T, et al v. Department of Education, State of Hawai'i

Filing 82

ORDER DENYING PLAINTIFFS' OBJECTIONS TO THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S SECOND MOTION FOR ATTORNEYS' FEES AND ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOM MENDATION re 78 ; re 79 . Signed by JUDGE LESLIE E. KOBAYASHI on 04/29/2014. -- Plaintiffs' Objections to the magistrate judge's Findings and Recommendation to Grant in Part and Deny in Part Plaintiff's Se cond Motion for Attorneys' Fees and Related Nontaxable Expenses, filed March 12, 2014, are HEREBY DENIED. Plaintiffs' request for an award of additional attorneys' fees associated with the Objections is also DENIED. This Court therefor e ADOPTS the magistrate judges F&R as the order of this Court. This Court ORDERS Defendant's counsel to arrange the transmission of the $30,936.11 award to Plaintiffs, through Plaintiffs' counsel, by May 29, 2014. (eps)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 PLAINTIFFS’ OBJECTIONS TO THE MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART
PLAINTIFF’S SECOND MOTION FOR ATTORNEYS’ FEES AND
ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION
On February 27, 2014, the magistrate judge issued the
“Findings and Recommendation to Grant in Part and Deny in Part
Plaintiff’s Second Motion for Attorneys’ Fees and Related
Nontaxable Expenses” (“F&R”).

[Dkt. no. 78.]

On March 12, 2014,

Plaintiffs I.T. (“Student”), by and through his parents Renee and
Floyd T. (collectively “Plaintiffs”), filed their objections to
the F&R (“Objections”).

[Dkt. no. 79.]

Defendant Department of

Education, State of Hawai`i (“Defendant” or “the DOE”), filed its
response to the Objections (“Response”) on March 25, 2014.
no. 81.]

[Dkt.

The Court finds this matter suitable for disposition

without a hearing pursuant to Rule LR7.2(e) 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 Objections, Response, and the relevant legal

authority, this Court HEREBY DENIES Plaintiffs’ Objections and
ADOPTS the F&R, for the reasons set forth below.
BACKGROUND
The factual and procedural background relevant to the
merits of this case is set forth in this Court’s
September 11, 2012 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,] and in this Court’s
December 17, 2013 Order Revising the Hearings Officer’s
June 5, 2013 Decision on Remand, and Awarding Compensatory
Education (“12/17/13 Order”) [dkt. no. 68].1

Thus, this Court

will only discuss the background related to the attorneys’ fees
issue.
After this Court issued the 9/11/12 Order, Plaintiffs
filed a Motion Attorneys’ Fees and Related Nontaxable Expenses on
September 25, 2012 (“First Fee Motion”).

[Dkt. no. 32.]

On

November 30, 2012, the magistrate judge issued his findings and
recommendation to grant in part and deny in part the First Fee
Motion (“First F&R”).

[Dkt. no. 42.]

The magistrate judge

recommended that this Court reduce Plaintiffs’ requested award of
$71,693.95 in attorneys’ fees to an award of $46,504.48.
F&R at 6, 28.]

[First

After applying various reductions, the magistrate

1

The 9/11/12 Order is also available at 2012 WL 3985686,
and the 12/17/13 Order is also available at 2013 WL 6665459.
2

judge reduced the adjusted request amount, based on limited
success, by twenty percent, equivalent to $11,626.13 in
attorneys’ fees with general excise tax.

[Id. at 22-28.]

Plaintiffs filed objections to the First F&R on
December 14, 2012.

[Dkt. no. 45.]

On January 31, 2013, this

Court issued an order denying Plaintiffs’ objections to the First
F&R and adopting the First F&R as the order of this Court
(“1/31/13 Order”).

[Dkt. no. 46.2]

In the 1/31/13 Order, this

Court, inter alia, denied Plaintiffs’ objection to the reduction
for limited success.

This Court ruled that the magistrate judge

“correctly concluded that Plaintiff’s success was limited, and
that ‘much of the relief sought in this appeal was denied.’”
1/31/13 Order, 2013 WL 419016, at *6 (citing First F&R at 25).
Following this Court’s 12/17/13 Order, Plaintiffs filed
their Second Motion for Attorneys’ Fees and Related Nontaxable
Expenses (“Fee Motion”).

[Filed 12/30/13 (dkt. no. 71).]

In the

Fee Motion, Plaintiffs seek the restoration of the fees deducted
for limited success in the 1/31/13 Order, [Mem. in Supp. of Fee
Motion at 9,] as well as an award for work performed in this case
after November 1, 2012 [id. at 12 & n.5].

