In Sanguineti v Boqvist, 2016 WL 1466552 (SDNY, 2016) after the Petition of Katherine Sanguineti seeking the return of her son, BAB, to
Canada was granted, she moved for attorney’s fees and
other expenses, seeking a total amount of $195,291.80. The Court awarded fees
of $106,642.00, attorney’s costs of $1164.00 and Out of Pocket expenses of
$2851.00. The district court observed that ICARA provides that a court “shall”
award such expenses, unless the respondent establishes that an award “would be
clearly inappropriate.” 22 U.S.C. § 9007. There is a presumption in favor of
awarding necessary costs to a prevailing petitioner in a return action. The
court has the obligation to determine whether the requested fees and costs were
‘necessary’ to secure the child’s return. The burden of proving that costs are
“necessary” falls upon the petitioner.
Petitioner’s counsel, a solo
practitioner, sought attorney’s fees of $186,152.10, which she divided into two
categories: 450.4 hours at $400 per hour for attorney services, and 44.9 hours
at $129 per hour for what she described as “Secretarial and Paralegal
Services.” The Court noted that in return cases under the Hague Convention, the
“ ‘lodestar’ approach is the proper method for determining the amount of
reasonable attorney’s fees.” Knigge v. Corvese, No. 01 cv 5743 (DLC), 2001 WL
883644, at *1 (S.D.N.Y. Aug. 6, 2001). In calculating the lodestar, or
“presumptively reasonable fee,” the district court must first determine the
reasonable hourly rate for the attorney’s work, which is the “rate a paying
client would be willing to pay.” Arbor Hill, 522 F.3d at 190. As a starting
point in determining the reasonable hourly rate, the court should consider the
“fees that would be charged for similar work by attorneys of like skill in the
area.”
Under petitioner’s fee agreement with her
attorney the hourly billing rate was $250.00 per hour. However, the attorney contended
that her reasonable hourly rate was actually $400.00 per hour, and that she
charged petitioner a reduced rate due to petitioner’s exigent
circumstances. The both stated that they
had agreed that if petitioner were to prevail in the present action, her
attorney would seek fees and costs at her regular hourly rate of $400.00 per
hour. The Court held that even when a specific hourly rate is included in a fee
agreement, a prevailing party’s attorney may seek fees at the market rate for
similar services by lawyers of reasonably comparable skill, experience, and
reputation. Awarding attorney’s fees at a higher rate than what was provided
for in a fee agreement does not confer a benefit onto a prevailing party.
The Court held that the attorney’s reasonable
hourly rate would be set in the same way that attorneys’ rates are typically
set in such cases: by determining the rate a paying client would be willing to
pay, and taking account all relevant factors, including “the current market
rate in the Southern District of New York ... for similar services by lawyers
of reasonably comparable skill, experience, and reputation.” Reiter, 457 F.3d
at 233. The Court concluded that a rate of $335.00 per hour was reasonable. The
Court also found reasonable $129 per hour for work completed by her that
constituted secretarial and paralegal work. The Court found that petitioner was
entitled to $142,189.60 in attorney’s fees ($136,713.50 for attorney time,
$5,276.10 for non-attorney time, and $200 for her initial one-hour
consultation).
The court awarded counsel sums for copies
and filing fees, and awarded petitioner sums for translation costs, trial
transcripts which the Court required the parties to obtain in order to
reference them in post-trial briefing, travel, food and lodging, but denied the
request for fees for mediation services, expenses for the care of CFPC,
petitioner’s child not the subject of the current action, and medical care for
BAB,.
The court
pointed out that the “clearly inappropriate” standard permits an award of
expenses “subject to the application of equitable principles by the district
court.” Ozaltin, 708 F.3d at 375. Courts have considered the degree to which
the petitioner bears responsibility for the circumstances giving rise to the
fees and costs associated with a petition. Souratgar, __ F.3d __, 2016 WL
1168733, at *6. A respondent’s inability to pay an award is a relevant
equitable factor for courts to consider in awarding expenses under ICARA.. The Court
determined that respondent bore the bulk of responsibility for the
circumstances giving rise to the fees and costs associated with the petition. Weighing
against an award of necessary expenses was respondent’s alleged financial
constraints. He contended that he had a net worth of $603, excluding legal
bills. The Court concluded that only a modest reduction in petitioner’s award
was appropriate. The Court was mindful that “an expenses award that is greater
than a respondent’s total assets” requires, at the very least “a reasoned
explanation.” Souratgar, __ F.3d __, 2016 WL 1168733, at *8 n.3. It concluded
that an award greater than respondent’s total assets was justified because respondent had no
limitations on his earning ability. His
background, education, and work experience all indicated that he had significant
earning potential in the future. Respondent’s spending patterns weighed against
a determination that an award of necessary expenses would be “clearly
inappropriate.” He spent at the very least, $7,977 every month on expenses,
which far exceeded his monthly income and far exceeded what was necessary for
respondent’s day-to-day living expenses. Respondent’s inability to pay was
predominantly caused by his own spending far above bare necessities. The Court
concluded that respondent’s own excessive spending should not serve as a
complete bar to petitioner’s recovery. Taking into account respondent’s
financial circumstances—including his remaining assets, his liabilities, and
his ability to earn a substantial income—as well as all the other equitable
factors previously discussed, the Court concluded that a reduction in the total
fee award by 25% was appropriate. The
Court was also satisfied that such a
reduction would ensure that the award of necessary expenses does not impede
respondent from visiting and caring for BAB in the future. Norinder v. Fuentes,
657 F.3d 526, 536 (7th Cir. 2011)
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