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In re One Infant Child Souratgar

United States District Court, S.D. New York

February 19, 2014

In the Matter of One Infant Child, ABDOLLAH NAGHASH SOURATGAR, Petitioner,
v.
LEE JEN FAIR, Respondent,

MEMORANDUM AND ORDER

P. KEVIN CASTEL, District Judge.

Petitioner Abdollah Naghash Souratgar filed a petition seeking the return of his son to Singapore 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") and the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et m. ("ICARA"). After multiple ex parte proceedings and a nine-day evidentiary hearing, the Court granted the petition. The Second Circuit affirmed. Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013). After the mandate issued, counsel for Souratgar moved for attorney's fees and expenses, seeking a total amount of $618, 059.61.[1] Respondent Lee Jen Fair opposes this motion. For the reasons stated below, petitioner's motion is granted in part and denied in part.

LEGAL STANDARD

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." Hague Convention, art. 26. In contrast, the ICARA directs that a court "shall" award necessary expenses to a prevailing petitioner, unless the respondent establishes that a full award "would be clearly inappropriate:"

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).

The fee-shifting provision is intended "to restore the applicant to the financial position he or she would have been in had there been no removal or retention" and "to deter such conduct from happening in the first place." Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10494-01, 10511 (Mar. 26, 1986).

The Second Circuit has held that in cases arising under the ICARA, "[t]he District Court, as the court ordering the return of the child, is responsible in the first instance for determining what costs, if any, should be assessed against [respondent], with respect to both the District Court and Court of Appeals proceedings." Hollis v. O'Driscoll, 739 F.3d 108, 113 (2d Cir. 2014).

"[A] prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court. Absent 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.'" Ozaltin v. Ozaltin , 708 F.3d 355, 375 (2d Cir. 2013) (quoting Fogerty v. Fantasy, Inc. , 510 U.S. 517, 534 (1994)) (alteration in original). "[T]he court... has the obligation to determine whether the requested fees and costs were necessary' to secure the childri's return." Aldinger v. Segler , 157 Fed.App'x 317, 318 (1st Cir. 2005) (per curiam). "[T]he burden of proof to establish the necessity'-which implies reasonableness'-of the expenses (including the attorney's fees) is upon the [petitioner]." Guaragno v. Guaragno, 09 Civ. 187 (RO) (RKR), 2010 WL 5564628, at *1 (N.D. Tex. Oet. 19, 2010) (Findings of Fact and Recommendation of Magistrate Judge Robert K. Roach) (adopted by 2011 WL 108946 (Jan. 11, 2011)).

DISCUSSION

I. Domestic Attorney's Fees and Costs

"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." Knigge v. Corvese, 01 Civ. 5743 (DLC), 2001 WL 883644, at *1 (S.D.N.Y. Aug. 6, 2001) (quoting Distler v. Distler , 26 F.Supp.2d 723, 727 (D.N.J. 1998). "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. Co. , 658 F.3d 154, 166 (2d Cir. 2011). The presumptively reasonable attorney's fee is calculated by setting the reasonable hourly rate and multiplying it by the hours spent on the client's matter. Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany and Albany Cnty. Bd. of Elections , 522 F.3d 182, 186 (2d Cir. 2008). "The reasonable hourly rate is the rate a paying client would be willing to pay." Id . at 190. The Court should endeavor to determine "the market rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Gierlinger v. Gleason , 160 F.3d 858, 882 (2d Cir. 1998) (internal quotation marks omitted). The court "should... bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." Arbor Hill , 522 F.3d at 190.

The starting point is a determination of whether the proposed hourly rate is reasonable in this district for the type of services and work. Id . In setting the reasonable hourly rate, Arbor Hill approves the use of the twelve Johnson factors cited in Arbor Hill and several related considerations: "the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) that an attorney might expect from the representation." Id . at 184.[2] "[Clonsiderations concerning the quality of a prevailing party's counsel's representation normally are reflected in the reasonable hourly rate." Perdue v. Kenny A ex rel Winn , 559 U.S. 542, 553 (2010).

a. Law Offices of Robert D. Arenstein

Souratgar seeks $400, 849.08 in attorney's fees and costs for the services of the Law Offices of Robert D. Arenstein. (Reply Affirmation of Robert D. Arenstein ¶ I.B.C.)

i. Hourly Rate

The petitioner's prima facie burden of demonstrating that respondent removed the child from his habitual residence in breach of the petitioner's custody rights was uncontested by the respondent. Respondent relied on two affirmative defenses under the Hague Convention, on which she bore the burden of proof. This case was heard on an expedited basis and involved an appeal to the Second Circuit, which is not unusual in Hague Convention and ICARA litigation. See, e.g., Hollis v. O'Driscoll, 739 F.3d 108, 113 (2d Cir. 2014), Ozaltin v. Ozaltin , 708 F.3d 355 (2d Cir. 2013).