Plaintiffs request a

total of $60,715.11 in attorneys’ fees, with general excise tax.
[Id. at 23.]

In the F&R, the magistrate judge: rejected

Plaintiffs’ request for restoration of the limited success

2

The 1/31/13 Order is also available at 2013 WL 419016.
3

reduction in the 1/31/13 Order; [F&R at 10;] reduced Plaintiffs’
counsel John Dellera, Esq.’s requested hourly rate to $300; [id.
at 17;] deducted from Mr. Dellera’s request hours that the
magistrate judge found excessive and hours that the magistrate
judge found were attributable to clerical or ministerial tasks;
[id. at 19-23;] and reduced Plaintiffs’ remaining postNovember 1, 2012 fees by twenty percent for limited success [id.
at 23-30].

The magistrate judge therefore recommended an award

of $29,544.00 in attorneys’ fees and $1,392.11 in tax, for a
total of $30,936.11.

[Id. at 30.]

In the instant Objections, Plaintiffs argue that the
magistrate judge erred in: denying the request to restore the
fees deducted for limited success in the First F&R and in the
1/31/13 Order; reducing Mr. Dellera’s hourly rate for the work
performed after November 1, 2012; reducing Mr. Dellera’s
requested hours for time purportedly reflecting clerical or
ministerial tasks and block billing; and reducing the postNovember 1, 2012 request based on limited success.
STANDARD
This district court reviews a magistrate judge’s
findings and recommendations regarding an award of attorneys’
fees under the following standard:
When a party objects to a magistrate judge’s
findings or recommendations, the district court
must review de novo those portions to which the
objections are made and “may accept, reject, or
4

modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1); see also United States v.
Raddatz, 447 U.S. 667, 673 (1980); United States
v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (“[T]he district judge must review
the magistrate judge’s findings and
recommendations de novo if objection is made, but
not otherwise.”).
Under a de novo standard, this Court reviews
“the matter anew, the same as if it had not been
heard before, and as if no decision previously had
been rendered.” Freeman v. DirecTV, Inc., 457
F.3d 1001, 1004 (9th Cir. 2006); United States v.
Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The
district court need not hold a de novo hearing;
however, it is the court’s obligation to arrive at
its own independent conclusion about those
portions of the magistrate judge’s findings or
recommendation to which a party objects. United
States v. Remsing, 874 F.2d 614, 616 (9th Cir.
1989).
Valencia v. Carrington Mortg. Servs., LLC, Civil No. 10–00558
LEK–RLP, 2013 WL 3223628, at *5 (D. Hawai`i June 25, 2013).
DISCUSSION
I.

Restoration of Prior Reduction
In the instant Objections, Plaintiffs characterize the

1/31/13 Order as issuing only an “interim award.”
Objections at 2.

See, e.g.,

Plaintiffs argue that, in light of the 12/17/13

Order’s reversal of the Administrative Hearings Officer’s
(“Hearings Officer”) June 5, 2013 Remanded Decision Subsequent to
U.S. District Judge Leslie Kobayashi’s September 10, 2012 Amended
Order Affirming in Part, and Vacating and Remanding in Part, the
Hearings Officer’s October 6, 2011 Decision (“Decision on
5

Remand”) and in light of the 12/17/13 Order’s award of $44,335.53
in tuition reimbursement as compensatory education, Plaintiffs’
“degree of success improved materially” and “the reduction of 20%
[in the 1/31/13 Order] is no longer appropriate.”

[Objections at

3-4.]
First, Plaintiffs’ characterization of the fee award in
the 1/31/13 Order as merely an “interim” award that could be
revisited after the proceedings on remand is inconsistent with
this Court’s rulings in the 9/11/12 Order and the 1/31/13 Order.
Although this Court in the 9/11/12 Order remanded a portion of
the case to the Hearings Officer, nothing in the 9/11/12 Order
indicated that this Court would revisit Plaintiffs’ award of
attorneys’ fees after the proceedings on remand.

Plaintiffs

chose to file the First Fee Motion after the 9/11/12 Order.

This

Court ruled upon that request and issued a final decision on
Plaintiffs’ entitlement to attorneys’ fees for the proceedings
associated with the 9/11/12 Order.

The instant order will

constitute this Court’s ruling on Plaintiffs’ entitlement to
attorneys’ fees for the proceedings associated with the 12/17/13
Order.3

In the 12/17/13 Order, this Court did not reconsider its

3

This Court notes that, insofar as the instant Fee Motion
sought attorneys’ fees incurred from November 1, 2012, the Fee
Motion includes attorneys’ fees that Plaintiffs could have
requested in their objections to the First F&R, which Plaintiffs
filed on December 14, 2012. [Dkt. no. 43.] For example, in the
instant Objections, Plaintiffs request an additional award of the
(continued...)
6

rulings in the 9/11/12 Order; this Court made rulings based on
the parties’ briefing regarding the proceedings on remand.

