Grano v Martin, 2021 WL 3500164 (S.D. New York, 2021) [Spain] [Petition granted] [Necessary Costs & Expenses] [Award reduced by 85% due to inability to pay]

 

In Grano v Martin, 2021 WL 3500164 (S.D. New York, 2021) the parties filed objections to the  Report and Recommendation (“R&R”) of  Magistrate Judge Davison recommending that Petitioner’s motion for attorney’s fees and costs incurred in connection with prosecuting this case be granted in part and denied in part. Petitioner requested a total of $467,944.46 ($359,799.05 in fees and $108,145.41 in costs). The District Court adopted the R&R in part and awarded Petitioner fees and costs in the amount of $34,296.19.

 

        The successful Petitioner filed a motion for attorney’s fees and costs.  Respondent argued that an award would be inappropriate, and that the motion should be denied, because of the abuse she suffered from Petitioner and her indigent financial condition. In the alternative, Respondent argued that Petitioner’s requested amount should be reduced because Petitioner’s counsel’s hours were not necessary or reasonable, and the records were insufficient to evaluate the necessity of the work performed.

 

The Court observed that in reviewing a magistrate judge’s report and recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A party may object to the magistrate judge’s report and recommendation, but the objections must be “specific,” “written,” and submitted “[w]ithin 14 days after being served with a copy of the recommended disposition.” Fed. R. Civ. P. 72(b)(2); accord 28 U.S.C. § 636(b)(1)(C). A district court must review de novo those portions of the report or specified proposed findings or recommendations to which timely objections are made. 28 U.S.C. § 636(b)(1)(C). “The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see Marji v. Rock, No. 09-CV-2420, 2011 WL 4888829, at *1 (S.D.N.Y. Oct. 13, 2011). The district court may adopt those portions of a report and recommendation to which no objections have been made, provided no clear error is apparent from the face of the record. See White v. Fischer, No. 04-CV-5358, 2008 WL 4210478, at *1 (S.D.N.Y. Sept. 12, 2008); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); Fed. R. Civ. P. 72 advisory committee note (b).

 

 

The court noted that the reasonable hourly rate is the “prevailing market rate, i.e., the rate prevailing in the relevant community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Farbotko v. Clinton County, 433 F.3d 204, 208 (2d Cir. 2005) (cleaned up). Mr. Abbott billed at a rate of $675 when representing Petitioner. Mr. Morley billed at a rate of $600 when representing Petitioner. Mr. Saltzman billed at a rate of $400 when representing Petitioner. The Court found  a  rate of $425 to be reasonable for Mr. Morley. Because Mr. Abbott was not as well-credentialed as Mr. Morley in Hague Convention matters it found a rate of $400 is reasonable and appropriate for him. The court found  a rate of $375, consistent with Mr. Saltzman’s rate of $375, was  reasonable for two other attorneys. As to the paralegals,  $129 was  reasonable.

 

The Court found that “retaining multiple counsel in a case as complex as this one was ... entirely reasonable.”  The Court agreed with Judge Davison’s recommendation that the Court disallow compensation for fees associated with collateral state proceedings and reduce all unclear or comingled time entries by 50%, arguing that those hours were necessarily incurred to secure the return of the child. It found Petitioner’s necessary fees and costs are as follows: $183,686.42 (fees) + $6,692.11 (costs paid by counsel) + $38,262.72 (costs paid by Petitioner)) = $228,641.25 in fees and costs.

 

Respondent objected to the R&R on the basis that Petitioner’s coercive control and psychological abuse towards her rendered an award of fees and costs “clearly inappropriate” under ICARA, 22 U.S.C. § 9007(b)(3), relying on Souratgar, 818 F.3d at 79, Radu v. Shon, No. 20-CV-246, 2021 WL 1056393, at *4 (D. Ariz. Mar. 19, 2021), Guaragno, 2011 WL 108946, at *2, and Silverman v. Silverman, No. 00-CV-2274, 2004 WL 2066778 (D. Minn. Aug. 26, 2004).

