Neiuwenhoven v. Pisani

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

RICK NEIUWENHOVEN,

Plaintiff,

v. Case No: 5:23-cv-34-GAP-PRL

NICOLE PISANI,

Defendant.

REPORT AND RECOMMENDATION1

Petitioner Rick Neiuwenhoven initiated this action by filing a petition for the return of

his minor child pursuant to the Convention on the Civil Aspects of International Child

Abduction, done at the Hague on October 25, 1980, and 22 U.S.C. § 9001, the International

Child Abduction Remedies Act (“ICARA”). Following a bench trial, the Court found that

the minor child was wrongfully removed from her country of habitual residence and was due

to be returned in accordance with the Hague Convention. The Court entered judgment for

the Petitioner. (Doc. 53).

This case is now before me upon referral of Petitioner’s application for attorney’s fees

and costs. For the reasons explained below, I recommend that Petitioner’s motion (Doc. 66)

be granted in part and denied in part, and that he should be awarded attorney’s fees and costs

1 Within 14 days after being served with a copy of the recommended disposition, a party may

file written objections to the Report and Recommendation’s factual findings and legal conclusions.

See Fed. R. Civ. P. 72(b)(3); Fed. R. Crim. P. 59(b)(2); 28 U.S.C. § 636(b)(1)(B); Local Rule 6.02. A

party’s failure to file written objections waives that party’s right to challenge on appeal any unobjected-

to factual finding or legal conclusion the district judge adopts from the Report and Recommendation.

See 11th Cir. R. 3-1.

in the total amount of $45,210.30. This total recommended award represents the portion of

his claimed attorney’s fees and costs that should be approved as reasonable and necessary,

and also reflects reductions for a reasonable attorney hourly rate and a 30% reduction for

financial hardship considerations.

I. Background

The Court has previously recited the basic history of this case. (Doc. 53). To

summarize, Petitioner Rick Neiuwenhoven, an Australian citizen, filed a petition for the

return of his minor daughter after the child’s mother, Respondent Nicole Pisani, failed to

return to Australia with the child following a trip to central Florida to visit Respondent’s

relatives. (Doc. 2). Petitioner initiated the action in the Circuit Court of the Fifth Judicial

Circuit in Sumter County, Florida on December 13, 2022. (Doc. 2). On January 13, 2023,

Respondent removed the case to this Court. (Doc. 1).

After a bench trial held on February 22 and 23, 2023, the Court found that the minor

child was wrongfully removed from her country of habitual residence and was due to be

promptly returned in accordance with the Hague Convention. (Doc. 53). The Court entered

judgment for Petitioner and ordered that Petitioner would be awarded “the reasonable costs

of prosecuting the case.” (Doc. 53).

The Court also entered an Order on the terms of the transfer of custody. (Doc. 56).

Pursuant to that Order, custody was transferred to Petitioner on February 27, 2023. (Doc.

56). That same day, Petitioner traveled back to Australia with the minor child via a flight

departing from Orlando, Florida. (Doc. 66 at 50).

On March 2, 2023, Petitioner filed an application for fees and costs seeking a total of

$101,117.00 in attorney’s fees and $11,595.71 in costs. (Doc. 66). Meanwhile, Respondent

missed the deadline to respond to the application for fees and costs, and instead filed an

emergency motion to stay pending appeal that was moot given that the minor child was no

longer in the United States. (Doc. 60). The Court denied that motion (Doc. 64) and entered a

show cause order (Doc. 65). Following Respondent’s response, the Court vacated the show

cause order. (Docs. 67 & 69). Petitioner renewed his motion for attorney’s fees and costs,

Respondent filed a response in opposition, and Petitioner filed a reply. (Docs. 70, 72 & 73).

Although her response was filed untimely, the Court has nonetheless considered the

objections raised by Respondent. Petitioner’s motion for fees and costs is ripe for resolution.

II. Legal Standards

Here, the parties agree that an award of attorney’s fees and costs is governed by

ICARA’s fee-shifting provision. See 22 U.S.C. § 9007(b)(3). An award of fees and costs serves

two purposes: (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.]”

Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg.

10,494, 10,511 (Mar. 26, 1986). The relevant provision provides, in pertinent part, as follows:

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.

22 U.S.C. § 9007(b)(3). The Eleventh Circuit has observed that this statutory language creates

“a strong presumption in favor of fee-shifting.” Rath v. Marcoski, 898 F.3d 1306, 1311 (11th

Cir. 2018). The Eleventh Circuit stated that “courts must place on the losing respondent the

substantial burden of establishing that a fee award of clearly inappropriate.” Id. (citing Salazar

v. Maimon, 750 F.3d 514, 522 (5th Cir. 2014)).

The Court thus must undertake two inquiries: (1) whether the petitioner’s fees were

necessary; and (2) whether an award of such fees would be “clearly inappropriate” in light of

respondent’s financial circumstances, subjective good faith in his or her actions, or other

equitable circumstances. See Moonga v. Moonga, No. 1:17-CV-2136-TWT, 2018 WL 4026020,

at *1 (N.D. Ga. Aug. 23, 2018).

When determining a reasonable attorney’s fee, the Court applies the federal lodestar

approach which is calculated by multiplying the number of hours reasonably expended on the

litigation by the reasonable hourly rate for the services provided by counsel for the prevailing

party. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (per curiam). “[T]he fee

applicant bears the burden of establishing entitlement to an award and documenting the

appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

Once the court has determined the lodestar, it may adjust the amount upward or downward

based upon a number of factors, including the results obtained. Norman v. Hous. Auth. of

Montgomery, 836 F.2d 1292, 1302 (11th Cir. 1988).

“Ultimately, the computation of a fee award is necessarily an exercise of judgment,

because ‘[t]here is no precise rule or formula for making these determinations.’” Villano v. City

of Boynton Beach, 254 F.3d 1302, 1305 (11th Cir. 2001) (quoting Hensley, 461 U.S. at 436).

