Radu v. Shon, No. 4:2020cv00246 - Document 46 (D. Ariz. 2021)
Court Description: ORDER denying 30 Motion for Attorney Fees. Signed by Judge Rosemary Marquez on 3/19/2021. (See attached Order for complete details) (DLC)
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Radu v. Shon Doc. 46 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Bogdan Radu, Petitioner, 10 11 v. 12 Persephone Johnson Shon, 13 Respondent. No. CV-20-00246-TUC-RM ORDER 14 15 Pending before the Court is Petitioner Bogdan Radu’s Motion for Attorney’s Fees 16 and Costs. (Doc. 30.) Respondent Persephone Johnson Shon filed a Response (Doc. 39), 17 and Petitioner filed a Reply (Doc. 42). 18 Attorney’s Fees will be denied. For the following reasons, the Motion for 19 I. Background 20 On June 8, 2020, Petitioner filed a Verified Petition for Return of Children to 21 Germany (“Petition”) (Doc. 1), brought pursuant to the Hague Convention on the Civil 22 Aspects of International Child Abduction (“the Convention”) and its implementing 23 legislation, the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 24 9001, et seq. (formerly 42 U.S.C. § 11601, et seq.). Respondent filed an Answer to the 25 Petition. (Doc. 12.) The Court held an evidentiary hearing on July 29, 2020 and August 26 26-27, 2020. (Docs. 15, 21, 22.) On September 17, 2020, the Court granted the Petition 27 but ordered the return of minor children O.S.R. and M.S.R. to Germany in the temporary 28 custody of Respondent in order to mitigate a grave risk of psychological harm to the Dockets.Justia.com 1 children. (Doc. 26.) In finding a grave risk of psychological harm, the Court noted that 2 the evidence presented at the evidentiary hearing supports a finding that Petitioner had an 3 “explosive temper” and “behaved in ways that could be characterized as psychologically 4 or emotionally abusive,” including yelling at Respondent and the children and using 5 “inappropriate, degrading, and/or derogatory language.” (Id. at 5.) The Court also 6 discussed evidence that Petitioner once slapped O.S.R. and that he threw objects and 7 banged his fists on tables and/or doors when angry. (Id.) 8 Respondent appealed the Court’s September 17, 2020 Order (Doc. 36), and this 9 Court subsequently stayed the Order pending resolution of Respondent’s appeal (Doc. 10 41).1 Motion for Attorney’s Fees and Costs 11 II. 12 Petitioner requests attorney’s fees totaling $32,578.36, including $20,400.00 for 13 attorney Ann Haralambie, $6,515.00 for attorney Lisa McNorton, and $5,663.36 14 (€4,840.48) for attorney Monica Hansen. (Doc. 30.) In addition, Petitioner requests 15 $58.50 in non-taxable costs for the expense incurred in obtaining an official translation of 16 German documents submitted as part of this case. (Id.) Petitioner argues that he is 17 entitled to an award of fees and costs pursuant to 22 U.S.C. § 9007; that the requested 18 award is reasonable; and that it is appropriate to award fees for the work of pro bono 19 attorney McNorton and foreign counsel Hansen. (Doc. 31.) In support of his requested 20 fee award, Petitioner submits the retainer agreements of attorneys Haralambie and 21 Hansen (id. at 12-14, 16-18), billing statements and affidavits from attorneys Haralambie, 22 McNorton, and Hansen (id. at 20-33, 35-38, 40-50, 53-55, 69-71, 73-74), and the resume 23 of attorney Haralambie (id. at 57-67). 24 Respondent asks the Court to deny or drastically reduce the requested award. 25 (Doc. 39.) Respondent argues that the requested award is “clearly inappropriate, unjust 26 and inequitable” because (1) the award would interfere with Respondent’s ability to care 27 1 28 The filing of a notice of appeal from a decision on the merits does not divest a district court of jurisdiction to decide a motion for attorney’s fees. Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 957 (9th Cir. 1983). -2- 1 for O.S.R. and M.S.R., given her limited financial means; (2) Petitioner has provided 2 little to no financial support for O.S.R. and M.S.R. in years; and (3) the risk of future 3 abuse from Petitioner “would be magnified should Respondent become financially 4 indebted” to him. 5 question” as to whether Petitioner truly prevailed in this action (id. at 15), and that the 6 claimed fees are “startlingly high considering the relatively straightforward nature of this 7 proceeding and how quickly it was resolved” (id. at 2; see also id. at 14-15, 23-24). (Doc. 39 at 1-2, 6-14.) Respondent also argues that there is “some 8 A. 9 Article 26 of the Convention provides that, upon ordering the return of a child, the 10 Court “may, where appropriate, direct the person who removed or retained the child . . . 