Opinion
19 Civ. 6970 (CS) (PED)
03-05-2021
In the matter of an infant under the age of 16 v. KATHERINE PATRICIA MARTIN, Respondent. SERGIO HERNANDEZ GRANO, Petitioner,
REPORT ANDRECOMMENDATION
PAUL E. DAVISON, U.S.M.J.
TO THE HONORABLE CATHY SEIBEL, United States District Judge:
I. INTRODUCTION
On July 25, 2019. petitioner Sergi Hernandez Grano commenced this action against his spouse, respondent Katherine Patricia Martin, seeking an Order pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 (“Hague Convention”), requiring an immediate return of their child to Spain. Martin, an American citizen, had taken the child from Spain to the United States without the consent of Grano, a Spanish citizen. On March 11, 2020 (following a bench trial), Your Honor granted the petition. Dkt. #48. Martin appealed; on July 20, 2020, the Second Circuit affirmed. Dkt. #59. On July 21, 2020, Grano filed a motion with the Second Circuit seeking immediate issuance of its Mandate; on July 29, 2020, Martin opposed and sought rehearing en banc. On July 31, 2020, the Second Circuit granted Grano's motion and issued its Mandate, but remanded to Your Honor:
to consider the impact of the current pandemic on the return of the child to Spain, including whether respondent-appellant will be able to accompany the child to Spain in light of current restrictions on travel and what the custody arrangements will be in Spain pending further proceedings in the Spanish courts. With the district court's assistance, the parties shall endeavor, in good faith, to resolve these matters, but if they are unable to do so the district court may or may not, in its discretion, amend the judgment to impose conditions on the return of the child.Dkt. #58.
On August 3, 2020, the parties submitted status letters to Your Honor (Dkt. #61, #62) in anticipation of a telephonic conference scheduled for August 4, 2020 (Dkt. #60). Pursuant to discussion at that conference, Your Honor ordered that the child “be back in Spain by August 13, 2020, and also, that travel plans for the child be booked today (August 4, 2020).” Minute Entry 8/4/2020. After a follow-up conference the next day, Your Honor directed the parties to jointly reach out to the Spanish consulate to make the necessary arrangements, and directed petitioner's counsel to submit a proposed Order reflecting the Court's directions during the conference. Minute Entry 8/05/2020. On August 6, 2020, Your Honor issued an Order directing Martin to return the child to Spain by August 13, 2020, by accompanying him pursuant to travel arrangements in place, including a scheduled departure from New York on August 12, 2020. Dkt. #65.
On August 12, 2020, Iberia Air would not allow Martin and the child to board the flight to Spain, despite assurances from the Spanish consulate that travel had been authorized by the appropriate Spanish law enforcement agency, and despite the efforts of this Court and U.S. Marshal Cerrato. Following a telephonic conference on August 13, 2020, Your Honor directed petitioner's counsel to submit a proposed order reflecting the Court's direction to the parties during the proceeding. Minute Entry 8/13/2020. On August 14, 2020, Your Honor issued an Order directing, inter alia, that respondent return the child to Spain by August 20, 2020, by accompanying him on a flight scheduled to depart from New York on August 19, 2020. Dkt. #72. Martin and the child arrived in Barcelona on August 20, 2020.
On September 4, 2020, Grano filed a Motion seeking an award of attorneys' fees and costs in the amount of $467,944.50. Dkt. #81. On September 14, 2020, Your Honor referred the motion to the undersigned for a Report and Recommendation. Dkt. #82. In accordance with my scheduling Order (Dkt. #83) and subsequent extensions of time (Dkt. #85, #88), Martin filed an opposition on September 29, 2020 (Dkt. #86) and Grano replied on October 9, 2020 (Dkt. #89). For the reasons set forth below, I respectfully recommend that Your Honor award Grano attorneys' fees and costs in the amount of $32,664.65.
This figure reflects the total amount requested in the conclusion of petitioner's memorandum of law (Dkt. #81, at 34), and differs slightly from the total amount requested in the introduction ($467,944.46) (Dkt. #81, at 2).
