United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY, UNITED STATES DISTRICT JUDGE.
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.
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. Both parties object (Docs. 141 and 143) to
the report and recommendation.
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
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.
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.
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.
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.
Costs and expenses
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.
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. But Rath submits no evidence to show the
necessity of the remaining $1, 415.05 in copying costs,
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)
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) ...