Moonga v. Moonga
Filing
38
OPINION AND ORDER GRANTING IN PART Plaintiff's 35 Motion for Necessary Expenses. The Court finds that a reduction of approximately one-third is appropriate in this case. The Plaintiff's fees and costs award is reduced to $40,000.00. The clerk is directed to enter a judgment accordingly. Signed by Judge Thomas W. Thrash, Jr. on 8/23/2018. c:Financial Office(jkl)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GEORGE CHOONGA MOONGA,
Plaintiff,
v.
CIVIL ACTION FILE
NO. 1:17-CV-2136-TWT
JULIE MOONGA,
Defendant.
OPINION AND ORDER
This is an action brought pursuant to The Convention on the Civil Aspects
of International Child Abduction, known as the Hague Convention, and the
International Child Abduction Remedies Act (“ICARA”). It is before the Court
on the Plaintiff George Choonga Moonga’s Motion for Necessary Expenses [Doc.
35]. For the reasons stated below, the Plaintiff’s Motion for Necessary Expenses
[Doc. 35] is GRANTED in part.
I. Background
The Plaintiff originally filed this action seeking a return of his minor child
to the United Kingdom of Great Britain and Northern Ireland. On August 7,
2017, the Court conducted a hearing and heard testimony from both the Plaintiff
and the Defendant. Based on the testimony and evidence reviewed by the Court,
the Court granted the Plaintiff’s petition, and ordered that the child be
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immediately returned to the United Kingdom in the company of her father, the
Plaintiff. Pursuant to ICARA’s fee shifting statute, 22 U.S.C. § 9007, the
Plaintiff now moves to recover attorney’s fees and other necessary expenses from
the Defendant.
II. Discussion
“ICARA permits a successful petitioner to recover reasonable fees and
costs; the provision is consistent with the Hague Convention's overarching goal
of deterring wrongful child abductions and retentions.”1 “This requirement is
intended to restore the petitioner to the financial position he or she would have
been in had there been no removal and to deter an abduction from happening
in the first place.”2 In particular, Section 8(b)(3) of ICARA states that:
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.3
This creates a “mandatory obligation on courts to award necessary expenses to
a successful petitioner, except when the respondent demonstrates that an award
1
Fuentes-Rangel v. Woodman, No. 2:14-CV-00005-WCO, 2015 WL
12999707, at *1 (N.D. Ga. July 29, 2015).
2
Ross v. Worley, No. 1:13-CV-60-WSD, 2013 WL 12073466, at *1
(N.D. Ga. Apr. 4, 2013) (quotations omitted).
3
22 U.S.C. § 9007(b)(3).
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would be clearly inappropriate.”4 In other words, this creates a strong, rebuttable presumption in favor of a fee award.5
Thus, the Court must proceed with two inquiries. The first asks whether
the petitioner’s requested fees were “necessary.” The second asks whether an
award of such fees would be “‘clearly inappropriate’ in light of respondent's
financial circumstances, subjective good faith in his actions, or other equitable
circumstances that suggest further diminution is just.”6
A.
Necessary Fees
The Plaintiff requests a total of $60,676.92 in fees and expenses. Included
in this are $1,720.53 for court costs, $50,365.00 for legal fees and expenses, and
$8,591.39 for transportation costs related to the return of the child. The court
fees are obviously necessary expenses. However, the Defendant challenges the
necessity of all of the Plaintiff’s legal fees and transportation costs.
This inquiry is guided by the lodestar framework.7 “Under the lodestar
framework, the court multiplies the number of reasonable hours expended by
a reasonable rate. A reasonable hourly rate is ‘the prevailing market rate in the
Rath v. Marcoski, No. 18-10403, 2018 WL 3799875, at *2 (11th Cir.
Aug. 10, 2018) (quoting Salazar v. Maimon, 750 F.3d 514, 519 (5th Cir. 2014)).
4
5
Id. at *3.
6
Fuentes-Rangel, 2015 WL 12999707, at *1.
7
Id.
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relevant legal community for similar services by lawyers of reasonably
comparable skills, experience, and reputation.’”8
Although the Plaintiff was required to retain a solicitor in the United
Kingdom in relation to this case, he is not seeking reimbursement of those
expenses; rather, he is only seeking reimbursement for fees spent on local
counsel. The Plaintiff specifically retained his attorneys because of their
demonstrated experience in Hague Convention cases. The Plaintiff claims
approximately 250 hours of work were spent on this matter by his attorneys,
although approximately 38 of these hours were not charged to the Plaintiff. His
attorneys charged $400 per hour for partner time, between $175 and $250 per
hour for associate time, and between $95 and $150 per hour for law clerk and
paralegal time. The majority of work – about 151 hours – was assigned to an
associate and paralegal, helping to keep the costs down. Only approximately 44
hours of partner time were spent. These rates are reasonable and in line with
the prevailing rates of the Atlanta market.
Even though the rates are reasonable, the Court must determine if the
number of hours worked were reasonable, and whether the request includes any
unnecessary or duplicative work. The “[C]ourt has discretion to exclude from the
calculation of attorneys' fees hours that were not reasonably expended.
Furthermore, where the attorney's documentation is inadequate, or the claimed
Id. (quoting Norman v. Housing Auth. of City of Montgomery, 836
F.2d 1292, 1299 (11th Cir. 1988)).