Additionally, the Court is “an expert on the question [of attorney’s fees] and may consider its

own knowledge and experience concerning reasonable and proper fees and may form an

independent judgment either with or without the aid of witnesses as to value.” Norman, 836

F.2d at 1303 (quoting Campbell v. Green, 112 F.2d 143, 144 (5th Cir. 1940)). Keeping in mind

that “[c]ourts are not authorized to be generous with the money of others, and it is as much

the duty of courts to see that excessive fees and expenses are not awarded as it is to see that

an adequate amount is awarded.” Am. C.L. Union of Georgia v. Barnes, 168 F.3d 423, 428 (11th

Cir. 1999).

III. Discussion

Respondent raises numerous objections to Petitioner’s application for fees and costs:

(1) that an award would be clearly inappropriate because Respondent was acting in good faith

when she retained the child in the United States; (2) that an award would be clearly

inappropriate because Petitioner needlessly increased the costs; (3) that an award would be

clearly inappropriate because Petitioner financially neglected his child and prevented

Respondent from being able to financially support the child herself; (4) that the claimed hourly

rate for attorney’s fees is not reasonable; (5) that the number of attorney hours claimed is not

reasonable; (6) that Petitioner is claiming fees for vague or irrelevant billing record entries; (7)

that fees and expenses in relation to the state court complaint are not recoverable; (8) that fees

related to clerical tasks are not recoverable; (9) that fees claimed for binder preparation are

not recoverable; (10) that fees claimed for attorney travel time are not recoverable; (11) that

block billing entries are not recoverable; (12) that costs claimed for printing are not

recoverable; (13) that attorney travel expenses are not recoverable; and (14) that the travel

costs for the Petitioner and child to return to Australia are excessive. (Doc. 72).

Given the applicable analytical framework, the fees and costs claimed, and the

objections and arguments raised by Respondent, the Court will first address whether the fees

and costs claimed were necessary, which includes consideration of the reasonableness of the

total hours expended by Petitioner’s counsel and the reasonableness of the hourly rates

claimed. Next, the Court will consider Respondent’s arguments that an award of fees and

costs in any amount would be clearly inappropriate under 22 U.S.C. § 9007(b)(3).

A. Necessity of Attorney’s Fees Claimed

First, the Court will address whether the attorney’s fees claimed by Petitioner were

“necessary expenses” under § 9007(b)(3). Respondent objects to the claimed attorney’s fees

on several grounds. Because it is an overlapping inquiry, taking into consideration

Respondent’s objections, the Court will also address whether the category or the number of

hours claimed is unreasonable under the circumstances.

1. State Court Phase of Litigation

Most notably, Respondent contends that fees and expenses incurred in relation to the

state court action are not recoverable. Respondent argues “Petitioner’s counsel unnecessarily

spent a significant amount of time and resources on the complaint filed in the wrong

jurisdiction and for said reason, these are not subject to fee-shifting.” (Doc. 72 at 10). For this

category alone, Respondent seeks a reduction of $36,983.50, representing fees from August

9, 2022, through January 13, 2023. (Doc. 72 at 10).

To be sure, this case has involved litigation involving issues of international law and

governmental entities in both the United States and Australia. As reflected in the Verified

Petition for Return of Minor Child, Petitioner’s attempts to obtain the return of his minor

child began at least as early as July 25, 2022, when, via email correspondence to Respondent,

he clarified that Respondent did not have his consent to retain the child and extend the child’s

stay in the United States. (Doc. 5 at 52). In that same correspondence, Petitioner requested

the minor’s return and asserted his rights under the Hague Convention. It is safe to say that

by that date, Petitioner necessarily retained or needed to retain counsel. The earliest date upon

which claimed attorney’s fees were billed appears to be August 9, 2022, soon thereafter. (Doc.

66 at 6). The Court further notes that the earliest billing records reference a “family attorney

in Australia,” but no claim has been made for legal fees from Australian counsel. (Doc. 66 at

6).

Respondent’s argument that attorney’s fees incurred during the state court proceedings

are not recoverable is entirely misplaced. Although Respondent contends that state court was

the “wrong jurisdiction,” “the courts of the States and the United States district courts shall

have concurrent original jurisdiction of actions arising under the Convention [on the Civil

Aspects of International Child Abduction, done at the Hague on October 25, 1980.” 22 U.S.C

§ 9003(b). Petitioner correctly asserts that this matter was properly filed in state court and

could have been fully adjudicated there. Respondent, however, removed the matter to this

Court, as Petitioner observes, “on the last day possible for removal.” (Doc. 73 at 2).

Authority cited by Respondent clarifies that the standard is whether the expenses are

necessary to obtain the return of the child. See Aldinger v. Segler, 157 F. App'x 317, 318 (1st

Cir. 2005) (disallowing expenses for father’s visits to children while they were retained and

stating “[t]he district court correctly held that those visits were not necessary to enable the

father to obtain the return of the children”) (citing Hague International Child Abduction

Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,511 (Mar. 26, 1986) (noting

that “necessary expenses” encompass expenditures required “to secure the child's return”)).

For example, Respondent cites multiple cases for the proposition that legal fees related to

visitation issues are not recoverable. See, e.g., Saldivar v. Rodela, 894 F. Supp. 2d 916, 937

(W.D. Tex. 2012) (finding fees and costs incurred in obtaining a court order providing for

increased visitation hours, without more, are not awardable). Respondent, however, attempts

to apply this logic to exclude the entirety of fees incurred during the state court proceedings

from August 9, 2022, through January 13, 2023. Her argument is not persuasive.

