Opinion
01 CIV. 5743 (DLC)
August 6, 2001
OPINION AND ORDER
On June 22, 2001, petitioner Tjitske ("Lidy") Knigge ("Knigge") brought a petition 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 (the "Hague Convention" or "Convention"), to seek the return of her daughter to the Netherlands. Petitioner was represented by Barbara Bevando Sobal ("Sobal"). On July 19, 2001, this Court held that, in violation of the Convention, respondent Brian James Corvese ("Corvese") had wrongfully removed his sixteen month old daughter from the Netherlands. Accordingly, the Court ordered the child returned forthwith to the Netherlands with petitioner.
Petitioner now seeks reimbursement for her expenses as allowed by Article 26 of the Hague Convention and 42 U.S.C. § 11607(b). For the reasons set forth below, petitioner's motion is granted in part.
BACKGROUND
On July 12, 2001, Knigge filed an application for her expenses. Respondent did not object to Knigge's claim for expenses. At a conference on July 16, 2001, the Court ordered respondent to pay Knigge $200 for each day she had been in New York and staying in a hotel; this amount included approximately $130 a night for hotel costs, and $70 for food. For the five days that Knigge stayed at a friend's home, the Court ordered respondent to pay Knigge $70 for each day. The Court also ordered respondent to pay the costs of Knigge and her daughter's airline tickets after petitioner submitted documentary support for the claimed amount, which was for $1,577.00.
On July 19, 2001, Sobal submitted a second application for expenses, which included Sobal's attorney's fees and attorney's fees for two other counsel. On July 23, 2001, respondent objected to the reasonableness of the expenses requested by petitioner. Sobal submitted an amended certification of fees in reply on July 25, 2001. Sobal requests a total amount of $106,772.13, which includes: $98,011.88 for Sobal's attorney's fees, $4,953.88 in attorney's fees for William M. Hilton ("Hilton"), $364.50 for Hilton's airplane ticket from California to New York, and $3,441.87 in attorney's fees for Dutch attorney Dorine v. van der Keur ("van der Keur").
In her notice of motion, Sobal states that she is requesting $95,161.76, but the amounts requested actually total $106,772.13.
DISCUSSION
The International Child Abduction Remedies Act provides:
Any 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.42 U.S.C. § 11607(b)(3) (emphasis supplied). See Hague Convention, art. 26; Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir. 1995). "The `lodestar' approach is the proper method for determining the amount of reasonable attorneys' fees" once a court orders the return of the child under the Hague Convention. Distler v. Distler, 26 F. Supp.2d 723, 727 (D.N.J. 1998). See Freier v. Freier, 985 F. Supp. 710, 712 (E.D.Mich. 1997).
To determine reasonable attorney's fees, the court calculates a lodestar figure by multiplying the reasonable hours spent by a reasonable rate. Cruz v. Local Union No. 3 of the Int'l Brotherhood of Elec. Workers, 34 F.3d 1148, 1159 (2d Cir. 1994). A "strong presumption" exists that the lodestar figure "represents a reasonable fee." Quaratino v. Tiffany Co., 166 F.3d 422, 425 (2d Cir. 1998) (citation omitted). The reasonable hourly rate is ordinarily determined by the rates prevailing in the community for similar services by lawyers with similar skill, experience, and reputation. Cruz, 34 F.3d at 1159. The prevailing community is ordinarily the district in which the court sits. Id. Determining the reasonable hours requires the district court to "exclude excessive, redundant or otherwise unnecessary hours, as well as hours dedicated to severable unsuccessful claims" although fees are allowed for work on those unsuccessful claims which are "inextricably intertwined" with successful ones. Quaratino, 166 F.3d at 425 (citation omitted).
Although the lodestar amount is presumed to be a reasonable fee, a court may adjust the amount based on a variety of factors, including the "results obtained," id., the risk of the litigation and the performance of the attorneys, see Savoie v. Merchants Bank, 166 F.3d 456, 460 (2d Cir. 1999).
A. Attorney's Fees and Costs for Sobal
Petitioner has calculated the requested attorney's fees as follows. Sobal, a 1988 graduate of New York University Law School, billed the petitioner at the rate of $400.00 per hour, and worked for 247.02 hours, although she did not bill petitioner for all of these hours. By multiplying the total number of hours by the hourly rate, the petitioner arrives at a total of $98,011.88 for the amount of Sobal's attorney's fees.
