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Sunday, March 20, 2022

Jacquety v Baptista, 549 F.Supp.3d 293 ( S.D. N.Y., 2021) [France][Petition denied][Costs]

In Jacquety v Baptista, 549 F.Supp.3d 293 ( S.D. N.Y., 2021)  following the denial of the father’s petition for return of the child ( 2021 WL 1885263) Respondent  moved for an award of costs pursuant to 28 U.S.C. §§ 1920 and 1923, Rule 54 of the Federal Rules Of Civil Procedure, and Southern District Of New York Local Civil Rule 54.1. 

Respondent requested total costs in the amount of f $87,305.06. Petitioner contests the amount sought and argues that an award of costs should be limited to $18,105.34.

The district court observed that Federal Rule Of Civil Procedure 54 provides that, “unless a federal statute, these rules, or a court order provides otherwise, costs – other than attorney’s fees – should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1) (“Rule 54”)). The items that may be included in a cost award pursuant to Rule 54 are defined by statute, specifically 28 U.S.C. § 1920 (“Section 1920”). Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S. Ct. 2494, 2497, 96 L.Ed.2d 385 (1987). 28 U.S.C. § 1920  lists six categories of recoverable costs: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under [28 U.S.C. § 1923]; and (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under [28 U.S.C. § 1828].  A court does not have discretion to tax costs beyond what is set forth in Section 1920. Crawford Fitting, 482 U.S. at 441-42, 107 S. Ct. at 2497. “Rather, absent a contract or statute that authorizes a court to award additional costs to the prevailing party, only those costs that are set out in Section 1920 are properly taxable.” Endo Pharmaceuticals, Inc. v. Amneal Pharmaceuticals, LLC, 331 F.R.D. 575, 579 (S.D.N.Y. 2019) (citing Crawford Fitting, 482 U.S. at 445, 107 S. Ct. at 2499). The party seeking costs thus “bears the burden of establishing that each expense it seeks to recover ‘falls within an allowable category of taxable costs.’ ”Endo Pharmaceuticals, 331 F.R.D. at 578-79 (quoting National Organics, Inc. v. Nutraceutical Corp., No. 01-CV-384, 2009 WL 2424188, at *2 (S.D.N.Y. Aug. 6, 2009))  Although the Court does not have discretion to award costs falling outside the statute’s enumerated categories, the Court may exercise its discretion to not award costs that fall within those categories. See Taniguchi, 566 U.S. at 572-73, 132 S. Ct. at 2006. Section 1920 thus does not direct that the court “must” or “shall” award costs, but rather that a judge or clerk of court “may” tax costs as set forth in the statute. 28 U.S.C. § 1920; see Endo Pharmaceuticals, 331 F.R.D. at 580. Similarly, Rule 54 provides that although certain costs “should” be awarded, a court may order “otherwise.” Fed. R. Civ. P. 54(d)(1).


Respondent requested payment for the following categories of costs, among others: trial transcripts; printing, copying, and exemplification; fees paid to interpreters; and the fees paid for remote trial services. Petitioner contended that much of what Respondent requests is not taxable as costs and should not be awarded. The Court addressed each disputed category in turn.


Trial Transcripts. The court held that fairness dictated that Petitioner pay for the costs only of (1) any real-time feeds provided to Petitioner’s counsel, (2) no more than that same number with respect to feeds provided to Respondent’s counsel, and (3) the feed provided to the Court. The cost of any additional feeds should be borne by Respondent. The Court could not determine that amount from the invoices provided by counsel and required Respondent to provide a revised bill of costs that makes the appropriate adjustment.


Printing, Copying, and Exemplification. The Court agreed with Petitioner that Respondent had not sufficiently delineated what costs were attributed to exemplification as distinct from those that fall under other printing or copies of materials “necessarily obtained” for use in the case. See 28 U.S.C. § 1920(3), (4). The Court also agreed that the extent of copying by Respondent exceeded what may be recovered. Pursuant to Local Rule 54.1(c)(5), “[t]he cost of copies used for the convenience of counsel or the Court are not taxable,” and Respondent had not identified which copying costs were necessary and not merely for the convenience of counsel or the court. Nonetheless, separate exhibit books were required for each witness. And while exhibits were exchanged and displayed digitally, paper copies could not be avoided.  The Court found that the total amount sought by Respondent for printing and exemplification should be reduced to the amount expended for copies of one set of the exhibit books provided to each witness for examination or cross-examination at trial and for one set of exhibits officially received into evidence.