The undersigned has scrutinized every time entry for attorney’s fees contained in

Petitioner’s application for fees and costs. With a few exceptions noted below, the time entries

plainly reflect fees that were directly incurred to obtain the return of the minor child. As

Petitioner correctly notes, the action could have proceeded entirely in state court had

Respondent not opted to remove the matter to this Court. Further, it is apparent that the bulk

of fees incurred from August 9, 2022, through January 13, 2023, were in furtherance of efforts

to obtain the return of the child and in support of the verified petition for return of minor

child, ultimately filed in state court on December 13, 2022. (Doc. 5). In fact, the verified

petition filed in the state court is the same petition that was removed to this Court and upon

which the case was adjudicated. The great majority of time entries claimed during the state

court phase of the litigation reflect work done in furtherance of the petition and are plainly

related to claims or defenses in the case and to Petitioner’s efforts to secure the return of the

child. Examples include communication with client, research regarding the Hague

Convention, preparing the petition, completing necessary forms for submission to Australian

authorities under the Hague Convention, preparing witness affidavits, motions regarding

surrender of the child’s passport, and discovery. Even entries that appear to relate to a marital

financial dispute are equally relevant to the petition, as Petitioner argued that Respondent’s

spending was relevant to her intent to retain the child in the United States. (See, e.g., Doc. 66

at 6, “review and respond to emails: Wife spending 85K on Amex”).

That said, there are several time entries that appear related to visitation issues, requests

for contact with the child, collateral litigation disputes, and general marital disputes, as

opposed to efforts directly necessary to obtain the return of the child. Those non-reimbursable

entries are identified by yellow highlighting in the Court's Exhibit B and are due to be

excluded from a fee award, thus they are not included in the Court’s calculations of approved

fees.

2. Entries Referencing Marion County

Next, Respondent objects to time entries that she contends are an “obvious error”

because they reference Marion County, when the case was filed in Sumter County, Florida.

(Doc. 72 at 5). Respondent speculates the entry “most likely is for another case and/or client.”

Doc. 72 at 5). As Petitioner clarifies, Respondent is simply mistaken because the state court

matter was reassigned to a judge in Marion County pursuant to the Counties’ joint

Administrative Order A-2019-24 Appointing Judge with Primary Responsibility for Hague

Convention Cases. (Doc. 72 at 2). Respondent’s objections to entries referencing Marion

County should be overruled.

3. Entries Objected to for Defective Billing

Respondent also objects to claimed attorney time entries on the basis that they are

vague, irrelevant, duplicative, and include deficient subcategories making them impossible to

distinguish between time spent on necessary and unnecessary tasks. Respondent contends

that these types of billing are defective and require a denial of fees or a flat reduction of a

specific percentage across the board for defective billing. Respondent also contends that

irrelevant billing should be reduced to zero. Respondent states “Annexed as Exhibit A is a

Table listing all the entries within Petitioner’s attorneys’ time sheets to which Respondent

objects with an explanation for each objection in italics beneath it.” There is, however, no

Exhibit A or Table such as Respondent describes attached to or contained within her

response. (Doc. 72). Accordingly, the undersigned is incapable of evaluating the specific

objections Respondent references.

Respondent does, however, give examples within her brief of some of her objections.

They include that the invoices are peppered with “Review and Respond to email from client,”

“Review,” “Review and Save,” “Review and Respond to emails,” “Preparation of email,”

“Preparation of,” “Prepare for trial,” “Phone call,” Email to client,” or “Conference with

client.” Respondent contends these entries lack explanation of how they were related to the

child’s return or what the topics of the emails were, and that it is impossible to evaluate them

and determine whether they were necessary for the child’s return.

The Court disagrees. Having carefully reviewed the hundreds of time entries for the

claimed attorney’s fees, the undersigned finds that when read in context they contain

sufficient detail demonstrating that the entries were necessary and in furtherance of the

petition for the return of the child and the ongoing litigation. The Court’s review is aided by

the fact that all time entries specify the date, the attorney or paralegal performing the work,

the activity (for example, “Work on File”), an additional description (for example, “Work on

file: Research procedure on voluntary return letter is sent and review documents to be

submitted to court if voluntary return is not agreed to”), the amount of time spent in hours,

and the total fee charged for that specific entry. (Doc. 66 at 13). Further, the undersigned

notes that, with very few exceptions, the time entries are modest, and only claim time for a

very small fraction of an hour (many are only .1 hour), or an otherwise modest amount of

time given the task undertaken. Given the nature of this action, the parties and issues

involved, the expedited nature of the action, and the proceedings required, the Court does not

find the entries defective.

Respondent has specifically objected to numerous time entries on dates between

January 20, 2023, and February 26, 2023, arguing that they are vague, lack explanation, or

are multiple entries for the same task by both attorneys. (Doc. 72 at 9). Having reviewed these

time entries, the undersigned finds that Respondent’s objections are due to be overruled.

Notably, those entries fall immediately after the case was removed to this Court, motion

practice was occurring, discovery was ongoing, and case management and discovery was well

underway. Remarkably, even during that period, few of the claimed time entries reflect large

amounts of time, and it is entirely reasonable that both of Petitioner’s counsel would have

been billing time on similar or even the same task given the posture of the case, the upcoming

trial, and the need for counsel to confer regarding case related matters.

Respondent objects to $10,254.00 worth of billing entries of the basis of vagueness.

For the reasons explained above, those objections should be overruled.

4. Block Billing

Respondent also makes a general objection to “block billing” and contends that many

of Petitioner’s attorney’s time entries are “block billed,” although she does not specify which

entries fall into that category. Respondent requests an additional across the board reduction

to fees, in addition to the exclusion of the allegedly “irrelevant and unacceptably vague”

entries discussed above.

Generally, “block billing makes [review of bills] unnecessarily difficult.” Zachloul v.

Fair Debt Collections and Outsourcing, No. 8:09–CV–128–T–27–MAP, 2010 WL 1730789, at *3

(M.D. Fla. Mar. 19, 2010). Block billing also can warrant “reduction of the number of hours

claimed in the attorney’s fee motion.” Kearney v. Auto-Owners Ins. Co., 713 F. Supp. 2d 1369,

1378 (M.D. Fla. 2010). While attorneys need not account for every moment, they must be

able to explain the nature of the work via discrete entries. Id. The court has broad discretion

in determining the extent to which a reduction in fees is warranted by block billing. See Ferrate

Treatment Techs., LLC v. Ciampi, No. 6:06-CV-1565 ORL 28KRS, 2007 WL 1128962, at *3

(M.D. Fla. Apr. 16, 2007) (recommending no fees be awarded for certain block billed time

entries); Gundlach v. Nat'l Ass'n for Advancement of Colored People, Inc., No. 3:03-CV-1003-J-32-

MCR, 2005 WL 2012738, at *4 (M.D. Fla. Aug. 16, 2005) (assessing an across-the-board

reduction of thirty percent due to block billing); Guetzloe Group, Inc. v. Mask, No. 6:06-cv-404-

Orl-22JGG, 2007 WL 2479335, at *3 (M.D. Fla. Aug. 28, 2007) (recommending no reduction

despite block billing).