11 to pay necessary expenses incurred by or on behalf of the applicant . . . .” Similarly, 12 ICARA provides that a court ordering the return of a child under the Convention “shall 13 order the respondent to pay necessary expenses incurred by the petitioner, including . . . 14 legal fees . . . unless the respondent establishes that such order would be clearly 15 inappropriate.” 22 U.S.C. § 9007(b)(3). The fact that a petitioner’s lawyers provided 16 services pro bono does not make a fee award inappropriate. Cuellar v. Joyce, 603 F.3d 17 1142, 1143 (9th Cir. 2010). Courts are divided on whether a petitioner may recover fees 18 incurred by a foreign attorney who was not an attorney of record in the case at hand. 19 Compare Freier v. Freier, 985 F. Supp. 710, 713-14 (E.D. Mich. 1997) (declining to 20 award fees and costs incurred by a foreign attorney who did not represent the petitioner in 21 the action but wrote a letter concerning Israeli law which was submitted to the court), 22 with Distler v. Distler, 26 F. Supp. 2d 723, 728 (D.N.J. 1998) (awarding fees to foreign 23 attorney who advised the petitioner on her rights under the Convention, helped her retain 24 counsel in the United States, prepared a legal opinion, and assembled affidavits for 25 potential use in the case). Applicable Law 26 In determining whether an award of fees would be “clearly inappropriate,” courts 27 consider the reasonableness of the respondent’s basis for removing the children. See 28 Ozaltin v. Ozaltin, 708 F.3d 355, 375-78 (2d Cir. 2013) (finding award should be reduced -3- 1 because respondent had a “reasonable basis for thinking that she could remove the 2 children”); Mendoza v. Silva, 987 F. Supp. 2d 910, 916-17 (N.D. Iowa 2014) (denying 3 fee award in part because case was “very close” on the merits). Courts also consider the 4 financial circumstances of the respondent and whether an award of fees would interfere 5 with the respondent’s ability to care for the minor children. See Whallon v. Lynn, 356 6 F.3d 138, 140 (1st Cir. 2004) (“preserving the ability of a respondent to care for her 7 children is an important factor to consider”); Rydder v. Rydder, 49 F.3d 369, 373-74 (8th 8 Cir. 1995) (reducing award of fees and costs in light of the respondent’s “straitened 9 financial circumstances”); see also Mendoza, 987 F. Supp. 2d at 917 (declining to award 10 attorney’s fees where an award would interfere with the respondent’s ability to provide 11 support to children given the respondent’s financial circumstances); Rehder v. Rehder, 12 No. C14–1242RAJ, 2015 WL 4624030, at *4 (W.D. Wa. Aug. 3, 2015) (same); Lyon v. 13 Moreland-Lyon, No. 12-2176-JTM, 2012 WL 5384558, at *2-3 (D. Kan. Nov. 1, 2012) 14 (same). 15 neglected the children or been physical or mentally abusive. See Silverman v. Silverman, 16 No. 00-2274 JRT, 2004 WL 2066778, at *4 (D. Minn. Aug. 26, 2004). Courts in the 17 District of Arizona have declined to award attorneys’ fees based on the limited financial 18 means of the respondent and the abuse and financial neglect of the petitioner. See von 19 Meer v. Hoselton, No. CV-18-00542-PHX-JJT (D. Ariz. Mar. 14, 2019) (declining to 20 award fees given the respondent’s limited financial means); Aguilera v. De Lara, No. 21 CV-14-01209-PHX-DGC (D. Ariz. Aug. 25, 2014) (declining to award fees given the 22 respondent’s limited financial means, the petitioner’s occasional violent behavior, and the 23 petitioner’s failure to provide regular financial support to minor child). Furthermore, courts consider whether the prevailing party has financially 24 B. 25 The Court finds that an award of attorney’s fees under 22 U.S.C. § 9007(b)(3) 26 would be “clearly inappropriate” for several reasons. As an initial matter, the Court notes 27 that, although Petitioner is the prevailing party in this action, his success was only partial. 28 Respondent prevailed in establishing by clear and convincing evidence that, due to Discussion -4- 1 Petitioner’s history of abusive behavior, returning O.S.R. and M.S.R. to Germany in 2 Petitioner’s custody would pose a grave risk of psychological harm under Article 13(b) of 3 the Convention; the Court granted the Petition and ordered the children’s return only 4 because the grave risk of psychological harm could be remedied by requiring that the 5 children be returned in the temporary custody of Respondent. Petitioner is eligible for a 6 fee award because the Court ordered the children’s return, but the propriety of a large 7 award is questionable given that Respondent prevailed on an important issue in this case. 8 See Ozaltin, 708 F.3d 355 at 375-78; Mendoza, 987 F. Supp. 2d at 916-17. 