P.-K. et al v. Department of Education, State of Hawai'i

Filing 345

ORDER ADOPTING IN PART AND MODIFYING IN PART MAGISTRATE JUDGE ORDER DENYING REQUEST FOR INTERIM ATTORNEYS' FEES re 316 , 327 - Signed by JUDGE SUSAN OKI MOLLWAY on 3/1/2016. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
E.R.K, through his legal
guardian, R.K., et al.,

)
)
)
Plaintiffs,
)
)
vs.
)
)
DEPARTMENT OF EDUCATION,
)
State of Hawaii,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 10-00436 SOM/KSC
ORDER ADOPTING IN PART AND
MODIFYING IN PART MAGISTRATE
JUDGE ORDER DENYING REQUEST
FOR INTERIM ATTORNEYS’ FEES

ORDER ADOPTING IN PART AND MODIFYING IN PART MAGISTRATE JUDGE
ORDER DENYING REQUEST FOR INTERIM ATTORNEYS' FEES
This certified class action, originally filed in 2010,
concerns whether the State of Hawaii Department of Education
(“DOE”) wrongfully denied services under the Individuals with
Disabilities Education Act (“IDEA”) to individuals that the DOE
viewed as having “aged out” of being eligible to receive
services.

In an order filed on August 28, 2013, the Ninth

Circuit, reversing a district court decision, ruled that the
DOE’s reliance on a Hawaii statute to deny services under the
IDEA was improper, and that individuals covered by the IDEA had
not “aged out” at the age calculated by the DOE.
134.

See ECF No.

On remand, the case was assigned to this judge because the

previously assigned judge was residing in another district.1

1

On February 27,
dismissal of R.P.-K,
representative. See
caption in this case

2012, the parties stipulated to the
and the addition of E.R.K as the class
ECF No. 114. The court therefore amends the
to reflect that dismissal and substitution.

On August 22, 2014, this judge determined that the
members of the class should receive compensatory services to make
up for the services missed as a result of the DOE’s improper
determination of ineligibility.

See ECF No. 187.

Since then,

the parties have been working identify the members of the class.
On February 18, 2016, the Magistrate Judge ordered the class
closed in a thorough and well-reasoned order.

See ECF No. 342.

In so ruling, the Magistrate Judge noted that “overzealous and
overreaching advocacy has resulted in unnecessary delay, lack of
cooperation, and undeniably interfered with the orderly progress
and efficient resolution of this action.”
10.

Id., PageID #s 6309-

The Magistrate Judge even reminded the parties of their

professional obligations under applicable provisions:
Rule 1 of the Federal Rules of Civil
Procedure, which emphasizes a shared
responsibility to cooperate and secure the
just, speedy, and inexpensive determination
of every action, and Section 11 of the
Guidelines of Professional Courtesy and
Civility for Hawaii Lawyers regarding
settlement and alternative dispute
resolutions.
Id., PageID # 6327.
On November 20, 2015, E.R.K. filed an interim motion
for attorneys’ fees, asking for $221,215.10 for attorneys’ fees
incurred by Alston Hunt Floyd & Ing, and $13,734.10 for
attorneys’ fees incurred by the Hawaii Disability Rights Center,
representing fees incurred through the court’s August 2014 order.

2

See ECF No. 292.

E.R.K. sought fees under 20 U.S.C.

§ 1415(i)(3)(B) as the prevailing party in an IDEA case.

See ECF

No. 292-1, PageID # 3799.
The DOE’s opposition of December 18, 2015, agreed that,
pursuant to 20 U.S.C. § 1415(i), this court has the discretion to
award reasonable attorneys fees to the prevailing party in an
IDEA case.

See ECF No. 303, PageID # 4710.

The DOE did not

dispute that E.R.K. was the prevailing party, but instead argued
that the determination of the extent of the prevailing party
status was premature because the class had not been determined
and individualized compensatory education had not been awarded.
The DOE therefore argued that the extent of the prevailing party
status was in issue.

Id., PageID # 4710-12.

On January 11, 2016, Magistrate Judge Kevin S.C. Chang
issued Findings and Recommendation to Deny Without Prejudice
Plaintiffs’ Interim Motion for Attorneys’ Fees (“F&R”).
No. 316.

That recommendation stated,
Given that this action is still pending, and
Plaintiffs will unquestionably file a
subsequent motion for fees, the Court finds
that judicial economy and the administration
of justice will be served by addressing
Plaintiffs’ fee request at the conclusion of
this action, or after meaningful progress has
been made towards resolution or for the
delivery of agreed-upon services to class
members.

Id., PageID #s 5629-30.

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See ECF

On January 28, 2016, E.R.K. filed objections to the
F&R.

See ECF No. 327.

As part of the objections, Paul Alston

filed a declaration indicating that, since the court’s August 22,
2014, and through December 31, 2015, Alston Hunt Floyd & Ing had
done 2,773.9 hours of work, incurring $660,799.16 in fees.
ECF No. 327-1, PageID # 5711.

See

For that same time period, Louis

Erteschik indicates that the Hawaii Disability Rights Center did
168.8 hours of work, incurring $39,799.22 in fees.

See ECF No.

327-2, ECF No. 5715.
This judge reviews de novo those portions of a
magistrate judge’s findings and recommendation to which an
objection is made and may accept, reject, or modify, in whole or
in part, the findings and recommendation made by the magistrate
judge.
74.2.