Upon review, the Court can identify no entries that appear to reflect inappropriate

block billed time. The billing records reflect well-described tasks that explain the nature of the

work done by Petitioner’s counsel. Further, in nearly all instances, the time entries reflect a

single task that is related to the petition and in furtherance of obtaining the return of the child.

A few entries reflect multiple related tasks, for example, “review list of witnesses, motion for

information on child and discuss request for production.” (Doc. 66 at 20). Given the posture

of the case, the parties involved, and the nature of the proceedings, it is readily apparent that

even the entries reflecting more than one specific task are appropriate and reflect necessary

work. Respondent’s objection to block billing is due to be overruled.

5. Clerical Work

Respondent also objects to $13,455.50 in fees that she claims are inappropriately billed

as attorney time because they are for clerical work. Examples of Respondent’s objections

include entries related to submitting the complaint by email, filing proof of service, and “File

Management,” and “Finalize and File” tasks. Entries that Respondent specifically identifies

as objectionable on this basis are those on January 13, 2023, February 6, 2023, February 24,

2023, and February 27, 2023, and March 2, 2023.

The Court has carefully reviewed all the time entries for these dates and finds them

reasonable and related directly to the pending litigation and efforts to obtain the return of the

child. Further, none of the time entries on those dates are excessive; they all reflect a modest

amount of time spent on tasks that the Court finds were reasonable and necessary in the

context of the litigation. Meanwhile, Petitioner has only claimed 15.9 hours of Paralegal time,

and it is typical (and even necessary) for attorneys to perform the functions contained in the

objected to entries, such as reviewing and redacting documents, conducting research, and

reviewing and saving expense receipts relevant to pleadings.

Respondent also objects to entries falling between January 13, 2023, and February 23,

2023, entered as “Research” and “Review,” as well as entries labeled “Preparation for Trial”

or “Preparation of.” (Doc. 72 at 12). Petitioner describes these objections as “absurd,” and

contends that a legal assistant “cannot conduct the necessary legal research for any legal

matter let alone the wrongful withholding of a minor child internationally.” (Doc. 73 at 3.)

Having reviewed the relevant time entries carefully, the Court finds Respondent’s objections

without merit. Given the posture of the case at the time the entries were made, it is entirely

reasonable and necessary that counsel for Petitioner would be actively preparing for trial and

researching relevant factual and legal issues.

6. Review of Respondent’s Exhibits

Next, the parties dispute whether it is reasonable for Petitioner to claim attorney’s fees

for reviewing Respondent’s trial exhibits. Respondent contends that $1,913.50 in fees should

be deducted that are attributed to this task and specifically objects to entries dated on or

around February 21, 2023.

Respondent argues that she was “unable to introduce exhibits or witnesses due to the

Respondent’s previous attorney failure to provide his exhibits or witness list to Petitioner.”

(Doc. 72 at 9). Presumably referring to Petitioner’s counsel, Respondent argues, “[a]t trial,

Petitioner was vehement that she had never received the exhibits or witness list.” (Doc. 72 at

9-10). Respondent contends that any time entries related to review of her exhibits should be

“excluded as a sanction for the misrepresentation to the Court that they never received the

exhibits or witness list.” (Doc. 72 at 10). In response, Petitioner states that “[u]ndersigned

counsel never represented that no exhibits or witness list were provided by Defendant; rather,

undersigned counsel was prepared to respond to the exhibits Defendant provided for use at

trial.” (Doc. 73 at 5). Petitioner goes on to explain that Respondent attempted to introduce

one exhibit into evidence, but it was objected to and excluded because it had never been

provided. (Doc. 73 at 5).

For context, it appears that the time entries objected to by Petitioner occurred just

prior to commencement of the trial in this matter. Respondent does not dispute that her

counsel (or her prior counsel) discussed exhibits with Petitioner’s counsel and identified

documents as proposed trial exhibits. Counsel for Petitioner could not have anticipated that

Respondent’s exhibits would ultimately be excluded at trial. Indeed, to properly prepare for

trial, any prudent attorney would have reviewed the potential exhibits as Petitioner’s counsel

did here. Respondent’s objections to time entries related to Petitioner’s counsel’s review of

Respondent’s exhibits should be overruled.

7. Binders

Respondent objects to entries related to the preparation of binders to be used at trial

and suggests that this task is clerical in nature and not compensable. As Petitioner points out,

however, the relevant entries relate directly to the preparation of five binders required by the

Court’s pretrial procedures, including one for the Court, one for the clerk, one for the

witnesses, one for Defense counsel, and one for counsel. These binders included exhibits of

51 pages, consisting of multiple pages. As Petitioner explains, both the attorney time taken to

prepare the binders and the printing costs for the documents were necessary for the trial. The

Court agrees that both the attorney’s fees and printing costs associated with the binders were

necessary and reasonable.2

8. Attorney Travel Time

Next, Respondent objects to travel time billed by Petitioner’s counsel. Respondent

argues that it is not reasonable to bill for travel time at their full hourly rates. Respondent

objects to entries claiming travel time for February 21, 2023, and February 24, 2023, reflecting

counsel’s travel via air from Miami to Orlando for the trial. (Doc. 72 at 13). Respondent

argues that the total fees attributed to travel time for these entries is $6,265. (Doc. 72 at 13).

Upon review, the Court finds that counsel’s reasonable travel time to attend the trial

is compensable. See Mallory v. Harkness, 923 F. Supp. 1546, 1557 (S.D. Fla. 1996), aff'd, 109

F.3d 771 (11th Cir. 1997). However, all of Petitioner’s counsel’s travel time is not recoverable.

