T, et al v. Department of Education, State of Hawai'i
Filing
46
ORDER DENYING PLAINTIFF'S OBJECTIONS TO MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND ORDER ADOPTING THE FINDINGS AND RECOMMENDATION re: 42 . S igned by JUDGE LESLIE E. KOBAYASHI on 1/30/2013. (afc)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
I.T., by and through his
parents Renee and Floyd T.,
)
)
)
)
Plaintiffs,
)
vs.
)
)
DEPARTMENT OF EDUCATION,
)
)
STATE OF HAWAII,
)
)
Defendant.
_____________________________ )
CIVIL NO. 11-00676 LEK-KSC
ORDER DENYING PLAINTIFF’S OBJECTIONS TO MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY
IN PART PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
AND ORDER ADOPTING THE FINDINGS AND RECOMMENDATION
On November 30, 2012, the magistrate judge filed his
Findings and Recommendation to Grant in Part and Deny in Part
Plaintiff’s Motion for Attorneys’ Fees and Related Nontaxable
Expenses (“F&R”).
[Dkt. no. 42.]
On December 14, 2012,
Plaintiff I.T., by and through his parents Renee and Floyd T.
(“Plaintiff”), filed objections to the F&R (“Objections”).
Defendant Department of Education, State of Hawai‘i (“DOE” or
“Defendant”) filed its response to Plaintiff’s Objections
(“Response”) on December 28, 2012.
The Court finds this matter
suitable for disposition without a hearing pursuant to Rules
LR7.2(d) and LR74.2 of the Local Rules of Practice of the United
States District Court for the District of Hawai`i (“Local
Rules”).
After careful consideration of the parties’ submissions
and the relevant legal authority, the Court HEREBY DENIES
Plaintiff’s Objections and ADOPTS the magistrate judge’s F&R, for
the reasons set forth below.
BACKGROUND
On September 11, 2012, this Court issued its Amended
Order Affirming in Part and Vacating and Remanding in Part the
Hearings Officer’s October 6, 2011 Decision (“9/11/12 Order”).
[Dkt. no. 31.]
In the 9/11/12 Order, the Court ruled as follows:
1) Defendant violated the Individuals with
Disabilities Education Act of 2004 (“IDEA”), 20
U.S.C. § 1400 et seq., by failing to evaluate
Student for a suspected auditory processing
disorder, although this violation did not deny
Student a Free Appropriate Public Education
(“FAPE”) because the evidence ultimately
established that he did not have the disorder; and
2) Defendant denied Student a FAPE by failing to
address his speech/language needs until
formulation of the August 23, 2010 Individualized
Education Programs (“IEP”). The Court GRANTS
Plaintiffs’ request for compensatory education as
a remedy for the denial of FAPE and REMANDS this
matter to the Hearings Officer for a determination
of the form of the compensatory education. The
Decision is AFFIRMED in all other respects.
[9/11/12 Order at 2.]
I.
Motion For Attorneys’ Fees
On September 25, 2012, Plaintiff filed a Motion for
Attorneys’ Fees and Related Nontaxable Expenses (“Motion”).
[Dkt. no. 32.]
Plaintiff requested the following fees:
Name
Hours
Rate
Total
John Dellera
176.25
$290.00
$51,112.50
Jerel Fonseca
20.15
$285.00
$5,742.75
2
Denise Wong
92.9
$125.00
Tax (4.712%)
Totals
$11,612.50
$3,226.20
289.3
$71,693.95
Defendant did not contest that Plaintiff was the
prevailing party.
The magistrate judge found and recommended
that Plaintiff be awarded the following fees:
Name
Hours
Rate
Total
John Dellera
147.28
$275.00
$40,502.00
Jerel Fonseca
12.65
$285.00
$3,605.25
Denise Wong
91.26
$125.00
$11,407.50
Tax (4.712%)
Totals
$2,615.86
251.19
$58,130.61
[F&R at 27.]
II.
Objections and Response
Plaintiff raises objections to the following rulings in
the F&R: (1) the magistrate judge’s denial of Mr. Dellera’s
request for an inflation adjustment for his hourly rate from
$275.00 to $290.00; (2) the reduction for excessive hours based
on duplication of effort and time spent reviewing the
administrative record; (3) the time reduction for clerical tasks,
including routine communications with the Court and client;
(4) the reduction for block billing; (5) the 20% reduction based
on the degree of success; and (6) the reduction for insufficient
descriptions of services provided by Mr. Fonseca.
