Rana v Multani, Slip Copy, 2015 WL 2330163 (S.D.N.Y.) [Canada] [Federal & State Judicial Remedies]

                                                      

In Rana v Multani, Slip Copy, 2015 WL 2330163 (S.D.N.Y.) the district court dismissed the Hague Petition for lack of subject matter jurisdiction. The Petitioner alleged he and respondent were married on July 16, 2010, in New York City. Petitioner is a United States citizen, and respondent became a legal resident of the United States after the parties were married.   According to petitioner, in the fall of 2012, he and respondent were preparing for the birth of their first child. However, shortly before respondent was expected to give birth, she left the United States and journeyed to her parents' home in Ontario, Canada. On October 16, 2012, the parties' son, R.R., was born in Ontario. R.R. has lived in Canada with respondent since his birth.  Petitioner alleged respondent wrongfully removed R.R. from the United States, thereby breaching his custodial rights in violation of the Hague Convention, and asked the Court to enter an order permitting him rights of access, or rights of visitation, to R.R.

The Court observed that  ICARA § 9003(b) states: Any person seeking to initiate judicial proceedings under the Convention for the  return of a child or for arrangements for organizing or securing the effective  exercise of rights of access to a child may do so by commencing a civil action  by filing a petition for the relief sought in any court which has jurisdiction  of such action and which is authorized to exercise its jurisdiction in the place  where the child is located at the time the petition is filed.   Thus, when a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must 'order the return of the child forthwith. Abbott v. Abbott, 560 U.S. 1, 9 (2010).   Petitioner sought an order  granting him visitation rights. However, petitioner alleged R.R. was abducted to Canada, where he was born and had since resided with respondent. As such, the Hague Convention and ICARA direct petitioner to commence his action in Canada. Hofmann v. Sender, 716 F.3d 282, 290 (2d Cir.2013) ("ICARA provides that any person seeking to initiate judicial proceedings under the Convention for ... securing the effective exercise of rights of access to a child may do so by commencing a civil action in a state or federal court in the place where the child is located at the time the petition is filed."

The district court observed that in Rein v. Rein, 1996 WL 273993 (S.D.N.Y. May 23, 1996), the court faced the same issue and found it lacked jurisdiction to hear the petitioner's claim. There, the petitioner alleged his daughter was a habitual resident of France wrongfully removed to England, and sought an order restoring his parental rights. The court found the petitioner had not alleged his daughter "was abducted to the United States," and therefore, she was not located in a place where it could "exercise jurisdiction over her." Because the petitioner's daughter was located in England, the court reasoned, any petition pursuant to the Hague Convention had to be brought there.  The same reasoning applied here. Petitioner did not allege R.R. was abducted to the United States. R.R. was allegedly being held in Canada. Accordingly, any petition pursuant to the Hague Convention had to be brought there. This Court held that it could not issue an order granting petitioner visitation rights because, R.R. was not in the United States. The Court expressed no opinion regarding an individual's right to bring  a Hague Convention petition when the child allegedly abducted was not yet born. Respondents request for an award of attorney's fees and costs pursuant  to ICARA § 9007 was denied as that statute only authorizes an award of attorney's fees and costs for a prevailing petitioner.

Taveras ex rel. L.A.H. v. Morales, --- Fed.Appx. ----, 2015 WL 2263023 (C.A.2 (N.Y.)) (summary order) [Spain] [Now Settled]

  In Taveras ex rel. L.A.H. v. Morales, --- Fed.Appx. ----, 2015 WL 2263023 (C.A.2 (N.Y.)) (summary order)  Petitioner-appellant Inocencia Herrera Taveras appealed from an  order of the district court denying her petition for return of her child, L.A.H., to Spain. Taveras argued that the district court erred in determining that she had filed her petition more than a year after L.A.H. was first wrongfully retained in the United States by her father, respondent-appellee Jose Alonzo Morales. The district court ruled that Taveras's petition was filed more than a year after the wrongful retention of L.A.H. began, that L.A.H. was "now settled" in the United States, and that it was in the best interests of L.A.H. that she be allowed to remain here, and therefore declined to order that L.A.H. be returned to Spain. Taveras did not challenge on appeal the district court's finding that L.A.H. was settled in the United States, or its exercise of its discretion not to return her to Spain. She argued only that the district court erred in determining when L.A.H. was first wrongfully retained, that she filed her petition within a year of the correct date, and that the "now settled" defense was therefore not
available to Morales.