II. LEGAL STANDARDS
“The Hague Convention was adopted in 1980 ‘to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.'” Lukic v. Elezovic, No. 20 Civ. 3110, 2021 WL 466029, at *5 (E.D.N.Y. Feb. 9, 2021) (quoting Hague Convention, Preamble). Both the United States and Spain are signatories. See Hague Convention, United Nations Treaty Collection, https://treaties.un.org/Pages/showDetails.aspx?objid=08000002800d90b4 (last visited Feb. 26, 2021). “[I]n deference to the authority of foreign legal systems, the Convention focuses solely on whether a child should be returned to her country of habitual residence for custody proceedings, not on resolving any underlying custody dispute.” Ozaltin v. Ozaltin, 708 F.3d 355, 359 (2d Cir. 2013) (quotation marks and citation omitted. Congress established procedures for implementing the Hague Convention in the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C.A. §9001 et seq., which creates a private right of action in federal court and provides that courts presiding over such actions “shall decide the case in accordance with the Convention.” Id. § 9003(b), (d). The court is limited to adjudicating “only rights under the Convention” and may not decide “the merits of any underlying child custody claims.” Id. § 9001(b)(4).
“The Hague Convention provides that ‘[u]pon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child . . . to pay necessary expenses incurred by . . . the applicant.'” Ozaltin, 708 F.3d at 374 (quoting Hague Convention, art. 26). “These ‘necessary expenses' may include ‘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.'” Id. ICARA contains a similar provision:
Any court ordering the return of a child pursuant to an action brought under section 9003 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.A. § 9007(b)(3). These two provisions differ in one important respect: a prevailing party “may” be awarded “necessary expenses” under the Hague Convention; under ICARA, a prevailing party “shall” be awarded “necessary expenses” unless respondent demonstrates that such an award would be “clearly inappropriate.” Accordingly, “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, 708 F.3d at 375. Further, “[a]bsent 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....There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the relevant considerations.” Id. (internal quotation marks omitted) (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)).
III. DISCUSSION
A. Attorneys Fees
Under the general standards that apply to a prevailing party's application for attorneys' fees, “the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). A reasonable fee is calculated by taking “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. at 433. “Both [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.'” Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir.2011) (citing Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 183 (2d Cir.2008); Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 130 S.Ct. 1662, 1673, 176 L.Ed.2d 494 (2010)). Ultimately, “[t]he district court retains discretion to determine . . . what constitutes a reasonable fee.” Id.
Here, petitioner seeks an award of attorneys' fees in the amount of $359,799.10. Respondent contends this amount is unreasonable and excessive because: (1) multiple law firms and attorneys were unnecessary; (2) petitioner failed to submit adequate documentation to support the fees claimed; (3) the hourly rates are excessive; and (4) fees associated with collateral state proceedings are not recoverable.
This figure reflects the total amount requested in the conclusion of petitioner's memorandum of law (Dkt. #81, at 34), and differs slightly from the total amount requested in the introduction ($359,799.05) (Dkt. #81, at 2).
1. Multiple firms and attorneys
In May 2019, petitioner retained Barry Abbott of Schwartz Sladkus Reich Greenberg Atlas LLP to represent him in this international custody proceeding. Dkt. #81, at 10. Abbott, with petitioner's authorization, retained Neil Saltzman and Jeremy D. Morley of the Law Office of Jeremy D. Morley, “due to Morley's expertise in federal court Hague proceedings.” Id. Respondent argues that counsel's fees should be reduced because their billing records reflect joint participation on tasks, and petitioner does not attempt “to justify the separate attorneys each spending numerous hours collaborating on the same activities.” Dkt. #86, at 10. Respondent's assertion is somewhat disingenuous, given that she was represented by two lead counsel. In any event, retaining multiple counsel in a case as complex as this one is not uncommon and is entirely reasonable.