Petitioner is claiming 14 total hours of travel time (3.5 hours for each of two attorneys, each

2 Respondent states that the fee associated with the binders is $50 (Doc. 72 at 12), however,

the time entries related to this task appear to be on February 9 and 10, 2023, and reflect 2.2 hours of

time and 1.5 hours of time, respectively, for Erica Estevez. In either case, the amount of attorney hours

is reasonable for this critical task.

way). This time spent did not require any legal skill or experience, and there is no assertion

that productive work was done during the travel time that was not otherwise billed.

Additionally, this travel time was incurred in part because Petitioner chose counsel located in

Miami when this matter was pending in Sumter County, then was removed to this Court in

the Ocala Division of the Middle District of Florida, and the trial occurred in Orlando. While

Petitioner is free to choose the representative of his choice, the fact that counsel needed extra

travel time to attend the trial is not necessarily taxable to Respondent and should be reduced.

See Bookman v. Comm'r of Soc. Sec., 2011 U.S. Dist. LEXIS 147177, 2011 WL 12497233 (M.D.

Fla. Nov. 2, 2011) (reducing excessive travel time); Dillard v. City of Foley, 995 F. Supp. 1358,

1370–71 (M.D. Ala. 1998) (reducing but not denying travel time where case could have been

litigated by able local counsel). Thus, the Court finds it appropriate to reduce the claimed

travel time by fifty percent to reflect a total of 7 hours of travel time (3.5 total hours for each

of the two attorneys).

9. Time Spent Preparing Fee Petition

Respondent also objects to various entries that reflect work related to the petition for

fees, such as an entry of March 2, 2023, regarding updating and finalizing the attorney’s fee

application. (Doc. 72 at 11). Respondent claims that tasks such as these were not “necessary”

for the child’s return in the context of the litigation. A review of the entries for the claimed

fees reveals that they reflect modest fees attributed to preparing and filing the application for

attorney’s fees, and that the last time entry is dated March 2, 2023. (Doc. 66 at 37).

Respondent contends that the fees related to the attorney’s fee application were not

necessary for the child’s return in the context of this litigation. (Doc. 72 at 11). The

undersigned notes that the fee application was filed due to the Court’s directive in its Order

entered February 23, 2023. (Doc. 53). Further, Respondent contends that the entries related

to the fee application total only $1,988.50. (Doc. 72 at 11).

As explained further below, I recommend reduction to the hourly rate claimed by both

of Petitioner’s counsel, as well as to the total fee award. Within that context, and because the

fees related to the fee application are minimal, the undersigned recommends that it is

appropriate that the fees be included in the fee award.

B. Reasonableness of Hourly Rates

The Court now turns to Respondent’s objection regarding the reasonableness of the

hourly rate claimed by Petitioner’s counsel. “A reasonable hourly rate is the prevailing market

rate in the relevant legal community for similar services by lawyers of reasonably comparable

skills, experience, and reputation.” Norman, 836 F.2d at 1299. The applicant bears the burden

of producing satisfactory evidence that the requested rate is in line with the prevailing market

rates. Id. In this context, “market rate” means the hourly rate charged in the local legal market

by an attorney with expertise in the area of law who is willing and able to take the case, if

indeed such an attorney exists. Am. Civil Liberties Union of Ga., 168 F.3d at 437. The fee

applicant bears the burden of establishing the requested rates are in line with the prevailing

market rates by producing direct evidence of rates charged in similar circumstances or opinion

evidence of reasonable rates. See Norman, 836 F.2d at 1299. At a minimum, satisfactory

evidence consists of more than the affidavit of the attorney performing the work; instead,

“satisfactory evidence necessarily must speak to rates actually billed and paid in similar

lawsuits.” Id. The trial court, itself, is an expert on the question of the reasonableness of fees

and may consider its own knowledge and experience. Id. at 1303.

Here, Petitioner requests a fee award based on the hourly rates of $495 per hour for

Karen Lungarelli, Esq., $400 per hour for Erica Estevez, Esq., and $175 per hour for paralegal

work.3 It appears that these are the rates at which Petitioner was billed and paid for the work

of his attorneys. Meanwhile, Respondent correctly observes that Petitioner has not submitted

an affidavit of an attorney who practices in the areas of ICARA and the Hague Convention

to establish the reasonableness of the hourly rates claimed. Respondent has also not submitted

an affidavit establishing the skills, experience, and reputation of Ms. Lungarelli and Ms.

Estevez, and the Court declines to speculate on those details. The fee application only asserts

that Ms. Lungarelli has been practicing in Florida since 2010 but does not address Ms.

Estevez’s experience or qualifications. (Doc. 66 at 1).

Notably, there is legal precedent in the Middle District of Florida regarding reasonable

attorney fee rates in ICARA and Hague Convention cases. In Rath v. Marcoski, the district

court found that hourly rates of $325 (for an attorney with approximately 35+ years of

experience) and $250 (for an attorney with approximately 9 years of experience) per hour

were reasonable in the Tampa market in a case brought under the Hague Convention. Rath v.

Marcoski, No. 8:16-CV-2016-T-23AEP, 2018 WL 446651, at *1 (M.D. Fla. Jan. 17, 2018),

aff'd, 898 F.3d 1306 (11th Cir. 2018).

In Toufighjou v. Tritschler, the Court awarded attorney’s fees in a Hague Convention

case at the rate of $350 per hour for a total attorney fee award of $15,554.25. Toufighjou v.

Tritschler, No. 8:16-CV-1709-T-33JSS, 2016 WL 6122465, at *2 (M.D. Fla. Sept. 30, 2016),

report and recommendation adopted, No. 8:16-CV-1709-T-33JSS, 2016 WL 6084097 (M.D. Fla.

