United States District Court, W.D. Texas
C. Lamberth United States District Judge
Phelps makes swimming the Butterfly look easy. Fields Medal
winners make fractional calculus look easy. And Jason
Davis-formerly a Justice Department attorney and an equity
partner at two national law firms-made this cross-border
child abduction case look easy. Representing petitioner David
Pinto Quintero, Davis-along with Jay Hulings (a former
federal prosecutor, counsel to the U.S. House of
Representative's Permanent Select Committee on
Intelligence, Ninth Circuit clerk, and Harvard Law
Review editor) and others at the law firm Davis Santos
P.C.-guided the Court through this factual and procedural
quagmire so deftly that the Court ordered respondent
Alejandra Maria de Loera Barba to return Pinto's four
children based on a straightforward application of the Hague
Convention on the Civil Aspects of International Child
Abduction, Oct. 25, 1980, T.I.A.S. No. 11, 670, reprinted
in 51 Fed. Reg. 10, 494 (Mar. 26, 1986), and its
implementing legislation, the International Child Abduction
Remedies Act, 22 U.S.C. §§ 9001-9011 (ICARA).
requires "[a]ny court ordering the return of a
child" to "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 the 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);
see also Salazar v. Maimon, 750 F.3d 514, 520 (5th
Cir. 2014) (noting "[o]nce [a] district court order[s]
[a] child returned to [the petitioner], section 11607(b)(3)
shift[s] the burden of proof onto [the respondent] to
establish that an award of the requested necessary expenses
would be 'clearly inappropriate'" (quoting
§ 9007(b)(3))). This mandatory fee-shift not only
compensates a meritorious petitioner, but also
"provide[s] 'an additional deterrent to wrongful
international child removals and retention."'
Saldivar v. Rodela, 894 F.Supp.2d 916, 926 (W.D.
Tex. 2012) (quoting H.R. Rep. No. 100-525, at 14 (1988)).
Loera suggests three reasons why a fee order would be clearly
inappropriate here, but none persuade the Court.
First, she claims she "knows nothing else than
to be a mom." Resp't's Resp. 13, ECF No. 75. But
at the very least, the Court notes that de Loera is
exceptionally well educated, graduating from Trinity
University and an elite private high school in San Antonio.
See 3/21/19 AM Tr. 12:21-13:3. Second, she
contends she "does not have the financial means to
pay," attaching a financial disclosure listing $8013 of
charitable donations as her lone asset. Resp't's
Resp. 13, ex. A. But that contradicts her in-court admission
that she could access over $11, 000 in child support
payments, see 3/21/19 PM Tr. 29:12-30:23, and that
she relies on her family for whatever financial support she
needs, including buying a $350, 000 home through a shell
corporation, enrolling the four children in private school
(an annual cost exceeding $60, 000), and retaining American
and Mexican lawyers. See, e.g., 3/21/19 PM Tr. at
32:22- 33:2; see also, e.g., 3/19/19 Tr.
128:1-129:7. Third, she argues she should not have
to reimburse Pinto for enforcing the Mexican custody order
since she claims her Mexican lawyer said she could take the
children to the United States without violating that order.
See Resp't's Resp. 14. But her Mexican
lawyer swears he never said that. See 3/22/19 A.M.
Tr. 62:6-24. Accordingly, de Loera fails to explain why a fee
order is clearly inappropriate.