2. Documentation
In support of his motion, petitioner discusses the extensive experience of attorneys Abbott, Morley and Saltzman and the basis for their requested hourly rates, and proffers monthly billing statements demonstrating the hours they (and their staff) expended on Mr. Grano's behalf. Based upon petitioner's submissions, taken at face value, the “lodestar” amount is calculated as follows:
Compensable Hours
Hourly Rate
Total
Abbott
$675.00
$193,725.00
Morley
26.80
$600.00
$16,080.00
Saltzman
301.50
$400.00
$120,600.00
Cirel
3.00
$525.00
$1,575.00
Schneider
0.70
$450.00
$315.00
Paralegal Mileo
53.30
$260.00
$13,858.00
Paralegal Capria
48.30
$270.00
$13,041.00
TOTAL
$359,194.00
Adjusted downward by 2.5 hours to reflect a 10% discount on the June 12, 2019 invoice. Dkt. #81-8, at 3.
Thus, in the first instance, petitioner's documentation supports a slightly lower lodestar than the amount requested. Additionally, as respondent points out, numerous time entries reflecting work by Abbott and his staff contain truncated descriptions which are too vague to identify the nature of the work done (e.g. “email client, ” “telephone conference with N. Saltzman” and “preparation for trial”), effectively hindering the Court's (and respondent's) ability to independently assess whether the time spent on each task was reasonable and necessary. Dkt. #81-8. “Such vague descriptions are precisely the sort that courts have deemed impermissible in the context of fee awards.” Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 188 F.Supp.3d 333, 344 (S.D.N.Y. 2016) (collecting cases). In light of the vague nature of certain billing entries, I conclude and respectfully recommend that a 5% reduction in the hours billed by Abbot and his staff is warranted. See Kreisler v. Second Ave. Diner Corp., No. 10 Civ. 7592, 2013 WL 3965247, at *3 (S.D.N.Y. July 31, 2013) (court “has discretion to impose an across-the-board reduction for vague billing entries that prevent the court from determining if the hours billed were excessive”); Abeyta v. City of New York, No. 12 Civ. 5623, 2014 WL 929838, at *5 (S.D.N.Y. Mar. 7, 2014), afPd, 588 Fed.Appx. 24 (2d Cir. 2014) (“Accordingly, given the vague nature of certain entries in the spreadsheet documenting the hours worked by defendants' counsel, the Court hereby decreases the total number of hours for which compensation is sought by 10%.”).
3. Hourly rates
“A reasonable hourly rate is the rate prevailing in the [relevant] community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Juscinska v. Meson Sevilla, Ltd., No. 19 Civ. 5284, 2021 WL 706548, at *1 (S.D.N.Y. Feb. 23, 2021) (quotation marks and citation omitted). Here, in his memorandum of law, petitioner sets forth counsel's qualifications and experience, summarized as follows:
• Abbott: an active, highly-rated trial attorney with forty years of experience; focus on complex matrimonial and family law; awarded $600/hour (based on retainer agreement) following a 2019 state court divorce proceeding; member of the Executive Committee of the Family Law Section of the NYS Bar Association; faculty member of the New York College of Matrimonial Trial Attorneys; participating attorney on the ABA Project Against International Child Abduction.
• Morley: educated in England (including an LL.M in International Law); has practiced in New York for forty-five years; practice focuses on international family law disputes (especially child custody issues); has handled “many hundreds” of matters concerning international child abduction and the Hague Convention; considered one of the leading experts on the Hague Convention; author of International Family Law Practice, a treatise published annually by West Publishing; author of The Hague Abduction Convention, a treatise published by the ABA.
• Saltzman: actively practicing matrimonial and family law for more than twenty years, with a focus on international family law; has appeared as an expert witness in U.S. and foreign courts on international family law matters.Dkt. #81, at 17-23.
