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Saturday, August 31, 2019

Alikovna v Viktorovich, 2019 WL 4038521 (S.D. Florida, 2019) [Russian Federation] [Federal & State Judicial Remedies] [ Subject matter jurisdiction]

In Alikovna v Viktorovich, 2019 WL 4038521 (S.D. Florida, 2019) Petitioner commenced the case on August 14, 2019 by filing a Petition, alleging that Respondent wrongfully removed their nine-year-old son from the Russian Federation to the United States. As a result, Petitioner sought return of her son pursuant to the Hague Convention. Respondent sought dismissal of the Petition for lack of subject matter jurisdiction. The district court granted the defendants motion to dismiss the proceeding for lack of subject matter jurisdiction.

The district court observed that Countries may bind themselves to the terms of the Convention by either signing and ratifying the Convention pursuant to Article 37, or by acceding to the Convention pursuant to Article 38. The United States signed the Convention in 1981, and the Convention came into force in the United States in 1988. Marks on Behalf of SM v. Hochhauser, 876 F.3d 416, 422 (2d Cir. 2017). According to Article 38, Any other State may accede to the Convention.  [...] The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration will also have to be made by any Member State ratifying, accepting or approving the Convention after an accession. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States. The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance. (last accessed August 27, 2019).\

The Court noted that because the Convention functions solely through the designated Central Authorities in the respective states, and because only contracting parties will have designated such authorities, the Convention can operate only between two signatory states.” United States v. Amer, 110 F.3d 873, 881 (2d Cir. 1997) (citing Convention, Arts. 6 & 7); see also Mezo Elmergawi, 855 F. Supp 59, 62 (E.D.N.Y. 1994); Mohsen v. Mohsen, 715 F. Supp. 1063, 1065 (D. Wyo. 1989). By the terms of the Convention, the accession has effect only if a Contracting State accepts an acceding country’s accession. The Russian Federation acceded to the Convention on July 28, 2011; however, the United States has not accepted that accession. See Status Table, (last accessed August 27, 2019); see also Acceptances of Accessions, (last accessed August 27, 2019). 

The Court found that although Petitioner alleged that the United States and the Russian Federation were parties to the Convention, the allegation alone did not confer subject matter jurisdiction. This is especially true where the United States has not accepted the Russian Federation’s accession to the Convention, the weight of authority supported a finding that jurisdiction was lacking in this case, and Petitioner provided no authority to the contrary.

The district court found that Petitioner failed to establish that the Court had subject matter jurisdiction over her claim. See Taveras v. Taveras, 397 F. Supp. 2d 908, 911 (S.D. Ohio 2005) (“It is undisputed that the United States and the Dominican Republic have not entered into the negotiations require by Article 38. Consequently, the Convention’s administrative and judicial mechanisms are not yet applicable with regard to relations between the two countries.”); see also Gonzalez v. Gutierrez, 311 F.3d 942, 945 n.2 (9th Cir. 2002), abrogated on other grounds by Abbott v. Abbott, 560 U.S. 1 (2010) (“An accession is effective only between the acceding country and those contracting states that have accepted the accession.”). 

Monday, August 26, 2019

Teller v Helbrans, 2019 WL 3975555 (E.D. N.Y. 2019)[Guatemala] [Federal & State Judicial Remedies] [Walsh Act] [Depositions] [live Trial Testimony]

In Teller v Helbrans, 2019 WL 3975555 (E.D. N.Y. 2019) in a prior decision dated August 12, 2019, the District Court ordered Respondent Sara Helbrans (“Respondent”) to explain whether there were alternative means to obtain Petitioner’s deposition testimony. See Teller v. Helbrans, No. 19-CV-3172, 2019 WL 3779863, at *2 (E.D.N.Y. Aug. 12, 2019). This information was necessary to determine whether to authorize a subpoena, pursuant to 28 U.S.C. § 1783, (Walsh Act) for Petitioner’s deposition.  The Court also required Petitioner Aaron Teller to state whether he would be appearing for trial to testify personally. Petitioner indicated that he would not be appearing to testify at trial personally. Petitioner’s refusal to appear for trial to testify in person left the Court no option other than to issue a Walsh Act subpoena requiring his attendance for trial and for a deposition.

