In Nissim v Kirsh, 2020 WL 3496988 ( S.D. N.Y., 2020) Petitioner Dror Nissim (“Dror”), an Israeli citizen, and Respondent Orna Kirsh (“Orna”), a dual United States and Israeli citizen, were married in 2008 and had a Child who was a dual United States and Israeli citizen born in Israel. In 2018 Dror and Orna decided to move to California because Dror received a promotion that required relocation. Orna and the Child traveled to California one week ahead of Dror to prepare the living arrangements and prepare for the start of the Child’s school. However, while in California, Orna had a “revelation” that she wanted to leave her husband and live in New York with her child. Without informing her husband she took the Child and moved to New York. Dror filed a petition for return of a child pursuant to the Hague Convention and the International Child Abductions Remedies Act (“ICARA”). after the Court granted Petitioner Dror Nissim’s petition for return of a child to Israel, petitioner filed the motion for attorneys’ fees and costs. The court awarded $20,348.94 in costs and expenses and $88,370 in attorneys’ fees, for a total of $108,718.94.
The Court observed that the International Child Abduction Remedies Act (“ICARA”) provides that “[a]ny 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). Although Article 26 of the Hague Convention provides that a court ‘may’ award ‘necessary expenses’ to a prevailing petitioner, [ICARA] shifts the burden onto a losing respondent in a return action to show why an award of ‘necessary expenses’ would be ‘clearly inappropriate.’ ” Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013) (citation omitted). In considering whether expenses are “clearly inappropriate,” courts in this Circuit consider factors including: (1) whether there was “a reasonable basis for removing the children to the United States,” (2) whether either party “engaged in forum shopping,” (3) “the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition,” Souratgar v. Lee Jen Fair, 818 F.3d 72, 79 (2d Cir. 2016); (4) “a respondent’s inability to pay an award,” (5) whether fees and costs will “deter such conduct from happening in the first place,”; and (6) whether the case is “not a ‘difficult one’ and ‘falls squarely within the heartland of the Hague Convention,”
As for the appropriate amount of attorneys’ fees and costs, “[b]oth the [Second Circuit] and the Supreme Court have held that the lodestar—the product of a reasonable hourly rate and the reasonable number of hours required by the case—creates a ‘presumptively reasonable fee.’ ” Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011) The purpose of ICARA’s fee-shifting provision is “to restore the applicant to the financial position he or she would have been in had there been no removal or retention” and “to deter such conduct from happening in the first place.” Hague Convention, 51 Fed. Reg. 10494-501, 10511. Accordingly, “the court ... has the obligation to determine whether the requested fees and costs were ‘necessary’ to secure the child[ ]’s return.” Sanguineti v. Boqvist, No. 15-CV-3159, 2016 WL 1466552, at *2 (S.D.N.Y. Apr. 14, 2016)
The Court held that Petitioner’s request for attorneys’ fees, expenses, and costs was not “clearly inappropriate.” Respondent’s conduct—of removing the Child whose habitual residence was Israel, without the consent of the father, and then deliberately misleading the father about the Child’s whereabouts—fell “squarely within the heartland of the Hague Convention.” Many of the equitable factors that courts consider in awarding fees and costs weigh in favor of awarding them here. First, Respondent wrongfully removed the Child and unilaterally moved to New York without any reasonable basis for believing that the move was appropriate. Petitioner did not consent to the removal nor was it authorized by law. Respondent has the ability to pay attorneys’ fees, costs and expenses. And finally, Respondent’s unilateral action was the cause of the petition for return and Petitioner did not cause the accumulation of the costs or fees. The Court found that the totality of the equitable factors weigh in favor of awarding attorneys’ fees and costs to Petitioner.