Petitioner asserts that the hourly rates charged by Abbott ($675), Morley ($600) and Saltzman ($400) are consistent with the market rate for New York City attorneys with similar qualifications and skills. However, as respondent points out, petitioner proffers no specific evidence of prevailing market rates in Hague Convention cases. Indeed, “courts in this District have not awarded more than $425 per hour in a Hague Convention case.” Nissim v. Kirsh, No. 18 Civ. 11520, 2020 WL 3496988, at *3 (S.D.N.Y. June 29, 2020) (quotation marks and citation omitted) (adjusting hourly rate from $500 to $425 for Patricia E. Apy, who (1) “is recognized as an expert on the Hague Convention, ICARA, and other international child custody litigation matters, ” (2) “has litigated complex international child custody cases and served as an expert in these cases for nearly 30 years, ” (3) “is a principal author of the Sean and David Goldman International Child Abduction Prevention and Return Act (ICAPRA), 22 U.S.C. 9111, et seq.” and (4) “has served as a witness before Congress on legislation related to the reporting requirements of the United States Department of State”). Here, I have considered counsel's experience litigating cases such as this one and their expertise in the subject matter and conclude, in light of the awards for similarly experienced attorneys in similar cases, that a downward modification of the requested hourly rates is warranted. Accordingly, I respectfully recommend that $425/hour is reasonable for Mr. Abbott, $500/hour is reasonable for Mr. Morley and $375/hour is reasonable for Mr. Saltzman.
Petitioner has provided no information regarding the qualifications and experience of attorneys Alexis Cirel and Daniella Schneider. I assume, based upon their claimed hourly rates ($525 for Cirel and $450 for Schneider), that they are associates with some level of experience. However, given the adjustment to Mr. Abbott's hourly rate, there must be a concomitant adjustment to the hourly rates of Ms. Cirel and Ms. Schneider. Absent additional information, I respectfully recommend that Ms. Cirel and Ms. Schneider should be compensated at $375/hour, equal to the reasonable hourly rate for Mr. Saltzman. Further, the hourly rates sought by paralegals Brenda Mileo ($260) and Fritz Capra ($270) are higher than typical rates for nonlawyers, which generally “fall below $200 per hour.” HOMEAWAY.COM, Inc. v. City of New York, No. 18 Civ. 7742, 2021 WL 791232, at *19 (S.D.N.Y. Mar. 1, 2021). See Carrington v. Graden, No. 18 Civ. 4609, 2020 WL 5758916, at *14 (S.D.N.Y. Sept. 28, 2020) (“Even for senior paralegals . . ., courts have typically capped the rate at $200 per hour.”). Accordingly, I respectfully recommend that $200 is a reasonable hourly rate for paralegals Mileo and Capria.
4. Collateral state proceedings
Counsel's invoices include fees incurred in conjunction with proceedings in state Family Court. Respondent argues that the state proceedings were not of any “direct benefit” to the Hague proceeding and, therefore, petitioner should not be allowed to recover fees associated with those proceedings. Dkt. #86, at 8. Petitioner responds:
The state court proceedings were initiated by Respondent in order to frustrate Petitioner's attempt to have his son returned to Spain. Respondent obtained an order of protection on an ex parte basis which unnecessarily complicated Petitioner's attempts to see his child during the course of the proceeding, and also created additional complications after the Court of Appeals affirmed the District Court's order of return. Dealing with those proceeding[s] became a necessary part of obtaining the return of the child to Spain.Dkt. #89, at 11-12. Contrary to petitioner's assertion, there is no indication that the state court proceedings were “necessary” to the Hague proceeding. Although the proceedings in this Court impacted the proceedings in Family Court, the corollary is not true. None of the proceedings in this Court depended upon, or were influenced by, the state court proceedings. Accordingly, I agree with respondent that petitioner should not be permitted to recover fees associated with the state court proceedings.
