USA – FEDERAL – FRIEDRICH – 1999(2) FRIEDRICH v THOMPSON (FRIEDRICH): Request for attorneys fees. Same case as above.
Friedrich v Thompson (Middle Dist 1999)Civ No 1: 99 CV 00772 (Attorney Fees)
16 Interntional Abduction [USA 1999]
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
EMANUEL FRIEDRICH, )
Petitioner, )
)
v. ) 1:99CV00772
)
JEANA MICHELLE THOMPSON, )
Respondent. )
ORDER AND JUDGEMNT
FOR PETITIONER’S ATTORNEY’S FEES
Beaty, District Judge.
001 This matter is before the Court on Petitioner Emanuel
Friedrich’s (“Petitioner”) Motion for Return of Child to
Petitioner and Attorney’s Fees [Document #2], filed 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 [hereinafter the Hague Convention], and the
provisions of the International Child Abduction Remedies
Act, 42 U.S.C. 11601 (“ICARA”). In a previous ruling in
open court, this Court ordered the return of the child to
Petitioner, but withheld decision on the issue of attorney’s
fees pending the submission of pleadings on that issue by
Petitioner and Respondent Jeana Michelle Thompson
(“Respondent”). Respondent has since filed a Brief in
Support of the Denial of the Payment of Attorney’s Fees and
Costs by the Respondent [Document #12]. Petitioner has filed
a Reply Brief in Support of Application for Payment of
Attorney’s Fees and Costs by Respondent [Document #14]. For
the reasons enumerated in the MEMORANDUM OPINION filed
contemporaneously herewith, Petitioner’s Motion for
attorney’s fees and necessary expenses is GRANTED, with the
exception that the requested attorney’s fees is reduced to
$8,352.50.
002 IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that
Respondent is to pay to Petitioner the total sum of
$11,498.50, reflecting attorney’s fees in the amount of
$8,352.50 and necessary expenses in the amount of $3,146.00.
This 26th day of November, 1999.
/s/ James A Beaty
______________________________
United States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
EMANUEL FRIEDRICH, )
Petitioner, )
)
v. ) 1:99CV00772
)
JEANA MICHELLE THOMPSON, )
Respondent. )
MEMORANDUM OPINION
Beaty, District Judge.
I. INTRODUCTION
003 This matter is before the Court on Petitioner Emanuel
Friedrich’s (“Petitioner”) Motion for Return of Child to
Petitioner and Attorney’s Fees [Document #2], filed 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 [hereinafter the Hague Convention], and the
provisions of the International Child Abduction Remedies
Act, 42 U.S.C. 11601 (“ICARA”). In a previous ruling in
open court, this Court ordered the return of the child to
Petitioner, but withheld decision on the issue of attorney’s
fees pending the submission of pleadings on that issue by
Petitioner and Respondent Jeana Michelle Thompson
(“Respondent”). Respondent has since filed a Brief in
Support of the Denial of the Payment of Attorney’s Fees and
Costs by the Respondent [Document # 12] . Petitioner has
filed a Reply Brief in Support of Application for Payment of
Attorney’s Fees and Costs by Respondent [Document #14] . For
the reasons stated herein, Petitioner’s motion for
attorney’s fees pursuant to ICARA is GRANTED, with the
exception that the requested attorney’s fees will be reduced
to a reasonable sum as articulated herein.