 

The Court noted that Second Circuit has held that an award of fees and costs is clearly inappropriate when the successful petitioner bears responsibility for “the circumstances giving rise to the petition.” Souratgar, 818 F.3d at 79-80. The Souratgar petitioner bore such responsibility because (1) he committed acts of physical violence against the respondent that did not stop after the respondent had left the family home, (2) the respondent’s departure from the country was related to the petitioner’s violence, and (3) there were no countervailing factors that favored the petitioner. Likewise, in both Guaragno and Silverman, the court found that the petitioner’s physical and mental abuse of respondent was an appropriate consideration in determining if the fee award was inappropriate. See Guaragno, 2011 WL 108946, at *3; Silverman, 2004 WL 2066778, at *4. In Radu, the abuse was almost entirely psychological, as it was here, but the abuse was only one of several reasons for concluding that a fee award was clearly inappropriate. See 2021 WL 1056393, at *3-4 (no fee awarded because petitioner prevailed only in part, award would prevent respondent from caring for children, petitioner provided no support for children and petitioner was psychologically abusive). The “unclean hands” exception to a fee award is almost always applied to acts of physical violence, sometimes coupled with acts of emotional abuse, and Respondent had not provided authority for the proposition that an award can be clearly inappropriate based on emotional abuse alone. See Hart v. Anderson, No. 19-CV-2601, 2021 WL 2826774, at *6 (D. Md. July 7, 2021) (finding petitioner’s “repeated pattern of alcohol abuse and violence” rendered a fee award inappropriate); see also Jimenéz Blancarte v. Ponce Santamaria, No. 19-13189, 2020 WL 428357, at *2 (E.D. Mich. Jan. 28, 2020) (finding an award for fees and costs inappropriate where petitioner had physically abused respondent and their child); Asumadu v. Baffoe, No. 18-CV-1418, 2019 WL 1531793, at *1 (D. Ariz. Apr. 9, 2019) (finding same when petitioner physically abused the respondent more than once). Souratgar referred repeatedly to the petitioner’s “violence,” as opposed to “abuse,” which suggests the Court meant physical, not mental, abuse. See 818 F.3d at 79-82. The court found that this case, which was almost entirely about psychological as opposed to physical abuse, and in which both sides were less than candid, did not rise to the level of those cases justifying complete denial of an award. Further, an award of at least some fees serves the statutory purpose of deterring future child abductions. In re JR, No. 16-CV-3863, 2017 WL 74739, at *4 (S.D.N.Y. Jan. 5, 2017). Although the coercive control Respondent experienced was no doubt serious domestic abuse, the court agreed with Judge Davison that Respondent had not met her burden to show that a fee award to Petitioner would be clearly inappropriate.

 

 

The Court observed that “[A] respondent’s inability to pay an award is a relevant equitable factor for courts to consider in awarding expenses under ICARA.” Souratgar, 818 F.3d at 81; see In re J.R., 2017 WL 74739, at *4. Courts in the Second Circuit have been “mindful that an expenses award that is greater than a respondent’s total assets requires, at the very least[,] a reasoned explanation.” Sanguineti, 2016 WL 1466552, at *9 (cleaned up); accord Lukic v. Elezovic, No. 20-CV-3110, 2021 WL 1904258, at *2 (E.D.N.Y. May 12, 2021). When a respondent demonstrates financial hardship, courts have reduced the fee award proportionately. See, e.g., Whallon v. Lyon, 356 F.3d 138, 141 (1st Cir. 2004) (affirming reduction in fees and expenses by 65%); Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir. 1995) (reducing fee award by around 46% after considering respondent’s straitened financial circumstances); In re J.R., 2017 WL 74739, at *4 (reducing award by two-thirds after considering respondent’s inability to pay); Willing v. Purtill, 07-CV-1618, 2008 WL 299073, at *1 (D. Or. Jan. 31, 2008) (reducing award by 15% due to respondent’s financial circumstances, including respondent’s unemployment). An award should be reduced with ICARA’s purpose in mind, meaning the award should still deter future violations of the Convention. See In re J.R., 2017 WL 74739, at *4; Willing, 2008 WL 299073, at *1.

 

Here, Judge Davison reduced the award by 85% in light of Respondent’s demonstrated financial hardships. Respondent demonstrated that she was under financial strain: she had not been able to secure employment in Spain as she was not a legal resident there, and she owed her attorneys over $170,000. She represented that she had no savings, assets, or property. Her most recent bank statement provided to the Court represented that she had a savings account with a balance of $395.10, and a checking account with a balance of $3,255.36. Her net income in 2019 was approximately $27,551. As such, Respondent had sufficiently demonstrated that a substantial fee award for Petitioner would greatly strain her finances, and Respondent clearly would not be able to pay an unreduced award of fees and expenses totaling $228,641.25. While a complete reduction in fees and costs was not necessary –she had a graduate degree from a Spanish university and should at some point be able to get permission to work, the court agreed  with Judge Davison’s reduction of the award by 85%.

 

           The revised lodestar amount was as follows: ($183,686.42 (fees) + $6,692.11 (costs paid by Petitioner’s counsel) + $38,262.72 (costs paid by Petitioner)) = $228,641.25, reduced by 85% = $34,296.19.