However, counsel's billing statements do not differentiate between time spent in state court and time spent on this action. Respondent proffers an exhibit reflecting her attempt to parse out the state court proceedings: the exhibit consists of petitioner's billing statements highlighted by respondent (state court in yellow, federal court in green and unsure/commingled in orange). Dkt. #81-8. Upon review of the exhibit, I agree with, and adopt, the bulk of respondent's designations, with two exceptions (all pertaining to Abbott's firm): (1) respondent designated an entry on 11/9/2019 (BA 0.2) as state court; I disagree, and designate that entry as unsure/commingled; and (2) there are four entries (8/28/19 FC 0.2, 11/25/29 BM 0.3, 5/7/20 BA 0.2, 6/23/20 BA 3.60) which respondent designated unsure/commingled; I disagree, and conclude that they are, more likely than not, related to the federal action. See Dkt. #81-8, at 11, 19, 20, 38, 41. Applying these designations, the billing hours for each individual are distributed as follows:
STATE
FEDERAL
UNSURE/COMMINGLED
Abbott
20.7
117.50
148.80
Morley
14.20
12.60
Saltzman
21.5
233.25
46.75
Cirel
3.00
Schneider
0.70
Paralegal Mileo
4.90
28.70
19.70
Paralegal Capria
3.30
33.40
11.60
Accordingly, I respectfully recommend that petitioner is entitled to reimbursement for the hours designated federal; he is not entitled to reimbursement for the hours designated state. As to the remaining hours, it is impossible to reasonably parse out the state and federal claims.
Accordingly, I respectfully recommend that the hours designated unsure/commingled be reduced by 50%.
Accordingly, in light of the discussion above, I respectfully recommend an aggregate fee reduction calculated as follows:
STEP 1: TOTAL HOURS QUALIFYING FOR REIMBURSEMENT FEDERAL
FEDERAL
UNSURE/COMMINGLED
TOTAL
Abbott
117.50
148.80
266.30
Morley
14.20
12.60
26.80
Saltzman
233.25
46.75
280.00
Cirel
3.00
3.00
Schneider
0.70
0.70
Paralegal Mileo
28.70
19.70
48.40
Paralegal Capria
33.40
11.60
45.00
STEP 2: 5% REDUCTION IN ABBOTT FIRM'S HOURS (VAGUENESS)
Abbott
266.30 - (266.30 x .05)
253.00
Morley
N/A
26.80
Saltzman
N/A
280.00
Cirel
3.00 - (3.00 x .05)
2.85
Schneider
0.70 - (0.70 x .05)
0.67
Paralegal Mileo
48.40 - (48.40 x .05)
46.00
Paralegal Capria
45.00 - (45.00 x .05)
42.75
STEP 3: 50% REDUCTION IN UNSURE/COMMINGLED HOURS
Abbott
253.00 - (148.80 x .50)
178.60
Morley
26.80 - (12.60 x .50)
20.50
Saltzman
280.00 - (46.75 x .50)
256.63
Cirel
2.85 - (3.00 x .50)
1.35
Schneider
0.67 - (0.70 x .50)
0.32
Paralegal Mileo
46.00 - (19.70 x .50)
36.15
Paralegal Capria
42.75 - (11.60 x .50)
36.95
STEP 4: FINAL ADJUSTED LODESTAR CALCULATION Compensable Hours Hourly Rate Total
Adjusted hourly rates are italicized.
Compensable Hours
Hourly Rate4
Total
Abbott
178.60
$425.00
$75,905.00
Morley
20.50
$500.00
$10,250.00
Saltzman
256.63
$375.00
$96,236.25
Cirel
1.35
$375.00
$506.25
Schneider
0.32
$375.00
$120.00
Paralegal Mileo
36.15
$200.00
$7,230.00
Paralegal Capria
36.95
$200.00
$7,390.00
TOTAL
$197,637.50
B. Costs/Expenses
Petitioner seeks reimbursement for costs/expenses in the amount of $108,145.41: $48,960.80 for costs/expenses paid by his attorneys on his behalf; plus $59,176.61 paid directly by petitioner. Respondent argues that petitioner's request is procedurally defective because he failed to file a notice of taxation and costs and a bill of costs within thirty days after the entry of final judgment, in violation of Local Civil Rule 54.1(a). Local Civil Rule 54.1(a) provides: Within thirty (30) days after the entry of final judgment, . . . unless this period is extended by the Court for good cause shown, any party seeking to recover costs shall file with the Clerk a notice of taxation of costs by Electronic Case Filing . . . and annexing a bill of costs.