Any

success that Plaintiffs obtained in their appeal from the
Hearings Officer’s Decision on Remand did not alter the fact that
the record that this Court considered in the 9/11/12 Order was
insufficient to determine what compensatory education Student was
entitled to receive.
In the alternative to their argument that the 1/31/13
Order merely granted an interim fee award, Plaintiffs also argue
that they are entitled to relief from the 9/11/12 Order pursuant
to Fed. R. Civ. P. 60(b).

Rule 60(b) states:

On motion and just terms, the court may relieve a
party or its legal representative from a final
judgment, order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise, or
excusable neglect;

3

(...continued)
attorneys’ fees incurred from the review of the F&R through the
filing of the Objections. [Objections, Decl. of John P. Dellera
(“Dellera Decl.”).] Plaintiffs arguably waived their entitlement
to the fees incurred from November 1, 2012 to December 14, 2012
by failing to make a similar request in their objections to the
First F&R. Further, even assuming, arguendo, that it is proper
to award fees for November 1, 2012 to December 14, 2012 in
connection with the instant Fee Motion, the fee award for that
period arguably should have been based on the $275 hourly rate
awarded to Mr. Dellera in the 9/11/12 Order. Defendant, however,
did not raise these arguments in either its memorandum in
opposition to the Fee Motion, [filed 1/27/14 (dkt. no. 75),] or
in the instant Objections. This Court therefore finds that
Defendants waived these issues, and this Court will not review
the magistrate judge’s award of attorneys’ fees for the period
from November 1, 2012 to December 14, 2012.
7

(2) newly discovered evidence that, with
reasonable diligence, could not have been
discovered in time to move for a new trial under
Rule 59(b);
(3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4)

the judgment is void;

(5) the judgment has been satisfied,
released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable;
or
(6)

any other reason that justifies relief.

None of these grounds apply in the instant case.

This Court

therefore concludes that Plaintiffs are not entitled to Rule
60(b) relief from the 9/11/12 Order.
Having reviewed the issue de novo, this Court agrees
with the magistrate judge’s analysis that Plaintiffs are not
entitled to the restoration of the fees deducted in the 1/31/13
Order based on limited success.

Plaintiffs’ objection on this

issue is DENIED.
II.

John Dellera’s Hourly Rate
Plaintiffs next object to the F&R’s reduction of the

requested hourly rate for Mr. Dellera from $400 to $300.
Plaintiffs argue that the reduction is inconsistent with the
Hawai`i Supreme Court’s holdings regarding hourly rates in
Kaleikini v. Yoshioka, 129 Hawai`i 454, 304 P.3d 252 (2013).
[Objections at 7-8.]

Plaintiffs emphasize that, in Kaleikini,
8

the Hawai`i Supreme Court, inter alia, awarded an attorney with
“half as much experience” as Mr. Dellera attorneys’ fees based on
an hourly rate of $300.

[Id. at 7-9.]

Kaleikini, however, is

not binding upon this Court in this Court’s consideration of
motions for attorneys’ fees pursuant to the Individuals with
Disabilities Education Act of 2004 (“IDEA”), and this Court
agrees with the magistrate judge’s refusal to follow Kaleikini.
See, e.g., F&R at 17 (noting that “state court determinations
about hourly rates have no bearing on the rates awarded in this
district court”).
Plaintiffs also argue that the magistrate judge erred
in rejecting Mr. Dellera’s requested hourly rate of $400 because
that rate is consistent for the prevailing rates in the
community.

Plaintiffs emphasize that this district court has

previously concluded “that the prevailing rate is not limited to
‘IDEA cases’ but includes the rate paid to ‘all attorneys in the
relevant community engaged in equally complex Federal litigation,
no matter the subject matter.’”

[Id. at 9 (quoting A.D. ex rel.

I.D. v. Dep’t of Educ., Hawai`i, Civil No. 12–307 JMS–KSC, 2014
WL 692910, at *4 (D. Hawai`i Feb. 20, 2014) (citing Prison Legal
News v. Schwarzenegger, 608 F.3d 446, 455 (9th Cir. 2010))).]

In

their memoranda regarding the Fee Motion, the parties addressed
whether Mr. Dellera was entitled to an award based on an hourly
rate commensurate with the rate awarded to Paul Alston, Esq., in

9

other cases.

