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Thursday, August 15, 2013

Paulus ex rel. P.F.V. v. Cordero, 2013 WL 432769 (M.D.Pa.) [Dominican Republic] [Attorney Fees and Costs] [Pro Bono Counsel]

In Paulus ex rel. P.F.V. v. Cordero, 2013 WL 432769 (M.D.Pa.) Petitioner Alberto Eugenio Font Paulus's Motion for an Award of Attorneys' Fees and Costs was before the court. Respondent, Ana Virginia Vittini Cordero, argued that an award of attorneys' fees for Mr. Font Paulus's counsel would be clearly inappropriate because he was represented on a pro bono basis and a fee award would prevent her from providing for herself or her two minor children. Because she had not shown that it would be clearly inappropriate for the Court to order her to pay the necessary expenses incurred by or on behalf of Mr. Font Paulus in this matter, his motion was granted.

Mr. Font Paulus sought reimbursement of $7,251.57 in costs, $1,704 .50 of which he incurred and $5,547.07 of which was incurred by his New York counsel, Vanessa Nadal, Esq. and Tracy Schaffer, Esq. of Jones Day. He stated that he spent $1,704.50 on travel and lodging costs, including: (1) round trip airfare for his flights to and from the United States for the June 2012 hearing; (2) airfare for P.F.V.'s return flight to the Dominican Republic; (3) round trip bus fare to and from Wilkes-Barre, Pennsylvania for himself, his sister, and her husband (who served as a guide and translator) for the hearing; (4) round trip bus fare to and from Pennsylvania for himself, his sister, and her husband to pick up P.F.V.; (4) return bus fare to New York for P.F.V.; and (5) his lodging in Wilkes-Barre for the hearing.

Attorneys Nadal and Schaffer sought reimbursement of $5,547.07 for various necessary expenses incurred on Mr. Font Paulus's behalf in this matter, including: (1) lodging in Wilkes-Barre for the hearing; (2) certified English translations of the Dominican court orders and laws appended to the Petition and Spanish translations of the Petition and Memorandum of Law for Mr. Font Paulus to verify; (3) court filing fees; (4) a translator at the hearing; and (5) the courier service that obtained P.F.V.'s passport from the United States Marshals on Mr.Font Paulus's behalf and verified that Ms. Vittini Cordero had not fled with P.F.V. following her failure to answer Mr. Font Paulus's phone calls for three days following the Court's June 29, 2012 Order.

Ms. Vittini Cordero argued that Mr. Font Paulus's round trip flight from the Dominican Republic to the United States was unnecessary because he could have testified at the June 2012 hearing by telephone or video conference. However, the court found that federal courts have awarded successful ICARA petitioners airfare incurred in traveling to and from the United States to appear in court. See, e.g., Freier v. Freier, 985 F.Supp. 710, 714 (E.D.Mich.1997) (awarding $2,422.00 for Petitioner's round trip and minor child's one-way airfare); Guaragno v. Guaragno, No. 09-CV-187, 2010 WL 5564628, at * 5 (N.D.Tex. Oct. 19, 2010), aff'd, 2011 WL 108946 (N.D.Tex. Jan.18, 2011). Therefore, as Ms. Vittini Cordero had not shown that it would be clearly inappropriate to require her to pay for Mr. Font Paulus's airfare to and from the United States for the hearing, she was be ordered to reimburse him $555.80 for his reasonable and necessary air travel costs. The Court found that the $290.00 in airfare for P.F.V.'s return flight to the Dominican Republic, which Ms. Vittini Cordero had not challenged, was a necessary expense under ICARA.

Ms. Vittini Cordero maintained that the $1,944.00 for interpreting services and $2,111.51 for translation services incurred by Attorneys Nadal and Schaffer were not recoverable because neither the translators nor the interpreter were court-appointed. The court found that she failed to establish that an order requiring her to pay for interpreting and translation services incurred on behalf of Mr. Font Paulus in this matter would be clearly inappropriate. Many federal courts have awarded translation and translator costs to successful ICARA petitioners. See, e.g., Guaragno v. Guaragano, No. 09-CV-187, 2011 WL 108946, at *4 (N.D.Tex. Jan. 18, 2011) (awarding "reasonably and necessarily incurred and adequately documented" translator trial fees and costs of $3,788.75 and foreign document translation fees of $8,702.47); Blanc v. Morgan, 721 F.Supp.2d 749, 768 (W.D.Tenn.2010) (awarding "translation services ... and other incidental expenses contemplated by § 11607(b)(3)"); Neves v. Neves, 637 F.Supp.2d 322, 343-44 (W.D.N.C.2009) (awarding translation costs of $191.25); Antunez Fernandes v. Connors-Fernandes, 259 F.Supp.2d 800, 816-17 (N.D.Iowa 2003) (awarding translation costs of $717.75, including a translator for trial); Friedrich v. Thompson, No. 99-CV-772, 1999 WL 33954819, at *8 (M.D.N.C. Nov. 26, 1999) (awarding expenses for translation of documents from German to English). Ms. Vittini Cordero was ordered to pay for interpreting services and translation services.

