Recent Hague Convention District Court Cases - Efthymiou v LaBonte, 2023 WL 3611362 (N.D. California, 2023).

 [Cyprus][Necessary Costs]

In Efthymiou v LaBonte, 2023 WL 3611362 (N.D. California, 2023) in February 2023 the Court ordered the return of N.E. to Cyprus under the Hague Convention and set a briefing schedule on a potential award of costs and expenses. Efthymiou v. LaBonte, 2023 WL 1491252, at *13 (N.D. Cal. Feb. 3, 2023).

 

Efthymiou requested an award of $199,878.84. The Court stated that the first substantive question was which of his expenses were “necessary” under the statute. 22 U.S.C. § 9007(b)(3). Efthymiou had the burden of explaining what his expenses were, and a portion of the requested award was rejected for failure to meet that burden. The descriptions for $16,870 worth of itemized expenses were redacted in whole or in part, making it impossible to determine whether they were necessary or appropriate. Similarly, while Efthymiou stated that he was not seeking reimbursement related to his expert, the itemizations include significant fees for consultations with that expert. Based on his representation those line items were set aside, reducing the request by $24,170. Efthymiou’s filings combined multiple expenses into single line items. As it was impossible to tear apart such entries, where a line item is either partially redacted or includes both expert and non-expert work, it was set aside entirely.  Additionally, Efthymiou’s lawyers appeared to have billed him $3,850 for their time flying from Chicago to San Francisco. The entries did not say that the lawyers were working during that time. While attorneys’ “reasonable transportation and lodging” expenses are covered by the statute, their time in transit is not. That amount was excluded. While it is permissible to hire non-local counsel, Efthymiou’s filings did not demonstrate why his lawyers needed to travel to California in October. The $3,431.52 in October travel costs were excluded. The December travel costs, on the other hand, were necessary to attend trial. See Cuellar v. Joyce, 603 F.3d 1142, 1143–44 (9th Cir. 2010). This included the plane tickets purchased in November. While LaBonte suggests these were for an unnecessary November trip, the lack of plane tickets on the December bill suggests that counsel pre-booked their tickets to attend trial. LaBonte was correct that it was not necessary to have both of Efthymiou’s lawyers attend the parties’ depositions. The amount requested was reduced by $2,450 for the original depositions and $1,925 for Efthymiou’s supplemental deposition. LaBonte was also correct that she should not have to bear expenses related to Efthymiou’s unnecessary motion to exclude her expert. A further $775 was deducted. Efthymiou’s attorneys’ fees for attendance at the trial were $31,200.. There’s no question that having one’s attorneys at trial is necessary. But the presentation of evidence was excessively repetitive, driving up costs significantly. This amount was reduced by half, to $15,600.  The billing records reflected a motion that was never filed in this Court. A further $1,925 was excluded. After the above reductions, Efthymiou’s necessary expenses were $128,882.32.

 

The second question on the merits is whether ordering LaBonte to pay Efthymiou’s necessary expenses would be “clearly inappropriate.” The statute doesn’t define what makes a fee award clearly inappropriate. The best understanding of that exception is that it empowers courts to “look to factors that are familiar in the fee award context” so long as they do not construe it “so broadly as to make the analysis indistinguishable” from typical fee-shifting statutes. Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). The Ninth Circuit’s sole published ruling on this provision emphasized that it should be construed in light of the Convention’s purpose of deterring unlawful conduct by parents in the first instance. Cuellar, 603 F.3d at 1143. LaBonte’s financial condition is a relevant consideration. Whallon, 356 F.3d at 139, 141 (affirming a twenty-five percent reduction based on the financial condition of the respondent); Rydder v. Rydder, 49 F.3d 369, 373–74 (8th Cir. 1995) (trimming an award of fees and costs by nearly fifty percent based on the respondent’s “straitened financial circumstances”). LaBonte said that she had limited income, few assets, and that she cannot pay any award. She made less than $4,000 per month working several jobs as a nanny and pet-sitter and had expenses that match or exceed that (mostly rent). She took on significant debt to litigate this case, including borrowing $74,000 from her mother, and raised more funds online. She still owes fees to her own attorneys. Even if in relative terms Efthymiou had more resources than LaBonte, it’s apparent that neither parent can easily bear the cost of this case. That is regrettable. Another relevant consideration is whether LaBonte believed in good faith that her retention of N.E. was “legal or justified.” Rath, 898 F.3d at 1311. LaBonte was not in the dark. She knew that she might have to pay for Efthymiou’s legal fees if she lost this case. And she knew that, win or lose, further custody litigation could follow in either California or Cyprus. Her subjective belief in her cause counts for something—but not everything. It was within LaBonte’s power to skip ahead to an actual custody dispute by sending her son home. Efthymiou did not have that same power. Instead, he had to litigate this case for months. In light of LaBonte’s financial condition and her subjective good faith, it was appropriate to reduce the award of necessary expenses by one-third (with half of that reduction attributed to each of those considerations).. LaBonte was ordered to pay Efthymiou for his necessary expenses in the amount of $85,921.55.