TRUDRUNG v. TRUDRUNG, No. 1:2010cv00073 - Document 17 (M.D.N.C. 2010)
Court Description: MEMORANDUM OPINION AND ORDER granting 11 Motion for Attorney Fees in the amount of $5,852.64 for legal expenses and $2,852.21 for non-legal expenses, for a total of $8,704.85 signed by JUDGE THOMAS D. SCHROEDER on 7/21/10. (Wilson, JoAnne)
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TRUDRUNG v. TRUDRUNG Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA HARRY TRUDRUNG ) ) ) ) ) ) ) ) ) Petitioner, v. MARION TRUDRUNG Respondent. 1:10CV73 MEMORANDUM OPINION AND ORDER THOMAS D. SCHROEDER, District Judge. This action is before the court on motion of Petitioner Harry Trudrung ( Petitioner ) for attorney s fees and expenses (Doc. 13) following this court s order to return his minor child, E.T., to Germany pursuant to the Convention on the Civil Aspects T.I.A.S. of International No. 11670 Child U.N.T.S. Abduction, 49 Oct. ( Convention ), 25, 1980, and the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. ( ICARA ). Respondent Marion Trudrung ( Respondent ) has not filed any response to Petitioner s request for attorney s fees and expenses. I. The motion is ripe for decision. BACKGROUND Petitioner, citizen of a United Germany, were Reinheim, Hessen, Germany. States married citizen, on and February Respondent, 1, 1993, a in They are the natural parents of the Dockets.Justia.com minor child, E.T., who was born in Germany. Petitioner and Respondent separated in March 2009. From January 2004 until late 2009, the parties, E.T., and his siblings all lived in Germany. On or about December 16, 2009, Respondent traveled to Greensboro, North Carolina, with E.T. for a two-week vacation. Rather than returning to Germany as planned, Respondent and E.T. remained in the United States, and E.T. enrolled at a local high school in January 2010. On January 27, 2010, Petitioner filed a verified petition, seeking return of E.T. to Germany. 2010, the court held a show (Doc. 1.) cause hearing On February 9, on the Verified Petition and conducted an in camera examination of E.T. based upon an agreement of the parties. On February 10, 2010, the court granted Petitioner s Verified Petition and ordered E.T. returned to Germany. Petitioner now (Doc. 9.) seeks an award of expenses, including attorney s fees, pursuant to 42 U.S.C. § 11607(b)(3). 11-12.) The motion includes affidavits of Petitioner and of Petitioner s counsel. Upon the court s request, Petitioner also filed a supplemental affidavit. II. (Docs. (Doc. 15.) ANALYSIS ICARA provides the following for recovery of attorney s fees and expenses incurred in defense of statutory rights: 2 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 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 respondent establishes that such order would be clearly inappropriate. 42 U.S.C. § 11607(b)(3). This provision is intended to restore the applicant to the financial position he or she would have been in had there been no removal or retention and to deter such conduct from International happening Child in Abduction the first Convention; place. Text Hague and Legal Analysis, 51 Fed. Reg. 10494-01, 10511 (Mar. 26, 1986). Based showing upon that the it statute, would attorney s fees and Respondent has failed Respondent s action be clearly expenses to caused Respondent to bears burden inappropriate Petitioner. respond the grant Here, however, Petitioner s to Petitioner to of motion. to incur considerable expenses in this case a case where the court ordered the return of signifying the child to Respondent s Petitioner actions as and to Germany, wrongful. thereby The court, therefore, 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. Thus, the court must now determine the reasonableness of the dollar amount requested by 3 Petitioner for attorney s fees and expenses related to the instant action. A. Attorney s Fees & Expenses Petitioner requests $5,852.64 in legal expenses incurred by Petitioner s counsel: $350.00 in court filing costs, $2.64 in research, and $5,500 as a flat fee for attorney s fees. The court finds the court filing costs and research costs reasonable and now turns to the flat fee. The lodestar approach is well established as the proper method for determining reasonable attorney s fees, and courts have applied the lodestar approach in cases involving ICARA. Neves v. Neves, 637 F. Supp. 2d 322, 339 (W.D.N.C. 2009) (listing various ICARA cases applying the lodestar method). The lodestar figure is determined by multiplying the number of hours reasonably expended by a reasonable rate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 174-75 (4th Cir. 1994). In evaluating whether requested attorney s fees are reasonable, the United States Court of Appeals for the Fourth Circuit has instructed district courts to be guided by the following factors: (1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the 4 outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys' fees awards in similar cases. Grissom v. The Mills Corp., 549 F.3d 313, 321 (4th Cir. 2008). In applying the lodestar analysis, the court, in its discretion, Hensley, 461 U.S. may reduce the award requested by Petitioner. at 433. 1. To Reasonableness of Number of Hours establish the number of hours reasonably expended, Petitioner must submit evidence supporting the hours worked. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The number of hours should exclude hours that are excessive, redundant, or otherwise unnecessary in order to arrive at the number of hours that would be properly billed to the client. In the affidavits present of (Docs. 11, 15.) Johnson-Parris Afi case, Petitioner Johnson-Parris, Esquire Id. at 434. has submitted the ( Johnson-Parris ). In a second affidavit (Doc. 15 ( Supp. Aff. )), details her efforts drafting and filing ten documents in this case, as well as coordinating Petitioner s arrival and court preparation, locating E.T. and Respondent in conjunction with the U.S. Marshals Service, obtaining service 5 upon Respondent after multiple failed attempts, research, and appearing for three hearings. conducting (Supp. Aff. ¶ 3.) All of Johnson-Parris s services were performed over a two-week period due to the expedited nature of the case, resulting in severe time limitations. (Id.) Johnson-Parris estimates she spent 35 hours for legal services in this case. addition, she estimates her paralegal spent In (Id.) approximately 15 hours providing support, including preparation of exhibits, a trial notebook, and expenditure receipts, and the handling of electronic filing and traditional service of documents. Thus, approximately 50 hours were expended for (Id.) services to Petitioner in this case. Child abduction cases under ICARA often present novel and complex legal issues not routinely handled by attorneys, 637 F. Supp. 2d at 343, and this case involved Neves, sufficient complexity because Respondent was not able to be served with the petition (because she avoided service) until after issuance of a take custody order by this court. After consideration of the level of difficulty presented in this case and careful review of the affidavits submitted by Petitioner s attorney, the court finds the amount of time reported justifiable and modest. 2. Reasonableness of Rate Once a reasonable number of hours has been determined, the court must determine a reasonable rate. 6 This determination is fact-intensive and is best guided by what attorneys earn from paying clients for similar services in similar circumstances. Rum Creek Coal Sales, Inc., 31 F.3d at 175. Johnson-Parris, who has been licensed to practice law since 2002, has handled family law cases involving child custody and abduction since 2006. Carolina since 2007. She has practiced in Greensboro, North (Doc. 11 at ¶ 2 ( Johnson-Parris Aff. ).) She also charges a flat fee for services rendered based on the complexity of the case, the time required for the case and the value of the services rendered. (Id. ¶ 3.) Further, she asserts familiarity with the rates charged by similarly situated attorneys, noting hourly rates of $175 to $250 for an attorney and $60 assuming to $75 that for the a low paralegal. end of (Supp. the Aff. ranges ¶ 4.) presented Even are reasonable, Trudrung s flat fee request of $5,500 is well below the amount of the lodestar calculation for 35 hours at $175 per hour and 15 hours at $60 per hour. In sum, the court concludes that an award of $5,852.64 in attorney s fees and legal expenses is reasonable and appropriate in this case. B. Non-legal Expenses Petitioner also requests an award of $3,805.30 based upon the following expenses: $2,624.03 for airfare; $714.49 for lodging; $286.96 for rental car expenses; $27.90 for gasoline; 7 $2.00 for parking; and $149.92 for food. Petitioner included receipts for these expenditures with his affidavit. (Doc. 11.) The court finds the expenses for transportation (rental car, gasoline, and parking) and food reasonable. The court finds the request regarding airfare unsupported in full and thus subject to reduction. to be The total of $2,624.03 is documented by receipts for (1) a round-trip ticket for Petitioner from February 2 until February 17, 2010 at $938.85 and (2) a one-way ticket each for Petitioner and E.T. to Germany on February 11, 2010 at $1,685.18. Based upon the documentation provided, Petitioner has not demonstrated that the return portion of the roundtrip ticket was non-refundable and thus ineligible for exchange so as to avoid additional charges. Consequently, the court will reimburse Petitioner for the roundtrip ticket and the full amount of E.T. s one-way ticket for a total of $1,781.44. Additionally, a portion of the lodging expenses have not been demonstrated as reasonable in light of the statute s language that the expenses related to the return of the child. See 42 U.S.C. § 11607(b); Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004) (acknowledging district court scrutinized claimed fees and expenses to determine necessity and affirming district court s award). Included in Petitioner s request are $110.50 for long-distance telephone charges. 8 Petitioner has not provided any evidence that these telephone costs related to the instant action. Thus, the court will deduct $110.50 from the lodging costs and finds the remaining $603.99 reasonable. In sum, the court finds $2,852.21 in non-legal expenses to be reasonable and necessary to Petitioner s efforts to have his child returned to Germany. III. CONCLUSION IT IS THEREFORE ORDERED that Petitioner s motion for attorney s fees and expenses (Doc. 11) is GRANTED in the amount of $5,852.64 for legal expenses and $2,852.21 for non-legal expenses, for a total of $8,704.85. /s/ Thomas D. Schroeder United States District Judge July 21, 2010 9
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