The District Court observed that there is a strong preference for live testimony, long recognized by the courts, as it provides the trier of fact the opportunity to observe the demeanor of the witness.” United States v. Int’l Bus. Machines Corp., 90 F.R.D. 377, 381 (S.D.N.Y. 1981). It is highly unusual—perhaps unprecedented—for a petitioner not to appear at the hearing to testify in a Hague Convention matter. The only cases the Court was aware of were those where there are immigration barriers and/or the petitioner was a non-U.S. citizen. That was not an issue in this case: Petitioner was a U.S. citizen and subject to a Walsh Act subpoena.
Petitioner asked the Court to permit testimony via videoconference, but provided no reason why that was appropriate, why he refused to travel to the United States, or what circumstances or arrangements could be made to permit such testimony via video, particularly from Guatemala. There was no suggestion of cost, immigration, illness, infirmity, or other barriers to appearing in the United States. This absence of any good cause requires the request to appear via videoconference be denied. The Court held that even if such a proffer were made, the Court would exercise its discretion to require live in-person testimony at trial. 

The District Court noted that it had mentioned at previous hearings that conducting cross-examination at a trial via video of a party is near impossible, unless Petitioner is given full advance notice of all documents to be used during such an inquiry. That is highly unorthodox and threatens to prejudice Respondent. As a result, the Court ordered issuance of a Walsh Act subpoena commanding Petitioner’s testimony at trial. E.g., Matovski v. Matovski, No. 06-CV-4259, 2007 WL 1575253, at *3 (S.D.N.Y. May 31, 2007) (denying application for eight witnesses to testify remotely in Hague Convention trial, because they failed to establish necessary good cause; permitting petitioner, who had visa barriers, to appear via video); S.E.C. v. Tourre, No. 10-CV-3229, 2013 WL 3326867, at *2 (S.D.N.Y. June 26, 2013) (denying motion to quash Walsh Act subpoena for trial testimony); United States v. Jefferson, 594 F. Supp. 2d 655, 661 n.1 (E.D. Va. 2009) (“Because Jennifer Douglas Abubakar is an American citizen, she is subject to witness subpoena pursuant to 28 U.S.C. § 1783 even though she currently resides in a foreign country. Accordingly, an Order has entered directing issuance of a subpoena requiring her appearance as a witness at trial.”).

The Court indicated that it noted in its earlier decision, Teller, 2019 WL 3779863, at *2, that depositions in Hague Convention matters have become a norm, in light of the singular importance of the testimony of the parent. The Court, therefore, concluded that a Walsh Act subpoena for Petitioner’s deposition was in the interest of justice. All that remained for issuance of the Walsh Act subpoena was for Respondent to establish that there were no “alternative methods to obtain testimony. In determining whether there were such alternative methods, “courts analyze whether it is practical to obtain the information sought from the witness.” Balk v. N.Y. Inst. of Tech., 974 F. Supp. 2d 147, 156 (E.D.N.Y. 2013). “Subpoenas may be issued when it is impractical to obtain the information.... Impracticality occurs, for example, where resort to alternative methods is unlikely to produce the relevant evidence in time to meet impending discovery deadlines.” S.E.C. v. Sandifur, No. 05-CV-1631, 2006 WL 3692611, at *4 (W.D. Wash. Dec. 11, 2006).

Teller now offered to have his deposition taken in Guatemala. The Court noted that a deposition in Guatemala requires a foreign lawyer, and poses other practical problems, including the need to secure space at a United States consulate to conduct the deposition. Teller now indicated that he had located a lawyer in Guatemala who can assist Respondent in conducting a deposition, and lawyers from Respondent’s firm should travel to Guatemala to conduct the deposition. The Court held that this was both impractical and inappropriate in this case. First, the Court was already ordering Petitioner to appear for the trial in this matter. Any deposition would be scheduled around the date of the trial to avoid any inconvenience and need for Petitioner to appear twice. Second, as required by the Walsh Act, Respondent advanced necessary fees for travel for Petitioner’s deposition and trial testimony. To the extent that the advanced fees were insufficient, the Court would require Respondent to pay the necessary expenses and fees. This obviated any financial burden that could be imposed by a deposition.  Third, the need for multiple groups of lawyers to travel to Guatemala, the retention of local counsel, and research into Guatemalan law is obviated by having Petitioner—who must travel for trial—appear for deposition in the United States. (There were also now three sets of lawyers who represent the children in the case. Many of those counsel worked for legal aid organizations. These counsel would have a right to ask questions at a deposition, and whatever means Respondent’s pro bono counsel had to travel to Guatemala, the Court was doubtful other counsel also had such financial resources). The processes for a Guatemalan deposition take time and expense. Trial was scheduled to commence in little over one month and there were multiple motions pending. A deposition shortly in advance of the trial, in the United States, avoids those complications. See Fuentes-Rangel v. Woodman, No. 14-CV-5, 2014 WL 12656211, at *1 (N.D. Ga. May 6, 2014) The respective burdens on the parties and practicalities did not justify conducting Petitioner’s deposition abroad, and demonstrate that his deposition testimony was unavailable absent a Walsh Act subpoena.

