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Sunday, July 31, 2022

Colquhoun v Colquhoun, 2022 WL 2866470 ( S.D. N. Y., 2022) [Jamaica][Petition voluntarily granted][Attorneys fees and Costs]

In Colquhoun v Colquhoun, 2022 WL 2866470 ( S.D. N. Y., 2022) Petitioner brought a Petition against pro se Respondent, for the return of their child, A.C. to Jamaica, from where she was staying with Respondent in Mount Vernon. 

According to the Petition, the Parties married in Jamaica in October 2011. After they married, Petitioner continued living in Jamaica, and Respondent traveled back and forth between Jamaica and the United States. The Child was born in 2012 in Jamaica. In April 2015, Petitioner and Respondent separated. According to Petitioner, the Parties informally agreed that Petitioner would have custody of the Child and Respondent would have visitation in New York during holiday periods. From 2015 to 2020, the Child would visit Respondent during the summer and Christmas holidays for approximately four to six weeks. On August 1, 2020, the Child left Jamaica to visit Respondent in New York for the summer holiday, and the Parties had agreed that the Child would return by September so that she could start the school semester in Jamaica. By September 2020, Respondent had not returned the Child to Jamaica. According to Petitioner, she never consented to the Child staying in the United States, and Respondent refused to return the Child to Jamaica despite frequent requests for her return. Petitioner also alleged that the Child expressed to her that she wanted to return to Jamaica. According to Respondent, he believed it was safer for the Child to remain in the United States because the risk of COVID-19 was greater in Jamaica. As of November 21, 2021, the Parties were involved in divorce and custody proceedings in Jamaica. After this proceeding was commenced the parties voluntarily agreed that Respondent would return the Child to Jamaica, and the Court entered a Voluntary Return


 The Court observed that the Hague Convention provides that, where a court orders the return of a child under the Convention, the court: may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child. Hague Convention, art. 26 ICARA provides [a]ny court ordering the return of a child pursuant to an action brought under section 11603 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) (emphasis added). The Second Circuit has held that, in light of these provisions, “a prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court.” Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013). The Second Circuit has also held that “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.’“ There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the [relevant] considerations.” Ozaltin, 708 F.3d at 375. 


The  court found that petitioner was the prevailing party, given that Respondent voluntarily agreed to return A.C. to Jamaica pursuant to a Voluntary Return Order. Petitioner is  the prevailing party and is presumptively entitled to necessary costs. Ozaltin, 708 F.3d at 375.

 “[The] presumption of an award of expenses to a prevailing petitioner is subject to a broad caveat denoted by the words, ‘clearly inappropriate.’ ” Souratgar v. Lee Jen Fair, 818 F.3d 72, 79 (2d Cir. 2016). “Generally, in determining whether expenses are “clearly inappropriate,” courts have considered the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition.” Here there were no allegations that Petitioner committed intimate partner violence or anything close to that. Petitioner alleged that she and Respondent separated because he became “physically abusive” toward her. In considering whether an award of fees and costs would be clearly inappropriate, courts within the Second Circuit have also considered whether the respondent had “a reasonable basis for removing the children to the United States.” Ozaltin, 708 F.3d at 375. Here, Respondent alleges that he did not return the Child to Jamaica in August 2020 due to the risk of the COVID-19 pandemic, which he believed was greater in Jamaica than in the United States. Even if the Court credited this explanation it would not explain why he still had not returned the Child to Jamaica a year later, when the Petition was filed. Finally, “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. Here, the Court was unable to take Respondent’s ability to pay into account because the Respondent did not provide any information regarding his financial condition. See also Paulus ex rel. P.F.V. v. Cordero, No. 12-CV-986, 2013 WL 432769, at *10 (M.D. Pa. Feb. 1, 2013). That Respondent represented himself did not change this result. For example, in Gee v. Hendroffe, No. 14-CV-2795, 2015 WL 2151885, at *3 (S.D. Tex. May 7, 2015). The Court found that awarding Petitioner attorney’s fees and costs would not be clearly inappropriate. Petitioner is thus entitled to necessary fees and costs. This result was not changed by the fact that Petitioner was represented by pro bono counsel. “[T]he fact that the petitioner in this case was represented by pro bono counsel does not provide a basis for disregarding the Conventions fee provision.” Haimdas v. Haimdas, 720 F. Supp. 2d 183, 209 (E.D.N.Y. 2010), aff’d, 401 F. App’x 567 (2d Cir. 2010); see also Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir. 2010); Sullivan v. Sullivan, No. CV-09-545, 2010 WL 1651994, at *1 (D. Idaho Apr. 21, 2010).

The Court found that Petitioners counsel provided competent and professional legal services throughout the course of this case, it agreed to take on the case on a pro bono basis and therefore did not expect to be paid for its services or reimbursed for its expenses. While, nevertheless, full payment of its legal fees wass appropriate to carry out ICARA’s fee-shifting provisions, full payment of costs was not. Duran-Peralta v. Luna, No. 16-CV-7939, 2018 WL 1801297, at *6 (S.D.N.Y. Apr. 2, 2018) (reducing the attorney’s fees by 30% and costs by 50% where the petitioner was represented by pro bono counsel).


The Court considered the amount of attorney’s fees and costs to be awarded. “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.” Nissim, 2020 WL 3496988, at *2 (quoting Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011)) “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.”  (citing Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d 182, 189 (2d Cir. 2008)). Courts also consider whether the rates sought by the petitioner are “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Reiter v. MTA New York City Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006).


The Court observed that  courts in this District have not awarded more than $425 per hour in a Hague Convention case.” Here, Petitioner requested the following hourly rates for five attorneys: Partner ($600/hour), Partner ($550/hour), Partner ($525/hour), Associate ($325/hour), and law school graduate ($250/hour). The Court found that a rate of $425 is appropriate for the most experienced Hague attorney who handled 30 Hague Cases. See Grano, 2021 WL 3500164, at *3 The rate of $350 was warranted for the partner with 29 years of experience primarily as a family law attorney who had litigated “several” Hague Convention cases. See Duran-Peralta, 2018 WL 1801297, at *3. $325/hour was an appropriate billing rate for the partner with 12 years of experience, which included litigating 11 Hague Convention cases. See Knigge, 2001 WL 883644, at *3. A rate of $200/hour was appropriate for the associate with three years of experience who had worked on seven Hague Convention Cases.  Finally, $175/hour was an appropriate rate for a 2021 law school graduate who, at the time that the Motion was filed, had not yet taken the New York State Bar. 

The Court considered the reasonableness of the hours expended by Petitioner’s attorneys. “In determining the number of hours reasonably required, a court should exclude ‘excessive, redundant[,] or otherwise unnecessary hours.’ ” Knigge, 2001 WL 883644, at *2 (quoting Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999)). Petitioner submitted that her attorneys expended 47.3 hours working on her case, which amounted to a total of $18,830 in attorney’s fees. Petitioner reduced this number by two-thirds in her Motion, requesting a total of $12,553.33 in attorney’s fees. Although the Court did not find that the hours expended by the attorneys in this case were excessive, the noted the two-thirds reduction was nevertheless appropriate, even with the Court’s reduction in the attorneys’ billing rates given the fact that counsel  represented Petitioner on a pro bono basis,  See, e.g., In re JR, 2017 WL 74739, at *3, and the Respondent did not file a financial affidavit  The Court  therefore further reduced the fees awarded by two-thirds. This amounts to a total of $7,341.67.5 The Court added costs in the amount of $300, paid to a process server on Petitioner’s behalf. The Court awarded Petitioner a total of $7,641.67.