Interpreters. Interpreters were employed for trial because the parties’ native language is French. Respondent testified primarily in French; Petitioner testified primarily in English but occasionally benefitted from use of the interpreter. One non-party, who testified for Petitioner, testified entirely in French. The interpreter also occasionally assisted during trial with correcting or confirming translations of documents. Although the Court did not appoint an interpreter, it found the interpreters’ services invaluable for trial. Respondent claimed $7,515.00 for fees paid to interpreters solely in connection with the testimony of Respondent herself. Petitioner contended that no interpreter fees are awardable based on this District’s local rules, because the costs sought are those associated with the testimony of Respondent who is a party, and not a non-party witness. Pursuant to Local Rule 54.1(c)(3), parties are not entitled to witness fees, and pursuant to Local Rule 54.1(c)(4), “the reasonable fee of a competent interpreter is taxable if the fee of the witness involved is taxable.” Local Rule 54.1(c)(3), (4). Section 1920 expressly identifies costs that “may” be awarded, thus permitting courts to award less than what “may” otherwise be allowed. Rule 54 does exactly that. See Crawford Fitting, 482 U.S. at 441-42, 107 S. Ct. at 2497 (“Section 1920 enumerates expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d). It is phrased permissively because Rule 54(d) generally grants a federal court discretion to refuse to tax costs in favor of the prevailing party.”). Respondent’s argument was premised on the incorrect assumption that all costs contemplated  by Section 1920 are mandatory. The Court was not aware of any authority so holding. Accordingly, costs for Respondent’s interpreter were not awarded.


Remote Trial Expenses. Trial of this case was conducted remotely as a result of the COVID-19 pandemic. Respondent sought $15,108.25 in costs paid to the service provider, Trial Graphix, which provided technology for and facilitated trial. Petitioner contends that Respondent was not entitled to any remote trial costs because they are not included in any category under 28 U.S.C. § 1920. Petitioner is correct. The Court noted that remote trial costs are not mentioned in any category of costs under 28 U.S.C. § 1920 or Local Rule 54.1. Another court in this District recently confronted the very issue presented here: whether the costs of retaining Trial Graphix to facilitate a remote trial fall within the ambit of recoverable costs. Chain v. North East Freightways, Inc., 16-CV-3371, 2021 WL 1611953 (S.D.N.Y. April 26, 2021). The Chain court held that they do not, distinguishing between the costs of preparing demonstrative exhibits, which may be recoverable, and costs for remote trial hosting, the service provided by Trial Graphix both there and here.  Even a generous reading of the cost categories identified in both of 28 U.S.C. § 1920 and Local Rule 54.1 does not include the costs of remote trial hosting.  Accordingly, costs of conducting the trial remotely were not awarded.


Cruvinel v Cruvinel, 2022 WL 757955 ( E.D. N.Y., 2022) [Brazil] [Age & maturity][Grave Risk of Harm][Petition denied]


In Cruvinel v Cruvinel, 2022 WL 757955 ( E.D. N.Y., 2022) the district court denied the petition filed by  Pablo Menezes Cruvinel against Respondent Leila Coelho Soares Cruvinel seeking the return to Brazil of their 13-year-old daughter (“AC”).

