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Saturday, February 2, 2019

Vite-Cruz v. Sanchez, 2019 WL 402057 ( D. South Carolina, 2019)[Mexico] [Motion for Costs][Clearly inappropriate]

         In Vite-Cruz v. Sanchez, 2019 WL 402057 ( D. South Carolina, 2019) on December 19, 2018, the Court granted Petitioner’s Petition and ordered the immediate return of A.V., a twelve-year-old child (the “Child”), to his habitual residence of Hidalgo, Mexico. Following the issuance of the Order, Petitioner filed a Motion for Costs.
         The district court observed that Article 26 of the Hague Convention permits a court to award expenses to a prevailing party “where appropriate.” Similarly, ICARA allows for an award of costs, stating in relevant part: Any court ordering the return of a child pursuant to an action brought under [ICARA] 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).
         The district court pointed out that although the Fourth Circuit has not spoken on the issue, other courts have interpreted this statutory provision to give district courts “broad discretion” to determine when an award of costs is appropriate. See, e.g., West v. Dobrev, 735 F.3d 921, 932 (10th Cir. 2013) (noting the “broad discretion” conferred by ICARA); Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004) (”We also read 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.”).

          The motion sought $13,521.97 in costs, including interpretation fees, translation expenses, and other related litigation expenses. The Court reviewed the records submitted by counsel and found these costs to be reasonable in light of the nature and complexity of this case. Nonetheless, the Court considered the totality of the circumstances in determining whether an award of costs is “clearly inappropriate.” Respondent was indisputably indigent and had a large family to support in the United States. In the event Respondent was even able to pay costs, it would be to the detriment of her other children. Furthermore, Respondent relied entirely on her partner’s finances, as she did not make any income. Additionally, the case presented a very close question. Finally, Petitioner’s counsel served in a pro bono capacity, and Petitioner had not personally incurred any costs. The law firms involved in this case participated in a pro bono capacity and received no remuneration for their work. Considering the unique circumstances of this case and financial conditions of the parties, the Court held that it would be “clearly inappropriate” to award Petitioner costs. See in re Application of Stead v. Menduno, 77 F. Supp. 3d 1029, 1038 (D. Co. 2014) (”The Court finds that an award of filing fees and deposition costs is inappropriate in this [Hague Convention] matter, given the petitioner’s pro bono representation and respondent’s relatively low salary, total savings of slightly over $2,000, the fact that respondent spends 80% of her income on housing, and the fact that most of her other expenses relate to providing for [the child].”).