AT v. Gary Community School Corporation
Filing
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ORDER granting 15 Motion for Summary Judgment. The Plaintiffs are hereby AWARDED the sum of $43,974.00 Signed by Judge William C Lee on 11/7/11. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
A.T. By His Parent and Next of Friend of
K.T.,
Plaintiffs,
v.
GARY COMMUNITY SCHOOL
CORPORATION,
Defendant.
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CIVIL NO. 2:11cv37
OPINION AND ORDER
This matter is before the court on a motion for summary judgment filed by the plaintiff,
A.T. By His Parent and Next of Friend of K.T., on June 27, 2011. The defendant, Gary
Community School Corporation (“the school”), filed its response on July 28, 2011, to which the
plaintiffs replied on August 10, 2011.
For the following reasons the motion for summary judgment will be granted.
Summary Judgment
Summary judgment must be granted when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine
issue of material fact exists when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Not every dispute between the parties precludes summary judgment, however, since “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law” warrant a
trial. Id. To determine whether a genuine issue of material fact exists, the court must construe all
facts in the light most favorable to the non-moving party and draw all reasonable inferences in
that party’s favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). A party opposing a properly
supported summary judgment motion may not rely merely on allegations or denials in its own
pleading, but rather must “marshal and present the court with the evidence she contends will
prove her case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
Discussion
A.T. is a student eligible for special education as a student with autism spectrum disorder
and a language impairment. K.T. is A.T.’s adopted parent. At the end of the 2008-2009 school
year, the school made a decision to consolidate educational programming due to budget cuts and
the school closed many buildings. A.T. had been attending Lew Wallace High School and was
placed in a self-contained class for students with severe cognitive impairments. The school
decided to remove the students that were in self-contained severe programs to Lincoln
Achievement Center to make room for non-disabled students whose schools were being closed.
Lincoln Achievement Center operates as a day treatment facility for students in the school
corporation that are emotionally disturbed. In the new placement, A.T. did not have access to the
same benefits and privileges to which he had access at Lew Wallace High School due to the
severity of the emotional handicaps of the students attending Lincoln Achievement Center. No
individualized education program (“IEP”) meeting was convened to discuss moving A.T. to this
new placement.
In addition to being placed in this highly restrictive environment, A.T. was not being
provided educational services that would allow him to educationally progress. Specifically, A.T.
was not receiving appropriate speech services, assistive technology services, behavior services or
specialized instructional services. The school was not monitoring A.T.’s progress nor was the
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school sending home progress reports to the parent. Consequently, the parent filed a request for
due process on September 22, 2010. An independent hearing officer was assigned by the Indiana
Department of Education to hear the case.
The parent met with the school for a resolution session pursuant to the requirements of
the Individuals with Disabilities Education Act (hereinafter IDEA) and Article 7. At the
resolution session, the school made no offer of settlement. No subsequent offer of settlement was
ever made in the case, including a Rule 68 offer of judgment. The school offered no witness list
and proffered no exhibits at the hearing. It did not call any witnesses at the hearing. The hearing
officer rendered a decision on December 26, 2010 which was received by Plaintiffs on December
29, 2010. That decision found that A.T. had been denied a free appropriate public education and
that as compensatory education he should receive a private education at public cost. The school
did not appeal the hearing officer’s decision thereby making it a final decision. Once a decision
becomes final the hearing officer’s orders are to be implemented within thirty days.
The school offered no communication to Plaintiffs after receiving the hearing officer’s
decision. On January 14, 2011, Plaintiffs, via counsel, sent a letter to the school’s counsel
indicating that they believed they were prevailing party, that they had chosen Elim Christian
School (“Elim”) as a placement for A.T. and had begun the admissions process. They also noted
that they were entitled to reimbursement of attorney fees and that until A.T. was placed
appropriately, they believed that the school would continue to be responsible for all attorney’s
fees. The only response received by the school was a call to Plaintiffs’ counsel’s secretary
indicating that the school would need an itemized billing statement and W-9 before they could
reimburse attorney’s fees. Plaintiffs’ counsel sent an email on January 27, 2011 indicating that
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the school would receive an invoice when the case was resolved and that a suit for fees had been
filed in federal court. Plaintiffs’ counsel requested that the school contact at her as soon as
possible to avoid further litigation. The school made no further contact for two months.
