United States District Court, E.D. Louisiana
ORDER AND REASONS
E. FALLON UNITED STATES DISTRICT JUDGE.
case initially involved a claim brought under the Hague
Convention on the Civil Aspects of International Child
Abduction. Soonhee Kim (“Petitioner” or
“Mother”) is the mother of L.J.F. (born in 2007)
and A.J.F. (born in 2009) (the “children”). On
December 9, 2017, she petitioned this Court to return her two
children to Thailand, asserting that on or before August 13,
2017, Kamau Bakari Ferdinand (“Respondent” or
“Father”), the children's father, wrongfully
retained them in Louisiana.
matter was tried before the Court, sitting without a jury, on
February 1, 2018. The purpose of the trial was not to
determine the children's parental custody, but rather to
identify the children's habitual residence. Based on the
record presented at trial, the Court concluded that the
children's habitual residence is Thailand and ordered
their prompt return. See generally Soonhee Kim v.
Ferdinand, No. CV 17-16180, 2018 WL 721455 (E.D. La.
Feb. 6, 2018).
the Petitioner was the prevailing party, she is now entitled
to attorney's fees and costs under Article 26 of the
Convention and 42 U.S.C. § 11607(b). On February 27,
2018, Plaintiff filed the instant motion for attorney's
fees and necessary expenses, requesting $89, 310.08 that
included court costs, legal fees, and travel costs between
Thailand and the United States. See Rec. Doc. 57.
Respondent opposes this motion, arguing that Petitioner's
attorney's fees are excessive and such award is
“clearly inappropriate” under 42 U.S.C. §
11607(b)(3). Rec. Doc. 58. Having reviewed the parties'
submissions and the applicable law, the Court now issues this
Order and Reasons.
1980 Hague Convention on the Civil Aspects of International
Child Abduction (the “Hague Convention”), and its
implementing legislation, the International Child Abduction
Remedies Act (“ICARA”), contain a one-way fee
shifting provision, providing an award of necessary fees and
expenses to a prevailing petitioner. Salazar v.
Maimon, 750 F.3d 514, 519-20 (5th Cir. 2014); see
also Hague Convention, art. 26; 42 U.S.C. §
11607(b)(3). Specifically, ICARA requires:
Any court ordering the3 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 homes or other care during the course of the
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).
the Hague Convention, an award of fees and costs serves two
purposes: (1) “to restore the applicant to the
financial position he or she would have been in had there
been no removal or retention, ” and (2) “to deter
such removal or retention.” Hague Convention; Text and
Legal Analysis, 51 Fed. Reg. 10494-01, 10511 (Mar. 26, 1986).
“The sparse legislative history of the [ICARA's
fee-shifting] provision reveals it was ‘intended to
provide an additional deterrent to wrongful international
child removals and retentions.'” Souratgar v.
Lee Jen Fair, 818 F.3d 72, 80 (2d Cir. 2016) (quoting
H.R. Rep. No. 100-525, at 14 (1988), as reprinted in
1988 U.S.C.C.A.N. 386, 395). Nonetheless, in this
fee-shifting context, “Congress built a safety valve
directly into the statute, leaving it to courts to determine
when an award of expenses would be clearly inappropriate,
notwithstanding the additional deterrence value such expenses
might provide.” Id.
seeking an award of attorney's fees must submit adequate
evidence detailing the hours worked and his or her rates.
See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
It is the Respondent's burden to show that an award of
attorney's fees and costs would be “clearly
inappropriate.” Saldivar, 879 F.Supp.2d at
claims that she is entitled to attorney's fees and costs
under 42 U.S.C. § 11607(b)(3). She requests that
Respondent pays her $89, 310.08 for expenses incurred from
bringing this ICARA action. Specifically, she expended $1,
098.50 for court costs; $77, 957.77 for legal fees and
expenses; and $10, 253.81 for travel. See generally Rec. Doc. 57.
Petitioner asserts that her attorney's fees-from Mr.
Stern, Mr. Cullen, Ms. Powers, Mr. Yaap, and Mr.
Phongordete-are reasonable when tested under the lodestar
method. In this case, Petitioner's attorneys have charged
her at the following rate and amount:
argues that Petitioner's attorney's fees are
excessive, especially compared to the New Orleans legal
market. Furthermore, Respondent argues that his
“crippling financial” status does not afford him
the ability to cover Petitioner's expenses. Respondent
represents that he has no “savings, investments, or the
promise of future income.” Rec. Doc. 58 at 16. He
recently resigned his position as a teacher in New Orleans so
he could return to Thailand with the children. According to
Respondent, he relies on “secured and unsecured loans
for living expenses and litigation expenses incurred in this
case.” Id. at 17. He submitted an affidavit
declaring negative net worth of $81, 914.40. Rec. Doc. 58-3.
As indicated on his financial statement, chief among his
liabilities are unsecured loans of $50, 000.00 and debt from
litigation fees and costs of $52, 943.30. Id.
Therefore, given his financial hardship, Respondent claims
that it would be clearly inappropriate to require him to pay
Petitioner's fees and costs from this case.
Court's analysis of an award for attorney's fees
proceeds in two parts. First, the Court determines whether
Petitioner's attorney's fees are in fact reasonable.
Second, the Court examines whether it would be “clearly
inappropriate” under 42 U.S.C. § 11607(b)(3) to
require Respondent to reimburse Petitioner given his claimed
financial status. Finally, after due consideration of the
totality, the Court apportions an equitable award between
Petitioner and Respondent for attorney's fees and costs.
Reasonable Attorney's Fees
lodestar method is traditionally used to determine an
appropriate attorney's fees award in Hague Convention
cases. See Salazar, 750 F.3d at 523; see
e.g., Freier v. Freier, 985 F.Supp. 710, 712
(E.D. Mich. 1997) (determining the amount of
“reasonable attorney's fees” under ICARA by
employing the lodestar formula); Berendsen v.
Nichols, 938 F.Supp. 737, 738 (D. Kan. 1996) (same).
Moreover, the lodestar approach is “generally
applicable to all cases in which Congress has authorized an
award of fees to a ‘prevailing party.'”
Hensley v. Eckhart, 461 U.S. 424, 433 n.7 (1983).
the lodestar method, the amount of a fees award is calculated
by “multiplying the reasonable hourly rate by the
number of hours reasonably expended.” McClain v.
Lufkin Indus., Inc., 519 F.3d 264, 282 (5th Cir. 2008).
This is then tested based on an analysis of twelve factors
known as the Johnson factors, which was first
formulated in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714, 717 (5th Cir. 1974). These factors
include (a) the time and labor required; (b) the novelty and
difficulty of the questions; (c) the skill required to
perform the legal service properly; (d) the preclusion of
other employment by the attorneys due to acceptance of the
case; (e) the customary fee; (f) whether the fee is fixed or
contingent; (g) time limitations imposed by the client or
circumstances; (8) the amount involved and the results
obtained; (h) the experience, reputation, and ability of the
attorneys; (i) the ”undesirability” of the case;
(j) the nature and length of the professional relationship
with the client; and (k) awards in similar cases.
Id. at 717-19; see also Von Clark v.
Butler, 916 F.2d 255, 258 (5th Cir. 1990). A review of
these factors as they apply to the facts of this case is
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