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Local Rule
In other words, this judge “review[s] the matter anew, the

same as if it had not been heard before, and as if no decision
previously had been rendered.”

Freeman v. DirectTV, Inc., 457

F.3d 1001, 1005 (9th Cir. 2006).
This court adopts the F&R in part and modifies it in
part without holding a hearing.

See Local Rule 7.2(d).

This

court adopts the F&R to the extent that it refuses to examine the
attorneys’ fees in this case on a piecemeal basis.

However,

given the more than 5½ years since this case was initiated, and
given the acknowledgment by the DOE that E.R.K. is the prevailing

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party in this matter, the court believes that a one-time interim
fee reimbursement is appropriate under 20 U.S.C. § 1415(i)(3)(B).
The court declines to examine every bill or to do the lodestar
calculation with respect to this motion.

There appears to be no

dispute that E.R.K. has incurred at least $100,000 in attorneys’
fees that is awardable under 20 U.S.C. § 1415(i)(3)(B).

The

court therefore awards that amount to E.R.K., representing
$95,000 for the fees of Alston Hunt Floyd & Ing and $5,000 for
the fees of the Hawaii Disability Rights Center.

These amounts,

which are not at this point tied to specific work by specific
individuals at specific rates, will be deducted from the total
award of attorneys’ fees under 20 U.S.C. § 1415(i)(3)(B).

This

award is intended to alleviate some of the pressure on E.R.K.’s
attorneys, who have been carrying this case without compensation
for a long time.

Additional attorneys’ fees will surely be

awarded under § 1415(i)(3)(B), and the total award will exceed to
some degree the $100,000 awarded here.
The court anticipates that E.R.K. will file another
motion for attorneys’ fees.

Given the Magistrate Judge’s

labeling of the attorneys’ conduct in this case as “overzealous
and overreaching,” see ECF No. 342, the court includes here some
thoughts that may affect any such a motion.

The court begins

with the Supreme Court’s warning that a “request for attorney’s

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fees should not result in a second major litigation.”

Hensley v.

Eckerhart, 461 U.S. 424, 437 (1983).
First, E.R.K. should limit any request to reasonable
attorneys’ fees incurred and must meet and confer with the DOE to
explore settlement of the fees.

This court hopes E.R.K. will

exclude from any future motion instances of “overzealous and
overreaching” work.
Second, in any motion for attorneys’ fees, E.R.K. shall
seek only reasonable hourly rates.

The court cautions that the

fees requested in the present motion may not reflect reasonable
time spent on matters at reasonable hourly rates.

See Dimitrion

v. Morgan Stanley Home Loans, 2014 WL 4639130, *4, (D. Haw. Sept.
16, 2014); Yonemoto v. Dept. of Veterans Affairs, 2012 WL
1989818, *6 (D. Haw. June 1, 2012); Seven Signatures General
Partnership v. Irongate Azrep BW LLC, 871 F. Supp. 2d 1040, 105354 (D. Haw. 2012); Eggs ‘N Things Intl. Holdings PTE, Ltd. v. ENT
Holdings LLC, 2012 WL 1231962, *1 (D. Haw. Mar. 20, 2012).

If

the amount of awardable fees is contested, the court is not
likely to award the hourly rates approved of in the unopposed
Findings and Recommendation in Eckerle v. Deutsche Bank Nat'l
Trust, Civ. No. 10–00474 SOM–BMK, Doc. No. 74 (Mar. 14, 2012).
Nor is the court likely to award 2016 rates for 2010 work.
Third, in any motion for attorneys’ fees, the court is
not likely to award compensation for time spent by staff other

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than paralegals.

See HRPT Props. Trust v. Lingle, 775 F. Supp.

2d 1225, 1239-40 (D. Haw. 2011) (“This Court does not compensate
for the time expended by other professionals such as librarians,
litigation specialists, litigation coordinators, or legal
assistants, whose requested hourly rates exceed even the rates
typically awarded to experienced attorneys in Hawaii.”).
Fourth, in any motion for attorneys’ fees, the court is
likely to cut time for clerical or ministerial tasks performed by
attorneys.

Seven Signatures, 871 F. Supp. 2d at 1057.

This may

include such things as contacting potential class members via the
telephone, unless E.R.K. demonstrates with respect to the calls
that attorneys had to be the ones performing such work.
Fifth, a motion for attorneys’ fees should not include
duplicative fees.

The court does not generally permit more than

one attorney to bill for attending: (1) a meeting between
co-counsel; (2) a client meeting; or (3) a meeting with opposing
counsel.

See HRPT Props., 775 F. Supp. 2d at 1240 (“duplicative

time spent by multiple attorneys is non-compensable.

The general

rule is that two professionals cannot bill for attending the same
meeting.”).
Finally, any motion for attorneys’ fees shall include
timesheet descriptions that allow this court to determine the
reasonableness of the work and should not contain block billing.
See HRPT, 775 F. Supp. 2d at 1240; Local Rule 54.3.

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 1, 2016.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

R.P.-K, et al. v. Dep’t of Educ., State of Hawaii, Civ. No. 10-00436 SOM/KSC; ORDER
ADOPTING IN PART AND MODIFYING IN PART MAGISTRATE JUDGE ORDER DENYING REQUEST FOR
INTERIM ATTORNEYS' FEES

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