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In the Response, Defendant urges the Court to overrule
Plaintiff’s Objections.
It asserts that although Plaintiff is
the prevailing party for purposes of fees, Plaintiff is entitled
to reasonable attorneys’ fees Defendant and disputes the
reasonableness of the fees requested by Mr. Dellera.
STANDARD
Any party may file objections to a magistrate judge’s
findings and recommendation regarding a case dispositive matter.
28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b); Local Rule LR74.2.
A judge of the court shall make a de novo
determination of those portions of the report or
specified proposed findings or recommendations to
which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part,
the findings or recommendations made by the
magistrate judge. The judge may also receive
further evidence or recommit the matter to the
magistrate judge with instructions.
§ 636(b)(1).
“[I]n providing for a ‘de novo determination’
rather than de novo hearing, Congress intended to permit whatever
reliance a district judge, in the exercise of sound judicial
discretion, chose to place on a magistrate’s proposed findings
and recommendations.”
United States v. Raddatz, 447 U.S. 667,
676 (1980) (citation omitted); accord Holder v. Holder, 392 F.3d
1009, 1022 (9th Cir. 2004) (citing Raddatz).
Pursuant to Local
Rule 74.2, this Court “may consider the record developed before
the magistrate judge,” but the Court must make its “own
determination on the basis of that record.”
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DISCUSSION
The Court first notes that reasonable attorneys’ fees
are generally based on the traditional “lodestar” calculation set
forth in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
The
Court must determine a reasonable fee by multiplying “the number
of hours reasonably expended on the litigation” by “a reasonable
hourly rate.”
Id. at 433.
Second, the Court must decide whether
to adjust the lodestar amount based on an evaluation of the
factors articulated in Kerr v. Screen Extras Guild, Inc., 526
F.2d 67, 70 (9th Cir. 1975), some of which have not been subsumed
in the lodestar calculation:
(1) the time and labor required, (2) the novelty
and difficulty of the questions involved, (3) the
skill requisite to perform the legal service
properly, (4) the preclusion of other employment
by the attorney due to acceptance of the case, (5)
the customary fee, (6) whether the fee is fixed or
contingent, (7) time limitations imposed by the
client or the circumstances, (8) the amount
involved and the results obtained, (9) the
experience, reputation, and ability of the
attorneys, (10) the “undesirability” of the case,
(11) the nature and length of the professional
relationship with the client, and (12) awards in
similar cases.
Kerr, 526 F.2d at 70.
Factors one through five have been
subsumed in the lodestar calculation.
See Morales v. City of San
Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996).
Further, the Ninth
Circuit, extending City of Burlington v. Dague, 505 U.S. 557, 567
(1992), held that the sixth factor, whether the fee is fixed or
contingent, may not be considered in the lodestar calculation.
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See Davis v. City & Cnty. of San Francisco, 976 F.2d 1536, 1549
(9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345
(9th Cir. 1993).
Once calculated, the “lodestar” is
presumptively reasonable.
See Pennsylvania v. Del. Valley
Citizens’ Council for Clean Air, 483 U.S. 711, 728 (1987).
The
Court addresses each of Plaintiff’s Objections in turn.
I.
Plaintiff’s First Objection - Inflation Adjustment
The magistrate judge determined that $275.00 was a
reasonable hourly rate for Mr. Dellera, despite his request for
$290.00 to adjust for inflation since 2010.
The magistrate notes
that “Inflation alone is not a sufficient basis for the requested
rate increase.”
[F&R at 9.]
Plaintiff argues that “Without an
adjustment, real compensation would decrease as one’s experience
increases.”
[Objections at 3.]
In assessing whether an hourly rate is reasonable, a
court “should be guided by the rate prevailing in the community
for similar work performed by attorneys of comparable skill,
experience, and reputation.”
Webb v. Ada County, 285 F.3d 829,
840 (9th Cir. 2002) (citing Chalmers v. City of Los Angeles, 796
F.2d 1205, 1210–11 (9th Cir. 1986)); see also Gates v.
Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992) (noting that the
rate awarded should reflect “the rates of attorneys practicing in
the forum district”).
In addition to their own statements, fee
applicants are required to submit additional evidence that the
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rate charged is reasonable.
Jordan v. Multnomah County, 815 F.2d
1258, 1263 (9th Cir. 1987).