The Court calculates a total of $98,168.00 by multiplying the hourly rate ($400) by the number of hours (247.02-1.6 uncharged 9= 245.42 hours).
Hourly Rate
Respondent first argues that he should not have to pay for counsel fees at all, based primarily on his prior motion to disqualify Sobal and Hilton from representing petitioner. The Court denied respondent's disqualification motion in a July 23, 2001 Opinion. Alternatively, respondent contends that Sobal's claimed hourly rate of $400 an hour is not reasonable and argues that Sobal should instead be compensated at the rate of $200 an hour.
The Court does not find Sobal's claimed rate of $400.00 per hour to be reasonable. As an initial matter, Sobal has not presented any evidence as to "what hourly rate would normally be charged in the pertinent legal community for similar cases by attorneys [with comparable] training and experience." Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 99 (2d Cir. 1997). More specifically, she has not shown that courts in this district would award attorney's fees at the rate of $400 per hour to attorneys who are 13 years out of law school and who have worked on several Hague Convention cases. Id. at 100 (noting that trial counsel had listed eight federal cases in which she had been awarded fees at the rate of $200 per hour for her services).
Sobal does not indicate in how many Hague Convention cases she has participated; she points to only one Hague Convention case in her curriculum vitae.
In support of her application for fees, Sobal includes her curriculum vitae, which lists her experience regarding Hague Convention cases. Sobal lists three meetings she attended on the Hague Convention, two articles she has written about the Convention — one to be published this fall and the other a work-in-progress, and several lectures and discussions about the Hague Convention in which she participated. Sobal has not, however, explained how long she has billed at the rate of $400 per hour, nor for that matter whether she has ever actually been paid at the rate of $400 per hour.
While Sobal listed $400 per hour as her billing rate in the retainer agreement she entered with the petitioner, Sobal listed that rate with the knowledge that the petitioner would not necessarily be the one who ultimately paid the legal bills. The retainer agreement states: "During the course of negotiations, this firm, may seek on your behalf . . . recovery from your spouse of the fees and disbursements expended by you." According to Sobal's billing statements, petitioner paid Sobal $19,890.00 on June 25 and 26.
While the Court does not doubt that Sobal represented her client vigorously and to the best of her abilities, Sobal's claimed rate of $400 per hour is too high given her experience. Compare Distler, 26 F. Supp.2d at 727 ($350 per hour reasonable in District of New Jersey Hague Convention case for "very experienced" counsel who had over 20 years experience and had handled 165 cases under the Convention). Accordingly, the Court finds that Sobal should be compensated at $200 per hour. See, e.g. Knoeffler v. Town of Mamakating, 126 F. Supp.2d 305, 311-12 (S.D.N.Y. 2000); Gavin-Mouklas v. Information Builders, Inc., No. 97 Civ. 3085 (LAP), 1999 WL 728636, at * 6 (S.D.N.Y. Sept. 17, 1999); Ayres v. 127 Rest. Corp., No. 96 Civ. 1255 (DC), 1999 WL 328348, at *2 (S.D.N.Y. May 21, 1999); Greenbaum v. Svenska Handelsbanken, N.Y., 998 F. Supp. 301, 304 (S.D.N.Y. 1998).
It is more than double the billing rate of Mr. Hilton, who is an expert in this field, although he operates with less overhead and in a different part of the country.
Hours Worked
The second component of the lodestar calculation is the number of hours reasonably expended. In determining the number of hours reasonably required, a court should exclude "excessive, redundant or otherwise unnecessary hours." Quaratino, 166 F.3d at 425. Sobal has submitted billing records from June 20, 2001, through July 23, 2001, in support of her statement that she worked 247.02 hours. In this case the proceedings were conducted at an expedited pace. See Hague Convention, art. 11 (providing six week guideline for judicial proceedings). Moreover, respondent does not argue that the expenditure of hours by Sobal was unreasonable.
In a footnote to his opposition, respondent asserts that a hearing would be necessary to adequately attack these charges. A hearing is not necessary. The Court ordered respondent to submit any written objections to petitioner's request for fees and expenses by July 23, 2001.
Nevertheless, in conducting its own review the Court has found that some of the work by Sobal was unnecessary and excessive. The Court will therefore reduce the lodestar by 10%. See Hensley v. Eckerhart, 461 U.S. 424, 436 (1983); Luciano v. Olsten Corp., 109 F.3d 111, 116 (2d Cir. 1997).
