In Tereshchenko v Karimi, 2024 WL 3342759 (S.D. New York, 2024) the district court granted the motion of the petitioner for attorneys’ fees and costs pursuant to Article 26 of the Hague Convention (“Article 26”) and 22 U.S.C. § 9007(b)(3).
Petitioner filed this action on March 8, 2023, On January 8, 2024, following an evidentiary hearing, this Court granted Tereshchenko’s petition. Tereshchenko v. Karimi, No. 23cv2006 (DLC), 2024 WL 80427 (S.D.N.Y. Jan. 8, 2024). On March 24, Tereshchenko moved for reimbursement of his attorneys’ fees and the costs paid by his attorneys on his behalf. Tereshchenko sought reimbursement of $406,486.92. On May 16, 2024, the Second Circuit Court of Appeals affirmed the Court’s January 8 Order granting Tereshchenko’s petition. Tereshchenko v. Karimi, 102 F.4th 111, 2024 WL 2202151 (2d Cir. May 16, 2024). The Court of Appeals required, however, that the Court’s Order be tailored in recognition of the Ukrainian courts’ authority over an ultimate custody determination.
The court observed that 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). Courts apply the “lodestar method” to determine the appropriate value of attorneys’ fees and costs. Fresno Cnty. Emp. Ret. Assoc. v. Isaacson/Weaver Family Trust, 925 F.3d 63, 67 (2d Cir. 2019). The lodestar figure is calculated “by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.” H.C. v. New York City Dep’t. of Educ., 71 F.4th 120, 126 (2d Cir. 2023).
The petitioner sought an award of “reasonable hourly rates” for his attorneys. The “reasonable hourly rate” is “the rate a paying client would be willing to pay after considering all pertinent factors, including the Johnson factors.” The Johnson factors, derived from Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), are: “[t]he time and labor required”; “[t]he novelty and difficulty of the questions”; “[t]he skill requisite to perform the legal service properly”; “[t]he preclusion of other employment by the attorney due to acceptance of the case”; “[t]he customary fee”; “[w]hether the fee is fixed or contingent”; “[t]ime limits imposed by the client or the circumstances”; “[t]he amount involved and the results obtained”; the experience, reputation, and skill of the attorneys; whether the case is undesirable and may not be “pleasantly received by the community” or the attorney’s contemporaries; “[t]he nature and length of the professional relationship with the client”; and “[a]wards in similar cases.” In its determination of the “reasonable hourly rate”, a court may consider the market rate for representation. A court may look to recent cases in its district to “determine the prevailing market rate” for attorneys in the New York area who are experienced in the relevant law.
The petitioner proposed the following rates for the compensation of his attorneys: $650 for Richard Min and Daniel Lipschutz, $550 for Michael Banuchis, and $400 for Samantha Jacobson. These rates exceed the prevailing rates for Hague Convention cases in the Southern District of New York. The court noted that Courts in the Southern District of New York have not awarded more than $425 per hour to attorneys in Hague Convention cases. In 2022, one court found that a rate of $425 per hour was appropriate for Mr. Min’s representation in a Hague Convention Case. Webster-Colquhoun v. Colquhoun, No. 21-cv-7101 (KWK), 2022 WL 2866470, at *5 (S.D.N.Y. July 21, 2022). In the same case, the court found that $325 per hour was appropriate for Mr. Banuchis’s representation and $200 per hour was appropriate for Ms. Jacobson’s representation. In 2021, another court found a rate of $425 per hour was appropriate for an attorney who had been practicing for over 40 years and had handled hundreds of international child abduction and Hague Convention cases. Grano v. Martin, No. 19-cv-6970 (CS), 2021 WL 3500164, at *3 (S.D.N.Y. Aug. 9, 2021). The court also found that a rate of $400 per hour was appropriate for an attorney who had been practicing for 40 years but had very limited experience with Hague Convention cases. Id. Finally, in 2020, a third court found that a rate of $425 per hour was appropriate for an attorney who had 30 years of experience litigating Hague Convention cases. Nissim v. Kirsh, No. 1:18-cv-11520 (ALC), 2020 WL 3496988, at *3 (S.D.N.Y. June 29, 2020). See also Duran-Peralta v. Luna, No. 16cv7939 (JSR), 2018 WL 1801297 at *2 (S.D.N.Y. Apr. 2, 2018) (collecting cases).
The Court found that a rate of $425 per hour for Mr. Min was reasonable. A rate of $400 per hour was reasonable for Mr. Lipschutz. Awards of $325 per hour for Mr. Banuchis and $200 per hour for Ms. Jacobson were appropriate. Consideration of the Johnson factors does not alter these rates. The petitioner also sought an award for the few hours billed by another associate and two paralegals in this case. A billing rate of $200 per hour was appropriate for the second associate. Furthermore, a rate of $129 per hour was reasonable for a paralegal. See Grano, 2021 WL 3500164, at *4 ($129); Sanguineti v. Boqvist, No. 15cv3159 (PKC), 2016 WL 1466552, at *4 (S.D.N.Y. Apr. 14, 2016) ($129). The rate of $129 per hour was appropriate for both paralegals in this case.
The Court explained that in determining a reasonable number of hours spent on a case, a court may exclude “documented hours that are excessive, redundant, or otherwise unnecessary.” Raja v. Burns, 43 F.4th 80, 87 (2d Cir. 2022). A court may “decrease the total award from the claimed amount because of vagueness, inconsistencies, and other deficiencies in the billing records.” The court may also “apply an across-the-board reduction to account for time spent on clerical tasks.” Their total proposed number of hours, 658.53, spread across three partners, two associates, and two paralegals, was reasonable for the amount of labor spent litigating this case.
The respondent argued that a substantial award to the petitioner was
inappropriate. Section 9007 shifts the burden onto a losing respondent in a return action to show why
an award of necessary expenses would be clearly inappropriate. Ozaltin, 708 F.3d at 375 (citing § 9007(b)(3)). When determining whether expenses are “clearly inappropriate,” a court
may consider “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). A respondent’s inability to pay an award is a relevant equitable factor
for courts to consider in awarding expenses under ICARA.”
The Court found that the amount awarded to the petitioner for his attorneys’ fees and costs was not clearly inappropriate. In this case, the respondent, not the petitioner, bears responsibility for the length of this case and the resulting hours spent by Tereshchenko’s legal team. Karimi evaded service for over two months, refused to abide by the decision of the District Court of the City of Odesa in Ukraine after having agreed to accept whatever it would decide, and presented new defenses on the eve of trial. No evidence was presented to show that the respondent was unable to pay the award.
In her opposition, the respondent argued that the award was “clearly inappropriate” because she acted in good faith when removing the children from Ukraine. Karimi relied on Ozaltin for the proposition that her good faith decision should be factored into a consideration of whether fees and costs are appropriate. But her reliance on this law was misplaced. The court in Ozaltin found that a mother’s decision to remove her children from their country of habitual residence was in good faith because custody decisions made by that country’s courts suggested the mother could move to the United States with the children. That has never been the case here.
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