Rath v. Marcoski

Middle District of Florida, flmd-8:2016-cv-02016

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5 PageID 3648 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION IN RE: THE MATTER OF: JAN RATH, Petitioner/Father, and CASE NO.: 8:16-CV-02016-SDM-AEP VERONIKA MARCOSKI, Respondent/Mother. _________________________________/ PETITIONER'S MOTION FOR APPELLATE ATTORNEYS FEES AND INCORPORATED MEMORANDUM OF LAW The Petitioner/Father, Jan Rath ("Petitioner"), by and through his undersigned attorneys, and pursuant to 22 U.S.C. § 9007(b)(3), 11th Cir. R. 39-2(d) and the Orders from the Eleventh Circuit Court of Appeals entered dated November 20, 2018 [D.E. 169], hereby moves this Court for an award of appellate attorneys' fees against Respondent/Mother, Veronika Marcoski ("Respondent"), and in support thereof states as follows: Background Facts This Court entered its Final Judgment on the merits of the parties' dispute, on December 13, 2016, determining Respondent had wrongfully removed L.N.R. from the Czech Republic and ordered the child be returned. (D.E. 119). On appeal ("Rath I"), the Eleventh Circuit affirmed this Court's determination. (D.E. 146). Respondent thereafter filed a Petition for Writ of Certiorari to the United States Supreme Court which was later denied on October 1, 2018. (D.E. 168) 1 5 PageID 3649 During the pendency of the Merits Appeal, Petitioner moved in this Court to tax its attorneys' fees and costs incurred during the pendency of the Merits Action. (D.E. 124). On January 18, 2018, this Court entered Judgment granting the Petitioner's Motion to Tax Fees and Costs in the amount of $89,490.26. (D.E. 147; 148), which Respondent also appealed to the Eleventh Circuit ("Rath II"). On August 10, 2018, the Eleventh Circuit Court of Appeals issued a unanimous panel ruling affirming this Court's Final Judgment rendered in this action, in the principal sum of $89,490.26. (D.E. 167) (Rath v. Marcoski, 898 F.3d 1306 (11th Cir. 2018). On November 20, 2018, the 11th Circuit entered orders transferring consideration of the Petitioner's claims for appellate attorneys' fees in both the Merits Appeal and the Fee and Cost Appeal. Attached as Composite Exhibit "A." The Eleventh Circuit's mandate returning jurisdiction to this Court was issued on November 26, 2018. (D.E. 170). Petitioner subsequently conferred with Respondent's counsel in an attempt to resolve the appellate fee claims; however, the discussions were ultimately unsuccessful. Petitioner now moves this Court to consider the issues of entitlement and amount as to his claims for appellate attorneys' fees in connection with both the Merits Appeal and the Fee and Cost Appeal. Rath v. Marcoski, Case No. 16-17538, Eleventh Circuit Court of Appeals ("Rath I") In June of 2016 Petitioner commenced proceedings against Respondent, seeking, among other things, the return of L.N.R. to the Czech Republic pursuant to The Hague Convention and the International Child Abduction Remedies Act ("ICARA"). [D.E. 1] The matter was tried before a Magistrate Judge over a total of seven days. (D.E. 84 at 1-2) On October 3, 2016, the Magistrate Judge issued his Report and Recommendation recommending 2 5 PageID 3650 that L.N.R. be returned to the Czech Republic. (D.E. 84 at 47) The District Judge adopted the Magistrate's Report and Recommendation in its entirety and Final Judgment which was later affirmed in Appeal Court in Marcoski v. Rath, 718 F. App'x 910 (11th Cir. 2017) (per curium). Petitioner thereafter moved to transfer consideration of an award of appellate attorneys' fees to the District Court 11th Cir. R. 39-2(d). This Court entered an order holding Petitioner's Motion to Transfer in abeyance pending the resolution of Respondent's then pending appeal of the attorneys' fee award in Eleventh Circuit, Case No. 18-10403. Petitioner was represented through the appellate proceedings by Kelli Hanley Crabb, Esq. and Joseph P. Kenny, Esq., of Weber, Crabb & Wein, P.A. ("WCW"). Petitioner seeks a total of $24,307.50 in appellate attorneys' fees based upon 18.1 hours of work by Attorney Crabb at a rate of $325 per hour and 73.7 hours of work by attorney Kenny at a rate of $250 per hour. This Court previously found that the rates of $325 per hour for Attorney Crabb and $250 per hour for Attorney Kenny were reasonable. [D.E. 147] A summary of the hourly rates, time billed and total fees incurred by Ms. Crabb, Mr. Kenny is attached as Exhibit "1" to the Affidavit of Joseph P. Kenny, Esq. which is attached hereto as Exhibit "B." Rath v. Marcoski, Case No. 18-10403, Eleventh Circuit Court of Appeals ("Rath II") In January of 2018, the District Court entered a Final Judgment awarding Petitioner an award of $89,490.26 in fees, costs and expenses. [D.E. 148]. Respondent appealed the award in its entirety arguing that such an award was clearly inappropriate because she acted in good faith. Eleventh Circuit rejected Respondents argument and affirmed the District Court's fee award in its entirety. Rath v. Marcoski, 898 F.3d 1306 (11th Cir. 2018). 