Nader et al v. St. Tammany Parish School Board

Filing 40

ORDER AND REASONS: For the foregoing reasons as set forth in the document, defendant's 27 motion for summary judgment is GRANTED and plaintiffs' 19 motion for summary judgment is DENIED. Plaintiffs' complaint is DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 5/29/2019. (mm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BENJAMIN NADER, a minor child,
by and with his parents, ET AL.

CIVIL ACTION

VERSUS

NO. 18-3861

ST. TAMMANY PARISH SCHOOL
BOARD

SECTION “R” (3)

ORDER AND REASONS
Before the Court are the parties’ dueling motions for summary
judgment on plaintiffs’ claim for attorneys’ fees under the Individuals with
Disabilities Education Act (IDEA). The Court finds that plaintiffs are not
entitled to attorneys’ fees under the IDEA. It therefore grants defendant’s
motion for summary judgment and denies plaintiffs’ motion.

I.

BACKGROUND
A.

The IDEA

This case arises out of an IDEA complaint and due process hearing
against defendant St. Tammany Parish School Board. 1 The IDEA “is a
Spending Clause statute that seeks to ensure that ‘all children with

1

R. Doc. 19-2 at 2 ¶ 5; R. Doc. 21-1 at 1 ¶ 5.

disabilities have available to them a free appropriate public education.’”
Schaffer v. Weast, 546 U.S. 49, 51 (2005) (quoting 20 U.S.C. §
1400(d)(1)(A)). To receive federal funding under the Act, each state must
comply with certain conditions, including procedural safeguards set forth in
§ 1415. See 20 U.S.C. § 1412(a), (a)(6)(A). One of these conditions is that
each state must allow “any party to present a complaint . . . with respect to
any matter relating to the identification, evaluation, or educational
placement of [a] child, or the provision of a free appropriate public education
to such child.” Id. § 1415(b)(6)(A). If the matter cannot be resolved through
an informal meeting, complaining parents have a right to an “impartial due
process hearing” conducted by a state or local educational agency, as
provided by state law. Id. § 1415(f)(1)(A), (f)(B)(ii). The IDEA also permits
a prevailing party in that due process hearing to recover its attorneys’ fees by
bringing a subsequent action in federal court. See id. § 1415(i)(3).
B.

Factual Background

Plaintiff Benjamin Nader is a student with disabilities in the St.
Tammany Public School System, and the son of plaintiffs James and Michelle
Nader. 2 On October 20, 2017, James and Michelle Nader filed a special
education due process request, pursuant to the IDEA and Louisiana’s

2

R. Doc. 19-2 at 1 ¶¶ 1-2; R. Doc. 21-1 at 1 ¶¶ 1-2.
2

implementing regulations, to determine whether defendant’s actions or
inactions violated Benjamin’s rights to a free appropriate public education. 3
A hearing on this request was conducted from February 19 to 22, 2018,
before Administrative Law Judge William H. Cooper, III. 4
James Nader served as lead counsel during these administrative
proceedings.5 James Nader is a practicing attorney, licensed in Louisiana,
Texas, and Oklahoma, and is a shareholder and director at the law firm of
Lobman, Carnahan, Batt, Angelle & Nader in New Orleans. 6 Sarah Didlake,
an associate attorney at Lobman, Carnahan, Batt, Angelle & Nader, also
provided legal services in connection with Benjamin’s administrative
proceeding.7
On March 12, 2018, Judge Cooper issued a written Decision and Order
on the due process request.8 He held that defendant had denied Benjamin
“a free and appropriate public education by segregating him and not
accommodating or modifying his school work or study guides in a manner

R. Doc. 19-2 at 2 ¶ 5; R. Doc. 21-1 at 1 ¶ 5; R. Doc. 19-13.
R. Doc. 19-5 at 1.
5
R. Doc. 28-1 at 2 ¶ 5; R. Doc. 19-7 at 2 (affidavit of James Nader).
6
R. Doc. 19-7 at 1.
7
See R. Doc. 19-8 at 1 (affidavit of Sarah Didlake); R. Doc. 19-10 (billing
records from Lobman, Carnahan, Batt, Angelle & Nader, indicating that
Didlake billed time for services provided in connection with the
administrative proceedings).
8
See R. Doc. 19-5.
3
3

4

reasonably calculated to enable him to receive educational benefits.”9 Judge
Cooper ordered defendant to provide Benjamin with curriculum specialists
in social studies and science who would, in a timely manner, “accommodate
and modify each week’s school work and study guides.” 10
On April 11, 2018, plaintiffs filed this complaint, stating that as the
prevailing parties in the administrative proceedings, they are entitled to
attorneys’ fees under the IDEA. 11 Plaintiffs and defendants now both move
for summary judgment on plaintiffs’ claim. 12

II.