There is a general presumption that a person be deposed near his place of work or home. But that presumption has no place when an American citizen, living abroad, is subpoenaed under the Walsh Act. See S.E.C. v. Banc de Binary, No. 13-CV-993, 2014 WL 1030862, at *9 (D. Nev. Mar. 14, 2014) And it is for that reason that expatriate witnesses have been ordered to the United States.

Teller objected that the subpoena required his attendance at a deposition more than 100 miles from his residence in Guatemala. The 100-mile bulge rule and its penumbras would be pertinent if this were a Rule 45 subpoena—see Fed. R. Civ. P. 45(c) (“Place of Compliance”)—but it is not. NML Capital Ltd. v. Republic of Argentina, No. 14-CV-492, 2014 WL 3898021, at *12 (D. Nev. Aug. 11, 2014). The geographical limitations in Rule 45 are not incorporated into the Walsh Act. The Act authorizes a Court to compel a U.S. citizen located abroad to appear for testimony; it follows that the testimony can be ordered to take place in the district where that Court sits.

Teller objected also on the grounds that the subpoena was not properly served. At this point, because the Court had not yet authorized a Walsh Act subpoena, the service objection was premature. Because the Court was now authorizing the Walsh Act subpoena, and to avoid any further delay, this resolved the question. The Walsh Act provides that a subpoena shall be served pursuant to the Federal Rules of Civil Procedure “relating to service of process on a person in a foreign country,” i.e., Rule 4(f). See 28 U.S.C. § 1783(b). The Court authorized the issuance of Walsh Act subpoenas, but they must be served upon Petitioner in Guatemala, consistent with Rule 4(f). 

Wednesday, August 14, 2019

Teller v Helbrans, 2019 WL 3779863 (E.D. N.Y., 2019)[Guatemala] [Federal & State Judicial Remedies] [Depositions]

In Teller v Helbrans, 2019 WL 3779863 (E.D. N.Y., 2019) the district court denied Respondent Sara Helbrans (“Helbrans”) motion for an order compelling Petitioner Aaron Teller (“Teller”) to appear for a deposition in this action brought under the Hague Convention.
Teller was a U.S. citizen who resided in Guatemala. Helbrans sought to depose Teller pursuant to the Walsh Act, 28 U.S.C. § 1783, which permits a court to exercise jurisdiction over a United States citizen, and to require him to appear in the United States to testify. Blackmer v. United States, 284 U.S. 421, 438 (1932). The Act authorizes the Court to issue a subpoena to: a national or resident of the United States who is in a foreign country ... if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner. 28 U.S.C. § 1783(a). 

The Court pointed out that because a Hague Convention case is a civil proceeding, for the Court to issue a subpoena, Helbrans had to demonstrate that Teller’s testimony is (1) necessary in the interest of justice; and (2) that it is not possible to obtain his testimony in admissible form without his personal appearance.. “[W]hen considering the propriety of a subpoena under 28 U.S.C. § 1783, the court should consider factors such as the nature of the proceedings, the nature of the testimony or evidence sought, the convenience of the witness, the convenience of the parties, and other facts bearing upon the reasonableness of requiring a person abroad to appear as a witness.” Safar v. Costco Wholesale Corp., No. 15-CV-469, 2016 WL 1589600, at *2 (E.D. Va. Apr. 19, 2016). “The decision to issue a subpoena under this statute is left to the sound discretion of the court.” Balk v. N.Y. Inst. of Tech., 974 F. Supp. 2d 147, 155 (E.D.N.Y. 2013) .

As to whether Teller’s testimony was necessary, it was clear that without it, the Court could not properly adjudicate the merits of his petition. Teller brought the petition and was a party to the case, alleging that Helbrans kidnapped their six children in violation of his custody rights. Up to this point, despite Court inquires on the issue, there was no firm commitment that Teller will appear for trial testimony. 