3 5 PageID 3651 Petitioner seeks a total of $11,850 in appellate attorneys' fees based upon 47.4 hours of work by attorney Kenny at a rate of $250 per hour. II. ARGUMENT AND CITATION TO AUTHORITY ICARA provides for a mandatory award of necessary expenses incurred by a successful petitioner in matter brought pursuant to the Convention. 22 U.S.C. § 9007(b)(3). Specifically, 22 U.S.C. § 9007(b)(3) provides: Any court ordering the return of a child pursuant to an action brought under section 9003 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the 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 the respondent establishes that such order would be clearly inappropriate. Id. Olesen-Frayne v. Olesen, 2009 WL 3048451, *1-2 (M.D. Fla. Sept. 21, 2009); Porter v. Gonzalez, 2009 WL 3417862, *1 (M.D. Fla. Oct. 20, 2009) "The purposes of awarding costs and fees under § 11607(b)(3) are (1) to restore the [Petitioner] to the financial position he. . . would have been in had there been no removal or retention; and (2) to deter such removal or retention" from happening in the first place." Fridlund v. Spychaj-Fridlund, 2009 WL 4168192, *1 (E.D. Ky. Nov. 23, 2009) (citing The Hague Convention). a. Appellate attorneys' fees are available under ICARA Respondent has previously taken the position that appellate attorneys' fees are not recoverable under ICARA and that the statute provides for the recovery of attorneys' fees only at the trial level. However, this position contradicts existing authorities which recognize that appellate attorneys' fees may be recoverable under certain circumstances. See e.g. Pliego v. Hayes, 843 F.3d 226 (6th Cir. 2016); Hollis v. O'Driscoll, 739 F.3d 108 4 5 PageID 3652 (2d Cir. 2014) and Furnes v. Reeves, 362 F.3d 702, 724–25 (11th Cir. 2004) abrogated on other grounds by Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014). Indeed, while the court in Pliego opined that it could not award appellate attorneys' fees because it was not a court "ordering the return of the child" it left the door open for the district court to consider the matter on separate motion: According to the plain meaning of both the Convention and ICARA, these provisions apply only to courts "ordering the return of the child." Thus, this provision does not apply to this court—which is not a court ordering the return of the child, but rather a court affirming another court's order to return the child. This interpretation is supported by the decisions of sister circuits that have addressed the issue. Hollis v. O'Driscoll, 739 F.3d 108, 113 (2d Cir. 2014); West v. Dobrev, 735 F.3d 921, 933 n.9 (10th Cir. 2013). However, we do not reach the issue of whether the district court that ordered the child's return in Pliego II may, upon separate motion, award fees incurred on this appeal. Pliego v. Hayes, 843 F.3d 226, 238 (6th Cir. 2016) (emphasis added). Similarly, in Hollis, the court specifically remanded the issue of appellate attorneys' fees to the district court for consideration noting that ICARA requires any award of costs to be made by the court ordering the return of the child: Hollis argues that if we affirm the judgment of the District Court, he is presumptively entitled to recover from O'Driscoll expenses, costs, and legal fees incurred in prosecuting this action in the District Court and on appeal. ICARA requires the "court ordering the return of a child" to order the respondent to pay these costs unless "such order would be clearly inappropriate." 42 U.S.C. § 11607(b)(3); Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir.2013). The District Court, as the court ordering the return of the child, is responsible in the first instance for determining what costs, if any, should be assessed against O'Driscoll, with respect to both the District Court and Court of Appeals proceedings. See Ozaltin, 708 F.3d at 377 ("[T]he District Court is in a better position to assess ... an appropriate fees award."); cf. McCarthy v. Bowen, 824 F.2d 182, 183 (2d Cir.1987) (holding, in the context of the Equal Access to Justice Act, 28 U.S.C. § 2412 (1987), that, although the application for appellate fees must be made in the Court of 5 5 PageID 3653 Appeals, "[t]here may be situations where the court of appeals will find it helpful to enlist the aid of the district court in resolving disputed issues concerning an application for appellate fees"). Accordingly, we remand the cause for consideration of whether it is appropriate to award costs to Hollis, and if so, in what amount. Hollis v. O'Driscoll, 739 F.3d 108, 113 (2d Cir. 2014) Finally, in Furnes, this Court specifically directed the district court, to enter a briefing schedule regarding the award of fees and costs: On remand, the district court shall promptly enter a briefing schedule regarding the award of attorney's fees and costs to Plaintiff Furnes. 