The magistrate judge ultimately found that

Mr. Dellera’s experience, skill, and reputation did not warrant
an hourly rate commensurate with the rates that this district
court has previously awarded to Mr. Alston.

[F&R at 14-17.]

In

analyzing this issue, the magistrate judge did not limit his
analysis to IDEA cases.

[Id. at 15-16 (some citations omitted)

(citing Au v. Funding Group, Inc., 933 F. Supp. 2d 1264, 1274-75
(D. Haw. 2013); Eggs ‘N Things Int’l Holdings PTE, Ltd. v. ENT
Holdings LLC., Civil No. 11–00626 LEK–KSC, 2012 WL 1231962, at *2
(D. Haw. Mar. 20, 2012), adopted by Eggs ‘N Things Int’l Holdings
PTE, Ltd. v. ENT Holdings LLC., Civil No. 11–00626 LEK–KSC, 2012
WL 1231992 (D. Haw. Apr. 11, 2012)).]

Thus, the F&R does not

violate the legal principle from A.D. that Plaintiffs cite in the
Objections.
This Court agrees with the magistrate judge, [id. at
17,] that the district court’s award of $300 per hour to
Mr. Dellera in A.D. represents a reasonable hourly rate.
2014 WL 692910, at *5.

See

This Court therefore DENIES Plaintiffs’

objection to the reduction in Mr. Dellera’s requested hourly
rate.
III. Reduction for Clerical/Ministerial Tasks and Block Billing
Plaintiffs next object to the magistrate judge’s
exclusion of the following hours from Mr. Dellera’s requested
hours:

10

12/8/12

A

Receive Notice of Status
Conference, advise client re
what is needed

0.7

3/16/13

F

Review exhibits, compare changes
in goals; review and select
exhibits to be offered at remand
hearing

2.3

[Objections at 11.]

Plaintiffs argue that the magistrate judge

erred in excluding these hours because:
The first entry was for advice to the client
triggered by an upcoming status conference. The
time needed to “[r]eceive Notice of Status
Conference” was not more than the three or four
seconds needed to open the envelope, and the
reference simply provided context explaining why
advice to the client was provided at that time; it
is not a separate time entry improperly block
billed with the advice.
The second entry does not contain any
clerical or ministerial time. Selecting exhibits
for trial is a legal task, not something a lawyer
can properly delegate to a clerical employee. See
A.D. v. Dept. of Educ., supra, Doc. 109 at 22,
2014 WL 692910 at *8 (finding that “[i]dentifying
relevant portions of the record is a legal task”).
[Id. at 11-12 (alterations in Objections).]
In excluding these hours, the magistrate judge stated:
The entire 3 hours may not have been spent on the
identified clerical tasks, but because the
clerical tasks were blocked billed with other
tasks for both the 12/8/12 and 3/16/13 entries,
the Court is unable to reasonably apportion the
time. Therefore, the entire time entry should be
excluded and 3 hours should be excluded from
Plaintiff’s fee award.
[F&R at 22-23 (footnote omitted).]

11

As to Mr. Dellera’s December 8, 2012 entry, this Court
first emphasizes that the magistrate judge did not have the
benefit of Plaintiffs’ representation that receiving the Notice
of Status Conference (“Notice”) only took three or four seconds
and the majority of the time reflected in this entry was
attributable to advising the client about what the Notice
required.

Further, this entry, as well as the March 16, 2013

entry, relate to the proceedings on remand.

Thus, this Court has

no additional information about the content of the Notice.

Even

if this Court accepts Plaintiffs’ representation about the amount
of time it took to review the Notice, this Court does not have
sufficient information to determine what the Notice required.
This Court therefore cannot find that the December 8, 2012 entry
reflects the rendition of legal services.
As to the March 16, 2013 entry, this Court agrees with
Plaintiffs that the portion of the entry referring to “review and
select exhibits to be offered at remand hearing” describes legal
services.

The entry, however, also includes a separate activity

of “review exhibits,” and this Court agrees with the magistrate
judge that the limited information available indicates that this
activity was clerical or ministerial in nature.

Further, in

light of the fact that this Court cannot determine how much of
the 2.3 hours attributed to the entry as a whole was spent on the
legal services, this Court agrees with the magistrate judge that

12

the entire entry should be excluded as improper block billing.
This Court therefore DENIES Plaintiffs’ objection to
the exclusion of the December 8, 2012 entry and the
March 16, 2013 entry.
IV.

Reduction for Limited Success
Finally, Plaintiffs object to the magistrate judge’s

reduction of counsel’s compensable hours by twenty percent for
limited success.

