Genn v. New Haven Board of Education et al

Filing 52

ORDER (see attached) denying, without prejudice, Plaintiff's 50 Motion for Award of Attorney Fees, for failure to comply with this Court's prior 49 Ruling, which authorized its submission. If Plaintiff wishes to recover a ttorney fees in this matter, she is directed to file, on or before Friday, June 9, 2017, affidavits and submissions in compliance with the attached Order, and with the instructions provided in this Court's prior 49 Ruling. Signed by Judge Charles S. Haight, Jr. on May 15, 2017. (Pskowski, R.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
NANCY GENN,
on her behalf and on behalf of her
daughter, SARAH ELIZABETH (KATIE)
GENN,
3:12-cv-00704(CSH)
Plaintiffs,
v.
NEW HAVEN BOARD OF EDUCATION;
REGINALD MAYO, SUPERINTENDENT
OF SCHOOLS; TYPHANIE JACKSON,
DIRECTOR OF SPECIAL SERVICES;
PATRICIA MOORE, SUPERVISOR OF
SPECIAL SERVICES; and KATHRYN
CARBONE, PUBLIC HEALTH NURSE
DIRECTOR,

May 15, 2017

Defendants.

ORDER REGARDING PLAINTIFF'S MOTION
FOR AWARD OF ATTORNEY FEES
HAIGHT, Senior District Judge:
Plaintiff's Motion for Award of Attorney Fees [Doc. 50] is DENIED, WITHOUT
PREJUDICE, because it does not comply with the law of this circuit as to awards of attorney fees,
nor with the instructions of the prior Ruling of this Court [Doc. 49]. If Plaintiff wishes to recover
attorney's fees in this matter, she is directed to file, on or before Friday, June 9, 2017, affidavits and
submissions that comply with this Court's previous Ruling [Doc. 49].
I. PROCEDURAL BACKGROUND
On November 30, 2016, this Court issued a Ruling [Doc. 49] granting in part and denying
in part Plaintiff's Motion for Summary Judgment [Doc. 36] and granting in part and denying in part
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Defendant's Motion for Summary Judgment [Doc. 37]. Familiarity with that decision is assumed.
As part of that ruling, the Court granted summary judgment to Plaintiff on a single element of the
complaint, namely that, under the Individuals with Disabilities Education Act, 20 U.S.C. §§
1400–1482 ("IDEA"), Plaintiff parent Nancy Genn is entitled to reimbursement for the Independent
Educational Evaluation ("IEE") performed by Miriam Cherkes-Julkowski, Ph.D. Doc. 49 at 31. The
IEE reimbursement claim was the only claim on which Plaintiff prevailed. The Court found that,
pursuant to the IDEA, Plaintiff is a "prevailing party," entitled to attorney's fees, though those fees
should be limited to the hours spent on the successful claim.1 Id. at 44-45 (citing 20 U.S.C. §
1415(i)(3)(i); Hensley v. Eckhart, 461 U.S. 424 (1983)). To conclude the fee issue (and this
litigation), the Court issued the following conditional instruction to Plaintiff counsel:
I will consider the question of attorney's fees in the present case if
and when Plaintiff submits a quantified claim in the proper form.
"Proper form" requires that Plaintiff's attorney (1) comply fully with
the Second Circuit's detailed instructions in New York Ass'n of
Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir 1983); and
(2) limit the claim to the attorney hours spent on the IEE issue,
excluding all others.
Doc. 49, at 46.
On December 7, 2016, Plaintiff counsel filed a timely Motion for Attorney's Fees [Doc. 50]
along with an affidavit and a "work log" reflecting time expended on this action. See Doc. 50,
Exhibit A. Plaintiff's motion does not conform with this Court's instruction, as quoted above. The

