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Dawson v. McPherson

United States District Court, M.D. North Carolina

September 23, 2014

MARTIN JAMES DAWSON, Petitioner,
v.
NAOMIJAYNE STEADMAN MCPHERSON, Respondent.

MEMORANDUM OPINION AND ORDER

JAMES A. BEATY, District Judge.

This matter is before the Court on Motion for Order and Judgment Awarding Expenses ("Motion") [Doc. #11], filed by Petitioner Martin James Dawson ("Petitioner") pursuant to the provisions of the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11607. Petitioner's Motion is before the Court following the Court's Order [Doc. #16] to return his minor children, C.M.S. and L.S., to the United Kingdom pursuant to the Convention on the Civil Aspects of International Child Abduction, October 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 49 ("the Hague Convention") and the provisions of ICARA. Respondent Naomi Jayne Steadman McPherson ("Respondent") filed a Brief in Opposition to Petitioner's Motion [Doc. #17] and Petitioner subsequently filed a Reply Brief [Doc. #20]. For the reasons stated herein, the Court will grant Petitioner's Motion pursuant to ICARA, however the Court will not award the full amount of requested attorneys' fees and such an amount will be reduced to a reasonable sum as articulated herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 17, 2014, Petitioner filed a Verified Petition for Return of Children under the Hague Convention ("Verified Petition") [Doc. #1] seeking the return of his children, C.M.S. and L.S. ("the Children"), to the United Kingdom. As set forth in the Verified Petition, Petitioner, the father of the Children, gave Respondent, the mother of the Children, permission to take the Children from the United Kingdom-the Children's place of birth and permanent residence-to Colfax, North Carolina to visit Respondent's mother. The Children left the United Kingdom with Respondent on October 9, 2013. The Children were scheduled to leave the United States on November 13, 2013 and return to the United Kingdom on November 14, 2013. Petitioner never gave Respondent permission to retain the Children in the United States past November 13, 2013. As further detailed in Petitioner's Verified Petition [Doc. #1] and the Court's Order Granting Joint Consent Motion for Entry of Order of Return of Children [Doc. #16], Respondent wrongfully retained the Children in the United States until March 19, 2014. On March 19, 2014, United States Marshals executed a warrant, issued by the Court, directing the Marshals to take physical custody of the Children and place them with Petitioner. On March 27, 2014, the Court held a hearing on the Verified Petition and entered the Order Granting Joint Consent Motion for Entry of Order of Return of Children [Doc. #16]. Also, on March 27, 2014, Petitioner filed the instant Motion [Doc. #11], requesting that the Court enter an order requiring Respondent to "pay the necessary expenses that Petitioner incurred, including court costs, legal fees, transportation costs, and accommodation costs related to the return of his minor children" pursuant to 42 U.S.C. 11607(b)(3) of ICARA. (Mot. for Order & J. Awarding Expenses [Doc. #11], at 1.) On April 10, 2014, Respondent filed a Brief in Opposition to Petitioner's Motion [Doc. #17] and, on April 16, 2014, Petitioner filed a Reply Brief [Doc. #20]. On April 24, 2014, this Court held a hearing on Petitioner's Motion where the Court advised the parties that it would award expenses in this case as it deems appropriate and necessary. The Court will now discuss Petitioner's instant Motion in turn.

II. DISCUSSION

With respect to attorneys' fees and expenses incurred in defense of rights granted under ICARA, 42 U.S.C. § 11607(b)(3) 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). Thus, Respondent has the burden of showing that it would be clearly inappropriate to grant Petitioner's request for attorneys' fees and expenses and any non-legal expenses, that were related to the return of the Children. Respondent's actions in wrongfully retaining the Children in the United States and denying Petitioner's custody rights caused Petitioner to incur considerable expense in the vindication of those rights. In cases similar to the instant case, courts have generally awarded attorneys' fees and non-legal expenses, related to the return of a child, to parties whose parental rights have been violated under the Hague Convention and ICARA. See e.g. Trudrung v. Trudrung, No. 1:10CV73, 2010 WL 2867593 (M.D. N.C. July 21, 2010); Neves v. Neves , 637 F.Supp.2d 322 (W.D. N.C. 2009); Wasniewski v. Grzelak-Johannsen , 549 F.Supp.2d 965 (N.D. Ohio 2008); Flynn v. Borders, No. 5:06-323-JMH , 2007 WL 862548 (E.D. Ky. Mar. 20, 2007); Friedrich v. Thompson , 1:99-CV-772, 1999 WL 33951234 (M.D. N.C. Nov. 26, 1999). This Court's decision to order the return of the Children to Petitioner signifies that Respondent's actions were wrongful.Moreover, the Court recognizes that ICARA, by providing for an award of attorneys' fees and expenses after a judgment of wrongful removal or retention of a child, contemplates the use of such awards as a deterrent to violations of the Convention. See 51 Fed. Reg. XXXXXX-XX, 10511. In light of this purpose, and after careful review of the parties' pleadings on this issue, the Court finds that Respondent has failed to establish that it would be clearly inappropriate for the Court to award attorneys' fees and expenses to Petitioner in this instance.[1] Therefore, the Court need only determine the reasonableness of the dollar amount requested by Petitioner for fees and expenses related to the return of the Children. Petitioner requests a total of $41, 938.57 in attorneys' fees and expenses and $7, 795.78 for other, non-legal expenses incurred by Petitioner in securing the return of the Children.[2] The Court will first address Petitioner's request for attorneys' fees and expenses and the Court will thereafter address Petitioner's request for non-legal expenses.