The Plaintiffs continued, with the help of counsel, to facilitate A.T.’s placement at Elim
including driving A.T. to Elim so that Elim could conduct the educational observation needed for
admission. On February 28, 2011, Plaintiffs’ counsel sent an email to the school introducing the
admissions director of Elim and indicating a desired transition meeting date of March 15, 2011.
No response was received from the school. On March 1, 2011,the Elim admissions director sent
an email introducing herself to the school and a response was received from the school on March
3, 2011.
The school received a summons in this cause on February 8, 2011, but did not make any
filings until March 4. The Plaintiffs had agreed to an extension of time because Ms. Coleman,
counsel for the school, indicated that it was her hope for quick resolution of the matter.
Unfortunately, that did not happen.
A transition meeting was held on March 15, 2011. The meeting was incomplete and the
school did not comply with the hearing officer’s orders because they did not agree to a private
assistive technology evaluation, they did not discuss a transition plan, they did not discuss
summer placement, they did not discuss transportation and they did not agree to pay for the
required evaluation. Additionally, there were numerous mistakes in A.T.’s IEP which were
present until after April 2011, four months after the hearing officer’s decision was to have been
fully implemented. The Indiana Department of Education (“IDOE”), one of the entities
responsible for ensuring compliance with the hearing officer’s decision, gave the school until
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April 30, 2011 to implement all the orders. On April 7, Plaintiffs’ counsel contacted Ms.
Coleman regarding the outstanding unresolved matters in the case. Ms. Coleman’s response
indicated that she wanted to have everything finalized by April 30 in order to comply with the
IDOE’s order. Consequently, Plaintiffs agreed to another extension of time in order for the
school to finalize compliance by April 30. However, on April 29, the school asked for another
extension of time to which the Plaintiffs would not agree.
By this point, the Plaintiffs were quite frustrated with the school’s continued lack of
compliance and threatened to request a default judgment if the school did not comply with the
orders. Rather than comply, the school filed an answer to the complaint on May 11, 2011. In its
answer, the school denied that Plaintiffs filed an administrative due process action, denied that a
due process hearing was held, denied that Plaintiffs prevailed, denied that this court has
jurisdiction, denied that venue is proper in the Northern District, denied that A.T. has autism,
denied that A.T. attended Gary Schools, and denied that A.T. is entitled to special education
protection. Further, the school made several unsupported affirmative defenses.
On June 13, 2011 Ms. Coleman asked Plaintiffs’ counsel for a final bill. An invoice was
forwarded by Plaintiffs’ counsel on that same date as Ms. Coleman indicated that the school
board was meeting that evening and the bill would be discussed at the board meeting. Later that
week, Plaintiffs’ counsel contacted Ms. Coleman to find out the resolution of the board meeting
on the requested reimbursement. Ms. Coleman indicated that it was Ms. Hatcher, the school’s in
house counsel, and not the board, that had to approve the bill and asked for an extension of time
until June 24 to give Ms. Hatcher time to approve the bill. The Plaintiffs reluctantly gave that
extension but indicated that they were ready to file a motion for summary judgment as to fees
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and would do so unless they heard back from the school. On June 24, Plaintiffs’ counsel called
Ms. Coleman to discuss resolution. Ms. Coleman indicated that she was faxing the school’s
concerns about the bill and refused to discuss the concerns over the phone. Plaintiffs’ counsel
indicated that a summary judgment motion was substantially completed but that the Plaintiffs
were willing to forego the costs of the motion if the case were to resolve on June 24. Ms.
Coleman refused to discuss the matter further. An email was sent by Plaintiffs’ counsel
addressing the school’s concerns and again indicating that the school had until the end of the day
to settle; otherwise summary judgment would be filed. As no settlement was reached, the
summary judgment motion is now before the court.
“To ease the financial burden on parents making claims, the IDEA contains a fee-shifting
provision that allows attorney's fees to the parents of a child with a disability who are the
‘prevailing party’ in any action or proceeding brought under the IDEA. 20 U.S.C. §
1415(i)(3)(B).” T.D. v. La Grange Sch. Dist. No. 102, 349 F.3d 469, 471 (7th Cir. Ill. 2003). “As
examples of the type of relief necessary to attain ‘prevailing party’ status, the court cited a
judgment on the merits and a consent decree.” Id. citing Buckhannon Bd. & Care Home v. W.
