In McElligott v McElligott, 2023 WL 6923493, NOT FOR PUBLICATION, (D. New Jersey, 2023) the district court granted in part the unopposed Motion for Attorney’s Fees by Stephen McElligott which sought an award of $68,623.10 in attorney’s fees pursuant to 22 U.S.C. § 9007 Petitioner was awarded the reduced amount of costs and fees of $68,327.00.
After the Court granted the Petition and
ordered C.M. returned to Ireland. Petitioner filed a Motion for Attorney’s Fees
accompanied by an attorney certification stating that Petitioner’s attorneys
had worked 296.85 hours on the matter at a requested rate of $200.00 per hour. Because
Petitioner was represented pro bono, Petitioner’s counsel did not charge
Petitioner. However, counsel certified that attorneys at Rutgers Law Associates
charge clients represented through the Victims of Crime Compensation Office at
a rate of $200.00 per hour, which typically involves work similar to Hague
Convention matters. Petitioner also sought $6,453.10 in other expenses,
including “fees for filings, our expert’s report, travel expenses, postage, and
expenses from accompanying the minor child to boarding his flight to Ireland.” Petitioner’s Motion in total requested
$68,623.10, which includes $59,370 in attorney’s fees (296.85 hours × $200.00
per hour) and $9,253.10 in expenses ($8,425.00 in expert witness fees + $828.10
in other fees). Respondent offered no
evidence that an award of costs and fees would be “clearly inappropriate” here.
The Court applied the Lodestar approach to
determining whether Petitioner’s requested award of attorney’s fees is
appropriate. See Distler v. Distler, 26 F. Supp. 2d 723, 727 (D.N.J.
1998); Soulier v. Matsumoto, No. 20-4720, 2022 WL 17250549,
at *1 (D.N.J. Nov. 28, 2022). Respondent did not contest Petitioner’s application and offered no
evidence rebutting Petitioner’s prima facie case that his attorney’s fee
rate was reasonable. See McCutcheon v. Am.’s Servicing Co., 560 F.3d 143,
150–51 (3d Cir. 2009)
Thus, the Court accepted $200.00 per hour as a reasonable rate for the complex,
time-sensitive representation Petitioner’s counsel performed here. The Court found
that the amount of time billed on this matter, in light of the exigent
circumstances driving this Hague Convention litigation and the need to prepare
for trial in a short time frame, was reasonable. The court granted the
requested $59,370.00 in attorney’s fees. Petitioner sought $8,425.00 in expert witness
fees—comprising $5,625.00 for the initial expert report, $1,400.00 for the
expert’s deposition appearance, and $1,400.00 for the expert’s appearance at
trial. The court found this unopposed request for necessary expenses
reasonable. This falls squarely within the “court costs” contemplated by ICARA.
22 U.S.C. § 9007(b)(3). The balance Petitioner sought was $296.10 in expenses for gas and
parking for commuting to the courthouse and the airport; counsel’s meal at the
airport; and a postage fee to send an expert’s fee by overnight mail. The Court
found that the $296.10 in expenses do not fall within the “necessary expenses”
encompassed by ICARA, and therefore must be excluded from the fee award.
Therefore, the Court awarded only $8,957.00 in costs and fees. The fact that
Petitioner did not pay for the expense of litigating the Petition out of
pocket—as he was represented pro bono—does not bar the recovery of
attorney’s fees. See Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir.
2010) Nonetheless, in
evaluating the reasonableness of fees, the Court considers whether Petitioner
would have permitted his attorney to expend such resources had he been required
to pay for them out-of-pocket. See Cillikova, 2016 WL 541134, at *5 n.2
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