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Arjouan v. Cabre

United States District Court, D. New Mexico

September 24, 2018

OTHMAN ARJOUAN, Plaintiff/Petitioner,


         THIS MATTER comes before the court on Respondent Cabré's Motion for Attorneys' Fees and Costs filed August 20, 2018. ECF No. 120. Upon consideration thereof, the court will grant the motion in part and deny it in part.


         The court previously granted Petitioner Arjouan's motion for voluntary dismissal without prejudice on the condition that he pay Ms. Cabré's costs and attorneys' fees (less any fees for work that may be utilized in subsequent litigation of the same claim). See Order Granting Dismissal Without Prejudice on Conditions (ECF No. 113). The court dismissed this action without prejudice on the condition that if Mr. Arjouan fails to pay any costs and recoverable attorneys' fees that may be awarded to Ms. Cabré, she may seek to reopen and have this action dismissed with prejudice. Judgment at 1 (ECF No. 114).

         The same day this court entered judgment, a Danish court - in a concurrent proceeding taking place in Denmark - awarded sole custody of the child to Ms. Cabré. The evidence suggests that Mr. Arjouan had four weeks to appeal the decision, but did not. Resp't's Mot. for Att'ys' Fees and Costs, Ex. C (ECF No. 120-3). Ms. Cabré now contends that she may reside with the minor child wherever she chooses. The implication may be that none of her counsel's work to date in these proceedings can be reused in future litigation, but Ms. Cabré never addressed this important point in her motion.

         Be that as it may, Mr. Arjouan has failed to respond to the motion for attorneys' fees and costs. Under the circumstances, the local rule provides that “[t]he failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion.” D.N.M. LR-Civ. 7.1(b). Notwithstanding, the court reviews such awards to ensure they are justified. See Reed v Bennett, 312 F.3d 1190, 1193 (10th Cir. 2002) (in the case of a failure to respond to a summary judgment motion, the court must still consider whether the motion conforms with the substantive law); cf. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 249 (2010) (“[T]he court must review the attorneys' fees and costs requested and limit them to a reasonable amount.” (internal quotation marks omitted)).


         A. Costs

         The request for costs does not comply with the local rules, see D.N.M. LR-Civ. 54.1 & 54.2, which require an itemization of costs and an affidavit that “the costs are allowable by law, correctly stated and necessary to the litigation.” D.N.M. LR-Civ. 54.1. This presupposes an analysis of the costs submitted so that the Clerk may tax costs. The court will deny Ms. Cabré's motion insofar as it seeks costs without prejudice to a conforming motion for costs submitted within 30 days from the entry of this order.

         B. Attorneys' Fees

         At the outset it is important to note that, although this is a case brought under the Hague Convention, this is not an award of attorneys' fees under that agreement. See generally 22 U.S.C. § 9007. Rather, these fees are awarded as a condition of the voluntary dismissal of Mr. Arjouan's suit, as outlined in the court's earlier order granting conditional dismissal without prejudice, see ECF No. 113, and judgment to that effect. See ECF No. 114.

         The starting point for an award of attorneys' fees is to calculate the “lodestar amount”: the reasonable hours expended by an attorney in litigating a case multiplied by a reasonable fee given an attorney's experience and ability. See, e.g. Anchondo v. Anderson, Crenshaw & Assocs., LLC, 616 F.3d 1098, 1102 (10th Cir. 2010). The party seeking an award of attorneys' fees bears the burden of proving the two constituent elements of the lodestar. See United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1233 (10th Cir. 2000). In other words, the moving party must present (1) adequate documentation to support the number of hours billed and the tasks on which those hours were expended, as well as (2) evidence of the prevailing billable rates in the community for similar work performed by lawyers of similar skill. See id. at 1233-34. When the moving party has provided sufficient evidence on both elements, the fee amount produced by the lodestar approach is presumptively reasonable. See Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 546 (2010) (“[T]he lodestar figure includes most, if not all, of the relevant factors constituting a ‘reasonable' attorney's fee.” (quoting Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 566 (1986))). Ultimately “the establishment of hourly rates in awarding attorneys' fees is within the discretion of the trial judge who is familiar with the case and the prevailing rates in the area.” See Smith v. Freeman, 921 F.2d 1120, 1122 (10th Cir. 1990) (quoting Lucero v. City of Trinidad, 815 F.2d 1384, 1385 (10th Cir. 1987)).

         Here, Ms. Cabré requests fees totaling $91, 195 and costs totaling $3, 508.93. Resp't's Mot. for Att'ys' Fees and Costs at 1 (ECF No. 120). The fees requested include the work of six attorneys and at least six paralegals or law clerks. The total hours billed are 388.20. The request for fees does not total the time for personnel other than Ms. Honeycutt and Ms. Macias-Mayo, so the court was required to compute the amount of time spent by other personnel. The hours and rates requested are set out in Table 1 infra.

         The court begins with the amount of time billed. While many time entries link discrete tasks with the amount of time spent, many entries combine lists of various tasks, making it difficult to determine the amount of time spent on each. The Tenth Circuit has cautioned counsel not to engage in the practice of block billing “because block billing does not precisely delineate ‘how . . . hours were allotted to specific tasks.'” Cadena v. Pacesetter Corp., 224 F.3d 1203, 1215 (10th Cir. 2000) (quoting Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983)). Block billing complicates the court's effort to determine whether the amount of time dedicated to a case was reasonable. Here, Ms. Cabré's attorneys often block billed their entries, combining multiple tasks into hours-long blocks of time. See Resp't's Mot. for Att'ys' Fees, Ex. D (ECF No. 120-4). For example, one entry by Ms. Macias-Mayo for 5 hours of time includes the tasks: “Work on motion to dismiss, forward to S. Dudelczyk for additional argument; work with team to finalize several motions for deadline; confer with MGolden; confer with DWalther; finish motions; finalize motion for filing.” Id. at 17. The court is left to guess how much time was spent on any one of these tasks. This hardly meets the requirement that the movant “prove and establish the reasonableness of each dollar, each hour, above zero.” Cadena, 224 F.3d at 1215 (internal quotation marks omitted) (quoting Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995)).

         The description of tasks in the time sheets also complicates the court's review of the requested fees. The time sheets often only vaguely refer to the task for which the client is being charged - for example, one entry cryptically describes “work on legal issues, ” while another lists “work with team to finalize several motions for deadline.” Resp't's Mot. for Att'ys' Fees and Costs, Ex. D at 17 (ECF No. 120-4). Given these descriptions, the court is incapable of parsing which tasks are validly chargeable to Mr. Arjouan and which are properly excluded. For example, Respondent's Motion for Judicial Notice of Adjudicative Facts (ECF No. 64) bordered on the frivolous given Judge Armijo's prior decision in the case ...

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