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Kim v. Ferdinand

United States District Court, E.D. Louisiana

April 5, 2018

SOONHEE KIM
v.
KAMAU BAKARI FERDINAND

         SECTION “L” (5)

          ORDER AND REASONS I.INTRODUCTION

          ELDON E. FALLON UNITED STATES DISTRICT JUDGE.

         This 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.

         This 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).

         Because 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.

         II. LEGAL STANDARD

         The 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).

         Under 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.

         A party 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 632.

         III. DISCUSSION

         Petitioner 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.[1] 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:

Attorney

Hours

Rate

Total

C. Stern

27.5

$410.00

$11, 275.00

S. Cullen

50

$550.00

$27, 500.00

K. Powers

44.7

$425.00

$18, 997.50

M. Yaap

44.2

$355.00

$15, 691.00

T. Phongordete

Fixed Fee

$2, 500.00

TOTAL:

166.4

$75, 963.50

         Respondent 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.

         The 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.

         A. Reasonable Attorney's Fees

         1. Lodestar Method

         The 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).

         Under 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 appropriate.

         a. Time and ...


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