The Court held a virtual hearing commencing December 7, 2020.   Petitioner and Respondent met in Brazil in 2002.  Petitioner and Respondent were married in early 2007. AC was born on March 2, 2007. Prior to marriage the respondent learned that Petitioner was a substance abuser who became aggressive when high. Although Respondent hoped that Petitioner’s behavior would change with the arrival of AC, his substance abuse only worsened, with petitioner frequently drinking and getting “high from marijuana and painkillers.”  Throughout the marriage, Petitioner regularly berated and yelled at Respondent in front of AC and made no effort to conceal his aggression or substance abuse. Petitioner’s aggressive behavior continued when AC entered primary school. On December 8, 2014, when AC was seven years old, Petitioner and Respondent had a particularly violent argument.  Petitioner began yelling at Respondent while at the kitchen table, shouting that she was a “slut” and “worthless,” and yelling “I will have you killed!” Petitioner then began punching the kitchen table before pulling off the tablecloth and knocking its contents to the floor. Respondent ran out of the apartment hoping to get to the police station, but Petitioner chased after her with a broomstick, hid the car keys, and broke their car mirrors with the broomstick. Respondent ultimately took a taxi to the police station and filed a police report of the incident. Still, after returning home, Respondent accepted Petitioner’s apology and decided to stay in a relationship with Petitioner. However, the violence continued. On July 20, 2016, Respondent took AC to her cousin’s debutante party..) The party ran late and, when Respondent and AC eventually returned home, Petitioner, who was drunk, became upset and began to argue with Respondent. Respondent went to AC’s bedroom to sleep on a mattress on the floor. Respondent did not want to engage with Petitioner while he was intoxicated, but Petitioner continued to bang on the bedroom door, yelling and threatening to knock down the door if Respondent did not open it. When Respondent finally opened the door, Petitioner entered the bedroom, threw the contents of the bedside table about the room, and tried to suffocate Respondent with the mattress. AC, who was nine years old at the time, was awake and “petrified” in the next bed. Petitioner continued to suffocate Respondent with the mattress until AC yelled for him to stop. The next day, Respondent and AC left Goiania, where they lived at the time. Respondent filed a police report and took AC to Tocantins, Brazil. Over the next week, Petitioner called Respondent repeatedly, insisting that he would change his behavior. (espondent returned to Goiania for a couple of weeks but nothing changed. Throughout this time, AC repeatedly asked Respondent why she would not divorce Petitioner. 


Petitioner and Respondent formally separated in or around August 2016. They shared joint custody of AC, though AC spent the majority of time with Respondent. When AC stayed with him, Petitioner continued to abuse substances and failed to provide AC with any structure. On January 4, 2017 Petitioner drunkenly called Respondent and threatened to “do away” with her and destroy the computers at Respondent’s workplace. Respondent then went to her workplace where she discovered Petitioner. Petitioner then drunkenly called her a “whore” and “bitch.” Petitioner showed Respondent his civil union contract before throwing a computer at Respondent. Respondent called the police in fear for her safety. When the police arrived, they arrested Petitioner. Both Respondent and a police officer at the scene provided statements, describing Petitioner’s belligerent behavior and violent conduct. Petitioner and Respondent divorced on April 26, 2018. The divorce decree provided that Respondent would maintain primary residential custody of AC and that Petitioner would retain “free form” joint custody of AC with Respondent. 

In May of 2018, Respondent informed Petitioner that she intended to move to New York with AC. After Respondent obtained a passport for AC, Petitioner signed AC’s Brazilian travel authorization form, which was valid for three months.   Respondent and AC settled in Mineola, New York, with Jean Cabral on August 13, 2018. (On September 6, 2018, Respondent and Mr. Cabral married. In June 2019, Respondent gave birth to her second daughter. AC has described her half-sister as “her dream.” In September of 2018, AC enrolled in Mineola Middle School as a sixth-grade student. (AC adjusted quickly to her new environment: her teachers and school administrators reported that she appears to be very happy, has made many friends, and is involved in a number of extracurricular activities, such as the jazz band. Throughout their time in the United States, Respondent has ensured that AC kept in contact with her father. Though Petitioner and AC have kept in touch by message and phone, his messages to AC have included threats, bribes, guilting and coercive messages, and lies. In one message, Petitioner told AC: You will be a bastard daughter there, because your mother will be with her daughter and her husband[.] Your father is here, you will be a bastard daughter there. Your mom is going to make you work and do everything for her. You will be a maid for them, and you will be a bastard daughter. Petitioner has sent multiple messages to AC, including a photo of his gun, threatening that his lawsuit would send Respondent to jail and force AC to return to Brazil against her will. Petitioner’s messages have caused AC to be afraid, stressed, and to cry. Most recently, AC has been hesitant to open Petitioner’s messages because of the stress they cause her. 


The district court found that the  abuse suffered by Respondent had a direct impact on AC. AC testified that she “lived in a home where [she] only experienced ... a lot of aggression. [She] didn’t really experience that much love” and she “could see that [her] dad [was] also very bipolar sometimes and he does have a lot of anger issues and [she] experienced everything that a child should have not experienced.” AC testified that Respondent tried to make her “feel like [she] had a home” and was safe and could “express [her] emotions” and “live happily.” For instance, in consultation with AC’s teachers, Respondent sought the assistance of mental health professionals to help AC cope with her volatile home life. 


