United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger United States District Judge.
MATTER is before the Court on the Petitioner's
Second Application for Award of Expenses [Doc. 39], filed May
6, 2019, under the Hague Convention on the Civil Aspects of
International Child Abduction, Oct. 25, 1980, T.I.A.S. No.
11670, 19 I.L.M. 1501, 51 Fed. Reg. 10494 (1986)
(hereinafter, “Hague Convention”) and the
International Child Abduction Remedies Act, 22 U.S.C. §
9001 et seq. (formerly 42 U.S.C. § 11601 et
seq.) (hereinafter, “ICARA”).
Petitioner Karl Henrik Sundberg (“Petitioner”)
commenced this action on November 1, 2017, against the
Respondent Lisa Michelle Bailey (“Respondent”),
seeking the return of the parties' child to Sweden. [Doc.
1]. On December 29, 2017, the Court entered an Order for the
return of the Child to Sweden in accordance with the terms of
the Hague Convention. [Doc. 20]. The Petitioner then moved
for an award of expenses under the Convention and ICARA, 22
U.S.C. § 9007(b)(3). [Doc. 25]. On March 8, 2018, the
Court ordered an award to the Petitioner of all the claimed
fees and expenses. [Doc. 28]. The Respondent separately
appealed the substantive Order on Return [Doc. 20] and the
Order on Expenses [Doc. 28], but they were consolidated on
appeal. The Fourth Circuit affirmed both Orders on appeal.
[Doc. 37]. The Fourth Circuit issued its mandate on April 22,
2019. [Doc. 38].
Petitioner now moves for a second award of expenses under
ICARA for costs related to the Respondent's unsuccessful
appeal. [Doc. 39]. The Respondent has not responded to the
Petitioner's application, and the time for such response
has now passed.
STANDARD OF REVIEW
Hague Convention provides that “[u]pon ordering the
return of a child or issuing an order concerning rights of
access under this Convention, the judicial or administrative
authorities may, where appropriate, direct the person who
removed or retained the child . . . to pay necessary expenses
incurred by . . . the applicant, including travel expenses,
any costs incurred or payments made for locating the child,
the costs of legal representation of the applicant, and those
of returning the child.” Hague Convention, art. 26.
ICARA provides as follows:
Any court ordering the return of a child pursuant to an
action brought under section 9003 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). An award of expenses under the
Convention and ICARA serves two primary purposes: “(1)
to restore the applicant to the financial position he or she
would have been in had there been no removal or retention and
(2) to deter such removal or retention.” Neves v.
Neves, 637 F.Supp.2d 322, 339 (W.D. N.C. 2009) (citation
and internal quotation marks omitted).
Article 26 of the Hague Convention provides that a court
‘may' award ‘necessary expenses' to a
prevailing petitioner, [§ 9007(b)(3)] shifts the burden
onto a losing respondent in a return action to show why an
award of ‘necessary expenses' would be
‘clearly inappropriate.'” Ozaltin v.
Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013). This burden
shifting “retains the equitable nature of cost awards,
so that a prevailing petitioner's presumptive entitlement
to an award of expenses is subject to the application of
equitable principles by the district court.”
Souratgar v. Lee Jen Fair, 818 F.3d 72, 79 (2d Cir.
2016) (citation and internal quotation marks omitted).
Ultimately, the award of expenses under the Hague Convention
and ICARA is a matter within the Court's discretion.
Ozaltin, 708 F.3d at 374-75.
only expenses in the instant Application for Fees relate to
legal fees and litigation costs. As before, the Respondent
makes no objections to these categories of expenses. The
Court has reviewed Petitioner's claimed legal fees
[see Attorney's Affidavit, Doc. 39-1] and finds
that they are reasonable based on the nature of the
litigation and representation, the experience and
qualifications of the attorney, the amount of time spent on
this matter, and comparable rates for legal services with
which this Court is familiar. The legal fees charged for
litigating the appeal totaled $11, 720.00. The other
litigation costs totaled $546.50. Accordingly, the
“necessary expenses” incurred by or on behalf of
the Petitioner relating to the appeal total $12, 266.50.
the Respondent has not made any timely objection to the
instant motion, the Court has considered whether any of the
Respondent's prior arguments would provide a rationale
for finding an award of all the necessary expenses to be
“clearly inappropriate.” Namely, the Respondent
claimed that her prior actions were in good faith, and that
the financial burdens would be too great. In the prior Order
awarding fees, this Court found, in relevant part, that
neither the Respondent's claimed “good faith”
nor the financial burdens would render the Award of Expenses
“clearly inappropriate.” As noted, the Fourth
Circuit affirmed this Order in its entirety.
claimed expenses are the direct result of the
Respondent's decision to initiate and litigate an appeal
and thus are “necessary expenses.” Because the
Respondent has not presented any additional evidence to show
that the present circumstances are substantially different
than they were at the time of the prior award of fees, the
Respondent has not shown that a further award of fees would
be “clearly ...