Here, Plaintiff submitted a
Declaration from Stanley Levin, Esq., which opines that
Mr. Dellera is entitled to an hourly rate between $250.00 and
$350.00, and that a reasonable hourly billing rate for this case
would be $300.00.
[Decl. of Stanley Levin (dkt. no. 32-4) at
¶ 6.]
This Court is familiar with the prevailing rates in the
community and the hourly rates awarded within this district in
other cases.
The Court notes that in another matter pending
before this Court, J.T. v. Department of Education, CV. No.
11–00612 LEK–BMK (“J.T.”), a different magistrate judge recently
found $275.00 to be reasonable hourly rate for Mr. Dellera, and
Plaintiff did not object to that hourly rate.
The Court finds
$275.00 to be reasonable hourly rate for Mr. Dellera, and agrees
with the magistrate judge that inflation alone does not justify
the requested rate increase in the instant matter.
The Court
therefore DENIES Plaintiff’s first objection to the F&R.
II.
Plaintiff’s Second Objection - Reduction for Excessive Hours
A party seeking attorney’s fees bears the burden of
proving that the fees and costs taxed are associated with the
relief requested and are reasonably necessary to achieve the
results obtained.
See Tirona v. State Farm Mut. Auto. Ins. Co.,
821 F. Supp. 632, 636 (D. Haw. 1993) (citations omitted).
7
A
court must guard against awarding fees and costs which are
excessive, and must determine which fees and costs were selfimposed and avoidable.
See id. at 637 (citing INVST Fin. Group
v. Chem-Nuclear Sys., 815 F.2d 391, 404 (6th Cir. 1987)).
Time
expended on work deemed “excessive, redundant, or otherwise
unnecessary” shall not be compensated.
See Gates, 987 F.2d at
1399 (quoting Hensley, 461 U.S. at 433-34).
A.
Duplication of Effort
The magistrate judge found that Mr. Dellera spent
excessive amounts of time drafting documents, and disallowed
13.45 hours for preparing the Opening Brief, which overlapped
with portions of the work done in J.T.
[F&R at 14-15.]
Plaintiff argues that there “was no duplication of effort” here,
and that the recommended reduction is unjustified.
at 5.]
[Objections
Defendant notes that the magistrate judge made this
recommendation based on Mr. Dellera’s “experience in this area of
the law” and found that “he spent excessive amounts of time
drafting documents.”
[Response at 7 (citing F&R at 13).]
The Court notes that, rather than imposing an across
the board 30% reduction to Mr. Dellera’s hours as requested by
Defendant, the magistrate judge recommended a specific reduction
based upon a careful review of the hours requested for specific
tasks.
Notably, the magistrate judge observed that “Mr. Dellera
reused approximately eight pages of passages from the opening
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brief in J.T. for the opening brief here.”
[F&R at 15.]
The
Court agrees that this appears to be a reasonable reduction for
work that is “excessive, redundant, or otherwise unnecessary.”
See Gates, 987 F.2d at 1399.
The Court therefore DENIES this
objection to the F&R.
B.
Review of Administrative Record
Plaintiff also objects to a reduction for duplicative
time spent reviewing the administrative record that was
inextricably intertwined with brief writing.
The magistrate
judge was unable to reasonably apportion the time spent on record
review and briefing when they were lumped in the same time entry,
and therefore reduced the time spent in preparing the Opening
Brief.
[F&R at 13-14.]
Plaintiff argues that this reduction is
arbitrary and unreasonable.
[Objections at 5-6.]
The Court
disagrees and finds that the 13.45 hours reduced in total, based
on duplicative work and for time spent reviewing the record
(where it was not separately accounted for), is a reasonable
reduction, supported by this Court’s experience in similar
matters.
The Court therefore DENIES Plaintiff’s second objection
to the F&R.
III. Plaintiff’s Third Objection - Clerical Tasks
The magistrate judge subtracted four hours spent by
Mr. Dellera on clerical tasks.
Plaintiff argues that he complied
with Local Rule 54.3(d)(1)(A) by itemizing time spent on routine
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communications with the court and client, and that such tasks are
for the lawyer, and not clerical employees.
[Objections at 6.]
This Court has previously held that similar tasks were
clerical in nature, and should be excluded.
Clerical or ministerial costs are part of an
attorney’s overhead and are reflected in the
charged hourly rate. See, e.g., Sheffer v.
Experian Info. Solutions, Inc., 290 F. Supp. 2d
538, 549 (E.D. Pa. 2003). The Court finds that
all of [plaintiff’s] entries for communications
about, and internal office management of, hearing
dates and due dates are clerical in nature.
