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Tuesday, February 7, 2017

Raps v Zaparta, 2017 WL 74739 (SDNY, 2017)[Poland] [Necessary Expenses and Costs]

In Raps v Zaparta, 2017 WL 74739 (SDNY, 2017) after the Court granted the petition of Robert Adrian Raps for the return of his child (“J.R.”) to Poland, it granted him an award of attorneys’ fees and costs, pursuant to 22 U.S.C. § 9007(b)(3). In its decision the court indicated that it “was not a close case” but that it was not frivolous.  

The petitioner was represented by pro bono counsel. The Court observed that the appropriateness of such an award “depends on the same general standards that apply when attorney’s fees are to be awarded to prevailing parties only as a matter of the court’s discretion. There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the [relevant] considerations.” Ozaltin v. Ozaltin, 708 F.3d 355, 374 (2d Cir. 2013) (internal citations and quotation marks omitted).  Under the “lodestar” method of evaluating a fee request, the Court must multiply the number of hours reasonably expended by a reasonable hourly rate. Sanguineti v. Boqvist, 2016 WL 1466552, at *2 (S.D.N.Y. Apr. 14, 2016). The Court found the total hours expended –557.31 – to be reasonable under the circumstances and the low rates of $40/hour for out-of-court work and $60/hour for in-court were plainly reasonable. Petitioner sought a total of $36,795.61 in costs actually incurred by or on behalf of petitioner to locate J.R. in the United States and to file and prosecute his petition for the return of J.R. to Poland.  These costs included the investigative expenses to locate J.R. ($628.54), travel expenses for petitioner and his sister to attend the evidentiary hearing (both testified) ($1,771.38), and travel expenses related to the return of J.R. to Poland ($2,318.22). These costs also included court reporter fees ($699.30), transcript charges ($1,282.50), translation fees $26,189.13), interpreter fees ($2,115.00), and hotel expenses for petitioner and his sister to attend the evidentiary hearing ($1,791.54). The Court found that the claimed costs constituted “necessary expenses incurred by or on behalf of the petitioner.” 22 U.S.C. § 9007(b)(3).

Although the total amount claimed for attorneys’ fees and expenses was therefore $60,602.64 the Court declined to award this amount because (1) Petitioners counsel agreed to take on the case on a pro bono basis – that is, it did not expect to be paid for its services or reimbursed for its expenses. Although the fact that the firm appeared pro bono does not preclude an award of fees and costs, it does warrant a reduction in the amount awarded. See Smedley v. Smedley, 2015 WL 5139286, at *3 (E.D.N.C. Sept. 1, 2015); Vale v. Avila, 2008 WL 5273677, at *2 (C.D. Ill. Dec. 17, 2008). Awarding petitioner these fees and costs (except for the $4,718.14 he and his sister personally incurred) would not restore him to the financial position he was in had J.R. not been wrongfully removed is one of the purposes of awarding fees and costs; and (2) Respondent was a person of limited financial means. She had  negligible liquid assets, and she had been unable to work for more than a year due to various health problems. A losing respondent’s financial straits is a relevant factor in determining whether and how much to award in fees and costs. The Court found that two very good reasons to award substantial fees and costs under Section 9007(b)(3) were (1) an important purpose of such an award is to deter future child abductions; and (2) such an award will encourage lawyers to represent petitioners in Hague Convention cases on a pro bono basis in the future, because such lawyers might at least be able to recover their out-of-pocket costs. The Court found it would not be “clearly inappropriate,” 22 U.S.C. § 9007(b)(3), to order respondent to pay necessary expenses incurred by or on behalf of the petitioner, including legal fees and costs. But it would be clearly inappropriate to award the full amount requested. Accordingly, the Court reduced the full amount requested by two-thirds, such that the amount awarded was $20,200.88.

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