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In Cuellar v Joyce, 603 F.3d 1142, 10 Cal.
Daily Op. Serv. 5642 (9th Cir 2010)
after Richard Joyce abducted his and Leyda Cuellar's child from Panama,
by way of
Australia, Cuellar tracked him down in America and petitioned for the
return of the child pursuant to the Hague Convention. The Ninth Circuit
ordered the child returned, and Cuellar then petitioned it for an award
of attorneys' fees and other costs incurred on appeal. Joyce suggested
that an award of fees would be clearly inappropriate because Cuellar's
lawyers provided their services pro bono, and because Joyce already owed
a substantial amount of money to his own lawyers.
The Ninth Circuit recalled that the only reason the case took as long as
it did, and consumed so many valuable resources, was Joyce's dogged
refusal to give up custody of the child as required by the Hague
Convention. Joyce's litigation tactics were largely intended to
"manipulate judicial process for purpose of delay. That delay proved
expensive, both for Joyce and for the law firm that represented Cuellar.
Having caused that expense, Joyce may not turn it to his own advantage
to avoid the mandatory fee-shifting provision of section 11607(b)(3). If
Joyce didn't want to bear the cost of delay, he shouldn't have caused
it. Better yet, he shouldn't have abducted the child in the first place.
The court held that the fact that Cuellar's lawyers provided their
services pro bono did not make a fee award inappropriate. Fee awards
serve in part to deter frivolous litigation, and denying fees in this
case would encourage abducting parents to engage in improper delaying
tactics whenever the petitioning parent is represented by pro bono
counsel. Withholding fees from pro bono counsel would also discourage
pro bono representation and undermine the Convention's policy of
effective and speedy return of abducted children. As Joyce repeatedly
emphasized to the court, Cuellar lives in poverty in Panama, Cuellar,
and Joyce may well have hoped that Cuellar would not have the means to
hold him to account for his abduction of the child. If not for Cuellar's
pro bono counsel, Joyce most likely would have succeeded. An award of
fees in this case would encourage other lawyers to advance legal
services to impecunious clients in the expectation that they will be
compensated if successful. This will help ensure that the Convention not
go unenforced merely because a parent whose child is abducted lacks the
resources to pay for counsel.
It also agreed with Cuellar that reasonable transportation and lodging
for
her attorney to attend oral argument and postargument mediation, as well
as the
cost of shipping briefs and other filings to this court, are "necessary
expenses incurred by or on behalf of the petitioner. Withholding costs
or fees incurred during
mediation would encourage abducting parents to engage in bad-faith
settlement
negotiations for purposes of delay and would undermine the Convention's
interest in
prompt resolution of disputes. It granted Cuellar's motion and referred
the matter to the appellate commissioner for a determination of the
proper amount of the award.
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