Court must calculate Pinto's necessary expenses. He
accounts for $110, 470.36 in out-of-pocket expenses,
including travel expenses and temporary accommodations for
two caretakers (one of whom was a relative) and for actual
and potential witnesses; security and detective services,
including during the months spent searching for his children;
and fees incurred visiting the children at the court-approved
supervised visitation facility. See Pet'r's
Mot. ex. B, ECF No. 65-2. He further accounts for $22, 541.62
in costs ranging from court clerk and reporter fees; hiring
translators,  private investigators, and process
servers; printing and copying; and renting the house where he
and the children lived during the proceedings. See
Pet'r's Mot. ex. A, ECF No. 65-1. Court costs, court
reporter fees, printing and copying costs, and translator
fees are "per se awardable," see
Saldivar, 894 F.Supp.2d at 943 (citing 28 U.S.C. §
1920), as are child "care during the course of
proceedings . .. and transportation costs related to the
return of the child[ren]." § 9007(b)(3). Moreover,
de Loera never objects to any claimed cost beyond
categorizing the total amount as "preposterous" and
"outrageous," Resp't's Resp. 12, and
relying on "attorney arguments attempting to set forth
h[er] version of the underlying facts relating to the
child[ren]'s retention." Salazar, 750 F.3d
at 522. That falls short of her "statutory obligation to
come forward with evidence to show the claimed fees were
clearly inappropriate." Id. Indeed, her
opposition--just like one the Fifth Circuit rejected in
Salazar-"contain[s] no exhibits, affidavits, or
any evidence to dispute the necessity or propriety of the
claimed expenses." Id. Nor did the Court's
independent review find any expenses not reasonably necessary
to Pinto's quest to get his children back. Pinto is
entitled to $133, 011.98 in costs and expenses.
leaves Pinto's legal fees. "[T]he attorneys'
fees calculus is a fact-intensive one and its character
varies from case to case." Hopwood v. Texas,
236 F.3d 256, 281 (5th Cir. 2000). Both sides agree the
calculus begins with the lodestar approach: multiplying the
total hours reasonably expended with a reasonable hourly
rate. Hours contributing to a successful outcome are
"reasonably expended." Hensley v.
Eckerhart, 461 U.S. 424, 433-34 (1983). To determine a
reasonable rate, the Court considers the prevailing market
rate in the relevant community. See Blum v. Stenson,
465 U.S. 886, 895 (1984). And both sides agree that in the
Fifth Circuit, once the Court calculates the lodestar, it
must then contemplate adjusting the figure upwards or
downwards according to factors explained in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.
1974). Those factors include "[t]he novelty and
difficulty of the legal questions" (the lawyer
"should be appropriately compensated for accepting the
challenge"); "[t]he skill requisite to perform the
legal service properly" (including the attorney's
"work product, his preparation, and general ability
before the court"); "[t]he preclusion of other
employment by the attorney due to acceptance of the
case"; "[t]he customary fee" (since
"various types of legal work command differing scales of
compensation"); "limitations imposed by .. . the
circumstances" ("[p]riority work that delays the
lawyer's other legal work is entitled to some
premium"); "[t]he experience, reputation, and
ability of the attorneys"; and "[a] wards in
similar cases." Id. at 719.
Santos attorneys and paralegals spent 617.8 hours securing
their client's total relief. De Loera musters no more
than "conclusory complaints" that this effort was
excessive, even though the law demands "specific
reasons, comparisons or established standards by which to
measure the objection." In re Enron Corp. Sec,
Derivative & ERISA Litig., 586 F.Supp.2d 732, 804
n.84 (S.D. Tex. 2008). Confronted with seventeen pages of
detailed billing records, de Loera merely retained an expert
to conduct "a perfunctory review" and deem the
amount of time "questionable, nay, extremely
excessive." Decl. Gary Caswell ¶ 4, ECF No. 75-3.
That rhetoric fails to undermine the firm's diligent work
throughout this matter's two-month lifespan, beginning
with discovery and persisting through numerous written
motions, witness preparation sessions, and a four-day
hearing. Although the legal questions were neither
novel nor difficult, the facts and procedural history were,
and de Loera's successive motions rehashing
already-rejected arguments-not to mention her family's
attempt to thwart the proceeding through an emergency state
court action-made matters worse. See, e.g., ECF Nos.
10, 11, 12, 28, 34, 51, 64.
these efforts, Davis Santos charges an approximate average
hourly rate of $364. De Loera argues that's too much,
citing a Texas Bar Journal article reporting $281 as
the median statewide hourly rate in 2017. See
Resp't's Resp. 10. But that's the wrong
comparator, for four reasons. First, this litigation
took place in 2019, not 2017. Second, the Court
looks to "the prevailing rate . . . i[n] the community
in which the district court sits"--here, San Antonio,
the seventh most populous city in America with a
correspondingly sophisticated legal market-not a statewide
survey lumping urban and rural markets together. Scham v.
