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Monday, April 15, 2019

Rivero v Godoy, 2019 WL 1178472 (S.D. Florida, 2019)[Venezuela] [Necessary Costs]

In Rivero v Godoy, 2019 WL 1178472 (S.D. Florida, 2019) Plaintiff Camilo Ernesto Crespo Rivero requested an award of $47,306 in attorney’s fees and $2,810.63 in taxable costs after prevailing in this action. Defendant Angie Carolina Godoy did not file an opposition. The Magistrate Judge recommended that the District Court grant in part and deny in part Crespo’s motion and award him $47,306 in attorney’s fees and $2,122.75 in taxable costs ($687.88 less than requested).

In July 2018, Crespo filed a verified petition under ICARA against Godoy. Crespo, who lived in Venezuela, alleged that Godoy had wrongly kept their four-year-old son within the Southern District of Florida. 

In his fee motion, Crespo detailed the out-of-court preparation and work his counsel undertook in this case. In the same vein, Crespo added that his counsel: prepared for and participated in a four-day evidentiary hearing before the Court; prepared Mr. Crespo for his live testimony; prepared extensively for an evidentiary hearing including preparing for direct and cross examinations; coordinated with the Marshal’s Service regarding execution of the summons and ex parte order, and compliance with the Court’s Order Granting Petition; coordinated Respondent’s visitations with the child; and participated in numerous meetings and discussions with the U.S. Department of State and the Venezuelan Central Authority.

Crespo moved for attorney’s fees and costs under ICARA. That statute provides for fees and costs shifting from losing respondents to prevailing petitioners: Any court ordering the return of a child pursuant to an action brought under section 9003 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate.22 U.S.C. § 9007(b)(3).
The Eleventh Circuit has “read the statutory text as creating a strong presumption in favor of fee-shifting, rebuttable only by a showing from the losing respondent that an award of attorney’s fees, costs and expenses would be clearly inappropriate.” Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). Here, Godoy, who lost this ICARA case, did not respond to the fees and costs motion. So, she obviously made no showing that a fee-shifting award would be “clearly inappropriate.” As such, Crespo was entitled to a fees award for prevailing in this case.

The Court noted that the amount of recoverable fees in ICARA cases (like many others) turns on an application of the “lodestar” method. See, e.g., Ovalle v. Perez, No. 16-CV-62134, 2017 WL 7792719, at *1 (S.D. Fla. Nov. 9, 2017). Florida has adopted the federal “lodestar” approach to calculating attorney’s fees awards. Fla. Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985). The lodestar figure is calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party’s attorney. The court must separately consider the reasonableness of the hourly rate and the number of hours expended. A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by attorneys with reasonably comparable skills, experience, and reputation. Norman v. Hous. Auth. of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). In determining the prevailing market rate, the Court should consider several factors, including “the attorney’s customary fee, the skill required to perform the legal services, the attorney’s experience, reputation and ability, the time constraints involved, preclusion of other employment, contingency, the undesirability of the case, the attorney’s relationship to the client, and awards in similar cases.” Mallory v. Harkness, 923 F. Supp. 1546, 1555 (S.D. Fla. 1996).

Here, the hourly rates of Crespo’s attorneys, Ronald H. Kauffman and Raquel Lacayo-Valle, were $495 and $350, respectively. Kauffman had been practicing law in Florida since 1993; was board certified in family law; and, according to the motion, “is a frequent speaker on Hague and interstate family jurisdiction issues and is a published author on family law issues in the Florida Bar Journal and Florida Bar Family Law Section Commentator.” Lacayo-Valle had been practicing law in Florida since 2014 but was barred in California in 2001. Given that Godoy did not respond to the fees motion, she did not object to the hourly rates. Moreover, the Court using its knowledge and experience as an attorney and federal magistrate judge in South Florida since 1983, found the rates to be reasonable. See Norman, 836 F.2d at 1303 (“The court ... is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees[.]”).

The Court must exclude compensation for hours that are “excessive, redundant or otherwise unnecessary.” Norman, 836 F.2d at 1301.  Crespo seeks $47,306 in attorney’s fees, which is comprised of 77 hours of work by Kauffman and 26.26 hours of work by Lacayo-Valle. Crespo explains that this requested amount already deducts “one half of Ms. Lacayo-Valle’s time spent preparing for and in trial, (10 hours with a value of $3,500.00). The Court found the requested number of compensable hours is reasonable.

Crespo sought to tax the following costs: (1) $400 for fees of the clerk; (2) $419.10 for fees and disbursements for printing; (3) $101.88 in fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (4) $1,957.50 for compensation of interpreters and costs of special interpretation services under 28 U.S.C. § 1828; and (5) $166.90 for PACER fees. The Court allowed taxation for categories (1) and (4) but disallowed taxation for categories (2), (3), and (5).

The Court recommended awarding $400 for the filing fee. This filing fee was reimbursable because it falls within the scope of taxable costs under § 1920(1). It did not recommend awarding $419.10 for fees and disbursements for printing. Crespo did not explain how these printing costs were necessarily incurred in the case. The motion to tax costs contains only a one-page summary of the printing costs, without any detail. Likewise, the Court did not recommend awarding $101.88 in fees for exemplification and the costs of making copies. Copying costs are recoverable if the copies were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). The party requesting taxation of costs must present evidence “regarding the documents copied including their use or intended use.” Cullens v. Georgia Dept. of Trans., 29 F.3d 1489, 1494 (11th Cir. 1994). General copying costs without any accompanying description are not recoverable. Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir. 1996) . Crespo includes in his motion to tax costs only two invoices for color copies. The invoices did not say what the copies are for, and Crespo did not provide any detail about the copies in his motion. Therefore, $101.88 in fees for exemplification and the costs of making copies should not be taxed. The Court recommended awarding $1,957.50 for compensation of interpreters. The date of the invoice showed that these interpretation services were done for multiple days of trial. These costs are recoverable. See, e.g., Dimingo v. Midnight Xpress, Inc., No. 17-23010-CV, 2018 WL 7047958, at *3 (S.D. Fla. Oct. 25, 2018), report and recommendation adopted, No. 17-23010-CIV, 2019 WL 201717 (S.D. Fla. Jan. 15, 2019) (finding “award for costs for interpreter fees is appropriate, as such costs may be recovered under 28 U.S.C. § 1920(6)”).  The Court did not recommend awarding $166.90 for PACER fees. PACER costs are not taxable under § 1920. See MB Reo-FL Church-2, LLC v. Tampa for Christ Church, Inc., No. 8:16-CV-276-T-33AEP, 2018 WL 3008896, at *3 (M.D. Fla. June 15, 2018); Panico v. Ygsl Holdings LLC, No. 12-61269-CIV, 2013 WL 12092116, at *1 n.2 (S.D. Fla. Apr. 5, 2013); Parrot, Inc. v. Nicestuff Distrib. Int’l, Inc., No. 06-61231-CIV, 2010 WL 680948, at *15 (S.D. Fla. Feb. 24, 2010).

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