3 Respondent does not object to the paralegal hourly rate.

Oct. 18, 2016); see Olesen-Frayne v. Olesen, No. 2:09-CV-49-FTM-29DNF, 2009 WL 3048451,

at *3 (M.D. Fla. Sept. 21, 2009) (reducing claimed attorney’s fee hourly rates to $300 and

$275 per hour in Hague Convention case when granting fee award); see also Sewald v. Reisinger,

No. 8:08-CV-2313-T-27TBM, 2015 WL 6964290, at *2 (M.D. Fla. Nov. 10, 2015) (awarding

fees based on attorney’s hourly rate of $250 per hour in Hague Convention case); see also

Lamiri v. Audette, No. 615CV1810ORL28TBS, 2015 WL 13741736, at *4 (M.D. Fla. Dec. 22,

2015), report and recommendation adopted, No. 6:15-cv-1810-Orl-28TBS, 2016 WL 452317

(M.D. Fla. Feb. 5, 2016) (reducing attorney’s hourly rates to $300 for lead attorney and $150

per hour for an unnamed associate in Hague Convention case).

For comparison, elsewhere in the Eleventh Circuit, an hourly rate of $400 per hour

has been approved in the Southern District of Florida in a Hague Convention case. Ascanio v.

Crespo, No. 21-CV-23396, 2022 WL 1812251, at *3 (S.D. Fla. May 11, 2022), report and

recommendation adopted, No. 21-CV-23396, 2022 WL 1801109 (S.D. Fla. June 2, 2022).

Meanwhile, the rates of $375 per hour and $325 per hour were found to be reasonable hourly

rates in a Hague Convention case in the Savannah market. Munoz v. Diaz, No. 4:22-CV-9,

2023 WL 139732, at *7 (S.D. Ga. Jan. 9, 2023)

Under the circumstances here, given the scant information in the record regarding the

experience and expertise of Petitioner’s counsel, the type of case and the related risks, the

Court’s knowledge of prevailing market rates in the Ocala Division and the Middle District

of Florida, and the Court’s findings regarding hourly rates in other cases (including Hague

Convention and ICARA cases), the undersigned recommends that the requested hourly rate

for Ms. Lungarelli be reduced from $495 per hour to $300 per hour, and that the requested

hourly rate for Ms. Estevez be reduced from $400 per hour to $250 per hour.

Despite it being his burden and required by Local Rule 7.01(c)(4)(F), Petitioner has

not provided the Court with evidence such as detailed information regarding his counsel, their

experience, and affidavits establishing the prevailing market rate. Petitioner asserts little more

than that Ms. Lungarelli has been licensed to and engaged in the practice of law in Florida

since 2010. Meanwhile, virtually no information is provided about the experience or

qualifications of Ms. Estevez. While the Court acknowledges that rates of $325 per hour or

more have been approved in the Middle District in Hague Convention cases, the Court takes

note that a higher hourly rate has typically been approved in cases either involving an attorney

with multiple decades of experience (such as in Rath v. Marcoski, supra) or involving a relatively

modest total fee award (such as in Toufighjou v. Tritschler, supra).

The Court also recognizes that the number of hours claimed in this case is large. The

case was filed in state court, removed to this Court, and required a full-blown trial. The

undersigned believes this circumstance requires close scrutiny of the hourly rate. It is one

thing to approve an hourly rate of $400 or more where the total number of hours is modest

and the potential attorney’s fee award is just a few thousand dollars. Here, however, Petitioner

claims 99.1 hours of time for Ms. Lungarelli and 123.2 hours for Ms. Estevez, resulting in

222.3 hours of attorney time. Including paralegal fees, Petitioner seeks $101,117.00, as well

as costs of $11,595.71.

Further, this case was removed to the Ocala Division of the Middle District of Florida

from state court, and none of the current attorneys of record in this action are from the Ocala

area: Ms. Lungarelli is from Miami, and Ms. Marin is from Orlando. That said, the Court’s

own research into prevailing attorney’s fee rates reveals that, in the Middle District of Florida

at least, there is no shortage of capable attorneys willing to handle cases brought under the

Hague Convention and ICARA. Further, the case law does not suggest that the prevailing

market rate in this division for cases under the Hague Convention is considerably higher than

in the average civil matter. Although involving aspects of international law, the central issues

in this case were those of a typical family law dispute. And, if Respondent herself had not

removed the case to this Court, it may have proceeded entirely in state court. In other words,

the Court finds it unnecessary to give weight to prevailing rates in another area (such as

Miami) or to compare this matter to uniquely complex types of litigation.4

With these considerations in mind and drawing on the Court’s own knowledge and

expertise regarding the prevailing market rates in the Middle District of Florida, and in

consideration of the overall circumstances including the lack of information provided by

Petitioner, the undersigned recommends that a reasonable rate for Ms. Lungarelli is $300 per

hour, and $250 per hour for Ms. Estevez.

C. Calculation of the Lodestar

The lodestar is calculated multiplying the number of hours reasonably expended on

the litigation by the reasonable hourly rate for the services provided by counsel for the

prevailing party. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (per curiam). As

discussed above, the Court recommends that an appropriate hourly rate for this case for Ms.

Lungarelli is $300 per hour and for Ms. Estevez is $250 per hour. Also as discussed above,

reductions are warranted to the attorney time claimed as reflected in the Court’s Exhibits A

and B. The Court’s lodestar calculations are set forth in detail in the Court’s Exhibit A

4 For comparison, cases arising under the Federal Claims Act have been found to warrant

higher hourly rates for attorney’s fees given the complexity of the actions and relative risks. See United

States v. Tran, No. 5:15-CV-60-OC-CEMPRL, 2020 WL 9455629, at *3 (M.D. Fla. Oct. 5, 2020), report

and recommendation adopted, No. 5:15-CV-60-OC-41PRL, 2020 WL 9455589 (M.D. Fla. Nov. 23,

2020).

incorporated with this Report and reflect a total attorney fee award (before further reduction)

of $59,512.50.

D. Costs

The Court now turns to consideration of the costs claimed by Petitioner. Costs are

contemplated by ICARA. See 22 U.S.C. § 9007(b)(3). As already observed, the Court

previously declared that Petitioner was entitled “the reasonable costs of prosecuting this

case.” (Doc. 53 at 11).