Teller argued that a Walsh Act subpoena was invalid because the Hague Convention does not contemplate requiring parents to appear for deposition. The court observed that nothing in the Convention requires attendance at a deposition, but nothing prohibits a deposition or other customary discovery procedures from being used. And the taking of deposition testimony is a common occurrence in Hague Convention matters, because it assists the Court and both parties in clarifying facts and narrowing the issues for decision. See, e.g., Robert v. Tesson, 507 F.3d 981, 995 (6th Cir. 2007). Having presumably propounded his own discovery to Helbrans, pursuant to the schedule in the case, it was incongruous for Teller to object to the use of other discovery devices, like depositions. The first factor was therefore satisfied. 
The second factor—whether it is “possible to obtain [the citizen’s] testimony in admissible form without his personal appearance”—was no satisfied by Helbrans. Balk, 974 F. Supp. 2d at 155. “In assessing the second prong—whether there are potentially alternative methods to obtain testimony—courts analyze whether it is practical to obtain the information sought from the witness.” Teller indicated that he had offered to either sit for a deposition in Guatemala or appear for a deposition via video. Helbrans responded by stating that Teller’s presence was required under the Walsh Act. To obtain a Walsh Act subpoena, and command a citizen’s appearance in the United States, the movant must demonstrate that admissible testimony is otherwise not available, see Balk, 974 F. Supp. 2d at 156; the movant cannot rely on the compulsion of the subpoena—the requirement that the witness appear in the United States—to make that showing. Depositions may be taken remotely, and by video. See Fed. R. Civ. P. 30(b)(4). In some instances, that has been sufficient to deny a request for a Walsh Act subpoena. E.g., Ameris Bank v. Russack, No. 14-CV-2, 2015 WL 4770190, at *2 (S.D. Ga. Apr. 1, 2015), aff’d, 2015 WL 4760694 (Aug. 12, 2015).

The Court found that Helbrans had not made a showing why obtaining Teller’s deposition testimony remotely via video or in-person abroad was not practical or possible. As such, the motion was denied without prejudice to renewal. 

Thursday, August 8, 2019

Pinto Quintero v De Loera Barba, 2019 WL 3604615 (W.D. Texas, 2019)[Mexico] [Necessary expenses]

In Pinto Quintero v De Loera Barba, 2019 WL 3604615 (W.D. Texas, 2019) the Court ordered respondent Alejandra Maria de Loera Barba to return Pinto’s four children based on an application of the Hague Convention. It observed that ICARA requires “[a]ny court ordering the return of a child” to “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 the 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); see also Salazar v. Maimon, 750 F.3d 514, 520 (5th Cir. 2014)

De Loera suggested three reasons why a fee order would be clearly inappropriate here, but none persuade the Court. First, she claimed she “knows nothing else than to be a mom.” The Court noted that de Loera was exceptionally well educated, graduating from Trinity University and an elite private high school in San Antonio. Second, she contended she “does not have the financial means to pay,” attaching a financial disclosure listing $8013 of charitable donations as her lone asset. That was contradicted her in-court admission that she could access over $11,000 in child support payments,  and that she relied on her family for whatever financial support she needs, including buying a $350,000 home through a shell corporation, enrolling the four children in private school (an annual cost exceeding $60,000), and retaining American and Mexican lawyers. Third, she argued she should not have to reimburse Pinto for enforcing the Mexican custody order since she claimed her Mexican lawyer said she could take the children to the United States without violating that order. The Court held that de Loera failed to explain why a fee order was clearly inappropriate.

Pinto’s claimed the following necessary expenses: $110,470.36 in out-of-pocket expenses, including travel expenses and temporary accommodations for two caretakers (one of whom was a relative) and for actual and potential witnesses; security and detective services, including during the months spent searching for his children; and fees incurred visiting the children at the court-approved supervised visitation facility and  $22,541.62 in costs ranging from court clerk and reporter fees; hiring translators, private investigators, and process servers; printing and copying; and renting the house where he and the children lived during the proceedings. 

The court held that Court costs, court reporter fees, printing and copying costs, and translator fees are “per se awardable,” see Saldivar, 894 F. Supp. 2d at 943 (citing 28 U.S.C. § 1920), as are child “care during the course of proceedings ... and transportation costs related to the return of the child[ren].” § 9007(b)(3). Moreover, de Loera never objected to any claimed cost beyond categorizing the total amount as “preposterous” and “outrageous,”, and relying on “attorney arguments attempting to set forth h[er] version of the underlying facts relating to the child[ren]’s retention.” Salazar, 750 F.3d at 522. That fell short of her “statutory obligation to come forward with evidence to show the claimed fees were clearly inappropriate.” Her opposition—just like one the Fifth Circuit rejected in Salazar— “contain[s] no exhibits, affidavits, or any evidence to dispute the necessity or propriety of the claimed expenses. Nor did the Court’s independent review find any expenses not reasonably necessary to Pinto’s quest to get his children back. The Court held Pinto was entitled to $133,011.98 in costs and expenses.