Ms. Vittini Cordero contende that Mr. Font Paulus should not be awarded court costs on equitable grounds because he filed this action with unclean hands. The Court held that equitable defense unclean hands defense was inapplicable here. The United States Court of Appeals for the Third Circuit has held that applying "the unclean hands doctrine would undermine the Hague Convention's goal of protecting the well-being of the child, of restoring the status quo before the child's abduction, and of ensuring that rights of custody... of one Contracting State are effectively respected in the other Contracting States." Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir.2010). Furthermore, court costs are explicitly mentioned in §11607(b)(3) as "necessary expenses incurred by or on behalf of the petitioner."

Ms. Vittini Cordero challenged the $500.00 in post-hearing investigatory and courier costs incurred by Attorneys Nadal and Schaffer. The court found these services were reasonable and necessary expenses incurred on behalf of Mr. Font Paulus and related to the return of P.F.V.,

The court determined the issue of reasonable attorneys' fees by the lodestar calculation, which entails multiplying the number of hours reasonably expended by each attorney by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The party seeking fees has the initial burden of presenting evidence that the claimed rates and amounts of time are reasonable. See Pennslyvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). Once the fee applicant has made this initial showing, "the resulting product is presumed to be the reasonable fee to which counsel is entitled." The opposing party then has the burden of making specific objections to the proposed fee by affidavit or brief. In considering the opposing party's objections, the district court has significant discretion to adjust the lodestar downwards. The Court concluded that Attorney Macdonald-Matthes's figure was $16,380.00 (54.6 hours x $300.00 per hour). Attorney Nadal's figure was $8,910.00 (54 hours x $165.00 per hour). Attorney Schaffer's figure was $11,700.00 (45 hours x $260.00 per hour). When added together, these attorneys' fees, which were "necessary expenses incurred ... on behalf of the petitioner," totaled $36,990.00.

Ms. Vittini Cordero contended that "the integrity of awarding ... fees to counsel who agree to take a case as a pro bono matter is questionable." However, she  failed to establish that ordering her to pay attorneys' fees would be clearly inappropriate, as many federal courts have found counsel representing a successful ICARA petitioner on a pro bono basis are entitled to recover attorneys' fees. See Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir.2010) ("The fact that [successful ICARA petitioner's] lawyers provided their services pro bono does not make a fee award inappropriate."); see also Hamidas v. Hamidas, 720 F.Supp.2d 183, 209 (E.D.N.Y.2010) ("[T]he fact that the petitioner in this case was represented by pro bono counsel does not provide a basis for disregarding the Convention's fee provision."); Sullivan v. Sullivan, No. 09-545, 2010 WL 1651994, at *1 (D.Idaho Apr.20, 2010) ("[E]ven where a [successful ICARA] case is taken on a pro bono basis, the Petitioner is still entitled to recovery of reasonable attorney fees.") Accordingly, the Court rejected Ms. Vittini Cordero's argument..

Ms. Vittini Cordero also claimed that an award of $36,900.00 in attorneys' fees was clearly inappropriate because it would render her, a minimum wage earner and single mother of two children, unable to provide for herself or her children. The court held that while it may reduce a fee award in a Hague Convention case if it prevents the respondent-parent with straitened financial condition from caring for his child, a reduction on the account of straitened financial condition, will not be applied to litigation costs and out-of-pocket expenses...." Saldivar, 2012 WL 4497507, at *16 (citing Rydder, 49 F.3d at 374; Whallon, 356 F.3d at 139). Although Ms. Vittini Cordero claimed that an order requiring her to pay $36,990.00 in attorneys' fees would be "clearly inappropriate" due the financial strain it would place her and her minor children under, she failed to provide any evidentiary support for this position. The record was devoid of any evidence or documentation showing Ms. Vittini Cordero's employment status, income, or assets. Nor did it contain any evidence that she had two minor children and was their sole provider. Ms. Cordero was be ordered to pay $16,380.00 in fees to Attorney Macdonald-Matthes, $8,910.00 in fees to Attorney Nadal, and $11,700.00 in fees to Attorney Schaffer.

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