Petitioner claims the following costs: (1) court fees - $420; (2) attorneys’ travel

expenses for trial - $2,532; (3) printing documents for trial - $504.50; and (4) Plaintiff and

minor child’s travel costs for return of child to Australia - $8,139.21. (Doc. 66 at 2). Petitioner

has supported his request for fees with receipts. As there are discrepancies in the costs claimed

by Petitioner and the receipts in the record, the Court is obliged to consider each cost claimed

and whether it was necessary and reasonable.

First, the Court notes that the receipts establish that the filing fee paid in this case was

$405, not $420 as claimed. (Doc. 66 at 62). The filing fee of $405 is an approved cost.

Second, Respondent objects to the travel costs for Petitioner’s counsel in the amount

of $2,532.00. Receipts appear to confirm that these costs include the following: $412.80 x 2

for airfare between Orlando and Miami for Ms. Lungarelli and Ms. Estevez and $1331.34 for

hotel expenses for Ms. Lundarelli and Ms. Estevez (reflecting one hotel room each from

February 21 to February 24, 2023). The total of these expenses that is verified through receipts

is $2,156.92. It is unclear how Petitioner arrived at the claimed totals of $2,532 and $3,036.50

for attorney travel expenses that are referenced in the fee application. (Doc. 66 at 3).

In any event, I recommend against approving the claimed attorney travel costs. As this

Court has observed, “[t]here is no provision in the statute, 28 U.S.C. § 1920, for taxing

attorney travel costs to the opposing party.” Ferguson v. Bombardier Servs. Corp., No. 8:03-CV-

1380-T-30, 2007 WL 601921, at *7 (M.D. Fla. Feb. 21, 2007). Indeed, § 1920 does not

authorize the taxation of attorney travel costs. Further, as observed above, it was Petitioner’s

choice to retain counsel outside of the geographic area in which this case was pending. The

undersigned finds that the Petitioner’s counsel’s travel expenses were thus unnecessary to

secure the return of the child.

Third, Petitioner claims $504.50 in costs for printing documents for trial. As already

discussed above, this amount is directly attributable to the exhibits and binders required by

the Court’s pretrial procedures. Accordingly, $504.50 in printing costs should be approved.

Fourth, Petitioner claims $8,139.21 for his and the minor child’s travel costs to return

the child to Australia. Respondent objects and contends she should not have to pay for

Petitioner’s extended luxury vacation in Florida.

Upon review, the receipts establish the following travel costs that are reasonable and

that the undersigned finds necessary for the child’s return to her habitual residence: (1)

Petitioner and the child’s airfare from Orlando, Florida, to Brisbane, Australia on February

27, 2023 - $3,977.20 (Doc. 66 at 50); and (2) car rental expense from Friday, February 24,

2023, through Monday, February 27, 2023 - $186.94.

Petitioner has also submitted a receipt for a hotel stay in Aventura, Florida, from

Monday, February 13, 2023, through Tuesday, February 21, 2023, totaling $1,488.88, for the

purpose of meeting with counsel in preparation of trial. Respondent objects that this expense

was not necessary, and the Court agrees. In addition, Petitioner has submitted what appear

to be screen shots of banking activity that may relate to travel expenses such as hotel and uber

fees (including various restaurant expenses and two apparent charges for Home2 Suites in

Wildwood, Florida). In the format submitted, the Court cannot discern what precisely these

expenses represent, for whom they were incurred, or whether they were necessary for the

child’s return. Consequently, I recommend that the approved travel expenses for Petitioner

and the child be limited to the clearly documented cost of airfare to Australia and the car

rental expense, for a total of $4,164.14.

The total approved costs are $5,073.64.

E. Whether a Fee Award Would Be Clearly Inappropriate

22 U.S.C. § 9007(b)(3) creates a presumption of an award for necessary expenses,

“unless the respondent establishes that such order would be clearly inappropriate.” Here,

Respondent argues that a fee award would be clearly inappropriate for several reasons. As a

preliminary matter, however, the Court observes that it has already at least partially addressed

this issue. By Order entered February 23, 2023, the Court expressly cited the “clearly

inappropriate” exception to fees under 22 U.S.C. § 9007(b)(3) and found “[t]he Court will

therefore award Petitioner the reasonable costs of prosecuting this case.” (Doc. 53 at 11).

1. Good Faith

Respondent first suggests that a fee award would be clearly inappropriate because she

had a reasonable basis for thinking that removing her child to the United States was consistent

with the parties’ shared intent. (Doc. 72 at 3). Without any further explanation, she also states

that “Petitioner’s actions contributed to Respondent’s belief that she could return to the

United States.” It is undisputed that Petitioner consented to a trip for the child to visit family

in the United States. Respondent’s retention of the child in the United States against

Petitioner’s wishes is what triggered this action.

On this issue, the Court found Respondent’s testimony regarding grave risk and shared

intent to be lacking in credibility. Further, even assuming Respondent had a good faith belief

that she was acting in accordance with the parties’ shared intent, Petitioner made his

intentions clear in writing at least as early as July 25, 2022. It is undisputed that Respondent

retained the child in the United States well past that date, thus necessitating a full-blown trial

in this matter. Both subjectively and objectively, Respondent could not have believed in good

faith that she was acting consistent with the parties’ shared intent given the overall

circumstances, not the least of which included her being served with a summons in an action

brought under the Hague Convention.

2. Petitioner’s Actions

Next, Respondent argues that fees would be clearly inappropriate because Petitioner

needlessly increased costs in this action. Respondent contends that the Petitioner initiated the

action in state court improperly, engaged in negotiations and “prolonged the litigation and

enmity between the parties once this situation began, needlessly increasing the litigation costs

involved.” (Doc. 72 at 5).