The Court first calculated the lodestar amount, keeping in mind that the purpose of ICARA’s fee-shifting provision which is to “restore the applicant to the financial position he or she would have been in had there been no removal or retention.” Hague Convention, 51 Fed. Reg. 10494-501, 10511. Courts determine the “reasonable hourly rate” by considering case-specific variables such as the complexity of the case, the amount of work required, the attorney’s experience, and awards in similar cases. Arbor Hill, 522 F.3d at 190. Courts determine the reasonableness of the hours expended by looking to their “familiarity with the case and [ ] experience with the case and [ ] experience generally as well as the evidentiary submissions and arguments of the parties.” The Court noted that generally, “[t]he reasonable hourly rate is the rate a paying client would be willing to pay ... bear[ing] in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Petitioner requested the following hourly rates: ($500/hr.); ($275/hr.); ($225/hr.); and paralegal (150/hr.). Notably, “courts in this District have not awarded more than $425 per hour in a Hague Convention case.” Duran-Peralta v. Luna, No. 16-CV-7939, 2018 WL 1801297, at *2 (S.D.N.Y. Apr. 2, 2018) (collecting cases). The Court found that a fee of $425/hr. was reasonable for the senior partner and in line with awards for similarly experienced attorneys in similar cases. See e.g., In re One Infant Child, No. 12-CV-7797, 2014 WL 704037, at *4 (S.D.N.Y. Feb. 20, 2014), rev’d sub nom. Souratgar v. Lee Jen Fair, 818 F.3d 72 (2d Cir. 2016). The Court found the following reasonable: for an associate counsel with fourteen years of experience in matrimonial litigation and family law, $275/hr.; for another associate attorney with ten years of experience and who served on the Young Lawyers Sub-Committee of the New Jersey State Bar Association Family Law Executive Committee, $225/hr. See, e.g., In re One Infant Child, 2014 WL 704037 at *4 (awarding $300 per hour to a “fourteen year associate”). Finally, a paralegal with over thirty-five years of legal experience, $150/hr. See e.g., Sanguineti, 2016 WL 1466552, at *4 (collecting cases to support a rate of $129 per hour for paralegal work). The Court found that the total amount of 201.2 hours of attorney time and 53.6 hours of paralegal time wass reasonable given the difficulty of the legal issues in this case, the protracted nature of the litigation, and the quality of lawyering by Petitioner’s counsel. Multiplying the hours expended by the hourly rates set forth above, the lodestar—i.e., the presumptively reasonable attorneys’ fee—was $88,370.
Petitioner requested $27,905.48 in costs associated with litigating this action and $14,742.14 in travel expenses associated with court appearances, travel to New York for visitation, and the return of the Child to Israel. The costs included $6,500 for Israeli counsel Shmuel Moran, $14,625 in expert fees for Dr. Dov Frimer, $2,121.28 for translation services, $1,750 for a court interpreter, and $2,909.20 for costs including pleading charges, attorney transportation, transcript costs, and filing fees. The Court concluded that the costs of Dr. Frimer’s testimony and Mr. Moran’s fees should be excluded. Dr. Frimer provided the Court with seven pages of written testimony, and Mr. Moran conducted work and filed documents in Israel. Neither Dr. Frimer nor Mr. Moran represented Petitioner in the action, and they were “not entitled to be compensated for legal advice and strategy regarding [Petitioner’s] case in this Court, nor may they recover for coordination between proceedings in this Court and other foreign tribunals.” In re One Infant Child, 2014 WL 704037, at *5. Moreover, the documentation submitted to account for Mr. Moran and Dr. Frimer’s fees was inadequate. The Court awarded Petitioner’s remaining costs—including the costs of travel expenses associated with the visitation schedule, translation services, interpreter services, transcript costs, and filing fees—which were adequately documented and were “necessary expenses incurred by or on behalf of the petitioner. The largest of these costs was $14,742.14 in expenses related to court appearances, travel to New York for visitation, and the return of the Child to Israel.
The Court pointed out that a respondent’s inability to pay an award is a relevant equitable factor for courts to consider in awarding expenses under ICARA.” Souratgar v. Lee Jen Fair, 818 F.3d 72, 81 (2d Cir. 2016). Respondent owned several properties, including an investment property, and the collective value of these properties greatly exceeded the total award of $108,718.94. Respondent had a successful and gainful career in Israel before moving to the United States and had earning potential in the future.; see also e.g., Sanguineti, 2016 WL 1466552, at *9 (“Respondent’s background, education, and work experience all indicate that he has significant earning potential in the future.”). The Court found that the total award did not exceed Respondent’s total assets nor did it justify a downward departure. Cf. Souratgar, 818 F.3d at 81 n.3 (“[A]n expenses award that is greater than a respondent’s total assets ... at a minimum, require[s] a reasoned explanation.”).
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