II. FACTUAL AND PROCEDURAL BACKGROUND
004 Petitioner and Respondent have litigated the custody
of their son Thomas David Friedrich (“the child”) on two
occasions prior to the litigation that has taken place
before this Court. Friedrich v. Friedrich, 983 F.2d 1396
(6th Cir. 1993) (“Friedrich I”); Friedrich v. Friedrich, 78
F.3d 1060 (6th Cir. 1996) (“Friedrich II”). As a result of
the Sixth Circuit’s decision to enforce a ruling of the
German Family Court awarding sole custody to Petitioner,
Petitioner has exercised custody of the child in Bad
Aibling, Germany since 1996. Although the order of the
German court made no mention of visitation rights for
Respondent, Petitioner verbally agreed to allow the child to
visit with his mother on three occasions. The first visit
took place in the summer of 1997 when Respondent came to Bad
Aibling, Germany for a period of two weeks. The second visit
was in 1998 when the child was permitted to visit for a
month with Respondent at her home in the state of Ohio. Both
visits took place without incident or concern for the
well-being of the child. The third visit, which is the
subject of this matter, began when Petitioner placed his son
on a flight from Germany to Winston-Salem, North Carolina
for a visit that was to last from July 31, 1999 until
September 4, 1999. During this visit, Respondent filed civil
custody action in Forsyth County, North Carolina, District
Court Division 99 CVD 6586 on September 3, 1999, and thereby
obtained temporary custody of the child. That order
prohibited Petitioner from returning the child to Germany
without the consent of the State District Court.
005 After receiving a fax copy of the custody order on
September 6, 1999, Petitioner filed a petition for the
return of the child pursuant to the Hague Convention with
the Central Authority of the Federal Republic of Germany on
September 8, 1999. This petition came to the attention of
the United States Department of State, which serves as the
Office of Children’s Issues, and performs the function of
the Central Authority of the United States pursuant to the
Hague Convention. Hague Convention, art. 6, T.I.A.S. No.
11670, at 5, 1343 U.N.T.S. 49, 99. In a letter dated
September 10, 1999, the Central Authority of the United
States notified this Court of Petitioner’s pending
application and further advised the Court of its obligations
under the Hague Convention. On September 9, 1999, Petitioner
filed the present action before the Court – the
aforementioned Motion for Return of Child to Petitioner and
Attorney’s Fees – in accordance with the Hague Convention.
Petitioner also moved for an expedited hearing and requested
that the Court, pursuant to Article 16 of the Hague
Convention, stay the custody action filed by Respondent in
the State District Court pending the determination of
Petitioner’s application for return of the child to his
custody. Hague Convention, art. 16, T.I.A.S. No. 11670, at
9, 1343 U.N.T.S. 49, 101.
006 After due consideration of the facts alleged in the
petition, this Court scheduled a hearing for Monday,
September 13, 1999 at 9 a.m. in order to determine whether a
stay should be entered with respect to the matter filed in
State District Court and for determination, if necessary, of
Petitioner’s application filed pursuant to the Hague
Convention. The Clerk of Court notified counsels for
Petitioner and Respondent of the hearing set by this Court.
Prior to the opening of the hearing, Respondent filed a
response to Petitioner’s application. Respondent’s response
included a copy of the motion filed by Respondent in the
State District Court for custody and a signed copy of the
order of the State District Court judge granting temporary
custody to Respondent. As a result of the parties’ pleadings
and the hearings, which included the presentation of
witnesses and an in camera interview with the child to
determine whether he faced a grave risk of harm upon
returning to Germany, the Court ordered that the decision of
the State District Court be stayed. The Court further
ordered that the minor child be returned forthwith to
Petitioner’s custody in the Federal Republic of Germany.
Though Petitioner requested that the Court award attorney’s
fees, the Court did not make a ruling on that issue, instead
giving Respondent ten days to submit a response and
affidavits on the matter. Respondent has since submitted a
response and affidavits on the issue, and Petitioner has
filed a reply. The Court will now consider the parties’
contentions with respect to Petitioner’s request for
attorney’s fees and necessary expenses.
III. DISCUSSION
007 With respect to attorney’s 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).
008 Thus, in this instance, Respondent has the burden of
showing that it would be clearly inappropriate to grant
attorney’s fees and expenses to Petitioner. Respondent’s
actions in 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 generally award attorney’s fees to parties whose
parental rights have been violated. See e.g. Distler v.