Plaintiffs argue that the compensatory

education award of $44,335.53 in tuition reimbursement that this
Court ordered in the 12/17/13 Order “is not immaterial; the
amount granted is substantial, and it compensates Loveland
[Academy (“Loveland”)] for an important part of the services it
provided.”

[Objections at 12 (footnote omitted).]

This Court

agrees with that statement, but the significance of the final
award does not automatically preclude a reduction for limited
success.

Further, this Court emphasizes that the award of

$30,936.11 in attorneys’ fees that the magistrate judge
ultimately recommended is a substantial award.
Plaintiffs also argue that Ninth Circuit law prohibits
district courts from reducing lodestar awards merely because the
plaintiff did not recover the full amount of the damages that he
or she sought.

[Id. at 13 (quoting Evon v. Law Offices of Sidney

Mickell, 688 F.3d 1015, 1033 (9th Cir. 2012)).]

In the 12/17/13

Order, this Court ruled that “reimbursement for the

13

speech-language services Student received at Loveland is the
appropriate compensatory education award.”
*7.

2013 WL 6665459, at

In so ruling, this Court also ruled that:

Plaintiffs were

not entitled to reimbursement for all of the services that
Student received at Loveland; Plaintiffs were only entitled to
tuition reimbursement for the 2010-2011 school year; and
Plaintiffs were not entitled to tuition reimbursement for the
2011-2012 school year.

Id.

This Court also rejected Plaintiffs’

argument that Plaintiffs were entitled to reimbursement of the
tuition for Student’s entire program at Loveland because the
speech-language services at Loveland were integrated with all of
the other services that Loveland provided, including mental
health services.

This Court noted that it previously ruled that

mental health services were not included in the scope of the
compensatory education award.

Id. at *9.

Plaintiffs appear to argue that, because the magistrate
judge stated, “[t]he $44,335.53 compensatory education award,
which amounts to 13% of the amount requested by Plaintiff, cannot
be said to represent a material improvement in Plaintiff’s degree
of success,” the magistrate judge applied the limited success
reduction based solely on the fact that Plaintiffs did not
recover as high an award as they requested.

Reading the F&R and

the 12/17/13 Order as a whole, however, it is clear that the
reduction in the amount of the requested compensatory education

14

award was the result of multiple legal and factual rulings that
were adverse to Plaintiffs.

Thus, the reduction did not violate

Ninth Circuit cases such as Evon.
Plaintiffs also argue that the twenty-percent reduction
violates Gonzalez v. City of Maywood, 729 F.3d 1196, 1203 (9th
Cir. 2013).

[Objections at 13.]

The magistrate judge considered

the Gonzalez argument in the F&R, [F&R at 27-28,] and this Court,
having reviewed the matter de novo, agrees with the magistrate
judge’s analysis.

This Court therefore concludes that the

magistrate judge’s application of the twenty-percent reduction
did not violate Gonzales.
This Court DENIES Plaintiffs’ objection to the
reduction for limited success.
V.

Summary and Request for Additional Fees
This Court has reviewed all of the challenged portions

of the F&R de novo and has denied all of Plaintiffs’ objections.
This Court therefore ADOPTS the F&R in its entirety.
Plaintiffs also request an additional award for the
13.2 hours that Mr. Dellera spent in connection with the
Objections.

Insofar as this Court has denied the Objections in

their entirety, this Court also concludes that Plaintiffs are not
entitled to an award of the attorneys’ fees associated with the
Objections.

[Objections at 15; Dellera Decl. at ¶ 2.]

Plaintiffs’ request for an award of additional attorneys’ fees is

15

therefore DENIED.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Objections
to the magistrate judge’s Findings and Recommendation to Grant in
Part and Deny in Part Plaintiff’s Second Motion for Attorneys’
Fees and Related Nontaxable Expenses, filed March 12, 2014, are
HEREBY DENIED.

Plaintiffs’ request for an award of additional

attorneys’ fees associated with the Objections is also DENIED.
This Court therefore ADOPTS the magistrate judge’s F&R as the
order of this Court.
This Court ORDERS Defendant’s counsel to arrange the
transmission of the $30,936.11 award to Plaintiffs, through
Plaintiffs’ counsel, by May 29, 2014.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 29, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

I.T., ET AL. VS. DEPARTMENT OF EDUCATION, STATE OF HAWAI`I; CIVIL
NO. 11-00676 LEK-KSC; ORDER DENYING PLAINTIFFS’ OBJECTIONS TO THE
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO GRANT IN PART
AND DENY IN PART PLAINTIFF’S SECOND MOTION FOR ATTORNEYS’ FEES
AND ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION

16