The Court of Appeals pointed out that the significance of that determination was that under the Hague Convention, if Taveras petitioned for the return of L.A.H. within a year after the wrongful retention of L.A.H. began, the district court was mandated to return the child to Spain in the absence of certain narrow affirmative defenses. If the petition was not filed within that period, and if L.A.H. was "now settled" in the United States, the district court had discretion whether to order her return. See Hague Convention art. 12. 

    The Court indicated  that it reviews the district court's interpretation of the Hague Convention de novo, and its factual determinations under a deferential "clearly erroneous" standard, accepting the district court's findings of fact "unless we have a definite and firm conviction that a mistake has been committed." Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir.2013).

    Taveras argued that the district court applied the wrong legal standard in
determining when the wrongful retention began, because it should have required a
"clear and unequivocal" communication by Taveras to Morales that she did not
consent to L.A.H.'s continued stay in the United States as a prerequisite to
finding that Morales's retention of L.A.H. had become wrongful. The Court of Appeals held that it need not decide whether the formulation urged by Taveras was the
correct standard for determining when wrongful retention begins. Assuming arguendo that such a standard applied, the district court determined that it was met here, finding that Taveras had "made her demand [for the return of L.A.H.] sufficiently
clear to [Morales]" by the end of summer 2012, and that Morales's retention of
L.A.H. beyond that period was therefore wrongful. Acknowledging that where "one parent fails to inform the other parent that she does not consent to the child's stay beyond a particular date, it would be difficult to say that retention beyond that date is wrongful," the district court distinguished the situation at bar as "not such a case."

  The Court of Appeals affirmed. It held that the district courts  finding was far from clearly erroneous. The district court based it on: (1) Taveras's testimony that she spoke to Morales "[m]any a time during the months of August and September [2012]," and (2) her "unequivocal[]" testimony,  that she did not consent to L.A.H.'s stay beyond the end of summer 2012. The court also referenced Morales's testimony that, during that same period, Taveras "continued insisting" that he send L.A.H. back to her. It saw no reason to disturb the court's finding in the face of that evidence.

Gee v. Hendroffe, 2015 WL 2151885 (S.D.Tex.)[South Africa] [Costs and Expenses]

In  Gee v. Hendroffe, 2015 WL 2151885 (S.D.Tex.) Petitioner moved for Attorney's Fees and Costs after the Court ordered the return of Petitioner's children to South Africa, and ordered that Respondent pay "all costs and fees incurred by Petitioner to recover the children  as required under 42 U.S.C. Sec. 11607.   In his motion, Petitioner requested $14,111.00 for "airline tickets, hotel, car rental and 
food costs and expenses."  In support, Petitioner submitted  airplane, car rental, and hotel (or "airbnb") receipts totaling $12,743,84.  The Court pointed out that insofar as the $1,367.16 discrepancy between requested and documented non-legal fees included food costs, Petitioner had not submitted any receipts for food costs. The court cited In re Application of Hirts, CIV.A.03-CV-03156,  2004 WL 1588227, at *1 (E.D.Pa. July 13, 2004), aff'd sub nom. Hirts v. Hirts, 152 Fed. Appx. 137 (3d Cir.2005) (granting airfare, hotel costs, and car rentals but holding "Petitioner's costs  incurred in caring for himself and his children are in no way 'related to the return of the child[ren],' as required by 42 U.S.C. § 11607(b). Petitioner would have incurred the costs of feeding, clothing and otherwise supporting his children and himself whether his children were in the United States or Germany.") Respondent was directed to pay $12,743.84 for airline tickets, hotel, and car rental  expenses with interest at .11 percent per year compounded annually from the date of the order.