Souratgar was billed by Robert Arenstein at a rate of $600.00 per hour.

(Arenstein Reply Affirm. ¶ I.B.A; I.B.B.) Sandra Nunez, Arenstein's associate, billed at the rate of $300.00 per hour. (Arenstein Reply Affirm, ¶ I.B.A.) Arenstein has practiced law for forty years, has practiced in the matrimonial and family law field for thirty-seven years, and has handled many Hague Convention cases. (Affirmation of Robert D. Arenstein at 5.) Nunez is a "fourteen year associate" in the Law Offices of Robert D. Arenstein, and has been practicing law since 1987. (Affirmation of Sandra R. Nunez ¶¶ 20.) From 1982 to 1987, she served as a law clerk to the Honorable Maurice W. Grey, Acting Supreme Court Justice, Bronx County. (Nunez Affirmation ¶ 20.) Arenstein and Nunez provided their resumes in support of the motion for fees. (Arenstein Affirm. at 8-12; Nunez Affirm. at 12.)

In support of his attorneys' proposed hourly rates, Souratgar's counsel submitted the affirmation of Allan D. Mantel, a matrimonial law attorney, who attests that Arenstein and Nunez's billable rates are reasonable in this district for attorneys of their experience and qualifications. (Affirmation of Allan D. Mantel ¶¶ 5-6.) Mantel states that his hourly rate is $750.00 per hour, and that $600.00 per hour is a reasonable rate for Arenstein, who has more experience than Mantel. (Mantel Affirmation ¶¶ 4, 6.) Mantel submits his affirmation to "attest to the reasonableness of legal fees in Hague actions, under 42 U.S.C. 11607(b)(3) in the Southern District of New York and the 2d Circuit Court of Appeals." (Mantel Affirmation ¶ 2.) He does not state whether he is experienced in Hague Convention litigation or whether his hourly rate is consistent with the rates of other attorneys in this district who practice in this niche area of law.

"In determining the reasonableness of the requested attorneys' fees, the Court considers the quality of the work done by the attorneys." Harris v. Fairweather , 11 Civ. 2152 (PKC) (AJP), 2012 WL 3956801, at *8 (S.D.N.Y. Sept. 10, 2012) (Report and Recommendation of Magistrate Judge Andrew J. Peck) (adopted by 2012 WL 5199250 (S.D.N.Y. Oct. 19, 2012)). The Court concludes that the hourly rate sought for petitioner's lead counsel's services exceeds a reasonable rate. He stated on the record to the Court that he has "probably handled, and counseled, and advised over 400 [Hague Convention] cases." Tr. Oct. 18, 2012, 22:13-14. Upon questioning from the Court at a later conference, he conceded that "[he] ha[d] not filed a notice of appearance in 400 cases" but that he had "been involved in over 400 cases... with lawyers that call [him] for advice." Tr. Oct. 22, 2012, 5:17-21.

Ordinarily, there is no reason for the Court to comment on the quality of an attorney's work. The present motion requires the Court to do so in this case. Petitioner's lead counsel did prevail in this matter and he did devote time and resources to this matter. But, even allowing for the time-sensitive nature of the work, it did not reflect the skill, learning, and care of an experienced attorney at the proposed hourly rate. For example, counsel did not provide a memorandum of law in support of his initial ex parte petition. Tr. Oct. 18, 2012, 18:22-20:17. He submitted an order to show cause to the Court for its signature bearing the caption of the Eastern District of New York. (Docket No. 4.) Counsel's 56-page long reply memorandum of law in support of this motion for fees failed to comply with this Court's Individual Practices 2.C, which places a 10-page limitation on reply memoranda without prior permission. Lead counsel's trial skills were not those of an attorney whose services would warrant a rate of $600.00 per hour. See, e.g., Tr. Dec. 3, 2012, 11:3-14:18 (provided Court, witness, and respondent's counsel with three different versions of document purported to be the same exhibit); Tr. Dec. 11, 2012 692:5-23 (Court-ordered recess because of disorganization of petitioner's cross-examination); Tr. Dec. 11, 2012, 715:23-716:3 (re-marking exhibits during cross examination); Tr. Dec. 14, 2012 1085:1-1091:21 (difficulty providing answers to Court-posed questions). The foregoing may appear as nit-picking, but these are some examples that support the overall conclusion reached over the life of the proceeding that counsel's work in this case does not warrant the ...


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