Petitioner admits he did not strictly comply with Local Rule 54.1(a), but argues that “good cause” exists to overlook this lapse because: (1) respondent is not prejudiced and (2) ICARA provides an independent basis for a successful petitioner in a Hague case to recoup his costs. I agree with petitioner. Under ICARA, a prevailing petitioner is presumptively entitled to recover necessary expenses related to the return of the child. Petitioner filed the instant motion on September 4, 2020 (Dkt. #81), thirty-five days after the Second Circuit issued its mandate and fifteen days after the child was returned to Spain. Obviously, petitioner could not finalize his costs and expenses associated with the child's return until the child was actually returned. Petitioner attached invoices to his motion and otherwise properly documented his costs and expenses. Accordingly, I respectfully recommend that Your Honor excuse petitioner's technical violations of Local Rule 54.1(a).
1. Costs/Expenses paid by counsel
In support of his request for an award of costs/expenses paid by counsel on his behalf, petitioner submits an itemized “Detail Cost Transaction File List.” Dkt. #81-9. He states that the amount requested ($48,968.60) “was calculated by reducing SSRGA's total expenses ($152,868.80) by the fees paid by SSRGA to Morley ($9,449 + $21,100 + $34,000 + $16,400 + $23,000 = $103,949) and adding the expenses paid by Morley ($49). Dkt. #81, at 15. Petitioner's figures are not consistent with the Detail Cost Transaction File List, which shows total expenses in the amount of $147,243.40 and includes an additional payment to Morley in the amount of $25,360.00. Thus, the evidence demonstrates that counsel paid costs/expenses in the amount of $17,983.40 ($147,243.40 - ($9,449 + $21,100 + $34,000 + $16,400 + $23,000 + $25,360) + $49). However, the Detail Cost Transaction File List does not differentiate between costs/expenses associated with state court proceedings and costs/expenses associated with the instant action. As discussed supra, petitioner is not entitled to reimbursement for costs/expenses associated with state court proceedings and, therefore, a downward modification of 50% is reasonable and warranted. Accordingly, I respectfully recommend that petitioner is entitled to reimbursement for costs/expenses paid by counsel on his behalf in the amount of $8,991.70.
2. Costs paid by petitioner
Petitioner proffers a spreadsheet and invoices (Dkt. #81-11) reflecting costs paid directly by him “for travel to and from Barcelona/New York to attend court appearances, translation of documents from Spanish to English that were reviewed by counsel and the majority of which were included in Petitioner's trial books and accepted into evidence . . ., ” in the amount of $59,176.61. Dkt. #81, at 24-25. The exhibit also incorporates typewritten lists of miscellaneous expenditures (in dollars), in an apparent attempt to substantiate additional out-of-pocket costs. Dkt. #81, at 10-11, 31-32, 36. However, there are no receipts to substantiate these out-of-pocket costs, and it is unclear when these lists were generated. For that reason, I respectfully recommend that Your Honor disregard the amounts claimed for out-of-pocket expenditures.
Additionally, petitioner admits that a portion of the amount requested is attributable to travel expenses incurred for a state court appearance in November 2019. Dkt. #81, at 25. As discussed supra, costs/expenses associated with state court proceedings are not recoverable. Similarly, petitioner alleges that the “majority” of the transcripts were used in conjunction with the federal case; obviously, then, some portion of them were not. Because there appears to be no way to ascertain what transcripts were procured for use in federal (as opposed to state) court, I respectfully recommend that the requested amount for transcription services should be reduced by 30%. Accordingly, I respectfully recommend that petitioner is entitled to reimbursement for costs/expenses paid directly by him in the amount of $45,135.13, calculated as follows:
Travel (invoices in dollars)
$4,862.53
Travel (invoices in euros)
$20,099.42
Transcripts
$28,818.83 - (28, 818.83 x .30)
$20,173.18
TOTAL
$45,135.13
https://www.exchange-rates.org/Rate/EUR/USD (accessed Mar. 4, 2021).