Petitioner requested $39,727.80 for "legal fees, costs and expenses."   Petitioner submitted legal bills totaling $39,727.44.   Petitioner alleged "total legal fees, costs and expenses" were $57,829.80, but only requested $53,838 . Petitioner only submitted receipts for $52,471.28. The Court observed that the Fifth Circuit had examined the legal fees charged by Petitioner's counsel, Laura  Dale, in a similar case.  Salazar v. Maimon, 750 F.3d 514, 523 (5 th Cir.2014). The Fifth  Circuit affirmed the district court's finding Dale's rates to be reasonable but her time spent on the case to be excessive. The court found that here Ms. Dale  billed $450 per hour for 1.5 hours; an associate, $250 for 41.25 hours; and a paralegal, $150 for 15.25 hours; minus a 25% courtesy discount on all fees. The associate and counsel of record, Ashley Tomlinson, one of  the associates in Salazar, filed a declaration stating: "I am very familiar with the hourly  rate that attorneys at my level of practice charge in matters of this nature. At least one third of my practice involves multi-jurisdictional conflicts, particularly actions brought under The Hague Convention... in which I specialize. This case included a show cause hearing and an evidentiary hearing, the latter lasting 5.5 hours. Billing statements provided by Petitioner include similar detail as the ones submitted in  Salazar, including entries for communication with client or co-counsel that do not indicate the subject of the communication. Costs include "Color Copies,  500.00."  

Petitioner also submitted a legal bill from counsel in Las Vegas totaling  $27,892.21, related to a prior Hague Convention action in the U.S. District Court in Nevada.  The bill included 88.8 hours at hourly rates of $150, $250, and  $325, without explanation of who was doing the work. The bill also included a lump sum paid to another attorney without any explanation: "Cal Potter, Esq., 2000.00."   The Nevada action included three court appearances totaling two hours and thirty-eight minutes and eight motions totaling 73 pages excluding exhibits. Respondent Hendroffe and the children failed to appear at the Nevada hearings in violation of multiple orders.  The first Order gave Respondent over a month to prepare her travel plans,  yet she waited until one week before the hearing to request a telephonic  appearance. Respondent  traveled to at least three different  continents during the time relevant to this litigation. Respondent fled with the children to Malaysia. The case was then dismissed for lack of personal jurisdiction. Gee v. Hendroffe, No. 2:13-cv-01582-JCM-NJK.   During the final hearing in Nevada, Petitioner informed the court he would seek  attorney's fees and costs, but these were not available under Section 11607 in the absence of an order to return the children. 42 U.S.C.§ 11607(b) ("[A]ny Court ordering the return of the children... shall order the Respondent to pay  necessary expenses...."). The district court held that although Petitioner's attorney fees in Nevada arose in a  different proceeding, they were "necessary expenses incurred by or on behalf of the Petitioner including court costs [and] legal fees" in obtaining an order to return the  children.

  Hendroffe did not file a response to the motion and did not establish 
that an attorney fee award would be "clearly inappropriate." 42 U.S.C.A. § 11607. The court observed that courts exercise wide discretion in reducing fee awards under Section 11607 based on  equitable considerations such as the respondent's ability to pay. Citing  Salazar v. Maimon, 750 F.3d 514, 523 (5 th Cir.2014) (affirming reduction of "almost fifty percent");  Whallon v. Lynn, 356 F.3d 138, 139 (1st Cir.2004) (65%);  Rydder v. Rydder' 49 F.3d 369, 373-374 (8 th Cir.1995) (46%, resulting in fees of $10,000). Given Hendroffe's failure to  provide documentation of financial status or to respond at all and her flouting of court  orders, the Court found that an equitable reduction was not warranted and that legal  expenses and costs requested were reasonable and necessary, with the exception of the  $1,367.16 undocumented non-legal expenses and an unexplained $2,000 payment by Kelleher & Kelleher to Cal Potter, Esq.

Respondent was directed to pay $11,835.23 to Laura Dale & Associates, P.C. ; and $25,892.21 to petitioner for attorney's fees, expenses and costs paid to his Nevada counsel Kelleher & Kelleher all with interest at .11 percent per year compounded annually from the date of the order.