42 U.S.C. § 11607. We conclude the district court in the first instance should determine the amount of attorney's fees and costs. Furnes v. Reeves, 362 F.3d 702, 724–25 (11th Cir. 2004), abrogated by Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014). It is anticipated that Respondent will argue that appellate attorneys' fees cannot be awarded because the child has already been returned, thus the appellate fees were not related to the return of the child. This argument ignores the fact that Respondent only begrudgingly complied with the Final Judgment ordering the child's return. Even then Respondent fought every single decision, at both the district court and circuit court levels, tooth and nail every step of the way. Not only did Respondent seek rehearing en banc of this Court's decision in Rath I (and when rehearing was denied she then filed a petition for certiorari in the Supreme Court of the United States), but she also appealed the district court's fee and cost award which was later affirmed by this Court in Rath II, and moved for rehearing en banc of that decision as well. It ultimately took more than two years for the appellate proceedings to come to finality. At some point, the fee and cost award will 6 5 PageID 3654 become meaningless if Respondent is permitted to drive up litigation costs without consequence. The obvious purpose of the fee shifting provisions in ICARA is to make whole the parent who is forced to file suit to obtain the return of a wrongly removed child. It would therefore undermine the very purpose and policy goals of ICARA's fee shifting provision to allow Respondent to frustrate Petitioner's ability to secure his fees by perpetuating the litigation through multiple appellate proceedings and then deny his ability to recover these fees as well. As observed by the court in Weisenberger v. Huecker, 593 F.2d 49, 53 (6th Cir. 1979) in the context of a fee-shifting statute, the prevailing party may generally seek fees for litigating the award of fees: When Congress passed the Act, its basic purpose was to encourage the private prosecution of civil rights suits through the transfer of the costs of litigation to those who infringe upon basic civil rights. If a successful party in a civil rights suit is awarded attorney's fees under the Act and he cannot secure attorney's fees for legal services needed to defend the award on appeal, the underlying Congressional purpose for the Act would be frustrated. We conclude that implementation of Congressional policy requires the awarding of attorney's fees for time spent pursuing attorney's fees in the cases presently under review. Weisenberger v. Huecker, 593 F.2d 49, 53 (6th Cir. 1979). Rath necessarily incurred appellate attorney's fees in the defense of this Court's Final Judgments in both Rath I and Rath II. In every sense, these were necessary expenses related to the return of the child. The underlying purpose and policy goals of ICARA are best served by allowing Rath to recover his appellate attorney's fees as well. 7 5 PageID 3655 b. Petitioner's request for $24,307.50 in appellate attorneys' fees for Rath I and $11,850 in appellate attorneys' fees for Rath II is reasonable The starting point in determining reasonable attorney's fees is the "lodestar", which is "properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888 (1984); Norman, 836 F. 2d at 1299. A reasonable hourly rate is based upon "'the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.'" Duckworth v. Whisenant, 97 F. 3d 1393, 1396 (11th Cir. 1996) (quoting Norman, 836 F. 2d at 1299). Services of paralegals and law clerks are also compensable at market rates. Am. Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas County, 278 F. Supp. 2d 1301, 1310 (M.D. Fla. 2003). The prevailing market in this case is Tampa, Florida, or the surrounding counties in the Tampa Division of the Middle District of Florida. See e.g., Olesen-Frayne, 2009 WL 3048451 at *2 (finding the prevailing market is Fort Myers, Florida). In calculating what hours were reasonably expended on litigation, the Court should exclude excessive, unnecessary and redundant hours. Duckworth, 97 F. 3d at 1397. "After the lodestar is determined by multiplication of a reasonable hourly rate times hours reasonably expended, the court must next consider the necessity of an adjustment for results obtained." Norman, 836 F. 2d at 1302. The lodestar presumptively includes consideration of the factors set forth in Johnson v. Ga. Highway Express, Inc., 488 F. 2d 714 (5th Cir.1974). See Amaro v. Specialized Loan Servicing, LLC, 2011 WL 6181918, * 2 (M.D. Fla. Dec. 13, 2011); see also Norman, 836 F. 2d at 1299 (noting the Johnson factors may still "be considered in 8 5 PageID 3656 terms of their influence on the lodestar amount."). These so-called Johnson factors include: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or other 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. Johnson, 488 F. 2d at 717–19; Amaro, 2011 WL 6181918 at * 2. In applying the Johnson factors to this case, Petitioner respectfully submits that an award of attorney's fees in the requested amount of $24,307.50 in appellate attorneys' fees for Rath I and $11,850 in appellate attorneys' fees for Rath II is reasonable and appropriate. 