8
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hours are duplicative or excessive, the Court may reduce the award
accordingly.”9 “The fee applicant bears the burden of establishing entitlement
to a fee and documenting hours expended on the matter[, but t]he party
opposing the fee application has the obligation to provide specific and reasonably
precise objections concerning the hours that the party wishes to exclude.”10
“Generalized statements that the time spent was reasonable or unreasonable of
course are not particularly helpful and not entitled to much weight.”11
The Defendant first raises generalized objections that the amount of time
spent and the amount of attorneys employed on this case were excessive. Like
the court in Fuentes-Rangel, “[t]he court recognizes that the legal fees incurred
in this case are higher than the average ICARA case. But this is due in no small
part to [the Defendant]. The expenses associated with this case could have been
much lower had [the Defendant] taken a more reasonable position throughout
the litigation.”12 Instead, every possible issue was contested and made
significantly more difficult by the Defendant’s positions. In addition, the
Plaintiff’s requested fee does not even fully represent the amount of time
Dawson v. McPherson, No. 1:14CV225, 2014 WL 4748512, at *5
(M.D.N.C. Sept. 23, 2014) (quotations and citations omitted).
9
Fuentes-Rangel, 2015 WL 12999707, at *2 (citing Norman, 836
F.2d at 1303 and Lambert v. Fulton Cnty., Ga., 151 F. Supp. 2d 1364, 1369
10
(N.D. Ga. 2000)).
11
Norman, 836 F.2d at 1301.
12
Fuentes-Rangel, 2015 WL 12999707, at *2.
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actually spent on this matter, as he has elected not to seek the expenses he
incurred for hiring a solicitor in the United Kingdom.
The Defendant also challenges the Plaintiff’s request for time spent “in
which the various employees of the law firm were communicating with each
other.”13 She calls these tasks “law firm management.” This argument is without
merit. All of the instances which the Defendant cites are clearly compensable
time. For example, the Defendant takes issue with an associate billing for
communicating with a partner “regarding the status of the case and next
step[s],” or for an associate communicating with a partner “regarding the best
strategy” on visitation with the child.14 This is not “law firm management.” This
is case strategy, and it is both reasonable and necessary for that which the
Plaintiff hired his attorneys for: winning his case.
Lastly, the Defendant challenges some of the Plaintiff’s claimed travel
expenses as personal costs not related to the return of the child. In particular,
the Defendant challenges a number of Uber charges the Plaintiff seems to have
spent to transport him and his daughter to and from various events in the
Atlanta area. The Defendant argues that “only those Uber charges related
specifically to Court or travel to the airport should be considered” related to the
return of the child.
13
Def.’s Resp., at 8.
14
Def.’s Resp., at 8-12.
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The Defendant is correct that normally courts would not award fees for
costs incurred during the normal care of the child, the theory being that the
parent would have incurred those costs anyway. But that theory is inapposite
in this case, where the Plaintiff incurred these particular costs because he was
required to be in a foreign country without means of transportation in order to
obtain the rightful return of his child to the United Kingdom. Had the Plaintiff
and the child been at home in the United Kingdom, he would not have incurred
those expenses. Thus, they are not normal costs incurred in caring for himself
or his child, but are related to the return of his child. Thus, they fall within the
coverage of ICARA’s fee shifting framework. Given the evidence and totality of
the circumstances, the Court finds that the Plaintiff’s reported costs of
$60,676.92 were both reasonable and necessary in this case.
B.
“Clearly Inappropriate” Inquiry
The Court’s inquiry continues by determining the appropriateness of
awarding the Plaintiff’s requested fee. Among the relevant considerations in
ICARA fee awards is whether a full fee award would leave a parent unable to
care for her child and “whether a respondent had a good-faith belief that her
actions in removing or retaining a child were legal or justified.”15 The Defendant
15
Rath, 2018 WL 3799875, at *4.
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bears the “substantial burden of establishing that a fee award is clearly
inappropriate.”16
There is no question that an award of attorney’s fees and other necessary
expenses is entirely warranted in this case. The Defendant argues that doing so
would be inappropriate because of her financial situation. In her response brief,
the Defendant claims that she “is currently unemployed with no source of
income,” and that she is incurring significant financial costs as a result of both
this litigation and the ongoing litigation in the United Kingdom.17 During the
course of this case, however, the Court has found the Defendant to be fundamentally lacking in credibility. Like the boy who cried wolf, she has consistently
made wild claims that have no basis in evidence or in fact, and this situation is
no different. Less than a year ago she filed a sworn statement in an English
court saying that she was employed with a relatively good salary.18 Although she
now claims she is unemployed, she presents no evidence to support that
assertion.19 Nor has she provided any evidence to suggest she would be so
financially burdened by an award of fees that she would no longer be able to care
16
Id. at *3.
17
Def.’s Resp., at 4.
18
Pl.’s Reply, Ex. A.
See Salazar v. Maimon, 750 F.3d 514, 522 (5th Cir. 2014)
(recognizing that the respondent “had a statutory obligation to come forward
with evidence to show the claimed fees were clearly inappropriate”).
19
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for the child. Given the nature of this case, the Court finds it entirely appropriate to award fees in this case.
That being said, some reduction in the award is also warranted.
Assuming the Defendant still has her job – and the Court has no substantive
reason to believe she does not – a full-fee award would constitute over 80% of
her annual salary before tax. That is a substantial burden on anyone, let alone
a parent who does not have permanent status in her child’s resident country.
Accordingly, the Court finds that a reduction of approximately one-third is
appropriate in this case.20
III. Conclusion
For the reasons stated above, the Plaintiff’s Motion for Necessary
Expenses [Doc. 35] is GRANTED in part. The Plaintiff’s fees and costs award is
reduced to $40,000.00. The clerk is directed to enter a judgment accordingly.
SO ORDERED, this 23 day of August, 2018.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
See Fuentes-Rangel, 2015 WL 12999707, at *3 (reducing requested
award by one-third due to respondent’s financial condition).
20
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