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Alanis v. Reyes

United States District Court, N.D. Mississippi, Oxford Division

April 24, 2017

LOURDES GUADALUPE LOREDO ALANIS PETITIONER
v.
JOSE CARMEN BADILLO REYES RESPONDENT

          MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION FOR COSTS, EXPENSES. AND ATTORNEY'S FEES

         Presently before the Court is a motion for costs, expenses, and attorney's fees [22] filed by Petitioner Lourdes Guadalupe Loredo Alanis ("Petitioner") pursuant to the International Child Abduction Remedies Act (the "ICARA"), 42 U.S.C. § 11603. Respondent Jose Carmen Badillo Reyes ("Respondent") has not filed a response, and the time for doing so has now passed. The matter is now ripe for review. Upon due consideration, the Court finds that the motion should be granted in part and denied in part, for the reasons set forth below.

         I. Factual and Procedural Background

         On September 26, 2016, Petitioner filed an application pursuant to the Hague Convention with the Mexican authorities, claiming that Respondent had wrongfully retained her minor child, DFB, from the child's habitual residence of Mexico. Pet. [1] ¶ 10. On November 21, 2016, Petitioner filed in this Court her verified petition [1] for return of her minor daughter under the Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") and the ICARA. On January 5, 2017, Petitioner filed an expedited motion [8] for preliminary relief and for an expedited hearing. On January 26, 2017, the Court conducted a hearing on the motion; Petitioner, Respondent, and DFB were present. From the bench, the Court granted the petition and ordered that DFB be returned to Petitioner in Mexico. Subsequently, on January 30, 2017, the Court entered an Order [19] and memorandum opinion [20] fully setting forth its reasoning for the decision and detailing the testimony and evidence presented at the hearing. On February 17, 2017, Petitioner filed a bill of costs [21] with supporting documentation. On March 7, 2017, the Clerk of Court taxed Petitioner's bill of costs against Respondent in the amount of $2, 429, specifically for the following: fees of the Clerk, $400; fees for service of summons and subpoena, $35; fees for witnesses, $635.80; compensation of interpreters and costs of special interpretation services under 28 U.S.C. § 1828, $300; and mileage incurred by Petitioner and Anel Valdivia to return DFB to Mexico, pursuant to the Court's Order, $1, 058.20.

         On February 24, 2017, Petitioner filed the present motion for costs, expenses, and attorney's fees [22]. As stated, Respondent has not filed a response.

         Analysis and Discussion

         "In the United States, parties are ordinarily required to bear their own attorney's fees- the prevailing party is not entitled to collect from the loser." Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't of Health & Human Res., 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001); see Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). "Under this 'American Rule, ' we follow 'a general practice of not awarding fees to a prevailing party absent explicit statutory authority.' " Buckhannon Bd. & Care Home, Inc., 532 U.S. at 602, 121 S.Ct. 1835 (quoting Key Tronic Corp. v. United States, 511 U.S. 809, 819, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994)). "Congress ... has authorized the award of attorneys' fees to the 'prevailing party' in numerous statutes, including the ICARA." Salazar v. Maimon, 750 F.3d 514, 521 (5th Cir. 2014).

         Petitioner maintains that she is entitled to costs, expenses, and attorney's fees under the ICARA and attaches to her motion [22] supporting documentation, including her counsel's mileage computation to attend the hearing and the affidavit of LaToya C. Merritt, a Mississippi attorney, concerning the reasonableness of the fee for legal representation, as well as Petitioner's counsel's billing entries and itemized costs. The ICARA provides in pertinent part:

Any court ordering the return of a child pursuant to an action brought under section 11603 of this title 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 fact that Petitioner's legal representation was pro bono does not render the award of fees and costs improper. See Salazar, 750 F.3d at 518 (citing Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir. 2010) (withholding fees from pro bono counsel would undermine the Hague Convention's policy of effective and speedy return of abducted children)). "[T]he prevailing petitioner is presumptively entitled to necessary costs and the statute shifts the burden of proof onto a losing respondent to show why an award of necessary expenses would be 'clearly inappropriate.' " Id. at 520 (citing Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 346 (5th Cir. 2004)). In the case sub judice, because Respondent did not file a response, he cannot establish that an order awarding costs, expenses, and attorney's fees would be "clearly inappropriate." See Ostos v. Vega, No. 3:14-CV-3935-L, 2016 WL 1170830, at *1 (N.D. Tex. Mar. 25, 2016).

         A prevailing party may recover only attorney's fees that were "reasonably expended" on the litigation. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (citing S. Rep. No. 94-1011, p. 6 (1976)); Watkins v. Fordice, 7 F.3d 453, 458 (5th Cir. 1993).

         The fee applicant bears the burden of proof on this issue. Riley v. City of Jackson, Miss., 99 F.3d 757, 760 (5th Cir. 1996). The Fifth Circuit has approved a two-step process for analyzing the awarding of attorney's fees under the ICARA wherein the Court must (1) calculate reasonable attorney's fees and (2) review the fees in light of the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See Salazar, 750 F.3d at 523.

         The Fifth Circuit uses the "lodestar" method to calculate reasonable attorney's fees, multiplying the number of hours spent on the matter by a reasonable hourly rate for such work in the community. Cantu Servs., Inc. v. Frazier, No. 16-31035, 2017 WL 1089508, at *3 (5th Cir. Mar. 22, 2017) (citing Combs v. City of Huntington, Tex., 829 F.3d 388, 392 (5th Cir. 2016)). Reasonable hourly rates are typically calculated through affidavits by attorneys practicing in the community in which the district court is located. Tollett v. City of Kemah, Tex., 285 F.3d 357, 368 (5th Cir. 2002). "In calculating the lodestar, '[t]he court should exclude all time that is excessive, duplicative, or inadequately documented.' " Combs, 829 F.3d at 392. However, "there is a 'strong presumption' that the lodestar figure is reasonable." Perdue v, Kenny A. ex rel Winn, 559 U.S. 542, 554, 130 S.Ct. 1662, 1673, 176 L.Ed.2d 494 (2010).

         After calculating the lodestar figure, the Court must consider the twelve Johnson factors, which are as follows: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Cobb v. Miller, 818 F.2d 1227, 1231 n.5 (5th Cir. 1987) (citing Johnson, 488 F.2d at 717-19). The degree of success is "the most critical factor" in determining the reasonableness of an attorney's fee award. Hensley, 461 U.S. at 434, 103 S.Ct. 1933.

         In the case subjudice, Petitioner's counsel states and provides documentation supporting that he expended 56.25 hours on the case, and at his 2016 billing rate of $210 and 2017 rate of $220, the lodestar calculation is $12, 210. Petitioner's counsel attaches his own detailed billing record documenting the hours he worked and each service performed, as well as the affidavit of LaToya C. Merritt, a Mississippi attorney, supporting the reasonableness of ...


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