1. Time and Labor Required The first Johnson factor is "time and labor," which requires the Court to "weigh the hours claimed against his own knowledge, experience, and expertise of the time required to complete similar activities." Johnson, 488 F. 2d at 717. The key consideration is whether the attorney's claimed hours are reasonable given the circumstances of the case and the results achieved. See Allapattah Services, Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1213 (S.D. Fla. 2006). To be sure, this case was legally complex and logistically difficult to prosecute, Petitioner's counsel was required to conduct significant legal research and factual investigation, review voluminous documents and other evidence, and prepare appellate 9 5 PageID 3657 briefs in both Rath I and Rath II. Additionally, Rath II also required counsel to prepare for and appear in Miami, Florida for oral argument. 2. Novelty and Difficulty of the Questions Involved The second Johnson factor recognizes that attorneys should be "appropriately compensated" for accepting novel and challenging cases. Johnson, 488 F. 2d at 718. Hague Convention cases generally involve complex legal issues and are logistically very difficult due to their expedited nature, and this case was no exception in that regard. See Neves v. Neves, 637 F. Supp. 2d 322, 343 (W.D. N.C. 2009) (citations omitted) ("the Court is mindful that Hague Convention cases often present novel and complex legal issues of child custody and international law that most attorneys do not routinely handle."); see also Trudrung v. Trudrung, 2010 WL 2867593, * (M.D. N.C. Jul. 21, 2010) ("Child abduction cases under ICARA often present novel and complex legal issues not routinely handled by attorneys…"); Willing v. Purtill, 2008 WL 299073, *1 (D. Or. Jan. 31, 2008) (recognizing the legal complexity and logistical difficulty provided by ICARA cases); Flynn v. Borders, 2007 WL 862548, at *3 (E.D. Ky. Mar. 20, 2007) ("Petitions under The Hague Convention for the return of a wrongfully removed or retained child are fairly rare cases, and it is reasonable for an attorney to spend more time researching this area of the law than an issue of state or federal law that they frequently encounter"). Here, the factual and legal framework of this case made for challenging and complex appellate issues which required extensive research and briefing. Rath II ultimately resulted in a published opinion by the 11th Circuit. 10 5 PageID 3658 3. Skill Required to Perform the Legal Services The third Johnson factor is the "[t]he skill requisite to perform the legal service properly." Johnson, 488 F. 2d at 718. This factor requires the Court to "closely observe the attorney's work product, his preparation, and general ability before the court." Id. Given the complexity of the issues involved and the time limitations imposed, this case required experienced counsel. Petitioner submits that his counsel were certainly competent and have proven themselves to be highly skilled — the quality of the written product by Petitioner's counsel and their performance in open court were consistently high and no doubt assisted the Court in the prosecution of this case. 4. Preclusion of Other Employment The fourth Johnson factor is "[t]he customary fee for similar work in the community." Johnson, 488 F. 2d at 718. This factor requires "the dual consideration of otherwise available business which is foreclosed because of conflicts of interest which occur from the representation, and the fact that once the employment is undertaken the attorney is not free to use the time spent on the client's behalf for other purposes." Id. Petitioner's counsel invested substantial time in handling the appellate matters. Indeed, the attorneys time spent in this case precluded them from generating other revenue they would have normally derived from their practices. 