Disbursements
The Court has reviewed the costs and generally does not find them unreasonable. There have been no objections made to any of the disbursements, which total $2,696.34.
B. Petitioner's Other Attorneys
Petitioner also requests an award for the attorney's fees and costs of Hilton and van der Keur, two other attorneys that petitioner consulted during this case. Petitioner requests payment for attorney's fees in the amount of $4,953.88 for Hilton and $3,441.87 for van der Keur. Additionally, petitioner requests payment in the amount of $364.50 for an airline ticket purchased by Hilton to travel to New York.
Hilton
Respondent asserts that he should not have to pay for Hilton's services at all because such services were not "necessary" in this proceeding. It appeared to the Court that Hilton's advice to Sobal was invaluable to her and that his retention was both reasonable and necessary in this case. Respondent has failed to show that the payment of Hilton's legal fees would be "clearly inappropriate." 42 U.S.C. § 11607(b)(3).
The Court finds that Hilton's billing rate of $150 per hour is reasonable. Hilton has practiced law for 27 years and is a recognized expert on the Hague Convention. Hilton's billing records show that he worked 14.99 hours on this case, although he did not charge the petitioner for all of his time. Although petitioner requests payment of $4,953.88, Hilton appears to have only charged petitioner $2,029.38. Thus, respondent shall pay petitioner $2,029.38 for Hilton's fees and costs.
By letter dated July 18, 2001, Hilton wrote Sobal and stated "[t]he total due for the time spent and out of pocket expenses is $2,029.38." Further, when all of Hilton's charges are added together, they total $2,029.38.
Respondent also argues that he should not have to pay the $364.50 cost of the airline ticket Hilton purchased to travel to New York to appear as an expert at the July 19, 2001 hearing. As respondent correctly notes, courts do not require expert testimony on issues of domestic law, and the advanced purchase of Hilton's airline ticket for purposes of attending the hearing was not necessary or reasonable. Respondent is therefore not required to pay for Hilton's airplane ticket.
van der Keur
Petitioner did not request payment of attorney's fees for van der Keur until she submitted her reply to respondent's opposition. Respondent has therefore not had an opportunity to oppose this request. In her reply brief, petitioner requests payment for van der Keur's attorney's fees in the amount of $3,441.87. Petitioner submits a letter from van der Keur, which states that he is a member of the Bar of Rotterdam in the Netherlands, and that he specializes in matrimonial law.
According to van der Keur, he worked 16.3 hours on petitioner's case at the rate of approximately $210 an hour. Petitioner has not submitted any information about van der Keur's background or experience. Nor has petitioner submitted any of van der Keur's contemporaneous time records. The Court is therefore unable to determine the extent to which van der Keur's billing rate is reasonable or whether the hours expended on petitioner's case were "necessary." See Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (application for a fee award must "be documented by contemporaneously created time records that specify, for each attorney, the date, the hours expended, and the nature of the work done"). Petitioner's request for payment of van der Keur's attorney's fees is denied.
C. Petitioner's Airplane Tickets
As discussed above, on July 16, the Court ordered respondent to pay petitioner for the amount of Knigge's and her daughter's airplane tickets upon the submission of documentary support for the claimed $1,577 cost of the tickets. There have been no objections made to the payment or cost of the tickets. Respondent must pay the cost of these tickets upon proof of the amount of the airplane tickets by petitioner.
D. Ability to Pay
Respondent does not argue that he will be unable to pay the fees requested, and based upon the information presented to the Court, it does not appear that he will suffer any financial hardship by paying the expenses incurred by petitioner in this case.
E. Summary of Calculations
To summarize, I have applied an hourly rate of $200 to the work performed by Sobal, for a total of $49,404.00. I then reduced this amount by ten percent, for a total attorney's fees award of $44,463.60 for Sobal. Sobal's disbursements total $2,696.34. I have applied an hourly rate of $150 for work performed by Hilton, for a total of $2,029.38. As discussed above, the Court will not require reimbursement for Hilton's airline ticket to New York, or the fees and costs for work performed by van der Keur. Upon proof of the amount of the petitioner's airline tickets, respondent shall pay this amount to petitioner.
CONCLUSION
For the reasons stated, respondent shall pay petitioner's expenses in the amount of $49,189.32, within two days of this Order.
SO ORDERED: