Mata-Cabello v. Thula ( 2023 )

United States Court of Appeals
For the First Circuit
No. 21-1538
ASDRÚBAL SIMÓN MATA-CABELLO,
Petitioner, Appellee,
v.
TAILI TEE THULA,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Barron, Chief Judge,
Lipez and Montecalvo, Circuit Judges.
Victor M. Rivera-Rios for appellant.
Rubén T. Nigaglioni, with whom Nigaglioni Law Offices P.S.C.
was on brief, for appellee.
April 28, 2023
BARRON, Chief Judge. Taili Tee Thula ("Thula") appeals
from the denial of her request for an award of attorney's fees,
pursuant to the inherent power of the United States District Court
for the District of Puerto Rico, and the costs of translation
services, pursuant to 28 U.S.C. § 1920(6). We affirm.
I.
The challenges on appeal arise out of a pair of actions
-- one filed by Thula in the Puerto Rico courts and one filed by
her husband, Asdrúbal Simón Mata-Cabello ("Mata-Cabello"), in
federal court. We thus recount the travel of the two actions.
Thula's action in the Puerto Rico courts began when she
filed a complaint against Mata-Cabello, then residing in Colombia,
in the Court of First Instance of the Commonwealth of Puerto Rico
on February 20, 2020. The complaint alleged causes of action for
divorce under Article 96 of Puerto Rico's Civil Code, P.R. Laws
Ann. tit. 31, § 321, custody of the couple's two minor children,
child support, alimony, and "the division of the marital estate,"
as well as claims under Puerto Rico's Domestic Abuse Prevention
and Intervention Act, P.R. Laws Ann. tit. 8, § 601 et seq. Thula
sought further relief under the Convention on the Civil Aspects of
International Child Abduction, done at The Hague on October 25,
1980 ("Hague Convention"), and its implementing legislation, the
International Child Abduction Remedies Act ("ICARA"), 22 § U.S.C.
9001 et seq.
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In response, Mata-Cabello moved to dismiss Thula's
divorce and custody claims on the ground that the Court of First
Instance lacked jurisdiction under Puerto Rico law to hear them
because Thula had not been a resident of Puerto Rico for one full
year prior to filing her complaint. Mata-Cabello also requested
relief pursuant to ICARA and the Hague Convention. Specifically,
he requested that the minor children be returned to their "habitual
place of residence" in Colombia so that "the divorce and minor
custody proceedings" could be resolved in accord with Colombia
law.
On October 30, 2020, the Court of First Instance granted
the motion to dismiss, explaining that it lacked jurisdiction "to
hear the merits of the divorce [c]omplaint filed by [Thula]." The
Court of First Instance also dismissed Thula's other claims. In
doing so, the court did not address the parties' requests for
relief under ICARA and the Hague Convention. Thula filed a timely
motion for reconsideration that was denied.
Following the Court of First Instance's denial of
Thula's motion for reconsideration, on December 4, 2020,
Mata-Cabello filed a petition under ICARA and the Hague Convention
in the United States District Court for the District of Puerto
Rico that named Thula as the respondent. The petition requested
that the District Court order the return of the minor children to
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their "habitual residence" in Colombia for resolution of the
custody proceedings under Colombia law.
Mata-Cabello asserted in the petition that the District
Court had jurisdiction over the Hague Convention petition under 22
U.S.C. § 9003. That provision grants "[t]he courts of the States
and the United States district courts . . . concurrent original
jurisdiction of actions arising under the [Hague] Convention."
Meanwhile, on December 28, 2020, Thula timely appealed
the Court of First Instance's dismissal of her action to the Puerto
Rico Court of Appeals. And, then, soon thereafter, on January 11,
2021, she moved in the District Court to dismiss Mata-Cabello's
Hague Convention petition in that court on the ground that "the
Hague Convention [p]etition ha[d] been raised by both parties and
[was] currently being litigated in the Puerto Rico courts for the
past eleven (11) months."
The Puerto Rico Court of Appeals, on March 12, 2021,
decided Thula's appeal from the Court of First Instance's
dismissal. It ruled that the Court of First Instance had erred by
"dismissing [Thula's] complaint in its totality, without having
addressed and resolved all the claims under [its] consideration."
Accordingly, the Puerto Rico Court of Appeals ordered the Court of
First Instance to:
determine whether it has jurisdiction over the
matter [or] the authority to address the whole
matter under the protection of the Hague
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Convention [ ] and [ICARA]. If said forum were
to determine that it has the authority over
the above cited laws, it shall resolve: (1)
whether Puerto Rico is the habitual resident
of the minor children procreated by the
parties, and (2) establish a provisional legal
precedent related to custody, parent-child
relationships, provisional child support and
litis expensas.
Following the Puerto Rico Court of Appeals' ruling, the
District Court entered the following order on April 23, 2021:
It has come to the Court's attention that the
Puerto Rico Court of Appeals has entered its
ruling on [Thula's] appeal related to the
instant matter. [Thula] is to file the
resolution entered by the Puerto Rico Court of
Appeals dated April 5, 2021 in case no.
KLAN202001039 by April 28, 2021. A [c]ertified
translation of said document is to be filed no
later than May 3, 2021.
After the District Court received the translated
resolution, it ruled on May 4, 2021, that it would abstain because
the ICARA and Hague Convention remedies "ha[d] been raised by both
parties, [were] currently being litigated in the Puerto Rico
[c]ourts for the past fourteen (14) months and [were] included in
the [r]esolution of the Puerto Rico Court of Appeals."
Accordingly, the District Court dismissed Mata-Cabello's action
without prejudice on abstention grounds.
Following the District Court's order dismissing
Mata-Cabello's action, on May 18, 2021, Thula filed a "Motion for
an Award of Attorney Fees and Costs to Prevailing Party Pursuant
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to Rule 54 of the Federal Rules of Civil Procedure and Applicable
Law." The motion sought an award of $28,937.50 in attorney's fees
and costs totaling $5,480.20 for "[i]nterpreter [s]ervices to
translate Spanish [d]ocuments and copies" under 28 U.S.C.
§ 1920(6).
Rule 54(d) provides, in relevant part:
Costs; Attorney's Fees.
(1) Costs Other Than Attorney's Fees. 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. But costs against the United
States, its officers, and its agencies may be
imposed only to the extent allowed by law. The
clerk may tax costs on 14 days' notice. On
motion served within the next 7 days, the
court may review the clerk's action.
(2) Attorney's Fees.
(A) Claim to Be by Motion. A claim for
attorney's fees and related nontaxable
expenses must be made by motion unless
the substantive law requires those fees
to be proved at trial as an element of
damages.
(B) Timing and Contents of the Motion.
Unless a statute or a court order
provides otherwise, the motion must:
(i) be filed no later than 14 days
after the entry of judgment;
(ii) specify the judgment and the
statute, rule, or other grounds
entitling the movant to the award;
(iii) state the amount sought or
provide a fair estimate of it; and
(iv) disclose, if the court so
orders, the terms of any agreement
about fees for the services for
which the claim is made.
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Thula identified 22 U.S.C. § 9007(b) as the statute
"entitling [her] to the award [of attorney's fees]." That
provision states:
Costs incurred in civil actions
(1) Petitioners may be required to bear the
costs of legal counsel or advisors, court
costs incurred in connection with their
petitions, and travel costs for the return of
the child involved and any accompanying
persons, except as provided in paragraphs (2)
and (3).
(2) Subject to paragraph (3), legal fees or
court costs incurred in connection with an
action brought under section 9003 of this
title shall be borne by the petitioner unless
they are covered by payments from Federal,
State, or local legal assistance or other
programs.
(3) 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.
Thula also moved, in the alternative, for the attorney's
fees to be awarded based on the inherent power of the District
Court. She did so due to what she contended was Mata-Cabello's
"bad faith" filing of the action against her in the District Court,
given that a district court has the inherent power to order a
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losing party to pay the "prevailing party" attorney's fees, even
in the absence of a statutory provision, when the losing party has
"acted in bad faith, vexatiously, wantonly, or for oppressive
reasons," Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S.
240, 258-59 (1975).
As to the costs of translation services, Thula moved for
them pursuant to 28 U.S.C. § 1920(6). That statute provides that
"[a] judge or clerk of any court of the United States may tax as
costs the following: . . . Compensation of court appointed
experts, compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation services under
section 1828 of this title."
On June 8, 2021, the District Court denied Thula's
request for the award of attorney's fees because: (1) 22 U.S.C.
§ 9007(b) "provides for fees only to a prevailing petitioner; the
section does not provide for fees to a prevailing respondent, and
indeed, does not even mention prevailing respondents"; and (2)
Mata-Cabello's action in federal court was "brought in good faith
in an attempt to defend what he believed were the father's rights
in a Hague Convention and ICARA proceeding." Mata-Cabello v.
Thula, No. 20-1687, 2021 WL 3040959, at *5 (D.P.R. June 8, 2021).
The District Court at that same time also denied Thula's
request for the costs of translation services. It did so based on
Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560 (2012), in
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which the Supreme Court of the United States held that "costs
stemming from the translation of written documents do not qualify
as [']compensation of interpreters,['] as that term is used in 28
U.S.C. § 1920(6), and, therefore, may not be taxed as costs against
a non-prevailing party." Thula, 2021 WL 3040959, at *2 (quoting
Davila-Feliciano v. Puerto Rico State Ins. Fund, 683 F.3d 405, 406
(1st Cir. 2012) (per curiam)).