In determining the request for legal fees both sides agreed the calculus begins with the lodestar approach: multiplying the total hours reasonably expended with a reasonable hourly rate. Hours contributing to a successful outcome are “reasonably expended.” Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). To determine a reasonable rate, the Court considers the prevailing market rate in the relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). And both sides agreed that in the Fifth Circuit, once the Court calculates the lodestar, it must then contemplate adjusting the figure upwards or downwards according to factors explained in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Those factors include “[t]he novelty and difficulty of the legal questions” (the lawyer “should be appropriately compensated for accepting the challenge”); “[t]he skill requisite to perform the legal service properly” (including the attorney’s “work product, his preparation, and general ability before the court”); “[t]he preclusion of other employment by the attorney due to acceptance of the case”; “[t]he customary fee” (since “various types of legal work command differing scales of compensation”); “limitations imposed by ... the circumstances” (“[p]riority work that delays the lawyer’s other legal work is entitled to some premium”); “[t]he experience, reputation, and ability of the attorneys”; and “[a]wards in similar cases.” Id. at 719.

The court pointed out that Davis Santos attorneys and paralegals spent 617.8 hours securing their client’s total relief. De Loera mustered no more than “Conclusory complaints” that this effort was excessive, even though the law demands “specific reasons, comparisons or established standards by which to measure the objection.” In re Enron Corp. Sec., Derivative & ERISA Litig., 586 F. Supp. 2d 732, 804 n.84 (S.D. Tex. 2008). Confronted with seventeen pages of detailed billing records, de Loera merely retained an expert to conduct “a perfunctory review” and deem the amount of time “questionable, nay, extremely excessive.” It noted that Davis Santos charges an approximate average hourly rate of $364. De Loera argued that’s too much, citing a Texas Bar Journal article reporting $281 as the median statewide hourly rate in 2017. But that’s the wrong comparator, for four reasons. First, this litigation took place in 2019, not 2017. Second, the Court looks to “the prevailing rate ... i[n] the community in which the district court sits”—here, San Antonio, the seventh most populous city in America with a correspondingly sophisticated legal market—not a statewide survey lumping urban and rural markets together. Scham v. Dist. Courts Trying Criminal Cases, 148 F.3d 554, 558 (5th Cir. 1998). Third, the Texas Bar Journal did not account for differences among firms. Davis Santos is an elite boutique firm offering services comparable to a large law firm. According to a 2015 survey by the Texas State Bar, large San Antonio law firms charge a $421 median hourly rate—above what Pinto’s attorneys charged here. See Dep’t of Research & Analysis, State Bar of Tex., 2015 Hourly Fact Sheet 13 (2016), ECF No. 79-10. Fourth, the Texas Bar Journal did not account for differences among cases. But the Texas State Bar’s 2015 survey did, finding the statewide median hourly rate for international law cases (like this one) was $385—above what Pinto’s attorneys charged here. Id. at 6. And lacking any other argument from de Loera, the Court could not find a $364 average hourly rate unreasonable. That was all the more true since other judges in this district had approved much higher hourly rates for less complicated cases involving less qualified lawyers. See MidCap Media Fin., LLC v. Pathway Data, Inc., No. 15-60, 2018 WL 7890668, at *2 (W.D. Tex. Dec. 19, 2018) (approving a $755 hourly rate in a breach-of-contract case); Xpel Techs. Corp. v. Carlas Int’l Auto. Accessory, Ltd., No. 16-1308, 2017 WL 9362801, at *9 (W.D. Tex. Nov. 27, 2017) (approving a $545 hourly rate for attorneys at a large law firm who obtained a default judgment in a trademark infringement case); see also City of San Antonio v., L.P., No. 6-381, 2017 WL 1382553, at *11 (W.D. Tex. Apr. 17, 2017) (awarding attorneys with twenty years experience $625 hourly, attorneys with ten to twenty years experience $475 hourly, and attorneys with five to nine years experience $350 hourly in a class action under the Texas Tax Code); Sierra Club v. Energy Future Holdings Corp., No. 12-108, 2014 WL 12690022, at *6 (W.D. Tex. Aug. 29, 2014) (awarding out-of-district counsel in a Clean Air Act case $925 per hour after finding that rate reasonable given their home market). And even if this hourly rate exceeded the market, the Johnson factors would adequately justify the increase. 

The Court held that Pinto was entitled to $224,835 in legal fees, and an additional $7,230 compensating his attorneys for the twenty-nine hours spent preparing his fee petition. See Johnson v. State of Mississippi, 606 F.2d 635, 637-38 (5th Cir. 1979). Combined with his other costs and expenses, the Court awarded Pinto $365,076.98.