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Rath v. Marcoski

United States District Court, M.D. Florida, Tampa Division

January 17, 2018

JAN RATH, Petitioner,



         In this contentious Hague Convention action, the district court found that Veronika Marcoski wrongfully removed L.N.R. from the child's habitual residence in the Czech Republic and ordered L.N.R.'s return to the Czech Republic. The Eleventh Circuit affirmed. 2017 WL 6604247 (11th Cir. Dec. 27, 2017).

         The International Child Abduction Remedies Act, which implements the Hague Convention, permits a successful petitioner to recover “necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees . . . and transportation costs related to the return of the child” unless the respondent shows that an attorney's fee, costs, or expenses “would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). Petitioner Jan Rath moves (Docs. 124 and 135) for an attorney's fee of $106, 971.50, costs of $10, 005.96, and expenses of $34, 951.91. Magistrate Judge Porcelli recommends (Doc. 140) awarding $88, 122.50, $2, 048.75, and $18, 849.37, respectively.[1] Both parties object (Docs. 141 and 143) to the report and recommendation.


         1. Attorney's fee

         Although the Supreme Court explains that an attorney's-fee dispute “should not result in a second major litigation, ” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983), the parties devote more than a hundred pages to their quarrel about the attorney's fee, costs, and expenses. First, Marcoski argues that a purported “good-faith” belief in the lawfulness of L.N.R.'s removal renders an attorney's fee “clearly inappropriate” in this action. In fact, the record belies Marcoski's “good-faith” defense. For example, “the last-minute, circuitous nature of Marcoski's return [to the United States] suggests an intent to abscond with L.N.R.” (Doc. 118 at 5) And several of Marcoski's statements “confirm that she attempted to seek a more favorable resolution in a Florida state court after the couple's relations ended.” (Doc. 118 at 8) In this instance, an attorney's fee promotes the purposes of the Hague Convention: rapidly restoring the pre-removal status quo and deterring a parent from taking a child and crossing an international border in search of enlarged or exclusive custody. See Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995) (Arnold, J.) (explaining the purposes of the Hague Convention).[2]

         Second, Marcoski objects to the reasonableness of an hourly rate of $325 for Kelli Crabb and an hourly rate of $250 for Joseph Kenny. The district judge's familiarity with the Tampa market confirms that each rate is reasonable in this circumstance for an attorney of Crabb's and Kenny's respective experience and skill.

         Third, Marcoski argues that the magistrate judge excluded from the award too few “vague, block-billed, or duplicative” charges. Crabb and Kenny charged for 163.1 and 209.1 hours, respectively. (Docs. 124-2 and 135-1) As Marcoski observes, the billing records sometimes lack the detail required to determine the necessity of a charge. For example, Crabb and Kenny often billed for “drafting an-email” or “reading and responding to e-mail” (Doc. 124-2), but the record offers no clue about the e-mail's contents. In this circumstance, a 25% reduction of the time charged by Crabb and Kenny appears adequate to adjust for insufficiently documented charges. See Bivins v. Wrap It Up, Inc., 548 F.3d 1348 (11th Cir. 2008) (permitting an “across-the-board” reduction of the hours reasonably expended litigating the action). The magistrate judge recommends awarding a fee for 19.2 hours of the paralegal's time, and neither party objects to the recommendation, which appears sound.

         Fourth, Marcoski objects to compensating Rath's counsel for travel time from St. Petersburg to Tampa. A prevailing party ordinarily may not recover a fee for an attorney's travel time unless no local counsel can capably represent the party. Johnson v. Univ. College of Univ. Of Al. at Birmingham, 706 F.2d 1205, 1207-08 (11th Cir. 1983). Because Rath could have retained competent Tampa counsel, Rath cannot recover for the attorneys' commute between St. Petersburg and Tampa. Kenny and Crabb traveled to and from Tampa eight times (once for a motion hearing and seven times for the evidentiary hearing), and a round-trip drive from St. Petersburg to Tampa requires about seventy-five minutes. The time reasonably expended litigating the action warrants a deduction of ten hours for each attorney.

         Fifth, Rath argues that the magistrate judge erred in finding unnecessary the time expended on, and the costs of, deposing Marcoski and Marcoski's mother. Although the parties referred infrequently to the deposition testimony, the depositions of Marcoski and her mother - the principal witnesses for the respondent - undoubtedly were within the scope of reasonably thorough discovery and were reasonably necessary to the competent prosecution of this action.

         2. Costs and expenses

         Rath requests $10, 005.96 in costs, and the magistrate judge recommends awarding $2, 048.75. The magistrate judge excluded $4, 787.30 in costs attendant to the depositions of Marcoski and Marcoski's mother because “the depositions were not used in the evidentiary hearing or [to] support another dispositive motion.” (Doc. 140 at 15) But E.E.O.C. v. W&O, Inc., 213 F.3d 600, 621 (11th Cir. 2000), holds that a party need not “use a deposition at trial for [the deposition] to be taxable.” As stated above, the depositions of the respondent's principal witnesses were reasonably necessary to the prosecution of this action, and Rath may recover $4, 787.30 in costs for the depositions.

         The magistrate recommends awarding $1, 624.45 for copying. (Doc. 140 at 16) Marcoski objects and asserts that Rath fails to identify and to explain the necessity of the copies. To recover the cost of copying, a party must present “evidence regarding the documents copied including their use or intended use.” Cullens v. Ga. Dept. of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994). The bills permit identifying the use and the necessity of $209.40 in copies.[3] But Rath submits no evidence to show the necessity of the remaining $1, 415.05 in copying costs, [4] and the bills (which say “Copying - $.25 per page (5000 pages)” and “Color Copying”) lack detail sufficient to determine the necessity of the costs. (Doc. 124-2 at 30)

         Also, Rath requests $34, 951.91 in expenses, and the magistrate judge recommends awarding $18, 849.37, including $4, 338.42 in expenses for an interpreter. (Doc. 140 at 18) ...

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