C. Equitable Considerations
Respondent argues that it would be clearly inappropriate to award petitioner fees/costs, because he “has subjected Ms. Martin to a sustained, continuous course of abuse.” Dkt. #86, at 15. In support of her argument, respondent cites Souratgar v. Lee Jen Fair, 818 F.3d 72 (2d Cir. 2016). In Souratgar, the Second Circuit concluded an award of expenses was “clearly inappropriate” where respondent demonstrated that petitioner “engaged in multiple, unilateral acts of intimate partner violence against her and that her removal of the child from the habitual country was related to that violence.” Id. at 80. Here, petitioner acknowledges that Your Honor found Ms. Martin had demonstrated she was subjected to psychological abuse by Mr. Grano. Dkt. #89, at 4. However, respondent does not address the causality requirement and has not proffered evidence demonstrating that her removal of the child from Spain was related to Mr. Grano's psychological abuse. Accordingly, I conclude and respectfully recommend that respondent has not met her burden to show that an award of fees/expenses to Mr. Grano would be clearly inappropriate on this ground.
Respondent also argues that a fee award would be clearly inappropriate because any award would be “financially ruinous” for her and “would further limit her ability to litigate the issues of divorce, custody and support in Spain.” Dkt. #86, at 19. “[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.
Respondent proffers a supporting declaration in which she states:
• she has paid her attorneys approximately $75,000 and owes them approximately $170,000;
• her legal fees “have largely been paid by [her] father” whom she has to pay back;
• she has resorted to Go Fund Me to raise money for legal fees (and has raised approximately $6,000);
• petitioner has substantial financial assets, is a member of his family's import/export business and resides in a large home in which respondent has no legal rights or interest;
• she has not received legal residence status in Spain and, therefore, has been unable to secure employment;
• she has no savings, assets or property;
• her net 2019 income was approximately $27,551;
• since returning to Spain, she has paid for housing and other expenses for herself and the child;
• almost all of her income and savings has been spent on lawyers and to support her child.Dkt. #86-1. Respondent also declared (on September 29, 2020) that she has approximately $470 in savings and $4,900 in a checking account. Dkt. #86-1, ¶ 9. A savings account statement for the period ending June 30, 2020 shows a balance of $395.10; a checking account statement for the period ending September 10, 2020 shows a balance of $3,255.36. Dkt. #86-4.
Petitioner does not challenge respondent's assertion that he is in a comfortable financial position (Dkt. #89, at 5-6), and the relative financial disparity between the parties weighs in favor of respondent. On the other hand, respondent proffered no information regarding her attempt to secure legal residence status, the time line and the process for doing so, or any impediments she may face. Additionally, I note that respondent stated the Go Fund Me effort was for legal expenses - and not for living expenses for her and her son. Despite these uncertainties, it is patently obvious that an award of fees/costs to petitioner in the range of $250,000 would severely strain respondent's financial capabilities. See Souratgar, 818 F.3d at 81 n.3 (“We express no view on the appropriateness of an expenses award that is greater than a respondent's total assets, but such an award would, at a minimum, require a reasoned explanation.”). On balance, considering the totality of the circumstances, I conclude and respectfully recommend that petitioner's aggregate award for fees and costs should be reduced by 85%.
IV. CONCLUSION
For the foregoing reasons, I conclude-and respectfully recommend that Your Honor should conclude-that petitioner is entitled to an award of fees and costs in the amount o
Attorneys' Fees
$197,637.50
Costs paid by counsel
8, 991.70
Costs paid by petitioner
45.135.13
Aggregate Total
$251,764.33
Less 85%
- $219,099.68
FINAL TOTAL
$32,664.65
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. See also FED. R. CIV. P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Cathy Seibel, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Seibel.