LEGAL STANDARD
Summary judgment is warranted when “the movant shows that 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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). When assessing whether a dispute as to any material
fact exists, the Court considers “all of the evidence in the record but refrain[s]
from making credibility determinations or weighing the evidence.” Delta &

9
10
11
12

Id. at 3.
Id. at 19.
R. Doc. 1.
R. Doc. 19; R. Doc. 27.
4

Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99
(5th Cir. 2008).

All reasonable inferences are drawn in favor of the

nonmoving party, but “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are insufficient to either
support or defeat a motion for summary judgment.” Galindo v. Precision
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at
1075. “No genuine dispute of fact exists if the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party.” EEOC v.
Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must come forward with evidence
which would entitle it to a directed verdict if the evidence went
uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
1264-65 (5th Cir. 1991) (internal citation omitted). The nonmoving party can
then defeat the motion by either countering with evidence sufficient to
demonstrate the existence of a genuine dispute of material fact, or by
“showing that the moving party’s evidence is so sheer that it may not
persuade the reasonable fact-finder to return a verdict in favor of the moving
party.” Id. at 1265.

5

If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at
325.

The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of
summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)).

III. DISCUSSION
The IDEA states that “[i]n any action or proceeding brought under this
section, the court, in its discretion, may award reasonable attorneys’ fees as
part of the costs . . . to a prevailing party who is the parent of a child with a
disability.” 20 U.S.C. § 1415(i)(3)(B)(i)(I). Defendant does not contest that
the Naders were the “prevailing party” in the administrative proceeding. The
6

parties instead dispute whether “a prevailing party who is [a] parent” may be
awarded attorneys’ fees when that parent served as his child’s lead counsel.
The parties further dispute whether plaintiffs can recover attorneys’ fees in
connection with Didlake’s legal services.
A.

James Nader

The Second, Third, Fourth, and Ninth Circuits are the only circuits that
have addressed whether an attorney-parent who appeared on his child’s
behalf in an IDEA proceeding can recover attorneys’ fees as a prevailing
party. See Ford v. Long Beach Unified Sch. Dist., 461 F.3d 1087 (9th Cir.
2006); S.N. ex rel. v. Pittsford Cent. Sch. Dist., 448 F.3d 601 (2d Cir. 2006);
Woodside v. Sch. Dist. Of Phila. Bd. of Educ., 248 F.3d 129 (3d Cir. 2001);
Doe v. Bd. of Educ. of Balt. Cty., 165 F.3d 260 (4th Cir. 1998). Each held that
the attorney-parent could not recover attorneys’ fees. Id. No court in this
district has addressed this question.
In Doe, the Fourth Circuit grounded its decision in an application of
Kay v. Ehrler, 499 U.S. 432 (1991). In Kay, the Supreme Court held that a
pro se plaintiff who is an attorney cannot be awarded attorney’s fees under
the fee-shifting provision of the Civil Rights Attorney’s Fees Awards Act, 42
U.S.C. § 1988(b). See 499 U.S. at 437. The Supreme Court reasoned that the
“overriding statutory concern” in the fee-shifting provision was to “obtain[]
7

independent counsel for victims of civil rights violations.” Id. According to
the court:
A rule that authorizes awards of counsel fees to pro se litigants—
even if limited to those who are members of the bar—would
create a disincentive to employ counsel whenever such a plaintiff
considered himself competent to litigate on his behalf. The
statutory policy of furthering the successful prosecution of
meritorious claims is better served by a rule that creates an
incentive to retain counsel in every such case.
Id. at 438.
The Doe court began by noting that the fee shifting statute at-issue in
Kay was worded similarly to the attorneys’ fees provision in the IDEA at the
time Doe was decided.13 Doe, 165 F.3d at 262; compare 42 U.S.C. § 1988(b)
(“the court, in its discretion, may allow the prevailing party . . . a reasonable
attorney’s fee as part of the costs”), with 20 U.S.C. § 1415(e)(4)(B) (2004)
(“the court, in its discretion, may award reasonable attorneys’ fees as part of
the costs to the parents or guardian of a child or youth with a disability who
is the prevailing party”). The court then acknowledged that Kay’s holding
was not directly applicable to the IDEA’s attorneys’ fees provision, because
attorney-parents in IDEA administrative proceedings were not litigating pro

