Hamprecht v Hamprecht, 2013 WL 1155675 (M.D.Fla.) [Germany] [ Attorney's Fees and Costs]

In Hamprecht v Hamprecht, 2013 WL 1155675 (M.D.Fla.) after the Court granted the Verified Petition, and ordered respondent to surrender custody of the minor child to petitioner's father for return to Germany, Respondent filed a Notice of Appeal and sought a stay pending appeal in conjunction with her Notice of Appeal. The Court granted a temporary stay to allow respondent to seek a stay from the Eleventh Circuit Court of Appeals. On June 19, 2012, the Eleventh Circuit Court of Appeals dismissed the appeal based on petitioner's unopposed motion to dismiss the appeal as moot.

Petitioner now sought recovery of attorney fees and costs from respondent pursuant to the ICARA. Petitioner sought attorney's fees of $497,612.50, taxable costs of $23,950.96, and non-taxable expenses in the amount of $55,450.46, under Title 42, United States Code, Section 11607(b) (3), The district court observed that under this section, the Court has "broad discretion" in determining the fees, expenses, and costs, unless respondent satisfies the burden to establish that an award would be "clearly inappropriate." A reasonable attorney fee is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rate, Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), and a "reasonable hourly rate" is "the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation," Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988). The party seeking an award of fees should submit adequate documentation of hours and rates in support, or the award may be reduced. Hensley, 461 U.S. at 433. The burden is on the fee applicant "to produce satisfactory evidence" that the rate is in line with those prevailing in the community. Blum v. Stenson, 465 U.S.886, 896 n. 11 (1984).

Petitioner sought $590. 00 an hour for Mark S. Scott, $505.00 an hour for Jeffrey D. Pollack, $450.00 an hour for both Michelle M. Gervais and Warren D. Zaffuto, and $255.00 an hour for the paralegal. Counsel argued that "[g]iven the specialized and complex nature of Hague Convention cases", the hourly rates are reasonable in light of the range of fees previously found to be reasonable in the Middle District of Florida. The applicable prevailing market in this case was the Fort Myers area. Counsel did not provide an affidavit by an attorney in the Fort Myers area regarding the general reasonableness of the fee request, or an affidavit as to the proposed hourly rates."If a fee applicant desires to recover the non-local rates of an attorney who is not from the place in which the case was filed, he must show a lack of attorneys practicing in that place who are willing and able to handle his claims." ACLU v. Barnes, 168 F.3d 423, 437 (11th Cir.1999). The Court found that petitioner had not met the burden of demonstrating that the proposed hourly rates were reasonable, or that the Miami rate should be applied, or that no local counsel were available to handle the case. Therefore, the Court determined the appropriate hourly rate. It found no inherent reason to penalize petitioner for utilizing more than one attorney, much as respondent elected to do in this case. See Johnson v. University College of Univ. of Ala. in Birmingham, 706 F.2d 1205, 1208 (11^th Cir.1983) ("An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation."). The Court found that Mr. Scott's language skills warranted the slightly higher than normal rate, however, the Court found that Mr. Pollack's rate should be considerably lower as he was an associate who was not admitted to practice in Florida and had less relevant experience than lead trial counsel, who is a partner. Upon review of counsel's respective experience and with due consideration to local prevailing rates, the Court fixed the reduced hourly rates at $400.00, $250.00 $300.00 $225.00 and $125.00 for the paralegal.

In determining the reasonable amount of hours, the Court held that it may conduct an hour-by-hour analysis or it may reduce the requested hours across the board, Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir.2008), and the Court must eliminate excessive, unnecessary, and redundant hours, Norman, 836 F.2d at 1301-02. When multiple attorneys are involved, the Court must consider whether they are being compensated for their distinct contributions or whether there is duplication. Johnson v. University College of Univ. of Ala., 706 F.2d at 1208. In this case, counsel did not sufficiently demonstrate that they used "billing judgment", and therefore the Court was unable to determine whether the hours were reasonable. See ACLU v. Barnes, 168 F.3d at 428. The Court was inclined to deny the motion in its entirety for the lack of billing judgment exercised and the flood of unsupported documentation, but considered the billing records attached as Exhibit B and filed in three parts to reduce the request.

