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Tuesday, April 10, 2018

Kim v Ferdinand, 2018 WL 1635795 (E.D. Louisiana, 2018) [Thailand][Necessary Costs and Attorneys fees]

In Kim v Ferdinand, 2018 WL 1635795 (E.D. Louisiana, 2018) Kim petitioned the Court to return her two children to Thailand. The Court concluded that the children’s habitual residence was Thailand and ordered their prompt return. See Soonhee Kim v. Ferdinand, No. CV 17-16180, 2018 WL 721455 (E.D. La. Feb. 6, 2018). Plaintiff filed a motion for attorney’s fees and necessary expenses, requesting $89,310.08 that included court costs, legal fees, and travel costs between Thailand and the United States. Respondent opposed this motion, arguing that Petitioner’s attorney’s fees were excessive and such award is “clearly inappropriate” under 42 U.S.C. § 11607(b)(3).     
The district court observed that under the Hague Convention, an award of fees and costs serves two purposes: (1) “to restore the applicant to the financial position he or she would have been in had there been no removal or retention,” and (2) “to deter such removal or retention.” Hague Convention; Text and Legal Analysis, 51 Fed. Reg. 10494–01, 10511 (Mar. 26, 1986) A party seeking an award of attorney’s fees must submit adequate evidence detailing the hours worked and his or her rates. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). It is the Respondent’s burden to show that an award of attorney’s fees and costs would be “clearly inappropriate.” Saldivar, 879 F. Supp. 2d at 632.

       Petitioner requested that Respondent pays her $89,310.08 for expenses incurred from bringing this ICARA action. She expended $1,098.50 for court costs; $77,957.77 for legal fees and expenses; and $10,253.81 for travel. Respondent submitted an affidavit declaring negative net worth of $81,914.40. Chief among his liabilities were unsecured loans of $50,000.00 and debt from litigation fees and costs of $52,943.30.
The court used the lodestar method to determine an appropriate attorney’s fees award in Hague Convention cases. Hensley v. Eckhart, 461 U.S. 424, 433 n.7 (1983). Under the lodestar method, the amount of a fees award is calculated by “multiplying the reasonable hourly rate by the number of hours reasonably expended.” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 282 (5th Cir. 2008). This is then tested based on an analysis of twelve factors known as the Johnson factors, which was first formulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974).

         In reviewing the Johnson factors the court noted that a reasonable hourly rate is defined as the prevailing market rate, in the relevant legal community, for similar services by attorneys of reasonably comparable skill, experience and reputation. Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (citation omitted). From the Court’s experience, Petitioner’s attorneys’ rates, ranging from $355.00 to $550.00, were reasonable. According to Petitioner, who was a resident of Thailand and foreign to the U.S. legal system, she hired counsel from Washington, D.C. because she could not locate a lawyer in New Orleans who specialized in Hague Convention cases. Indeed, based on the Court’s knowledge, Hague Convention cases were rarely filed in the Eastern District of Louisiana. The Court found that Petitioner rationally hired an out-of-state law firm for her high stakes case, and her attorney’s rates were reasonable given their specialized practice, skill, experience and reputation.

          Considering the lodestar method and Johnson factors, the Court concluded that Petitioner’s attorney’s fees of $75,963.50 were reasonable. Moreover, this figure was comparable to Respondent’s own litigation fees and costs, which he declared as $52,943.40.4  Adding Petitioner’s attorney’s fees of $75,963.50 to her court costs of $1,098.50 and travel costs of $10,253.81, the Court found that Petitioner should receive $89,310.08.

The Court noted it had discretion to reduce or eliminate Respondent’s obligation to pay an award for Petitioner’s attorney’s fees and costs if such award “would be clearly inappropriate.” Distler, 26 F. Supp. 2d at 729 (quoting 42 U.S.C. § 11607(b)(3)). “A review of the cases applying ICARA’s “clearly inappropriate” caveat reveals that the analysis is highly fact specific and involves an equitable balancing of several factors including financial circumstances.” Among other factors, courts have considered “straitened financial circumstances,” see Rydder, 49 F.3d at 373–74, and a respondent’s responsibility to support his or her children, see Berendsen, 938 F. Supp. at 739, as reasons for reduction of an award for attorney’s fees and costs. The burden is on Respondent to show that an award of attorney’s fees and costs would be clearly inappropriate. See Saldivar, 879 F. Supp. 2d at 632.

The  court found that Respondent’s current financial situation was unclear and indications of financial hardship was partially self-inflicted. In August 2017, Respondent secured a teaching position that paid $35,014.30. Recently,  Respondent quit this job and returned to Thailand with his children. Although Respondent argued that he had no promise of future income, the record indicated that he wass highly educated and had excellent communication and teaching skills. Respondent was capable of attaining employment based on his recent position as a teacher and his university studies in Thailand. The record was not clear about Respondent’s financial income. The Court considered the fact that Respondent was the wrongdoer in this case: he inappropriately retained the children from their Mother without her consent; later, he launched an unfounded smear attack on Petitioner and accused her of child abuse. His actions amassed hefty litigation expenses on both parties.
     The Court concluded that Petitioner’s attorney’s fees and costs of $89,310.08 was reasonable. Nonetheless, considering the financial status of both parties and the facts in the case, the Court apportioned this amount between Petitioner and Respondent. It directed that Petitioner should bear two-thirds of her attorney’s fees and costs, for a total of $59,540.05 and  Respondent should bear one-third of Petitioner’s attorney’s fees and costs, for a grand total of $29,770.03.