5. Customary Fee The fifth Johnson factor is "[t]he customary fee for similar work in the community." Johnson, 488 F. 2d at 718. As noted, a reasonable hourly rate is "'the prevailing market rate in the relevant legal community for similar services by lawyers of 11 5 PageID 3659 reasonably comparable skills, experience, and reputation.'" Duckworth, 97 F. 3d at 1396 (quoting Norman, 836 F. 2d at 1299). In this case, the Court has already determined the rates of $325 per hour for Attorney Crabb and $250 per hour for Attorney Kenny were reasonable. [D.E. 147] 6. Whether the Fee is Fixed or Contingent The sixth Johnson factor concerns the type of fee agreement (hourly or contingent). This factor is not applicable in this case because the agreed upon fee was based on the attorneys' hourly rates. 7. Time limitations Imposed by the Court The seventh Johnson factor concerns "[t]ime limitations imposed by the client or circumstances." Johnson, 488 F. 2d at 718. This factor recognizes that "priority work that delays the lawyer's other legal work is entitled to some premium." Id. As previously noted, Hague Convention cases are conducted in an expedited manner. This included expedited briefing schedules in for both Rath I and Rath II. 8. The Amount Involved and the Results Obtained The eighth Johnson factor is "[t]he amount involved and the results obtained." Johnson, 488 F. 2d at 718. "If the result was excellent, then the court should compensate for all hours reasonably expended." Norman, 836 F. 2d at 1302 (citing Popham v. City of Kennesaw, 820 F. 2d 1570, 1578 (11th Cir. 1987)); see also In re Deresinski, 250 B.R. 764, 771 (Bkrtcy. M.D. Fla. 2000) ("Typically, if the result of the lawsuit was excellent, then a court should compensate for all hours reasonably expended."). Here, the result was 12 5 PageID 3660 excellent — Petitioner's counsel successfully defended both of Respondent's appeals resulting in complete affirmances of this Court's judgments in both instances. 9. The Experience, Reputation and Ability of the Attorneys The ninth Johnson factor is "[t]he experience, reputation, and ability of the attorneys." Johnson, 488 F. 2d at 718. Having observed the quality of the work product and general ability of Petitioner's counsel in open court, being familiar with local lawyers and law firms who practice in this Court on a regular basis, and having been provided with the backgrounds of the attorneys, the Court is able to assess whether Petitioner's counsel are deserving of the prevailing market rates for lawyers engaged in litigation. 10. The Undesirability of the Case The tenth Johnson factor is the "[t]he 'undesirability' of the case." Johnson, 488 F. 2d at 719. The legal complexity, the factual circumstances, the expedited schedule imposed by the Court, the substantial investment of resources demanded including the inability to perform work for existing clients or accept new matters, or any other number of other reasons could have led many attorneys to consider this case "undesirable" and abstain from taking on this matter. 11. Nature and Length of Professional Relationship with the Client The eleventh Johnson factor is "[t]he nature and length of the professional relationship with the client." Johnson, 488 F. 2d at 719. This factor is not applicable in this case. 13 5 PageID 3661 12. Awards in similar cases The final Johnson factor considers "[a]wards in similar cases." Johnson, 488 F. 2d at 719. Given the legal and factual complexities and the logistical challenges involved in this case, the total number of attorney hours requested in this case are reasonable. Conclusion Petitioner therefore respectfully requests that this Court grant his Motion for Appellate Attorney's Fees and Costs and enter a Money Judgment in the total amount of $36,157.5 against Respondent, Veronika Marcoski, individually. CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 3.01(g) The undersigned counsel certifies that counsel for Petitioner has contacted counsel for Respondent regarding the relief requested in this motion, but that no agreement concerning the issues raised in the motion has been reached. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 19th day of February 2019, I electronically filed the foregoing with the Clerk of court using the CM/ECF system, which will automatically send a copy to: Peter N. Meros, Esq., (pmeros@mslbo-law.com and Dianek@mslbo- law.com) of Meros, Smith, Lazzara, Brennan, Brennan & Olney, P.A., P.O. Box 27, St. Petersburg, FL 33731; Neil J. Saltzman, Esq. (neilsaltzman@live.com) of Saltzman Law Offices, P.O. Box 299, Bronx, NY 10471; Charles M. Auslander, Esq., (causlander@crabtreelaw.com) of Crabtree & Auslander, 240 Crandon Blvd, Suite 101, Key Biscayne, FL 33149. /s/ Joseph P. Kenny KELLI HANLEY CRABB, ESQ. Florida Bar No.: 401587 Joseph P. Kenny, Esquire Florida Bar No.: 59996 14 5 PageID 3662 WEBER, CRABB & WEIN, P.A. 5453 Central Avenue St. Petersburg, FL 33710 Tel: (727) 828-9919; Fax: (727) 828-9924 Emails: kelli.crabb@webercrabb.com kelly.sheehan@webercrabb.com Emails: joseph.kenny@webercrabb.com sandra.peace@webercrabb.com Attorneys for Petitioner/Father 15