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Wednesday, October 29, 2014

Dawson v McPherson, 2014 WL 4748512 (M.D.N.C.) [United Kingdom] [Necessary Cos

In Dawson v McPherson, 2014 WL 4748512 (M.D.N.C.)) the petitioner moved pursuant to ICARA, for attorneys fees and expenses after the district court granted his petition for return of his children, C.M.S. and L.S. to the United Kingdom.

The Court's indicated that its decision to order the return of the Children to Petitioner signified that Respondent's actions were wrongful. The Court recognized that ICARA, by providing for an award of attorneys' fees and expenses after a judgment of wrongful removal or retention of a child, contemplates the use of such awards as a deterrent to violations of the Convention. In light of this purpose, and after careful review of the parties' pleadings on this issue, the Court found that Respondent failed to establish that it would be clearly inappropriate for the Court to award attorneys' fees and expenses to Petitioner in this instance. Therefore, the Court only had to determine the reasonableness of the dollar amount requested by Petitioner for fees and expenses related to the return of the Children. Petitioner requested a total of $41,938.57 in attorneys' fees and expenses and $7,795.78 for other, non-legal expenses incurred by Petitioner in securing the return of the Children.

The district court held that it is well established that the "lodestar" for obtaining a Request for method for determining reasonable attorneys' fees.  Consistent with the general acceptance of the method, federal courts have applied the lodestar approach to cases where ICARA is at issue. The lodestar figure is determined by multiplying the number of reasonable hours expended times a reasonable rate. See  Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). To determine the reasonable rate and reasonable number of hours to use in calculating reasonable attorneys' fees under the lodestar approach, the Court is guided by the twelve "Johnson " factors: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputations, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.  Rum Creek, 31 F.3d at 175; (citing  Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974)). These "Johnson " factors are to be considered as part of the Court's
determination of the reasonable number of hours and the reasonable rate to be used in this case. See  Grissom, 549 F.3d at 320-21. Therefore, in applying the lodestar analysis, the Court has the discretion to reduce the award requested by Petitioner.  Hensley, 461 U.S. at 437. With this standard in mind, the Court determined  whether the number of hours incurred by Petitioner's attorneys in this matter were reasonable.   To establish the number of hours reasonably expended, Petitioner had to  "submit evidence supporting the hours worked." Hensley, 461 U.S. at 433. The court indicated that number of hours should be reduced to exclude hours that are "excessive, redundant, or otherwise unnecessary" in order to reflect the number of hours that would properly be billed to the client.   Where a district court finds a duplication in the hours reported by the attorney of the party requesting attorneys' fees, the court has discretion to exclude from the calculation of attorneys' fees hours that were not "reasonably expended."  Hensley, 461 U.S. at 433. Furthermore, "[w]here the attorney's
documentation is inadequate, or the claimed hours are duplicative or excessive, the [C]ourt may reduce the award accordingly.  Neves, 637 F.Supp.2d at 340 (citing Wasniewski, 549 F.Supp.2d at 972).

The Court found that there was a lack of specificity as it related to some of the work performed by Ms. Dildine, Ms. Hawkins, or Mr. Cox. There was also, what appeared to be duplication of the work done by Ms. Dildine, Ms. Feuchs-Marker, Ms. Hawkins, and Mr. Cox. As such, it was not possible for the Court to isolate or distinguish the exact number of hours Ms. Dildine, Ms. Feuchs-Marker, or their assisting staff spent on performing necessary tasks to prepare for this case or to determine why the efforts of these four individuals, on what appears to be very similar-if not the same-activities, were necessary in this case. Therefore, the Court  reduced the number of hours reported for work done by Petitioner's North Carolina representation by 20%.