Va. Dep't of Health & Human Res., 532 U.S. 598, 604 (U.S. 2001). Moreover, if the Court finds
that the school “unreasonably protracted the final resolution of the action or proceeding or
violated [the IDEA],” the Court may not reduce an award of attorneys’ fees to Plaintiff. 34 CFR
§ 300.517 (c)(5) and 20 U.S.C. § 1415 (i)(3)(B)-(G). In Walker v. Housing Auth. of City of
Dallas, 313 F.3d 246, 249 (5th Cir. 2002) the court held:
To qualify as a prevailing party, the plaintiff must (1) obtain actual relief, such as an
enforceable judgment or a consent decree; (2) that materially alters the legal relationship
between the parties; and (3) modifies the defendant's behavior in a way that directly
benefits the plaintiff at the time of the judgment or settlement.
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There is no dispute in this case that the Plaintiffs are the prevailing party and that the school
must pay attorneys’ fees. The only issue before the court is the amount of attorneys’ fees that
the school must reimburse.
In determining an award of reasonable attorney’s fees “[t]he ‘lodestar’ methodreasonable hourly rates multiplied by hours reasonably expended- is the most appropriate
starting point.” People Who Care v. Rockford Bd. Of Educ., 90 F. 3d 1307, 1310-11 (7th Cir.
1996) citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar figure has “become
the guiding light of our fee shifting jurisprudence and there is a strong presumption that lodestar
represents the reasonable fee.” City of Burlington v. Dague, 505 U.S. 557, 562 (1992);
McNabola v. Chicago Transit Authority, 10 F.3d 501, 518 (7th Cir. 1993). Once the lodestar
figure is calculated, a court may adjust the figure upwards or downwards depending on a number
of factors commonly referred to as the Hensley factors. Hensley, 461 U.S. at 434; People Who
Care, 90 F.3d at 1310; Jaffe v. Redmond, 142 F.3d 409, 413 (7th Cir. 1998).
These factors include (1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other
employment by the attorney due to acceptance of the case; (5) customary fee; (6) the nature of the
fee (fixed or contingent); (7) the 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
attorney; (10) the undesirability of the case; (11) the nature and length of the professional
relationship with the client; and (12) the size of the awards in similar cases. Id. However,
adjustments to the lodestar based on such factors should be rare and reserved only for exceptional
cases, and then only if circumstances which are not already factored into the lodestar calculation
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demonstrate that the resulting fee would be unreasonable. Pennsylvania v. Delaware Valley
Citizens’ Council, 478 U.S. 546, 564-65 (1986) (noting that many such facts are subsumed with
the initial lodestar calculation); see also Welch v. Metro Life Ins. Co., 480 F. 3d 942, 946 (9th
Cir. 2007); McNabola, 10 F.3d at 518; Leffler v. Meer, 936 F. 2d 984, 985 (7th Cir. 1991).
In determining reasonable hourly rates, attorneys’ fee awards are to be based on market
rates for services rendered. Missouri v. Jenkins, 491 U.S. 274, 283 (1989). The attorney’s actual
billing rate for comparable work is “presumptively appropriate to use as the market rate.” Spegon
v. Catholic Bishop of Chicago, 175 F. 3d 544, 555 (7th Cir. 1999). If the court is unable to
determine the attorney’s true billing rate, the court may then look to the next best evidence- the
rate charged by the lawyers in the community of “reasonably comparable skill, experience, and
reputation.” Blum v. Stenson, 465 U.S. 886, 895, n. 11 (1984). In determining the reasonable
hourly rate, the court should consider the experience, skill, and reputation of the attorney
requesting the fees and the complexity of the case. Welsh, 480 F. 3d at 946. Cases litigated under
the IDEA are complex. As the Third Circuit has stated in special education cases such as this, “we
acknowledge. . . most attorneys will be reluctant to take on cases like this, characterized as they
are by voluminous administrative records, long administrative hearings and specialized legal
issues.” Collingsgru v. Palmyra Bd. Of Educ., 161 F. 3d 225, 236 (3d Cir. 1998, overruled on
other grounds, Winkleman v. Parma City Schl Dist., 550 U.S. 516 (2007).
