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Thursday, August 8, 2019

Pinto Quintero v De Loera Barba, 2019 WL 3604615 (W.D. Texas, 2019)[Mexico] [Necessary expenses]

In Pinto Quintero v De Loera Barba, 2019 WL 3604615 (W.D. Texas, 2019) the Court ordered respondent Alejandra Maria de Loera Barba to return Pinto’s four children based on an application of the Hague Convention. It observed that ICARA requires “[a]ny court ordering the return of a child” to “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 respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3); see also Salazar v. Maimon, 750 F.3d 514, 520 (5th Cir. 2014)

De Loera suggested three reasons why a fee order would be clearly inappropriate here, but none persuade the Court. First, she claimed she “knows nothing else than to be a mom.” The Court noted that de Loera was exceptionally well educated, graduating from Trinity University and an elite private high school in San Antonio. Second, she contended she “does not have the financial means to pay,” attaching a financial disclosure listing $8013 of charitable donations as her lone asset. That was contradicted her in-court admission that she could access over $11,000 in child support payments,  and that she relied on her family for whatever financial support she needs, including buying a $350,000 home through a shell corporation, enrolling the four children in private school (an annual cost exceeding $60,000), and retaining American and Mexican lawyers. Third, she argued she should not have to reimburse Pinto for enforcing the Mexican custody order since she claimed her Mexican lawyer said she could take the children to the United States without violating that order. The Court held that de Loera failed to explain why a fee order was clearly inappropriate.

Pinto’s claimed the following necessary expenses: $110,470.36 in out-of-pocket expenses, including travel expenses and temporary accommodations for two caretakers (one of whom was a relative) and for actual and potential witnesses; security and detective services, including during the months spent searching for his children; and fees incurred visiting the children at the court-approved supervised visitation facility and  $22,541.62 in costs ranging from court clerk and reporter fees; hiring translators, private investigators, and process servers; printing and copying; and renting the house where he and the children lived during the proceedings. 

The court held that Court costs, court reporter fees, printing and copying costs, and translator fees are “per se awardable,” see Saldivar, 894 F. Supp. 2d at 943 (citing 28 U.S.C. § 1920), as are child “care during the course of proceedings ... and transportation costs related to the return of the child[ren].” § 9007(b)(3). Moreover, de Loera never objected to any claimed cost beyond categorizing the total amount as “preposterous” and “outrageous,”, and relying on “attorney arguments attempting to set forth h[er] version of the underlying facts relating to the child[ren]’s retention.” Salazar, 750 F.3d at 522. That fell short of her “statutory obligation to come forward with evidence to show the claimed fees were clearly inappropriate.” Her opposition—just like one the Fifth Circuit rejected in Salazar— “contain[s] no exhibits, affidavits, or any evidence to dispute the necessity or propriety of the claimed expenses. Nor did the Court’s independent review find any expenses not reasonably necessary to Pinto’s quest to get his children back. The Court held Pinto was entitled to $133,011.98 in costs and expenses.

In determining the request for legal fees both sides agreed the calculus begins with the lodestar approach: multiplying the total hours reasonably expended with a reasonable hourly rate. Hours contributing to a successful outcome are “reasonably expended.” Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). To determine a reasonable rate, the Court considers the prevailing market rate in the relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). And both sides agreed that in the Fifth Circuit, once the Court calculates the lodestar, it must then contemplate adjusting the figure upwards or downwards according to factors explained in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Those factors include “[t]he novelty and difficulty of the legal questions” (the lawyer “should be appropriately compensated for accepting the challenge”); “[t]he skill requisite to perform the legal service properly” (including the attorney’s “work product, his preparation, and general ability before the court”); “[t]he preclusion of other employment by the attorney due to acceptance of the case”; “[t]he customary fee” (since “various types of legal work command differing scales of compensation”); “limitations imposed by ... the circumstances” (“[p]riority work that delays the lawyer’s other legal work is entitled to some premium”); “[t]he experience, reputation, and ability of the attorneys”; and “[a]wards in similar cases.” Id. at 719.

The court pointed out that Davis Santos attorneys and paralegals spent 617.8 hours securing their client’s total relief. De Loera mustered no more than “Conclusory complaints” that this effort was excessive, even though the law demands “specific reasons, comparisons or established standards by which to measure the objection.” In re Enron Corp. Sec., Derivative & ERISA Litig., 586 F. Supp. 2d 732, 804 n.84 (S.D. Tex. 2008). Confronted with seventeen pages of detailed billing records, de Loera merely retained an expert to conduct “a perfunctory review” and deem the amount of time “questionable, nay, extremely excessive.” It noted that Davis Santos charges an approximate average hourly rate of $364. De Loera argued that’s too much, citing a Texas Bar Journal article reporting $281 as the median statewide hourly rate in 2017. But that’s the wrong comparator, for four reasons. First, this litigation took place in 2019, not 2017. Second, the Court looks to “the prevailing rate ... i[n] the community in which the district court sits”—here, San Antonio, the seventh most populous city in America with a correspondingly sophisticated legal market—not a statewide survey lumping urban and rural markets together. Scham v. Dist. Courts Trying Criminal Cases, 148 F.3d 554, 558 (5th Cir. 1998). Third, the Texas Bar Journal did not account for differences among firms. Davis Santos is an elite boutique firm offering services comparable to a large law firm. According to a 2015 survey by the Texas State Bar, large San Antonio law firms charge a $421 median hourly rate—above what Pinto’s attorneys charged here. See Dep’t of Research & Analysis, State Bar of Tex., 2015 Hourly Fact Sheet 13 (2016), ECF No. 79-10. Fourth, the Texas Bar Journal did not account for differences among cases. But the Texas State Bar’s 2015 survey did, finding the statewide median hourly rate for international law cases (like this one) was $385—above what Pinto’s attorneys charged here. Id. at 6. And lacking any other argument from de Loera, the Court could not find a $364 average hourly rate unreasonable. That was all the more true since other judges in this district had approved much higher hourly rates for less complicated cases involving less qualified lawyers. See MidCap Media Fin., LLC v. Pathway Data, Inc., No. 15-60, 2018 WL 7890668, at *2 (W.D. Tex. Dec. 19, 2018) (approving a $755 hourly rate in a breach-of-contract case); Xpel Techs. Corp. v. Carlas Int’l Auto. Accessory, Ltd., No. 16-1308, 2017 WL 9362801, at *9 (W.D. Tex. Nov. 27, 2017) (approving a $545 hourly rate for attorneys at a large law firm who obtained a default judgment in a trademark infringement case); see also City of San Antonio v., L.P., No. 6-381, 2017 WL 1382553, at *11 (W.D. Tex. Apr. 17, 2017) (awarding attorneys with twenty years experience $625 hourly, attorneys with ten to twenty years experience $475 hourly, and attorneys with five to nine years experience $350 hourly in a class action under the Texas Tax Code); Sierra Club v. Energy Future Holdings Corp., No. 12-108, 2014 WL 12690022, at *6 (W.D. Tex. Aug. 29, 2014) (awarding out-of-district counsel in a Clean Air Act case $925 per hour after finding that rate reasonable given their home market). And even if this hourly rate exceeded the market, the Johnson factors would adequately justify the increase. 

The Court held that Pinto was entitled to $224,835 in legal fees, and an additional $7,230 compensating his attorneys for the twenty-nine hours spent preparing his fee petition. See Johnson v. State of Mississippi, 606 F.2d 635, 637-38 (5th Cir. 1979). Combined with his other costs and expenses, the Court awarded Pinto $365,076.98.