedural History
The full factual and procedural history was recited in this Court's prior Memorandum and Order allowing de Souza's petition, D. 41 (De Souza v. Negri, No. 14-cv-13788-DJC, 2014 WL 7330770, at *1 (D. Mass. Dec. 19, 2014)).
G.N.S. is the son of de Souza and Negri. D. 41 at 2. De Souza currently lives in guia Branca, Brazil. Id. at 3. Negri lived in another district on the other side of the same city, but now resides in the United States. Id. at 3-4. De Souza and Negri never married but they did live together in guia Branca when G.NS. was born on January 20, 2009. Id. at 2. De Souza and Negri separated, however, when G.N.S. was a baby. Id. at 3. Nevertheless, both de Souza and Negri continued to play some role in G.N.S.'s upbringing in Brazil. Id. at 3-4. At no point, though, did de Souza give Negri permission to remove G.N.S. from Brazil. Id. at 4. All the same, on or about December 11, 2013, Negri took G.N.S. without permission to another part of Brazil, Curitiba, and ultimately, travelled with G.N.S. to the United States. Id . Once in the United States, de Souza had only limited contact with G.N.S. Id. at 4-5.
After locating G.N.S., de Souza filed an emergency petition in this Court for the return of his son to Brazil pursuant to the Hague Convention on Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11, 670, 22514 U.N.T.S. 89 ("Hague Convention" or "Convention") and its implementing legislation, ICARA, 22 U.S.C. §§ 9001 et seq., on October 7, 2014. D. 1. On October 31, 2014, Negri and Sinoura filed their answers, D. 23, 24, and Negri moved to stay the proceedings for a period of six months pending resolution of an asylum application Negri filed on behalf of GNS. D. 25. The Court denied the Respondents' motion to stay on November 12, 2014. D. 29. Between November 14, 2014 and November 24, 2014, the Court conducted a two-day hearing on de Souza's petition. D. 30, 36. The Court issued a Memorandum and Order, ordering the Respondents to return G.N.S. to Brazil, on December 19, 2014. D. 41. On January 8, 2015, de Souza filed a motion to compel the Respondents' compliance with the Court's December 19, 2014 order, recounting that his efforts to arrange G.N.S.'s return to Brazil pursuant to the Court's order had not been effective. D. 42. In light of de Souza's filing, the Court entered an order requiring the Respondents to show cause by January 14, 2015 why the relief sought by de Souza should not be granted. D. 43. On January 14th, the Respondents filed a response indicating that they had received authorization for G.N.S. to travel to Brazil and they had secured a plane ticket for him to do so on January 17, 2015. D. 44. The Court then ordered de Souza to file notice when G.N.S. arrives in Brazil, D. 45, which the petitioner did on January 21, 2015, noting that G.N.S. had arrived in Brazil on January 18, 2015. D. 47. De Souza subsequently filed a motion for costs, D. 46, which the Respondents oppose, D. 49. Specifically, de Souza now seeks $2, 591.16 in costs and $134, 774.50 in legal fees, totaling $137, 365.66. D. 46 ¶ 5.
A. Legal Framework
"[T]he [Hague] Convention provides that upon ordering the return of a child, the court may, where appropriate, ' also order the respondent to pay petitioner necessary' fees, costs, and expenses incurred as a result of the wrongful removal or retention." Mendoza v. Silva, 987 F.Supp.2d 910, 914 (N.D. Iowa 2014) (quoting West v. Dobrev, 735 F.3d 921, 932 (10th Cir. 2013)). The ICARA, the Convention's implementing legislation, makes the provision of fees, costs and expenses mandatory. 22 U.S.C. § 9007(b)(3). The statute provides that "[a]ny court ordering the return of a child... 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." Id.
Here, as this Court has noted previously, de Souza has prevailed and the prerequisite for an award has been established. See Hasan v. Hasan, No. 03-cv-11960-GAO, 2004 WL 57073, at *4 (D. Mass. Jan. 13, 2004) (noting that "[a]n award of the enumerated costs and fees is made mandatory by the plain language of the statute"). Nonetheless, "[t]wo issues remain: first, whether the claimed expenses [are] necessary, ' and second, whether an order against respondent would be clearly inappropriate.'" Whallon v. Lynn, No. 00-cv-11009-RWZ, 2003 WL 1906174, at *2 (D. Mass. Apr. 18, 2003)). The burden of proof to establish necessity is upon the Petitioner, de Souza. Guaragno v. Guaragno, No. 09-cv-00187-O, 2010 WL 5564628, at *1 (N.D. Tex. Oct. 19, 2010) report adopted and accepted, No. 09-cv-187-O, 2011 WL 108946 (N.D. Tex. Jan. 11, 2011). It is, however, the Respondents' burden to establish that a fee award would be "clearly inappropriate." See id.
To determine whether a fee award should be granted, the First Circuit has interpreted "the statute as giving the district court broad discretion in its effort to comply with the Hague Convention consistently with our own laws and standards." Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004) (noting that the district court "has the duty... to order the payment of necessary expenses and legal fees, subject to a broad caveat denoted by the words, clearly inappropriate'"). The "clearly inappropriate" standard is "highly fact specific and involves an equitable balancing of several factors including financial circumstances." Kufner v. Kufner, No. 07-cv-046 S, 2010 WL 431762, at *5 (D.R.I. Feb. 3, 2010); see also In re S.E.O., No. 12-cv-2390-LTS, 2013 WL 4564746, at *2 (S.D.N.Y. Aug. 28, 2013) (quoting Psihoyos v. John Wiley & Sons, Inc., No. 11-cv-1416, 2013 WL 1285153, at *2 (S.D.N.Y. Mar. 29, 2013)) ("balancing a variety [of] factors, including frivolousness, motivation, objective unreasonableness (both in factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence"); Mendoza, 987 F.Supp.2d at 914 (quoting Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013)) (noting that "[t]here is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the [relevant] considerations").
In particular, "the financial plight of the respondent is an important factor to consider." Kufner, 2010 WL 431762, at *2 (internal quotation marks and citations omitted); see also Whallon, 356 F.3d at 139 (citing Rydder v. Rydder, 49 F.3d 369, 373-374 (8th Cir. 1995) (considering financial means to reduce fee award 46 percent); and Berendsen v. Nichols, 938 F.Supp. 737, 739 (D. Kan. 1996) (15 percent reduction)). In addition, whether "the respondent had a reasonable basis for thinking at the time of removing the children to the United States... that her actions were consistent with [the law of the country of habitual residence], that belief, even if mistaken, is a relevant equitable factor when considering whether a costs award is appropriate." Mendoza, 987 F.Supp.2d at 915 (alteration and omission in original) (internal quotation marks and citation omitted). Furthermore, an award of fees may be deemed excessive "if it prevents the respondent-parent from caring for the child." Id . (quoting Norinder v. Fuentes, 657 F.3d 526, 536 (2d Cir. 2011)).
Notably, however, "the fact that the respondent may already owe substantial fees to his or her own attorney does not make an award of the petitioner's attorney's fees clearly inappropriate.'" Mendoza, 987 F.Supp.2d at 915 (citation omitted). "Nor does the fact that the winning petitioner's attorneys provided their services pro bono make an award of fees against the respondent clearly inappropriate.'" Id . (citing Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir. 2010) (finding that withholding fees from pro bono counsel might discourage pro bono representation and undermine the Convention's goal of speedy return) and Vale v. Avila, No. 06-CV-1246, 2008 WL 5273677, at *2 (C.D. Ill.Dec. 17, 2008) (finding an award of attorney fees "clearly inappropriate" where counsel represented petitioner under a ...