Jeremiah B. v. Dept. of Educ., Civil No. 09-00262 DAE-LEK, 2010
WL 346454, at *5
(D. Hawai‘i Jan. 29, 2010); see also Nicholas
M. ex rel. Laura M. v. Dept. of Educ., Civ. No. 09–00162 HG–LEK,
2010 WL 234862, at *5 (D. Hawai‘i Jan. 21, 2010) (“Some client
communications may be considered clerical or ministerial, such as
merely informing the client that a document has been filed or
what a hearing date is. . . .
A communication with a hearings
officer about deadlines is clerical in nature.”).
The Court finds that the tasks generally identified
here are clerical in nature, and that the four hours were
properly excluded by the magistrate judge.
The Court therefore
DENIES Plaintiff’s third objection to the F&R.
IV.
Plaintiff’s Fourth Objection - Block Billing
Next, Plaintiff objects to the magistrate judge’s 20%
reduction of time entries that were block billed, and not
sufficiently itemized.
“Block billing entries generally fail to
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specify a breakdown of the time spent on each task.
This
practice makes it difficult to determine whether counsel spent a
reasonable amount of time on a particular task.”
Synagro
Technologies, Inc. v. GMP Hawaii, Inc., Civ. No. 04-00509
SPK/LEK, 2007 WL 851271, at *13 (D. Hawai‘i Mar. 15, 2007).
Here, some of Mr. Dellera’s time entries were blockbilled, while others included more detailed itemized descriptions
of his work.
One example cited by the magistrate judge and
discussed by the parties is Mr. Dellera’s February 20, 2012 time
entry which lumps together his time reviewing the record and
working on the Opening Brief, without indicating which portion of
the five hours billed was spent on each task.
It is not possible
for the Court to ascertain the reasonableness of the requested
hours when they are not sufficiently itemized, and a percentage
reduction is justified.
The Court agrees with the magistrate
judge that a 20% reduction of time that was block-billed is an
adequate reduction, and notes that the reduction was generous to
Plaintiff, as it could have been greater.
The Court therefore
DENIES Plaintiff’s fourth objection to the F&R.
V.
Plaintiff’s Fifth Objection - Degree of Success
The remainder of Plaintiff’s Objections relate to the
reduction of 20% due to Plaintiff’s degree of success in this
administrative appeal.
The “degree of success” standard set
forth in Hensley applies to attorney’s fees awards under the
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IDEA.
Aguirre v. Los Angeles Unified Sch. Dist., 461 F.3d 1114,
1115 (9th Cir. 2006).
Under Hensley, “the extent of a
plaintiff’s success is a crucial factor in determining the proper
amount of an award of attorney’s fees. . . .”
461 U.S. at 440.
The Supreme Court explained:
Where the plaintiff has failed to prevail on a
claim that is distinct in all respects from his
successful claims, the hours spent on the
unsuccessful claim should be excluded in
considering the amount of a reasonable fee. Where
a lawsuit consists of related claims, a plaintiff
who has won substantial relief should not have his
attorney’s fee reduced simply because the district
court did not adopt each contention raised. But
where the plaintiff achieved only limited success,
the district court should award only that amount
of fees that is reasonable in relation to the
results obtained.
Id.
As to the first inquiry, this case does consist of
related claims.
Because the unsuccessful and successful claims
are related, the Court must apply the second inquiry, which is,
“[D]id the plaintiff achieve a level of success that makes the
hours reasonably expended a satisfactory basis for making a fee
award?”
Id.
In the 9/11/12 Order, this Court ruled that, with the
exception of Defendant’s failure to address Plaintiff’s
identified speech/language needs, the March 3, 2009 and
February 26, 2010 IEPs offered Plaintiff a FAPE.
at 44-49.]
[9/11/12 Order
Plaintiff achieved a degree of success, but it was
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clearly limited.
The Court found that Plaintiff was entitled to
compensatory education for Defendant’s failure to provide
Plaintiff with necessary services from the March 3, 2009 IEP
to the August 23, 2010 IEP, and remanded to the Hearings Officer
to determine an appropriate award.
The Court agrees with the
magistrate that the claims in this case involve a common core of
facts and legal theories, and that Plaintiff’s success was
limited to the issue of Defendant’s failure to sufficiently
address Plaintiff’s identified speech/language needs, but that
all other requests for reimbursement were denied.