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Defendant's brief in opposition [Doc. 51] suggests that the Court reject Plaintiff's
application for attorney fees because Plaintiff's victory was de minimus, and, therefore, Plaintiff
is not a prevailing party under the IDEA, and not entitled to any fee recovery. Doc. 51 at 3. The
Court has already considered this issue, and in its prior ruling, held explicitly that parent
Plaintiff's "partial success is sufficient to qualify Plaintiff as a 'prevailing party' for purposes of
the fee-shifting statute." Doc. 49 at 45. The Court will not revisit that analysis here.
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submission meets neither of the conditions prerequisite to consideration of a fee award: it does not
comply with the instructions of Carey; nor does it limit itself, in any meaningful way, to the hours
expended on the IEE issue.
II. COMPLIANCE WITH THE CAREY INSTRUCTIONS
This circuit has long followed the dictates of Judge Newman's opinion in Carey to evaluate
a movant's proffered evidence supporting its attorneys' fees request:
Hereafter, any attorney—whether a private practitioner or an
employee of a nonprofit law office—who applies for court-ordered
compensation in this Circuit . . . must document the application with
contemporaneous time records . . . . All applications for attorney's
fees . . . should normally be disallowed unless accompanied by
contemporaneous time records indicating, for each attorney, the date,
the hours expended, and the nature of the work done.
711 F.2d at 1148. The Second Circuit subsequently clarified its use of the word “normally” in
Carey, holding that while it “indicates that we intend to leave the district courts with some limited
discretion to make exceptions to the hard-and-fast rule,” Carey nonetheless “sets out unequivocally
that absent unusual circumstances attorneys are required to submit contemporaneous records with
their fee applications.” Scott v. City of New York, 626 F.3d 130, 133 (2d Cir. 2010). “In other
words, Carey establishes a strict rule from which attorneys may deviate only in the rarest of cases.”
Id. Plaintiff counsel has deviated from Carey, as described further below, and has not provided any
indication that hers is "the rarest of cases" meriting such deviation.
A. Lack of Contemporaneous Records
In this case, Plaintiff counsel's work log, as filed, is not a contemporaneous time record as
prescribed by Carey. In particular, the Court draws counsel's attention to the requirement that
movants provide records actually made at the time the work was done or show that “they made

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contemporaneous entries as the work was completed.” Handschu v. Special Services Div., 727 F.
Supp. 2d, 239, 251 (S.D.N.Y. 2010) (emphasis in original) (quoting Cruz v. Local Union No. 3 of
the Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1160 (2d Cir. 1994)). Plaintiff counsel's work log
does not, on its face, show any sign that it was compiled with the assistance of actual
contemporaneous time records. Counsel’s affidavit does not state whether or not she kept actual
contemporaneous records or records created closer to the time when the work was done, nor does
the affidavit describe the practice of counsel's office in maintaining contemporaneous records, nor
the method by which work logs are derived from those records.
B. Lack of Specific Dates
The Carey court mandated that time records indicate the date on which compensable work
was completed. 711 F.2d at 1148. Here, the work log entries are imprecise as to date–counsel does
not provide the date(s) on which she conducted "preparation" for various hearings, only the dates
of those hearings themselves. Doc. 50 at 8. The absence of specific dates also contributes to the
general impression that the work log was not compiled from contemporaneous time records.
C. No Indication of the "Nature of the Work Done"
Carey requires attorneys' time records to indicate "the nature of the work done." 711 F.2d
at 1148. Where an attorney's time records includes time entries such as "letter to court," "staff
conference," or "work on motion," those records have been found "too vague to sufficiently
document the hours claimed." Kirsch v. Fleet St., Ltd., No. 92 CIV. 932, 1996 WL 695687, at *5
(S.D.N.Y. Dec. 4, 1996), aff'd, 148 F.3d 149 (2d Cir. 1998); see also Hensley, 461 U.S. at 437 (an
applicant for attorney's fees "should maintain billing time records in a manner that will enable a
reviewing court to identify distinct claims"); Connecticut Hosp. Ass'n v. O'Neill, 891 F. Supp. 687,