Some of the entries were superfluously redacted and were denied for the reason that their reasonableness or relation to the Hague petition proceedings could not be determined. The Court did not apply Miami counsel's hourly rate for travel to Fort Myers from Miami without any affidavit attesting that no Fort Myers local counsel was available or capable of representing petitioner in this matter. The Court did not include the hours for travel overseas without argument or an affidavit that the travel time was spent working on the Hague petition proceedings. The Court eliminated travel time to Fort Myers and "daily rates" for simply being present in Fort Myers awaiting a decision by the Court. The Court did not permit hours for the attendance of the paralegal at trial when co-counsel was present to assist lead counsel for a two day hearing that did not take place two days in a row and also billed for that time. The hours also included the paralegal's travel time, coordinating exhibits with the courtroom deputy, and a great deal of secretarial tasks including the compilation of exhibits and folders for counsel. After all reductions, the Court awarded petitioner a total of $184,047.00 in attorneys' fees at the District Court level.

The court held that Petitioner sought an excessive $55,450.46 in non-taxable expenses for travel expenses, legal research, postage and overnight mail, messenger services, and translation services. Although the expenses were incurred "on behalf of the petitioner", they were not all necessary, and counsel's travel expenses had no relationship to the "transportation costs related to the return of the child" by either party. 42 U.S.C. § 11607(b) (3). The expenses of counsel was denied in their entirety as clearly inappropriate.

Petitioner sought $23,950.96 for taxable costs and filed a separate proposed Bill of Costs in support. Under Fed.R.Civ.P. 54(d)(1), costs "should be allowed to the prevailing party" unless the court provides otherwise. Deposition costs "merely incurred for convenience, to aid in thorough preparation, or for purposes of investigation only," are not recoverable. EEOC v. W & O, Inc., 213 F.3d 600, 620 (11th Cir.2000). Likewise, costs for charts and exhibits are not taxable, and copying costs are otherwise evaluated based on their necessity, including for discovery. "Compensation of interpreters" under Section 1920(6) is limited to the cost of oral translation and does not include document translation. Kouichi Taniguchi v. Kan Pac. Saipan, Ltd., 132 S.Ct. 1997 (2012). The Court taxed costs against respondent for the $350.00 filing fees of the Clerk; $746.00 for summonses and subpoenas; $13,282. for transcripts; and $4,672.41 for printing without any specific objection to their necessary use in this case. The $988.03 for demonstrative aids was not permitted as unsupported and unnecessary for use in this case. The $2,385.50 for interpreter services was reduced to reflect only the oral interpretation costs for English to German in the amount of $1,592.75 in light of the recent Supreme Court case. Therefore, the Court taxed costs in the amount of $20,643.26.

The Petitioner sought $63,073.50 in appellate attorneys' fees for 132.3 hours, and an additional $2,690.72 in costs . The Court denied appellate fees in their entirety. The Court was frustrated by the failure of counsel to properly divide and supplement the first request for fees with separate billing statements that are limited to the appeal. Instead, counsel have re-submitted the same billing records previously submitted with no indication of how they reached a total of $63,073.50. The Court permitted attorneys' fees at the trial level with some trepidation and after expending an excessive amount of time deciphering the billing records. The Court would not hazard to estimate the appellate fees based on the submissions. The motion for appellate fees was denied.

Petitioner sought $2,690.72 for printing, copying, legal research, overnight mail, and messenger services, under both 28 U.S.C. § 1920 as taxable costs and under ICARA as necessary costs associated with the return of the minor child. Petitioner sought $398.55 for printing and duplication, which is a taxable cost. The other amounts were not taxable costs recoverable under Section 1920. Computerized research costs are not taxable costs. Respondent did not argue that the cost was not necessary for use in the case or that this amount was specifically excessive. Therefore, this amount was permitted.

Petitioner sought $35.90 for messenger expenses to deliver documents to the Eleventh Circuit Court of Appeals. The Court permitted this expense as a necessary expense related to the return of the child. The Court did not permit the $267.14 for overnight deliveries to the Ritz-Carlton in California where apparently counsel was located while the appeal was ongoing, or to other counsel and law firms without any indication from counsel how the expenses were necessary to the return of the child. The $1,989.13 for legal research was denied as clearly inappropriate and unrelated to the actual return of the child.