A. Attorneys' Fees and Expenses

Petitioner requests a total of $41, 938.57 in attorneys' fees and costs. Specifically, Petitioner requests (1) $31, 672 in attorneys' fees for the representation of Smith Moore Leatherwood LLP in Greensboro, North Carolina ("North Carolina Representation") in bringing the instant action and $400 for filing costs; (2) $7, 684.85 in attorneys' fees for the representation of Irwin Mitchell LLP in Leeds, England, United Kingdom ("Leeds Representation") for obtaining a Request for Return Application under the Hague Convention; (3) $1, 665.60 in attorney's fees for the representation of Mark Jarman in London, England United Kingdom for obtaining a Article 15 Declaration[3] from the High Court of Justice in London, England; and (4) $816.12 in court costs and issuance fees for the Article 15 Declaration from the High Court of Justice in London, England. The Court will address the reasonableness of these fees and expenses in turn.

It is well established that the "lodestar" approach is the proper method for determining reasonable attorneys' fees. Grissom v. The Mills Corp. , 549 F.3d 313, 320-21 (4th Cir. 2008); Trudrung, 2010 WL 2867593, at *2; Neves , 637 F.Supp.2d at 339-40; Wasniewski , 549 F.Supp.2d at 971 n.5; Flynn , 2007 WL 862548, at *2; Friedrich , 1999 WL 33951234; Distler, 26 F.Supp.2d at 727; Freier, 985 F.Supp. at 712; Berendsen, 938 F.Supp. at 738. Consistent with the general acceptance of the method, federal courts have applied the lodestar approach to cases where ICARA is at issue. Trudrung, 2010 WL 2867593, at *2; Neves , 637 F.Supp.2d at 339-40. The lodestar figure is determined by multiplying the number of reasonable hours expended times a reasonable rate. See Hensley v. Eckerhart , 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Grissom , 549 F.3d at 320-21; Rum Creek Coal Sales, Inc. v. Caperton , 31 F.3d 169, 174-75 (4th Cir. 1994). To determine the reasonable rate and reasonable number of hours to use in calculating reasonable attorneys' fees under the lodestar approach, the Court is guided by the twelve" Johnson "factors: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputations, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Rum Creek , 31 F.3d at 175; (citing Johnson v. Georgia Highway Express, Inc. , 488 F.2d 714 (5th Cir. 1974)). These "Johnson" factorsare to be considered as part of the Court's determination of the reasonable number of hours and the reasonable rate to be used in this case. See Grissom , 549 F.3d at 320-21. Therefore, in applying the lodestar analysis, the Court has the discretion to reduce the award requested by Petitioner. Hensley , 461 U.S. at 437. With this standard in mind, the Court will first determine whether the number of hours incurred by Petitioner's attorneys in this matter were reasonable.

Reasonableness of Number of Hours

To establish the number of hours reasonably expended, Petitioner must "submit evidence supporting the hours worked." Hensley , 461 U.S. at 433. The number of hours should be reduced to exclude hours that are "excessive, redundant, or otherwise unnecessary" in order to reflect the number of hours that would properly be billed to the client. See id. at 434, 76 L.Ed.2d at 51; Daly v. Hill , 790 F.2d 1071, 1079 (4th Cir. 1986); Neves , 637 F.Supp.2d at 340 (citing Wasniewski , 549 F.Supp.2d at 972). In the present case, Petitioner has submitted itemized billing records to establish the number of hours worked by his North Carolina Representation and his Leeds Representation in this case. (Pet. Br. Supp. Mot. for Order & J. Awarding Exps. [Doc. #14] at 13; Dawson Aff. [Doc. #12], Exs. E, F; Dildine Aff. [Doc. #13].) As ...


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