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Pliego v. Hayes

United States District Court, W.D. Kentucky, Paducah Division

September 27, 2017




         This matter is before the Court on Petitioner Mario Luis Gonzalez Pliego's Motion for Fees, Costs, and Expenses, [DN 104.] Respondent Amanda Leigh Hayes responded, [DN 106], and Petitioner replied, [DN 107.] At the request of the Court, Hayes filed supporting affidavits, [DN 113; DN 114.] Thereafter, Pliego filed a motion for leave to file a rebuttal declaration to Hayes' affidavits, [DN 116.] Hayes responded in opposition, [DN 117.] Fully briefed, this matter is now ripe for adjudication. In the interests of fairness, Pliego's motion to file a rebuttal declaration, [DN 116], is GRANTED. For the following reasons, Petitioner's motion fees, costs, and expenses, [DN 104], is GRANTED IN PART AND DENIED IN PART.


         This case has a long and complex procedural history, the subject of which is the minor child of Petitioner Mario Luis Gonzalez Pliego (“Pliego”) and Respondent Amanda Leigh Hayes (“Hayes”). This Court twice granted Pliego's Petition for Return of Children pursuant to the Hague Convention on the Civil Aspect of International Child Abduction (the “Hague Convention”), and the implementing legislation in the United States, the International Child Abduction Remedies Act (“ICARA”), set forth in 22 U.S.C. § 9001 et seq., (formerly 42 U.S.C. § 11601, et seq.). See Pliego v. Hayes, No. 5:14-CV-00169, 86 F.Supp.3d 678 (W.D. Ky. 2015) (hereinafter “Pliego I”); Pliego v. Hayes, No. 5:15-CV-00146, 2015 WL 4464173 (W.D. Ky. July 21, 2015), aff'd, 843 F.3d 226 (6th Cir. 2016) (hereinafter “Pliego II”). Following Pliego I, the Court awarded fees to Pliego in the amount of $ 75, 091.425, which represented a 50% reduction in the award sought by Pliego. Pliego, 2015 WL 1893426, at *1-3 (W.D. Ky. Apr. 24, 2015). Following Pliego II, the Court awarded Pliego fees in the amount of $100, 471.18. [DN 85 (September 22, 2015 Memorandum Opinion and Order).]

         Following the Court's grant of Pliego's second Petition for Return of Child in Pliego II, Hayes appealed to the Sixth Circuit Court of Appeals, which affirmed the decision of this Court. Pliego v. Hayes, 843 F.3d 226 (6th Cir. 2016). In this instant motion, Pliego seeks another award of fees; specifically, he seeks the fees, costs, and expenses incurred during the appeal of Pliego II to the Sixth Circuit. [DN 104.] Though Pliego requested that the Sixth Circuit award him those fees on appeal, the Sixth Circuit found that this Court was the proper Court to determine any potential award of fees, and it therefore “d[id] 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 th[e] appeal.” Pliego, 843 F.3d at 238. Accordingly, this is the task now before the Court.


         Pliego has requested total attorney and paralegal fees of $56, 122.50. [DN 104 at 4.] This includes attorney Rebecca McKelvey Castañeda's 59.25 hours, billed at $295 ($17, 478.75); litigation costs and expenses, ($2, 477.94); attorney Brenton Lankford's 98 hours, billed at $260, ($25, 438.75); attorney Ashley Goin's 75 hours, billed at $192 ($14, 706.25); attorney Gregory Smith's 10 hours, billed at $435 ($4, 350); and paralegal Kathy Hagerty's 18.25 hours, billed at $140.00 ($2, 555). These amounts, less a “courtesy discount” of $8, 406.25, total to $56, 122.50. [DN 104 at 4.]

         Additionally, Pliego requests costs and expenses incurred during the appeal in the amount of $2, 477.94. [Id. at 4-5.] These include expenses for copies ($255.78); telephone usage ($8.20); a transcript of Hayes' Testimony at a July 10, 2015 hearing ($91.25); Pacer charges ($0.30); court reporter invoices for copies of transcripts ($288.35, $124.20, $1, 354.15, $333.90); Lexis/Nexis usage ($13.06); and binding ($8.75). Adding together all attorney fees, paralegal fees, costs, and expenses, Pliego seeks a grand total of $58, 600.44 in the instant motion. [DN 104 at 5.]

         In response, Hayes argues that the Court should not give an award of fees for several reasons. Among these are the facts that, according to Hayes, she has since been awarded custody by Turkish courts, Pliego has refused to comply with Turkish custody orders, Pliego has continued to assert his immunity to avoid paying any child support or legal fees to Hayes, that Pliego is incurring about $750 a month for supervised visits with her son, and that an award of fees would render Hayes unable to care for her son. [See DN 106 (Hayes' Response).] Moreover, Hayes contends that, even if the Court were to find that some fees are appropriate in this matter, the $58, 600.44 is excessive. [Id. at 7-8.] Specifically, Hayes contends that it was unnecessary for four attorneys to bill significant hours while representing Pliego on appeal, that Pliego's Sixth Circuit brief was, in large part, “a reiteration of major portions of earlier lower Court briefs, ” and thus did not require significant additional work. [Id. at 7.]

Under ICARA, the federal implementing legislation of the Hague Convention,
[a]ny 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 [and] legal fees . . ., unless the respondent establishes that such order would be clearly inappropriate.

22 U.S.C. § 9007(b)(3) (formerly 42 U.S.C. § 11607(b)(3)). The party seeking an award of attorney's fees must submit adequate evidence detailing the hours worked and the rates claimed. Hensley v. Eckhart, 461 U.S. 424, 433 (1983). Where the attorney's documentation is inadequate, or the claimed hours are duplicative or excessive, the court may reduce the award accordingly. Wasniewski v. Grzelak-Johannsen, 549 F.Supp.2d 965, 972 (N.D. Ohio 2008). “The goal is not to overcompensate counsel with a ‘liberal' fee, but to award the ‘reasonable' fee necessary to encourage competent lawyers to undertake the representation.” Id. “A reasonable fee is one that is adequately compensatory to attract competent counsel yet which avoids producing a windfall for lawyers.” Dowling v. Litton Loan Serv., LP, 320 F. App'x. 442, 446 (6th Cir. 2009) (quoting Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004)).

         ICARA gives courts the discretion to reduce or even eliminate a respondent's obligation to pay a prevailing petitioner's attorney's fees, costs, and expenses where such an award “would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). Applying this standard, many courts have altered or refused to make awards of costs and fees in certain situations. First, “[a]t least two courts of appeals have recognized that a fee award in a case under the Convention might be excessive and an abuse of discretion if it prevents the respondent-parent from caring for the child.” Norin ...

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