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Tuesday, October 10, 2017

Salguero v Argueta, 2017 WL 4475995 (E.D. North Carolina, 2017) [El Salvador ][Costs]

          In Salguero v Argueta, 2017 WL 4475995 (E.D. North Carolina, 2017) the matter was before the clerk on petitioner Jose Gustavo Moneterros Salguero’s motion for payment of costs following the court’s order to return his minor child to El Salvador.. Respondent did not file a response, and the deadline for doing so passed. This matter was referred to the clerk for ruling at the direction of the presiding judge.

        The clerk’s decision stated that under the plain language of the statute, 22 U.S.C. § 9007(b)(3)  the 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 failed to offer any response, and therefore the clerk could not find that she  met her burden in establishing that an award of expenses to petitioner was clearly inappropriate. Accordingly, the clerk only considered whether the expenses requested by petitioner constituted 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 sought $2,064.20 for expenses incurred by him personally, and submitted supporting receipts. His expenses included 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 flight to El Salvador for the child ($426.60), and his lodging in North Carolina during the custody exchange of the child ($641.00). The clerk found these costs were all necessary expenses related to the return of the child and were reasonable. See Hirst v. Tiberghien, Civil Action No., 6:13-00729-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 sought expenses incurred by counsel on his behalf, in the amount of $12,427.36. In declarations, petitioner’s current and prior counsel stated that their retention agreements with petitioner required him to reimburse counsel’s law firms for costs incurred on his behalf during the representation of him in this action. In support of his request for these expenses, petitioner submitted  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 found  that these constituted 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 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. 1:00-CV-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.

          Petitioner also sought expenses incurred by his counsel on his behalf which were not supported by invoices; his current and prior counsel stated in declarations that invoices are not available. These expenses included 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 was documented in the record = these remaining expenses were not awarded. Without supporting invoices, additional documentation, or some further explanation from counsel, the clerk could not find that the costs for postage, telephone, courier costs, copies, scanning, printing or long distance phone charges were necessary, nor can the clerk find any of the other expenses were 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), aff’d, 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”). 

          Petitioner’s request for expenses incurred on his behalf by counsel was reduced by the amount of $2,316.80., Petitioner was awarded costs in the amount of $12,174.76.