Distler, 26 F.Supp.2d 723 (D.N.J. 1998); Freier v. Freier,
985 F.Supp. 710 (E.D.Mich. 1997). This Court’s decision to
order the return of the child to Petitioner signifies that
Respondent’s actions were wrongful. Moreover, the Court
recognizes that ICARA, by providing for an award of
attorney’s 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. 10493, 10511 (App. C). 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 attorney’s fees and expenses to Petitioner in
this instance. Therefore, the Court need only determine the
reasonableness of the dollar amount requested by Petitioner
for attorney’s fees and expenses related to the present
action. Petitioner requests a total of $14,443.40 in
attorney’s fees and $ 3,146.00 for other expenses incurred
by Petitioner in securing the return of the child. This
Court finds that the non-legal expenses, which Petitioner
attributes to the cost of airline tickets for the child and
himself, the translation of documents from German to
English, court costs, and lodging while in the United
States, are reasonable. (Pet. Reply Supp. App. Attorney’s
Fees, Ex. H.) Accordingly, the Court turns to the question
of the reasonableness of the attorney’s fees sought by
Plaintiff.
A. The Lodestar Approach
009 It is well established that the “lodestar” approach is
the proper method for determining reasonable attorney’s
fees. City of Burlington v. Dague, 505 U.S. 557, 557, 112
S.Ct. 2638, 2639 (1992); Clinchfield Coal Co. v. Harris, 149
F.3d 307, 309 (4th Cir. 1998). Consistent with the general
acceptance of the method, federal courts have applied the
lodestar approach to cases where ICARA is at issue. Distler,
26 F.Supp.2d at 727.; Freier, 985 F.Supp. at 712. 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, 76 L. Ed. 2d 40, 50
(1983); 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 the
lodestar, 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” factors are 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 Daly v.
Hill, 790 F.2d 1071, 1078 (4th Cir. 1986). FN1 Therefore,
in applying the lodestar analysis, the Court has the
discretion to reduce the award requested by Petitioner.
Hensley v. Eckerhart, 461 U.S. at 437, 103 S.Ct. at 1941.
B. Reasonableness of Number of Hours
010 To establish the number of hours reasonably expended,
Petitioner must “submit evidence supporting the hours
worked.” Hensley, 461 U.S. at 433, 76 L. Ed. 2d at 50. 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, 790
F.2d at 1079 (4th Cir. 1986). In the present case,
Petitioner has submitted somewhat itemized billing records
to establish the number of hours worked by the two attorneys
that handled the case. (Pet. Reply Supp. App. Attorney’s
Fees, Ex. B-C.) Attorney Marilyn Feuchs-Marker reports 49.1
hours of work. Attorney Lyn K. Broom reports 23.9 hours of
work. Respondent challenges as unreasonable Petitioner’s use
of two attorneys to litigate this case, and the number of
hours reported by the attorneys. Respondent supports this
challenge by arguing that the case was relatively ordinary
and routine, and thus did not require two attorneys or an
unusual expenditure of time.
011 After consideration of the level of difficulty
presented by this case, and carefiul review of the
affidavits submitted by Petitioner’s attorneys detailing the
nature of the work done on the case, the Court finds that
the amount of time reported by Petitioner’s attorneys is not
totally justifiable. With respect to a consideration of the
level of diffculty of the case as one of the Johnson
factors, the Court notes that, prior to the present action,
the parties involved in this action litigated this same
issue twice before the Sixth Circuit Court of Appeals. As a
result, Petitioner’s attorneys had at their disposal two
opinions applying the law to these very facts. In preparing
the arguments presented before this Court, Petitioner’s
attorneys had only to rely on those precedents.
Consequently, the process of arguing the legal requirements
of ICARA and the presentation of one witness in a hearing
before this Court did not present legal tasks of novel
difficulty. Given the legal history of this case and the
recurrent fact pattern involving similar actions by
Respondent, the Court finds that special skills were not
required of the attorneys in order to prosecute this matter.
In comparing the relatively moderate level of difficulty
presented by this case to affdavits submitted by
Petitioner’s attorneys detailing the tasks performed in the
case, the Court finds that the number of hours reported by
Petitioner’s attorneys is excessive and duplicative in
certain areas. In particular, the Court notes duplication of
tasks in the preparation of Petitioner’s pleadings and in
the choice of Petitioner’s counsel to employ two attorneys
in representing Petitioner in hearings before this Court.
