United States District Court, D. New Mexico
ORDER GRANTING IN PART AND DENYING IN PART
RESPONDENT'S MOTION FOR ATTORNEYS' FEES AND
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
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).
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.
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)).
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
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.
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)).
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
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)).
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