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Mendoza v. Silva

United States District Court, N.D. Iowa, Western Division

February 19, 2014

MARIA GUADALUPE AGUILAR MENDOZA, Plaintiff,
v.
MOISES MEDINA SILVA, Defendant

Page 911

For Maria Guadalupe Aguilar Mendoza, Plaintiff: Jessica Jo Taylor, LEAD ATTORNEY, Iowa Legal Aid, Des Moines, IA.

For Moises Medina Silva, Defendant: Elizabeth A Rosenbaum, LEAD ATTORNEY, Sioux City, IA.

Page 912

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND EXPENSES

MARK W. BENNETT, U.S. DISTRICT COURT JUDGE.

Plaintiff Maria Guadalupe Aguilar Mendoza, a citizen of Mexico, filed this action pursuant to the Convention On Civil Aspects Of International Child Abduction (the 1980 Hague Convention or the Convention) and the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § § 11601-11610, to secure the return of her daughters, five-year-old K.G.M.A. and four-year-old M.K.M.A. Ms. Mendoza alleged that the children were, without her consent or acquiescence, wrongfully retained in the Northern District of Iowa, away from their habitual residence in Mexico, by the children's father, defendant Moises Medina Silva. After a consolidated trial on the merits and preliminary injunction hearing, I issued a Memorandum Opinion And Order (docket no. 33) on December 10, 2013, on the merits of Ms. Mendoza's

Page 913

claims, in which I ordered Mr. Medina to transfer the minor children, K.G.M.A. and M.K.M.A., to the custody of Ms. Mendoza at the United States/Mexico border in Nuevo Laredo, Mexico, not later than 12:00 p.m. (noon) on January 10, 2014. No appeal was taken, and Mr. Medina transferred the children to their mother as ordered.

This case is now before me on Ms. Mendoza's December 20, 2013, Motion For Attorney's Fees And Expenses (docket no. 35). In her Motion, Ms. Mendoza seeks attorney's fees totaling $32,265.00 and expenses totaling $3,084.62, which she contends are reasonable fees and out-of-pocket expenses of the kind normally charged to clients by attorneys. Ms. Mendoza also argues that, in addition to normal case preparation, her attorney spent significant time coordinating video and telephone conferencing between the court's Information Technology (IT) staff and Ms. Mendoza and her computer technician in Mexico, and that her attorney had to ensure that Ms. Mendoza understood and received information in Spanish, which involved translation of numerous documents. In his Resistance (docket no. 37), filed December 23, 2013, Mr. Medina contends that no award of fees or expenses is appropriate in this case, because he believed (and still believes) in good faith that the parties had an agreement for the children to come to and remain in the United States to start school; the attorney's fees and costs claimed by Ms. Mendoza are not reasonable and, indeed, are approximately three times his own attorney's fees; and he is earning only approximately $9.00 per hour, so that he cannot possibly afford to pay any attorney's fees or expenses in this matter.

Article 26 of the 1980 Hague Convention provides, in pertinent part, as follows:

Upon 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, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of 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.

The pertinent provision of ICARA, implementing the obligations of the United States under the 1980 Hague Convention, provides as follows:

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 ...

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