012 First, with respect to the hours reported by both
attorneys for time spent on preparation of Petitioner’s
pleadings, the Court notes that neither attorney gives a
detailed account of the precise hours devoted to that task.
Attorney Feuchs-Marker merely includes a reference to
“draft[ing] pleadings and research” with telephone
conferences, drafting letters to opposing counsel, various
telephone conferences with opposing counsel, and work
performed in preparation for trial. A total of 23.9 hours is
reported for these combined tasks. In similar fashion,
Attorney Broom’s account of the time she spent on this case
also combines the tasks of “review[ing] and revis[ing]
drafts” of the pleadings with other tasks unrelated ,to the
pleadings. (Pet. Reply Supp. App. Attorney’s Fees at Ex. B.)
However, she reports a total of 17.3 hours, during which she
performed some work on the pleadings. (Id. at Ex. C.) As a
result of this lack of specificity, it is not possible for
the Court to isolate the exact number of hours both
attorneys spent on preparation of Petitioner’s pleadings or
to determine why the efforts of both attorneys was necessary
given the facts of this case. It is apparent to the Court,
however, that both attorneys are attributing a considerable
number of billable hours to the research and writing
associated with the preparation of pleadings, which of
necessity results in a duplication of hours.
013 Second, the Court notes that both Attorneys
Feuchs-Marks and Broom appeared before the Court in a
hearing to determine the issues of jurisdiction and
custodial rights under ICARA. Attorney Feuchs-Marker reports
9 hours spent in the hearings before the Court. Attorney
Broom combines her time spent in hearings before the Court
with unrelated tasks, thereby reporting 10.6 hours which
includes an unspecified amount of time for her presence in
Court. (Id. at Ex. C.) As with the number of hours reported
by the attorneys in connection with the preparation of
Petitioner’s pleadings, it is difficult for the Court to
identify the precise number of hours spent by both attorneys
in the hearings that were conducted before this Court.
However, it is clear that both attorneys are attributing a
considerable number of hours to the time spent in the
hearings. Petitioner attempts to justify this overlap by
arguing that the presence of both attorneys was required in
court because of their preparation based on their respective
expertise in domestic and international family law. (Pet.
Reply Supp. App. Attorney’s Fees at 6.) ` However, this
Court finds that Attorney Feuchs-Marker’s election to have
an additional attorney present in court was more for
convenience rather than a choice necessitated by the
complexity of the case. Therefore, the Court finds the hours
reported by both attorneys for time spent in hearings before
the Court to be duplicative.
Where a district court finds a duplication in the hours
reported by the attorney of the party requesting attorney’s
fees, the court has discretion to exclude from the
calculation of attorney’s fees hours that were not
“reasonably expended.” Hensley v. Eckerhart, 461 U.S. 424,
433, 76 L. Ed. 2d 40, 50 (1983). Therefore, the Court will
reduce the number of hours reported by Attorneys
Feuchs-Marker and Broom by 5 hours and 10 hours
respectively.
Footnotes
————————-
1. While Respondent urges the Court to consider
Respondent’s limited financial resources in its
determination of the reasonableness of attorney’s fees
in this case, the Court notes that the lodestar
approach as articulated by the Fourth Circuit does not
involve such a consideration. Moreover, if the Court
were to consider Respondent’s limited resources, it
would only be equitable for the Court to consider
Petitioner’s resources, which appear to be limited as
well. In Petitioner’s affidavit detailing the expenses
he incurred in his effort to recover custody of his
son, he reports having “modest means.” He is employed
as a bar manager on a U.S. military base in Bad
Aibling, Germany, and reports receiving no child
support from Respondent. (Pet. Reply Supp. App.
Attorney’s Fees, Ex. H.) Therefore, the Court will
adhere strictly to the factors provided by the
lodestar approach.