Fridlund v. Fridlund, No. 5:2009cv00273 - Document 24 (E.D. Ky. 2009)

Court Description: MEMORANDUM OPINION & ORDER: (1) Petitioner's 22 MOTION for Attorney Fees is GRANTED IN PART & DENIED WITHOUT PREJUDICE IN PART; (2) Respondent is DIRECTED TO PAY $450.00 to Petitioner; (3) Petitioner has leave of Court to resubmit or rene w her Motion for Award of Atty's Fees & Costs, w/appropriate documentation of fees, costs, & expenses, by 10/30/09; (4) Clerk to SERVE a copy of this Opinion & Order on Respondent. Signed by Judge Joseph M. Hood on 10/19/2009.(RJD)cc: COR,FINANCE,RESPONDENT

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON HELENA ANNA CHRISTINA FRIDLUND, ) ) ) Petitioner, ) ) v. ) ) ) FRANCIS MATTHEW ) SPYCHAJ-FRIDLUND, ) ) ) Respondent. ) ** ** Civil Action No. 5:09-273-JMH MEMORANDUM OPINION AND ORDER ** ** ** This matter is before the Court on Petitioner s Motion for Award of Attorney s Fees and Costs [Record No. 22]. The time for any response or objections by Respondent has now expired, and no objections have been filed. See LR 7.1(c). Petitioner s motion is now ripe for decision. Petitioner requests an award of her reasonable attorneys fees and costs incurred in this matter, as well as the cost of the return of the child, MAF, who was the subject of the Petition to the Kingdom of Sweden, under 42 U.S.C. § 11607(b)(3) of the International Child Abduction Remedies Act ( ICARA ). 11607(b)(3) provides that: Any court ordering the return of a child pursuant to an action brought under section 4 [42 U.S.C. § 11603] shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court -1- Section 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. The purposes of awarding costs and fees under § 11607(b)(3) are (1) to restore the applicant to the financial position he or she would have been in had there been no removal or retention and (2) to deter such removal or retention. Abduction Convention; Text and Hague International Child Legal Analysis, 51 Fed. Reg. 10494-01, 10511 (Mar. 26, 1986). In this matter, the Court ordered the return of Petitioner s the child, request for MAF, fees on September and 8, expenses, as 2009, well and as transportation costs, is appropriate insofar as she has established with evidence the sums that she now requests. When deciding motions for attorney s fees in ICARA cases, several courts have employed the lodestar method or a similar analysis to calculate reasonable attorney s fees. See, e.g., Distler v. Distler, 26 F. Supp. 2d 723, 727 (D.N.J. 1998); Freier v. Freier, 985 F. Supp. 710, 712 (E.D. Mich. 1997); Berendsen v. Nichols, 938 F. Supp. 737, 739 (D. Kan. 1996). But see Antunez-Fernandes v. Connors-Fernandes, 259 F. Supp. 2d 800, 817 (N.D. Iowa 2003) (awarding legal fees without analyzing the reasonableness of those fees). A court determines the lodestar amount by multiplying the -2- reasonable number of hours billed by a reasonable billing rate. Reed v. Rhodes, 179 F.3d 453, 471-72 (6th Cir. 1999). Reasonable attorney s fees are based on the market rates for the services rendered. reasonable Hadix v. Johnson, 65 F.3d 532, 536 (6th Cir. 1995). rate will attract qualified and without producing a windfall to the attorneys. competent A counsel Northcross v. Bd. of Educ. of Memphis City Sch., 611 F.2d 624, 638 (6th Cir. 1979). Employing the Johnson factors, a court can adjust the total lodestar amount.1 Further, courts have allowed for reimbursement for various types of expenses incurred by petitioners in ICARA cases. expenses include but are not limited to the following: Such costs of telephone calls, facsimile transmissions, witness fees, certified mail and postage, service fees, Berendsen, 938 F. Supp. at 739. 1 copying, and filing fees. In this case, Petitioner requests The Johnson factors are the following: (1) the time and labor required by a given case; (2) the novelty and difficulty of the questions presented; (3) the skill needed 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) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, 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. Reed, 179 F.3d at 471 n.3 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)). -3- reimbursement for the costs of filing her petition and serving process, as well as other costs associated with mailing. In theory, these expenses qualify as well as those incurred for the transportation of the child, which is explicitly provided for in 42 U.S.C. § 11607(b)(3) as necessary expenses under ICARA, but only insofar as they can be substantiated and evaluated with regard to their necessity in this matter. Here, Petitioner has submitted evidence demonstrating that she has incurred costs of $350.00 for filing her Petition and $100.00 for service of process on Respondent. [See Record No. 22-3.] She has not, however, submitted the type of detailed evidence necessary to support her request for $7,804.00 in attorney s fees (hourly rates charged by counsel, detailed accounts of time spent working on this matter, etc.) or the costs of using courier services to send unidentified items to Respondent. Nor has she submitted any evidence of the sum she claims to have incurred for transportation costs related to the return of the child, such as receipts, invoices, or tickets, notwithstanding her assertion in her Motion that she would do so. [Record No. 22 at 2.] As the evidence supports a finding that Petitioner incurred the cost of filing the Petition and serving Respondent, for a total of $450, this sum shall be awarded. In the absence of evidence supporting Petitioner s averment that she incurred reasonable attorneys fees and other costs, including those related to the -4- transport of MAF, in this matter, her Motion will be denied at this time with leave for Petitioner to resubmit the request with appropriate documentation. Accordingly, IT IS ORDERED: (1) that the Petitioner s Motion for Award of Attorney s Fees and Costs [Record No. 22] shall be, and the same hereby is, GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART; (2) TO PAY that Respondent shall be and the same hereby is, DIRECTED a total of $450.00 to Petitioner in satisfaction of Petitioner s costs as set forth above; (3) that Petitioner has leave of Court to resubmit or renew her Motion for Award of Attorney s Fees and Costs, with appropriate documentation of fees, costs, and expenses, on or before October 30, 2009; (4) and that the Clerk shall SERVE a copy of this Opinion and Order on Respondent at the following address: 633 Big Hill Avenue, Bldg. 0 Apartment 115 Richmond, KY 40475 This the 19th day of October, 2009. -5-

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