9 More importantly, an award of fees could interfere with Respondent’s ability to 10 care for O.S.R. and M.S.R., given her limited financial means. Respondent is the primary 11 caregiver of the children, and she avers that she earns only $14.30 per hour and has been 12 restricted in her capacity to work due to the COVID-19 pandemic. (Doc. 39-1 at 2.) 13 Furthermore, she expects to incur thousands of dollars in expenses returning the children 14 to Germany,2 and she does not expect to be able to obtain employment in that country, 15 given the lapse of her German resident status and her prior inability to find employment 16 there. (Id. at 3-4.) Petitioner argues in reply that a respondent’s limited financial means 17 should not warrant a denial of fees (Doc. 42 at 2), but his argument is belayed by courts’ 18 routine consideration of a respondent’s financial circumstances in evaluating the 19 propriety of a fee award under 22 U.S.C. § 9007. See, e.g., Rydder, 49 F.3d at 373-74; 20 Lyon, 2012 WL 5384558, at *2-3; see also Silverman, 2004 WL 2066778, at *4 (“The 21 ability to care for dependents is well-established as an important consideration in awards 22 of fees and costs in Hague Convention cases.”).3 23 Petitioner urges the Court to disregard Respondent’s averments concerning the anticipated costs of returning the children to Germany because those costs were not addressed at the evidentiary hearing held on July 29, 2020 and August 26-27, 2020. (Doc. 42 at 3-4.) However, Petitioner cites no legal authority to support his position that it is improper for this Court to consider averments made in a sworn affidavit. 3 Petitioner also argues that that there is no reason to believe that an award of fees would impair Respondent’s ability to care for O.S.R. and M.S.R., given Respondent’s parents’ history of financially assisting her and the children. (Doc. 42 at 4.) But Petitioner does not cite any case which analyzed the financial resources of a respondent’s family members, versus the financial resources of the respondent herself, in determining whether a fee award was clearly inappropriate under 22 U.S.C. § 9007. Furthermore, there is insufficient record evidence concerning whether Respondent’s parents will be willing and 24 25 26 27 28 2 -5- 1 Petitioner’s financial neglect of the minor children further warrants the denial of a 2 fee award. See, e.g., Silverman, 2004 WL 2066778, at *4. Respondent avers that 3 Petitioner has not provided financial support in four years. (Doc. 39-1 at 3.) Petitioner 4 urges the Court to disregard that averment because child support payments were not 5 addressed at the evidentiary hearing held on July 29, 2020 and August 26-27, 2020. 6 (Doc. 42 at 3-4.) 7 improper for this Court to consider the averments in Respondent’s sworn affidavit. 8 Petitioner could have submitted a controverting affidavit but failed to do so. However, Petitioner cites no legal authority indicating that it is 9 Finally, Petitioner’s history of psychologically and emotionally abusive behavior 10 also supports the Court’s conclusion that an award of fees would be clearly inappropriate. 11 The legal costs in this case could have been reduced or avoided entirely if not for the 12 enmity between Petitioner and Respondent, and Petitioner bears the greatest 13 responsibility for that enmity given his history of abusive behavior. See Silverman, 2004 14 WL 2066778, at *4 (considering which party is primarily responsible for the parties’ 15 enmity where that enmity was “in large part responsible for the legal costs” in the case) 16 (internal quotation marks omitted). 17 Because the Court finds that an award of fees would be clearly inappropriate in 18 this case, it does not reach the parties’ arguments concerning the reasonableness of 19 Petitioner’s requested fee award or the propriety of awarding fees for the work of pro 20 bono and/or foreign counsel. 21 .... 22 .... 23 .... 24 .... 25 .... 26 .... 27 .... 28 able to continue to assist her and the children financially in the future. -6- 1 2 3 IT IS ORDERED that Petitioner’s Motion for Attorney’s Fees and Costs (Doc. 30) is denied. Dated this 19th day of March, 2021. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-
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