Dr. Favaro, a psychologist, testified that Petitioner’s aggressive behavior was both troubling and dangerous. This risk of danger is exacerbated by Petitioner’s substance abuse. As a result of the physical and psychological “stressors” to which AC was exposed, she will likely “retain memories that create fear, anxiety, panic and emotional distress and trauma if forced to return to those stressors.” Children who witness domestic violence, such as that which AC witnessed Petitioner commit against Respondent, suffer emotional trauma, including shock, fear and guilt as a result.  AC’s psychological health and well-being have improved since she was removed from the environment she associates with these distressing and traumatic events. Dr. Favaro testified that the “stressors which would be related to a return to an environment which AC associates with recollections of coercion, entrapment and violence against her motion would likely cause confusion, maladjustment and panic in her[.]” Dr. Favaro determined that removing AC from the United States to Brazil “would be detrimental to her adjustment and could expose her to catastrophically negative influences on her emotional health and development and as such is contrary to her best interests.” 


The district court observed that “[A] court may refuse repatriation solely on the basis of a considered objection to returning by a sufficiently mature child.” Blondin v. Dubois (“Blondin IV”), 238 F.3d 153, 166 (2d Cir. 2001). See Laguna v. Avila, No. 07-cv-5136, 2008 WL 1986253, at *9 (E.D.N.Y. May 7, 2008) (“[T]here is no precise age at which a child will be deemed sufficiently mature under the Convention.... Rather, the child’s maturity is a question for the district court, to be determined upon the specific facts of each case.” On balance, age 13 has been determined to be sufficiently mature under the statute. 


The parties agreed that AC had attained a sufficient age and maturity to choose where she should live, and both parties agreed that AC unequivocally wished to remain in the United States. The Court found no basis to disagree with the parties’ conclusions. 

The Court also noted that grave risk defense applies where “the child faces a real risk of being hurt, physically or psychologically” and where “the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Blondin IV, 238 F.3d at 162. The grave risk inquiry is “fact-intensive” and considers a wide range of conduct, including manipulative or alienating behavior, physical or psychological abuse, spousal abuse, the petitioner’s general pattern of or propensity for violence, Davies v. Davies, 717 F. App’x 43, 47–48 (2d Cir. 2017), as well as the extent to which the child is “so deeply rooted in the United States” that her return would result in impermissible psychological harm, Elyashiv v. Elyashiv, 353 F. Supp. 2d 394, 406 (E.D.N.Y 2005) To establish the grave risk defense, the respondent may adduce individual facts, each of which “need only be proven by a preponderance of the evidence,” that, taken together, establish “clear and convincing evidence” that a grave risk exists. Elyashiv, 353 F. Supp. 2d at 404 (citation omitted). “[E]vidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense.” Davies, 717 F. App’x at 48; see also Valles Rubio v. Veintimilla Castro, No. 19-CV-2524, 2019 WL 5189011, at *22 (E.D.N.Y. Oct. 15, 2019) “A parent’s general pattern of violence” or propensity for violent abuse is also relevant to the grave risk inquiry. Elyashiv, 353 F. Supp. 2d at 408. 


The court found that there was  clear and convincing evidence that returning AC to Brazil would expose her to a grave risk of psychological and physical harm. First, AC witnessed much of Petitioner’s psychological spousal abuse as well as at least one episode of serious physical violence—Petitioner’s attempt to suffocate Respondent. This sort of spousal abuse has had a lasting and profound effect on AC, who still recalls the details of such abuse. Returning to the site of that abuse would only intensify its traumatic effects. Second, AC herself has suffered, and continues to suffer psychological harm as a result of Petitioner’s behavior. The record is replete with instances when Petitioner has sent AC alarming, and sometimes threatening text messages, including messages reprimanding AC for disrespecting and disobeying him and others insisting that her mother is a criminal who must be punished.  Incredibly, at one point Petitioner sent AC a message attaching a photo of a gun. These communications have made AC “stressed out,” and AC “feel[s] so uncomfortable when [Petitioner] starts talking about [Respondent] because ... you just shouldn’t talk about your other significant parents like that to your own child.” As Dr. Favaro testified, if AC is forced to return to Brazil, in close physical proximity to her father’s manipulative and alienating behavior, she will be overcome by “a sense of fear that [would] pervade[ ] all elements of [her] life,” akin to “being taken hostage.” Further, returning to that environment “would likely cause confusion, maladjustment and panic” and “would be detrimental to her adjustment and could expose her to catastrophically negative influences on her emotional health and development.” Accordingly, Respondent  established the grave risk of harm defense under the Hague Convention.