This appeal followed.
II.
Thula challenges the District Court's denial of her
request for an award of attorney's fees on a single ground. She
contends that the District Court abused its discretion, see In re
San Juan Dupont Plaza Hotel Fire Litig., 111 F.3d 220, 228 (1st
Cir. 1997), by not exercising its inherent authority to grant her
request that the fees be awarded.
To support that contention, Thula argues that the record
establishes that Mata-Cabello acted in "bad faith" in filing the
action in the District Court. She argues, in that regard, that
the record shows that, at the time of his federal court action
against her, Mata-Cabello had requested similar relief in the Court
of First Instance in response to Thula's claims in that court,
previously "submitted himself to the [jurisdiction of the] Puerto
Rico [c]ourts," and "had full knowledge that [Thula's] [p]etition
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pursuant to the Hague Convention and ICARA was still pending before
the Puerto Rico [c]ourts."
The District Court pointed out, however, that, at the
time that Mata-Cabello filed his ICARA and Hague Convention
petition in federal court, the Court of First Instance had
dismissed Thula's action in its entirety without having addressed
the merits of either Thula's or Mata-Cabello's requested relief
under ICARA and the Hague Convention. See Thula, 2021 WL 3040959,
at *5. Thus, we see no basis for concluding that the District
Court abused its discretion in determining that Mata-Cabello
"chose to file in federal court mainly because the issues of the
Hague Convention and ICARA were not considered by the First
Instance Court of San Juan," and thus "in good faith in an attempt
to defend what he believed were the father's rights in a Hague
Convention and ICARA proceeding," id.Thula bases her challenge on appeal to the District
Court's denial of her request for costs of translation services
pursuant to 28 U.S.C. § 1920(6) on a single ground as well. The
District Court based the denial on the Supreme Court's
determination in Taniguchi that "the compensation of interpreters
that may be awarded under [§ 1920(6)] is limited to the cost of
oral translation and does not include the cost of document
translation." Id. at *2. Thula contends that the District Court
erred in doing so because it failed to "take into account the Jones
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Act," which requires that "[a]ll pleadings and proceedings in the
United States District Court for the District of Puerto Rico shall
be conducted in the English language," 48 U.S.C. § 864. She
contends that is so because:
Congress'[s] mandate pursuant to the Jones Act
makes it mandatory that all Spanish documents
must be translated to English, any party that
is forced to translate any Spanish documents
to English should be able to benefit from
requesting reimbursement for translator costs
in the territory of Puerto Rico pursuant to
the Jones Act.
But, although Thula asserts to us that the District Court
should have "evaluate[d] the case under the legal framework of the
Jones Act," she did not make this argument to the District Court,
which means the challenge is at least forfeited, see Igartúa v.
United States, 626 F.3d 592, 603 (1st Cir. 2010). And, to the
extent that she may be said to have adequately developed the
challenge on appeal, United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) ("It is not enough merely to mention a possible argument
in the most skeletal way, leaving the court to do counsel's work,
create the ossature for the argument, and put flesh on its
bones."), she fails to explain how, given Taniguchi, the "legal
framework of the Jones Act" bears on whether she is entitled to
the costs that she seeks under § 1920(6). She instead simply
asserts, in conclusory fashion, that the Jones Act somehow requires
§ 1920(6) to be read differently with respect to cases that are
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brought in Puerto Rico federal court than Taniguchi requires it to
be read with respect to cases that are brought in all other federal
courts. And, she advances that conclusory contention even though
Congress enacted § 1920(6) sixty-one years after it enacted the
Jones Act, and the customary rule is that all federal court
proceedings in the United States must be conducted in English, see
United States v. Rivera-Rosario, 300 F.3d 1, 5 (1st Cir. 2002)
("It is clear, to the point of perfect transparency, that federal
court proceedings must be conducted in English. Even if this
practice were not intuitively obvious in Puerto Rico, Congress
enacted section 42 of the Jones Act." (emphasis added)). We
therefore reject Thula's Jones Act-based challenge to the District
Court's rejection of her request for the costs of translation
services.1
1 The District Court noted that the 2017 Taxation of Costs
Guidelines of the District Court for the District of Puerto Rico
state: "[o]ther expenses not specifically allowed by statute but
necessary for the case may be taxed as costs only with prior
authorization granted by the Court." § II.I. But, the Taxation
of Costs Guidelines also provide: "The following expenses are not
taxable as costs: . . . The costs of translating into the English
language all documents filed with the District Court or presented
as evidence at trial, since they are not interpreter services under
28 U.S.C. § 1920(6)." § II.H.2.a.
https://www.prd.uscourts.gov/sites/default/files/Taxation%20of%2
0Costs%20Guidelines%202007%20rev%2008.10.2017_0.pdf
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III.
For these reasons, the judgment of the District Court is
affirmed.
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