The Court rejects Plaintiff’s claim that the lodestar
presumption has not been rebutted, and should not have been
reduced.
Given Plaintiff’s degree of success, the Court agrees
that a 20% reduction is appropriate, and not arbitrary.
Although
Plaintiff understandably feels that counsel is entitled to a
greater award, the Court does not agree that the F&R “seriously
understates the degree of Plaintiff’s success.”
10.]
[Objections at
Rather, the magistrate judge carefully reviewed the relief
sought in the appeal against this Court’s ruling in the 9/11/12
Order, and correctly concluded that Plaintiff’s success was
limited, and that “much of the relief sought in this appeal was
denied.”
[F&R at 25.]
The Court is mindful that there is no precise rule for
making a reduction based on degree of success, and “the district
13
court may attempt to identify specific hours that should be
eliminated, or it may simply reduce the award to account for the
limited success.”
See Aguirre, 461 F.3d at 1121.
Here, the
Court exercises its discretion, and elects to reduce the award by
20% to account for Plaintiff’s limited success.
The Court
therefore DENIES Plaintiff’s fifth objection to the F&R.
VI.
Plaintiff’s Sixth Objection - Description of Services
The magistrate judge recommended a reduction of 7.5
hours for Mr. Fonseca’s time entries with inadequate
descriptions.
[F&R at 17-18.]
Plaintiff argues that the time
entries submitted by Mr. Fonseca were sufficiently descriptive,
and neither the sufficiency of the descriptions nor the
reasonableness of the time spent was challenged by Defendant.
The magistrate judge properly noted that Local Rule 54.3(d)(2)
requires that the “party seeking an award of fees must describe
adequately the services rendered, so that the reasonableness of
the requested fees can be evaluated.”
[F&R at 17.]
Regardless
of whether Defendant objected to the sufficiency of the time
entries at issue, under the IDEA, courts have discretion to award
reasonable attorneys fees.
See 20 U.S.C. § 1415(i)(3)(B)(i).
Here, the magistrate judge diligently exercised the discretion
given to courts and carefully reviewed the entire fee request.
To the extent Plaintiff argues that the descriptions
were sufficient, the Court disagrees.
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“If the time descriptions
are incomplete, or if such descriptions fail to describe
adequately the services rendered, the court may reduce the award
accordingly.”
Local Rule LR54.3(d)(2).
As noted by the
magistrate judge, the 11/12/10, 11/26/10, 12/16/10, 12/17/10,
2/24/11, 7/25/11, 7/27/11, and 7/28/11 time entries, and 10/10/11
letter sent to Plaintiff entry, do not include the subject matter
of the conversation or discussion, as required by Local Rule
54.3(d)(2).
This Court “has the discretion to reduce the
requested award for insufficient descriptions and the ultimate
question is whether there is sufficient information to allow the
Court to assess the reasonableness of the requested fee.”
Dept.
of Educ. v. Zachary B., Civil No. 08-00499 JMS-LEK, 2010 WL
346393, at *6 (D. Hawai‘i Jan. 29, 2010).
Accordingly, the Court
finds that a 7.5 hour reduction for the insufficient time entries
identified is warranted.
The Court therefore DENIES Plaintiff’s
fifth objection to the F&R.
Finally, to the extent Plaintiff contends that the
shortage of special education lawyers in this district justifies
a larger fee award, the Court is sympathetic to this argument.
Although Hawai‘i has a large case load of due process cases per
capita, the Court cannot say that the specific F&R in this case
is likely to decrease the number of attorneys willing to accept
special education cases, as argued by Plaintiff.
20.]
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[Objections at
CONCLUSION
On the basis of the foregoing, the Court HEREBY DENIES
Plaintiff’s Objections to Magistrate’s Findings and
Recommendation to Grant in Part and Deny in Part Plaintiff’s
Motion for Attorneys’ Fees, filed December 14, 2012, and ADOPTS
the magistrate judge’s Findings and Recommendation to Grant in
Part and Deny in Part Plaintiff’s Motion for Attorneys’ Fees and
Related Nontaxable Expenses, filed November 30, 2012.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 30, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
I.T. V. DOE; CIVIL NO. 11-00676 LEK-KSC; ORDER DENYING
PLAINTIFF’S OBJECTIONS TO MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF’S
MOTION FOR ATTORNEY’S FEES AND ORDER ADOPTING THE FINDINGS AND
RECOMMENDATION
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