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Saturday, May 16, 2015

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.