The Court disagrees. At best, the parties were equally responsible for prolonging the

litigation. Moreover, the record speaks for itself. Respondent was responsible for retaining the

child in the United States against Petitioner’s wishes. It is readily apparent that, had

Respondent complied with the request that the child be returned to the United States when it

was first made in July 2022, this entire litigation would have been avoided. Instead, she

remained in the United States with the child, resisted efforts to have the child return to

Australia, contested the petition for the return of the minor child filed in state court, removed

the action to federal court, declined to settle the matter, and discharged her prior counsel on

the eve of trial. These actions resulted in the necessity of a full-blown trial on the merits and

were quite likely against the sage advice of Respondent’s prior counsel. Indeed, during the

hearing on prior counsel’s motion to withdraw, Respondent so much as admitted that she

was discharging her counsel because they were advising her to resolve the matter. Yet, if she

had done so, she would have considerably minimized the expenses of this litigation. Instead,

Respondent persisted with taking her case to trial, a right to which she is fully entitled. But

having done so, she cannot then credibly claim that it was Petitioner, rather than she, who is

responsible for prolonging the litigation.

3. Financial Considerations

Finally, Respondent argues that a fee award is clearly inappropriate because of

Petitioner’s financial neglect of the child and his efforts to prevent Respondent from being

able to financially support the child. These unsupported contentions are also without merit.

Child support and issues related to marital assets and finances are best left to the appropriate

court in Australia.

Respondent does, however, also argue that an award of attorney’s fees and costs in

this case would be a financial hardship. Respondent states:

The Mother is not working and has incurred an enormous

amount of personal debt to finance her defense. The personal

debt is in excess of $50,000. Her debt has restricted her ability to

travel to Australia to visit the Child, seek counsel in Australia to

find legal assistance to seek custody and time-sharing schedule,

as well as legal procedures on incurred marital debt. The Mother

has undue burden due to her financial circumstances so they are

so strained that an award of fees would affect her ability to care

for the Child.

(Doc. 72 at 18). In support of her argument, Respondent cites Romanov v. Soto, No. 3:21-CV-

779-MMH-MCR, 2022 WL 3646325, at *5 (M.D. Fla. Aug. 24, 2022) (stating it was

appropriate to consider the mother’s financial circumstances when determining the amount

of fees to be awarded).

Indeed, there is precedent for taking an across-the-board reduction to a fee award

under ICARA where a full award would create a substantial burden. See Moonga, 2018 WL

4026020, at *4 (finding a reduction of approximately one-third of fees under ICARA was

appropriate considering defendant’s claimed financial situation, despite that situation being

unsupported by evidence); Fuentes-Rangel v. Woodman, No. 2:14-CV-00005-WCO, 2015 WL

12999707, at *4 (N.D. Ga. July 29, 2015) (reducing requested ICARA award by one-third

due to respondent’s financial condition).

Here, Respondent has offered no documentation in support of her contentions about

financial hardship. While she states she is not working, she does not state she is incapable of

working. Nonetheless, she has no doubt incurred considerable expense during this litigation,

her earning potential is unclear, and issues relating to marital finances likely remain

unresolved. Whatever her income, the potential fee award in this case would be a substantial

portion of it. As the Moonga court observed, that would be “a substantial burden on anyone.”

2018 WL 4026020 at *4. Moreover, the Court notes that in his reply to Respondent’s

memorandum opposing the application for fees, Petitioner does not dispute Respondent’s

assertions regarding hardship or regarding her strained financial circumstances. (Doc. 73).

Accordingly, given the overall circumstances, the Court finds that a reduction of

approximately one-third of the total award in this case is appropriate.

F. Summary

To summarize, the undersigned recommends that Petitioner’s application for fees and

costs be granted to the extent that Petitioner should be awarded a total of $45,210.30

(representing $59,512.50 in attorney’s fees, plus $5,073.64 in costs, reduced by one-third for

financial considerations).

IV. Recommendation

For the reasons stated above, I respectfully recommend that Petitioner Ricky

Nieuwenhoven’s application for attorney’s fees and costs (Doc. 66) be granted to the extent

that Petitioner should be awarded a total of $45,210.30, representing attorney’s fees and costs.

In all other respects, I recommend that Petitioner’s motion be denied.

Recommended in Ocala, Florida on May 18, 2023.

reese

PHILIP R. LAMMENS

United States Magistrate Judge

Copies furnished to:

Counsel of Record

Unrepresented Parties

- 28 -

Court’s

Exhibit A

Approved Time Entries -- The below chart summarizes the approved attorney time entries

claimed by Petitioner (not including attorney travel time). The disallowed and reduced

entries are also highlighted yellow in the Court’s Exhibit B.

Doc. 66 approved for entries for approved for entries for approved for entries for

Ms. Lungarelli (KL) Ms. Estevez (EE) Paralegal (PL)

Oo AT

To BT OB

——~SS ASS

OC—EDSOS—~—SSS

loo

t—SSCSCSCSOCCCCS

L7

S—~OSCSC—~—CSCS

22

13

29

3000 Td

B14

Ll

1.3

L.7

□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□

14.3

- 30-

Lodestar Calculation – The below chart summarizes the Court’s Lodestar calculations.

Timekeeper Total Hours Multiplied by Total Fee for

Approved timekeeper’s timekeeper

reasonable hourly

rate

Karen Lungarelli 87.2 + 3.5 hours $300/hour $27,210

travel time = 90.7

Erica Estevez 116.2 + 3.5 hours $250/hour $29,800

travel time = 119.2

Paralegal 14.3 $175/hour $2,502.50

Total Attorney $59,512.50

Fee Award

Total Award Calculation – The below chart summarizes the Court’s final calculations

applying a 30% reduction for financial hardship considerations.

Total approved Total approved Total Reduced by 30% Total

costs attorney’s fees potential for financial recommended

award hardship award

considerations

$5,073.64 $59,512.50 $64,586.14 Minus 30% $45,210.30

reduction

Recommended Award Compared to Petitioner’s Claimed Attorney’s Fees and Costs

Petitioner’s claimed Recommended Total

Attorney’s Fees: $101,117 Attorney Fee Award:

$59,512.50 (before

reduction)

Petitioner’s claimed costs: Recommended Total Costs:

$11,595.71 $5,073.64 (before reduction)

Petitioner’s claimed total Recommended Total

award: $112,712.71 Award before 30%

reduction: $64,586.13

Recommended Total

Award after 30%

reduction: $45,210.30