The Plaintiffs have filed exhibits that contain detailed billing of the work involved in this
case. The hearing in this case lasted two days, however, as detailed above, additional substantial
work had to be done after the due process hearing due to the school’s unwillingness to comply
with the hearing officer’s order. Id. Further, a statutory award to a prevailing party presumptively
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encompasses all aspects of a civil actions, including fees on fees litigation. Commissioner, INS v.
Jean, 496 U.S. 154, 161-62. (1990). To hold otherwise would dilute the value of a fees award by
forcing attorneys into extensive uncompensated litigation in order to gain any fees. Id.
The Plaintiffs claim that the school acted in bad faith and request an unspecified sanctions
award pursuant to 28 U.S.C. § 1927 and the court’s inherent power. The Plaintiffs claim that the
school misstated the record, lodged frivolous objections to Plaintiff’s claims, and made
mischaracterizations of the law. The Plaintiffs contend that the school has insisted on
maintaining this litigation despite the obvious lack of merit. The Plaintiffs assert that the
“whiplashing contradictions” in the school’s various positions during the course of the litigation
has resulted in excessive hours of work by counsel in responding to frivolous and unfounded
arguments and pleadings.
The school, in its response to the summary judgment motion, takes a position
diametrically opposite to that of the Plaintiffs. The school contends that the attorney fees should
be reduced due to the Plaintiffs prolonging the case and spending time that was excessive. The
school claims that on January 14, 2011, Plaintiffs’ attorney unreasonably protracted the final
resolution of the controversy by not providing an itemized bill. The school asserts that the IDOE
was overseeing the implementation of the hearing officer’s decision and thus there was no need
for Plaintiffs’ counsel to stay involved in the case. The school further asserts that when Plaintiffs’
counsel refused to provide a bill this prohibited the school from reaching a resolution on the
outstanding issue of attorney fees. The school has requested that the court reduce the attorney’s
fees award ($43,974.00) by over 50% to the amount of $19, 915.75.
The Plaintiffs, in reply, point out that the IDEA allows for reimbursement of fees incurred
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to implement the hearing decision. 34 C.F.R. §300.517(a). Although the school contends that the
IDOE was overseeing the hearing officer’s orders and making sure they were implemented, the
record clearly shows that the IDOE did not notify any parties of its involvement until April 7,
2011. By the time the IDOE got involved, an IEP meeting had been accomplished, Elim had
accepted A.T., transportation had been arranged for A.T., and A.T. had started at Elim. The items
that still needed to be accomplished after that included securing the assistive technology
evaluation, adjusting the IEP to include extended school year, and assigning a liaison between
Elim and the school corporation. It was not until June 13, 2011 that Plaintiffs received notice that
the school would agree to pay for the assistive technology evaluation ordered by the hearing
officer. It was not until a meeting in May, 2011 that the school agreed to provide an extended
school year and, at the time of the briefing on this motion, the Plaintiffs had not been notified of a
liaison between the school and Elim. As the Plaintiffs’ point out, had counsel not remained in
this case, it is doubtful that A.T. would have started school as early as he was able to with
counsel’s intervention. Rather, the entire case would have likely languished and A.T. would have
not received an appropriate education.
Even though the IDOE indicated they were monitoring compliance of the case, they never
contacted Plaintiffs, Plaintiffs’ counsel, or Elim to determine whether the hearing officer’s orders
were being implemented. It is apparent in this case that it was the work of Plaintiffs’ counsel that
ensured that the hearing officer’s orders were implemented. Consequently, Plaintiffs’ attorney’s
fees will be awarded as requested.
However, the court will not impose additional sanctions on the school pursuant to §1927.
While it is clear that the school did not give A.T.’s case the attention and priority it should have
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received, it is also clear that this case was delayed in part due to a certain animosity that
developed between Plaintiffs’ counsel and the school’s counsel. Thus, the court is reluctant to
further burden a cash-strapped school corporation with sanctions. The court trusts that the grant
of the full attorney fee request will impress upon the school the necessity of assuring that all
students are receiving an appropriate education and avoiding drawn-out, costly litigation when
IEPs become an issue.
Accordingly, for all the foregoing reasons, the Plaintiffs’ motion for summary judgment
will be granted.
Conclusion
On the basis of the foregoing, the Plaintiffs’ motion for summary judgment is hereby
GRANTED. The Plaintiffs are hereby AWARDED the sum of $43,974.00.
Entered: November 7, 2011.
s/ William C. Lee
William C. Lee, Judge
United States District Court
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