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690–91 (D. Conn. 1994) ("Plaintiffs have failed to satisfy their burden of proof . . . . Many entries
merely state that an attorney had a 'conference with' or a 'call to' or 'call from' another person without
specifying the subject of the conference or call."); Gonzalez v. Town of Stratford, 830 F. Supp. 111,
114 (D. Conn. 1992) ("The fee applicant has failed . . . in that several entries merely specify that an
attorney performed 'research' or had a 'telephone conference' without specifying the issue researched
or the subject of the telephone conference.").
Here, the work log provided by Plaintiff counsel indicates only that time was expended in
"preparation" for various hearings. Doc. 50 at 8. The Court needs to understand the nature of the
work done in order to assess first, whether the claimed expenditure of time was reasonable for the
work described, and second, whether the work pertained to the single claim on which Plaintiff
prevailed. Listing an expenditure of three hours on "[p]reparation for hearing" fails to provide the
Court with any insight as to either of these factors, and further contributes to the general impression
that the work log is not based upon contemporaneous time records.
III. LIMITATION OF CLAIM TO THE IEE ISSUE
This Court's earlier Ruling explicitly instructed Plaintiff to "limit the claim to the attorney
hours spent on the IEE issue, excluding all others." Doc. 49 at 46. Plaintiff counsel's motion and
supporting affidavit acknowledge this directive, but make no serious attempt to comply with it.
Plaintiff counsel attests that this litigation "addressed eight (8) issues."2 Doc. 50 at 5. Plaintiff
counsel further attests that the IEE issue, the only claim on which Plaintiff prevailed, "was

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The Court notes that Defendants count "sixteen substantive issues" raised in this
litigation, of which "the Plaintiffs prevailed on only one." Defendants' Brief, Doc. 51 at 2. As
Plaintiff''s instant motion for award of fees is denied, without prejudice, by this Order, the Court
need not resolve, at this time, whether Plaintiff prevailed on one-eighth or one-sixteenth of the
original case.
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intertwined with several other issues . . . (1) whether the district provided a FAPE; (2) whether
placement at Easton Country Day School was appropriate; (3) whether student was entitled to
compensatory education." Id. at 5-6. So, by Plaintiff counsel's estimation, the IEE issue was
"intertwined" with three out of the seven issues on which Plaintiff did not prevail. By inference, the
IEE issue was, to some degree, separable from the remaining four unsuccessful claims. However,
Plaintiff counsel makes no effort in her work log to distinguish for the Court which hours were spent
on the "intertwined" issues, that she herself identified, and which hours were spent on the claims not
so closely entangled with the IEE issue.
The Court is sympathetic to the interrelated nature of claims in litigation, and recognizes that
it may not always be possible for attorneys to make a fully coherent distinction between efforts put
towards success on one claim and those put towards another; this is an important reason for the
Court to exercise its broad discretion in assessing proportionate fee awards, after review of the
submissions required by Carey. As the Supreme Court has said,
We recognize that there is no certain method of determining when
claims are "related" or "unrelated." Plaintiff's counsel, of course, is
not required to record in great detail how each minute of his time was
expended. But at least counsel should identify the general subject
matter of his time expenditures.
Hensley, 461 U.S. at 437, n.12. The prior ruling in the instant litigation posed the two alternatives,
taken from Hensley, as to how the fee award in this case might be adjusted downward to reflect
Plaintiff's partial success–either by identifying specific hours to be eliminated from the fee
calculation or by a simple proportionate reduction of the total attorney fee. Doc. 49 at 45-46.
Here, Plaintiff counsel has presented the Court with a possible framework for considering
the fraction of her efforts devoted to the IEE claim–some proportion of the effort expended on the

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four purportedly "intertwined" issues–and then she has failed to put her own framework to use. It
is of no use to the Court to identify which issues are intertwined, or which claims are related, if the
work log does not follow the principles of Carey, and provides no insight into "the nature of the
work performed."
IV. CONCLUSION
As explained above, Plaintiff's Motion for Award of Attorney Fees [Doc. 50] does not
comply with the law of this circuit, nor with this Court's earlier Ruling [Doc. 49], which authorized
its submission. Accordingly, Plaintiff's Motion is DENIED, WITHOUT PREJUDICE. This circuit
has found it to be clear error for a district judge to flatly deny fee recovery to a prevailing attorney
whose fee application did not appear, on its face, to be based on truly contemporaneous records,
"without further inquiry into her timekeeping practices." Marion S. Mishkin Law Office v. Lopalo,
767 F.3d 144, 150 (2d Cir. 2014). Accordingly, and in the interests of fulfilling the remedial
purposes of the fee-shifting provisions of the IDEA, this Court will give leave for Plaintiff to make
a second application for fee recovery. Plaintiff is directed to file, on or before Friday, June 9, 2017,
affidavits and submissions that comply with the requirements of Carey, and with this Court's
previous Ruling [Doc. 49].

It is SO ORDERED.
Dated: New Haven, Connecticut
May 15, 2017
/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge
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