Dist. Courts Trying Criminal Cases, 148 F.3d
554, 558 (5th Cir. 1998). Third, the Texas Bar
Journal did not account for differences among firms.
Davis Santos is an elite boutique firm offering services
comparable to a large law firm. According to a 2015 survey by
the Texas State Bar, large San Antonio law firms charge a
$421 median hourly rate-above what Pinto's attorneys
charged here. See Dep't of Research &
Analysis, State Bar of Tex., 2015 Hourly Fact Sheet
13 (2016), ECF No. 79-10. Fourth, the Texas Bar
Journal did not account for differences among cases. But
the Texas State Bar's 2015 survey did, finding the
statewide median hourly rate for international law cases
(like this one) was $385-above what Pinto's attorneys
charged here. Id. at 6. And lacking any other
argument from de Loera, the Court cannot find a $364 average
hourly rate unreasonable. That's all the more true since
other judges in this district have approved much higher
hourly rates for less complicated cases involving less
qualified lawyers. See MidCap Media Fin., LLC v. Pathway
Data, Inc., No. 15-60, 2018 WL 7890668, at *2 (W.D. Tex.
Dec. 19, 2018) (approving a $755 hourly rate in a
breach-of-contract case); Xpel Techs. Corp. v. Carlas
Int'l Auto. Accessory, Ltd., No. 16-1308, 2017 WL
9362801, at *9 (W.D. Tex. Nov. 27, 2017) (approving a $545
hourly rate for attorneys at a large law firm who obtained a
default judgment in a trademark infringement case); see
also City of San Antonio v. Hotels. com, L.P., No.
6-381, 2017 WL 1382553, at *11 (W.D. Tex. Apr. 17, 2017)
(awarding attorneys with twenty years experience $625 hourly,
attorneys with ten to twenty years experience $475 hourly,
and attorneys with five to nine years experience $350 hourly
in a class action under the Texas Tax Code); Sierra Club
v. Energy Future Holdings Corp., No. 12-108, 2014 WL
12690022, at *6 (W.D. Tex. Aug. 29, 2014) (awarding
out-of-district counsel in a Clean Air Act case $925 per hour
after finding that rate reasonable given their home market).
even if this hourly rate exceeded the market, the
Johnson factors would adequately justify the
increase. Although de Loera cites several ICARA cases
awarding considerably lower fees, none compare to this
case's factual or procedural complexity, de Loera's
scorched-earth opposition, or the Davis Santos team's
sterling credentials. Cf, e.g., Salazar, 750 F.3d at
517-18 (noting the district court awarded $39, 079.13 in an
ICARA case that settled without trial); Saldivar,
894 F.Supp. at 943 (reducing the lodestar amount by 55% to
$8, 617.50 since the respondent had recently been laid-off).
This litigation's breakneck speed forced the Davis Santos
team to quickly get up to speed in a challenging cross-border
legal morass, which they navigated with one of the most
sophisticated, well-prepared, professional, and effective
presentations in the Court's recent memory. The pace,
intensity, and specialized nature of the litigation imposed a
great opportunity cost on Davis Santos, further justifying
any upward adjustment.
Pinto is entitled to $224, 835 in legal fees. And he is
further entitled to an additional $7, 230 compensating his
attorneys for the twenty-nine hours spent preparing his fee
petition. See Johnson v. State of Mississippi, 606
F.2d 635, 637-38 (5th Cir. 1979). Combined with his other
costs and expenses, the Court will award Pinto $365, 076.98.
A separate order follows.
 Although that evidence alone is enough
to disregard de Loera's financial disclosure, the Court
notes that her prior false statements to the Court further
diminish her credibility. See, e.g., 3/19/19 Tr.
 The $22, 541.62 figure includes $418
for a specialized interpreter the Court provided to translate
technical terms related to Mexican law and the Mexican
courts' orders. Though Pinto's opening motion
originally called for de Loera to pay that amount directly to
the Court, during the motion's pendency, Pinto's
attorneys paid ...