 Petitioner's Leeds Representation reported 22.75 hours preparing the December 4, 2013 Request for Return Application under the Hague Convention  and assisted in "subsequent related matters through the end of December 2013." In support of these hours worked, Petitioner filed an affidavit along with an invoice, which purported to breakdown the fees charged for the Leeds Representation. The fee breakdown, however, was not as informative as the itemized list provided by Petitioner's North Carolina Representation. The fee breakdown contained the date of services, a description of services rendered, the name of counsel performing the services, the hours worked, counsel's rate per hour, the amount of time worked, and the billed amount. While the fee breakdown was detailed, in that it told who worked on the case, for how long, and how much was billed for the services, the explanation of the actual services was not descriptive. For instance, the description for one hour, for which the client was billed L921.25, stated "Attendance-Client."   Other examples of billed for time, included descriptions such as, "Long Telephone Calls-Client," Consideration/perusal-Detailed Correspondence/ emails-TOB letter," and "Preparation/drafting-Detailed File Note."  The court pointed out that Petitioner "bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley, 461 U.S. at 437. As it related to his Leeds Representation, Petitioner had failed to meet this burden. The Court was unable to decipher what tasks the Leeds Representation actually performed during the time for which they billed Petitioner based on the fee breakdown submitted by Petitioner. Therefore, it was impossible to know whether Petitioner was billed for duplicative efforts and whether the time billed for was spent on necessary tasks relevant to the action. Accordingly, the Court denied Petitioner's request for attorneys' fees for his Leeds Representation, because the Court could not determine whether any of the hours billed were reasonable in light of the factors to be considered.

   Once a reasonable number of hours has been determined, the Court must determine
a reasonable rate, "calculated according to the prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984)."This determination is fact-intensive and is best guided by what attorneys earn from paying clients for similar services in similar circumstances." Rum Creek, 31 F.3d at 175.    Both the Supreme Court and the Fourth Circuit prescribe a method of rate determination whereby the district court uses discretion influenced by "evidence of fees paid to attorneys of comparable skill in similar circumstances." Blum, 465 U.S. at 895;  Rum Creek, 31 F.3d at 175. In this instance, as to Petitioner's North Carolina Representation, the Court reviewed Ms. Dildine's Affidavit submitted by Petitioner and the Court has also reviewed the 2012 North Carolina Bar Association Economic Survey ("North Carolina Survey") outlining estimations of the hourly rates charged by attorneys and support staff. Based on this review, the Court found that a rate reduction was appropriate as to Ms. Dildine, Ms. Hawkins, and Mr. Cox. The Court found that Ms. Dildine's, Ms. Hawkins', and Mr. Cox's rates should be reduced based on this information, in order to achieve congruence with those rates charged for similar services in the North Carolina legal market. Therefore, the Court, in its discretion,  reduced the rates of Ms. Dildine to $215, Ms. Hawkins to $75, and Mr. Cox to $50. However, as to Ms. Feuchs-Marker's fee, the Court found the fee of $375 per hour was reasonable based on Ms. Feuchs-Marker's experience and the amounts billed by those with similar experience in North Carolina.

   Petitioner also requested that the Court award him $6,979.66 for non-legal expenses, for which he could provide documentation. Those amounts were attributed to (1) the cost of the round trip airline ticket for Petitioner; (2) the cost of the one-way airline tickets for the Children; (3) the cost of the change flight fee for Petitioner; (4) the cost of the private investigator hired to locate the
Children in the United States; and (5) Petitioner and the Children's lodging in the United States. The Court found these non-legal expenses to be properly documented and reasonable. Further, such expenses, which were incurred during the pendency of this action, were necessary and not inappropriate pursuant to 42 U.S.C.  11607(b)(3).See  Neves, 637 F.Supp.2d at 344 (finding that airfare, lodging, transportation, postage, and investigative expenses reasonable and necessary under ICARA). Thus, Petitioner was entitled to receive those actual expenses in the amount of $6,979.66, given the Court's finding as to the necessity of those expenses which were related to Petitioner's efforts to obtain the return of the Children under ICARA and the Hague Convention.

   Petitioner also requested an additional $816.12 in court costs relating to his Article 15 Declaration. Petitioner was unable to provide documentation concerning these expenses. Therefore, the Court was unable to assess the validity of such expenses. Accordingly, the Court declined to award Petitioner the expenses for which he could not provide documentation, specifically, as it related to Petitioner's
request for $816.12 in court costs associated with his Article 15 Declaration.

The court ordered that Respondent was to pay to Petitioner the total sum of $30,463.26, reflecting attorneys' fees in the amount of $23,483.60 and necessary expenses in the amount of $6,979.66.

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