Wtulick v Filipkowska, 2020 WL 1433877 (E.D. N. Y., 2020) [Poland] [Necessary expenses]

      In Wtulick v Filipkowska, 2020 WL 1433877 (E.D. N. Y., 2020) the Petitioner Nikodem Wtulich (“Wtulich”) sought  an award of attorneys’ fees and costs reasonably incurred in the successful prosecution of his petition for the return of his daughter AW to Poland. Wtulich sought payment of $22,252.00 in attorneys’ fees and $20,842.12 in costs. The District Court ordered respondent Magda Filipkowska (“Filipkowska”) to reimburse Wtulich $19,699.47, consisting of $14,887.50 in reasonable attorneys’ fees and $4,811.97 in compensable costs.

  The district court found that having prevailed on his petition, Wtulich was entitled to an award of “necessary expenses ... including travel expenses, ... the costs of [Wtulich’s] legal representation ..., and those of returning” AW to Poland. See Hague Convention, Art. 26; T.I.A.S. No. 11,670, at *6-7. ICARA further provides that such payment is mandatory unless the respondent establishes that an order awarding expenses “would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). It is within the court’s discretion to determine whether an award of necessary expenses is “clearly inappropriate.” See Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013) (“Absent any statutory guidance to the contrary, the appropriateness of such costs 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.’ ”)  Because “there is no precise rule or formula for making these determinations, ... equitable discretion should be exercised in light of the relevant considerations.” Courts in this district have made such determinations “on a case-by-case basis.” See Haimdas v. Haimdas, 2011 WL 13124276, at *1 (Aug. 29, 2011) (collecting cases). The court found it would not be clearly inappropriate to award Wtulich payment of necessary expenses in this case where “the case is not a ‘difficult’ one and ‘falls squarely within the heartland of the Hague Convention.’ ” Duran-Peralta v. Luna, 2018 WL 1801297, at *2 (S.D.N.Y. Apr. 2, 2018); cf. Ozaltin, 708 F.3d at 375 (award was inappropriate where the respondent had a reasonable basis to believe that her actions were legal at the time of the removal at issue); Onrust v. Larson, 2015 WL 6971472, at *7 (S.D.N.Y. Nov. 10, 2015) (denying an award where the respondent had a credible basis to believe that petitioner had relinquished custody by the time of the removal at issue). While the court can consider the parties’ respective financial circumstances in determining the propriety of an award, Filipkowska’s argument was not that she faced any hardship in paying Wtulich’s expenses, but only that he was better able than she to endure them. 

  The Court noted that Courts in this circuit have used the “lodestar method” to assess a prevailing petitioner’s request for fees under the Hague Convention. This method determines the “presumptively reasonable fee” by multiplying the reasonable hourly rate with the reasonable number of hours expended on a case. District courts have broad discretion, using “their experience with the case, as well as their experience with the practice of law, to assess the reasonableness” of each component of a fee award. 

       Wtulich sought to compensate his attorneys at the following hourly rates: $450 and $350 The court stated that such rates are higher than those that surrounding districts have approved in comparable cases. A reasonable hourly rate is the minimum rate a client would be willing to pay to litigate the case effectively. See, e.g., Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cty. of Albany & Albany Cty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008). Courts in surrounding districts have generally approved hourly rates no higher than $425 for such litigation and have typically approved rates of $200 to $400, depending on the relevant attorney’s experience. See, e.g., Duran-Peralta, 2018 WL 1801297, at *2 (collecting cases); see also Distler v. Distler, 26 F. Supp. 2d 723, 727 (D.N.J. 1998) (awarding $350 per hour in Hague Convention cases for “very experienced” counsel with over 20 years of experience handling 165 cases under the convention). Consistent with these rates, the Court awarded Wtulich reimbursement of his attorneys’ fees at the following hourly rates: $400, $275 and $225. Wtulich sought to compensate his attorneys for 63.5 hours of work. “A fee applicant bears the burden of demonstrating the hours expended and the nature of the work performed through contemporaneous time records that describe with specificity the nature of the work done, the hours, and the dates.”. The records must be specific and detailed. In determining the number of hours for which fees should be awarded, the court should not compensate counsel for hours that are “excessive, redundant, or otherwise unnecessary.” See Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The Court found the claim for 63.5 hours of compensable work to be reasonable. It  concluded that Wtulich was entitled to an award of attorneys’ fees in the total amount of $14,887.50.

         Wtulich sought reimbursement of $9,700 for “Law Office Musa-Obregon. To the extent the claimed amount included legal fees, the court already awarded an appropriate amount. To the extent it sought litigation costs, Wtulich had not submitted any itemization or supporting documentation. It denied the request for reimbursement of that item. Wtulich claimed $4,738 for “Law Office Robert Openchowski. The supporting  document was all in Polish. The Court was unable to determine the extent to which it represented contemporaneous billing records, the extent to which any claimed costs or fees are reasonable, or why attorney Openhowski  failed to provide Wtulich with an English-language itemization of his bill despite being admitted to the New York bar. It denied reimbursement of this item. Wtulich provided no receipts or other supporting documents for his claim of $29.50 in transportation costs to attend the bench trial on April 23-24, 2018. However, he reasonably explained that the amount represented bus fare for which he was provided no bill. Wtulich provided no documents supporting his claim for $600 as the cost of accommodations for four days before his return trip to Poland with AW. The court denied reimbursement of this item.  The Court approved the remaining itemized expenses, all of which was adequately documented. $1,484 in travel and accommodation costs to prepare for and prosecute the bench trial in April 2018; $115.15 in PACER fees to monitor the litigation; and $3,187.37,  travel and accommodations for Wtulich’s trips to the United States in 2014. He made such trips not simply to visit AW, as Filipkowska insisted, but also to negotiate for her return to Poland without the need for litigation and to forestall the possibility that Filipkowska would abscond with AW and make her unavailable for return.