On July 20, 2020, the 2nd Circuit upheld the Southern District of New York which ordered Mr. Grano and Ms. Martin’s child returned to Spain. The child was returned on August 20, 2020. On March 5, 2021, Magistrate Judge Davison prepared a Report and Recommendation to the SDNY recommending attorney fees and costs in the amount of $32,664.65 to Mr. Grano.
Under Ozaltin v. Ozaltin, 708 F.3d at 374, “[t]he Hague Convention provides that upon ordering the return of a child or issuing an order concerning rights of access under this convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child… to pay necessary expenses incurred by … the applicant.” ICARA states that “[a]ny court ordering the return of a child … shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner… unless the respondent establishes that such order would be clearly inappropriate.” Mr. Grano sought $359,799.10 in fees and $108,145.41 in costs in this case. The court used the lodestar method to determine what fees were reasonable. The Respondent argued that it was unnecessary to use multiple law firms to litigate the case, that petitioner submitted inadequate documents to support the fees, that the hourly rates were excessive, and that the fees associated with the collateral state proceedings were not recoverable.
The Magistrate Judge found that retaining multiple counsel in a case this complex was reasonable. He also found that a 5% reduction in the fees was founded because some of the narratives in the billing statements were vague (such as “trial preparation”). The lawyers’ hourly rates were also reduced as there was no evidence on what were appropriate prevailing rates for Hague abduction litigation in New York, and past caselaw did reduce hourly rates of comparably skilled attorneys. Further, none of the state court proceedings impacted or influenced the Hague abduction proceeding, and, more importantly, the billing statements by Petitioner’s counsel did not differentiate between time spent on the state court matter and the federal Hague matter, further creating problems in reviewing the actual time spent on the Hague abduction case.
Respondent argued that it would be clearly inappropriate to collect fees when the petitioner engaged in multiple, unilateral acts of intimate partner violence against her, and her removal of the child related directly to that violence. But, the Magistrate Judge found that she did not show cause and effect between the violence and her removal of the child. She also argued that imposing the fee award would be ruinous to her ability to litigate the custody matter in Spain. Agreeing with Respondent, the Magistrate Judge recommended the fee award be reduced by 85%.
On August 9, 2021, after both parties’ objected to the Magistrate Judge’s Report and Recommendation, the SDNY adopted the R&R in part and awarded Petitioner fees and costs in the amount of $34,296.19. Among other adjustments, the SDNY found that Respondent’s argument that fees should be reduced entirely to $0 was based primarily on what she described as emotional “violence,” and the court found that when the abuse was “almost entirely about psychological as opposed to physical abuse,” and “in which both sides were less than candid,” there was no justification to deny the award entirely.