The IDEA attorneys’ fees provision was amended in 2004 to the
current text, which controls this action. See Individuals with Disabilities
Education Improvement Act of 2004, Pub. L. No. 108–446, 118 Stat. 2647.
That amendment became effective on July 1, 2005. See id.
13

8

se. See Doe, 165 F.3d at 263 (“Though parents have some rights under the
IDEA, the child, not the parents, is the real party in interest in any IDEA
proceeding.”).

But the court nonetheless reasoned that Kay “ha[d]

relevance,” because “[l]ike attorneys appearing pro se, attorney-parents are
generally incapable of exercising sufficient independent judgment on behalf
of their children to ensure that ‘reason, rather than emotion[,]’ will dictate
the conduct of the litigation.” Id. (quoting Kay, 499 U.S. at 437). The Fourth
Circuit thus concluded that the reasoning in Kay applied to the IDEA
attorneys’ fees provision and that attorney-parents were barred from
recovering attorneys’ fees under the statute. Id.
The Second, Third, and Ninth Circuits similarly found that although
attorney-parents in IDEA proceedings were not litigating pro se, the
reasoning in Kay was still applicable. They held that attorney-parents were
therefore categorically barred from recovering attorneys’ fees. See Ford, 461
F.3d at 1091 (“Like an attorney appearing pro se, a disabled child represented
by his or her parent does not benefit from the judgment of an independent
third party.”); S.N., 448 F.3d at 603 (“A rule that allows parent-attorneys to
receive attorneys’ fees would discourage the employment of independent
counsel.”); Woodside, 248 F.3d at 131 (agreeing with Doe’s reasoning that
“the danger of inadequate representation is as great when an emotionally
9

charged parent represents his minor child as when the parent represents
himself”).
The Court finds the reasoning in these other circuit decisions
persuasive. The decisions rest on the premise that the Supreme Court’s
analysis in Kay guides the interpretation of the IDEA. Indeed, the Fifth
Circuit recently recognized the primacy of Kay in interpreting federal
statutes with attorneys’ fees provisions. See Gahagan v. U.S. Citizenship &
Immigration Servs., 911 F.3d 298 (5th Cir. 2018). In Gahagan, the Fifth
Circuit addressed whether an attorney appearing pro se could recover his
attorneys’ fees under the Freedom of Information Act (FOIA). 911 F.3d at
300. The panel ruled that Kay should be read as overruling a 1983 Fifth
Circuit decision holding that attorneys appearing pro se could in fact recover
attorneys’ fees under FOIA. See Gahagan, 911 F.3d at 302-03; Cazalas v.
DOJ, 709 F.2d 1051 (5th Cir. 1983). The Gahagan court reasoned that
FOIA’s attorneys’ fees provision and the provision in § 1988(b)—which was
the subject of Kay—were substantially similar in wording, and that the
Supreme Court has repeatedly instructed the lower courts “to apply
consistent interpretations to federal fee-shifting statutes.” Gahagan, 911
F.3d at 303-04.

10

Thus, the Fifth Circuit has instructed the lower courts to apply the
Supreme Court’s interpretation in Kay to fee-shifting statutes that are
similar to § 1988(b). The current attorneys’ fee provision in the IDEA is
indeed worded similarly to § 1988(b). See 20 § 1415(i)(3)(B)(i)(I) (2005)
(“the court . . . may award reasonable attorneys’ fees as part of the costs . . .
to a prevailing party who is the parent of a child with a disability”); 42 U.S.C.
§ 1988(b) (“the court . . . may allow the prevailing party . . . a reasonable
attorney’s fee as part of the costs”). The provision in the IDEA should
therefore be viewed as an attempt by Congress to incentivize parties to retain
independent, third-party counsel for due process hearings. Kay, 499 U.S. at
438; Gahagan, 911 F.3d at 303-04. The Court agrees with the Second, Third,
Fourth, and Ninth Circuits that to best actuate this congressional intent, the
IDEA should be interpreted as barring attorney-parents from recovering
attorneys’ fees.

See Ford, 461 F.3d 1087; S.N. ex rel., 448 F.3d 601;

Woodside, 248 F.3d 129; Doe, 165 F.3d 260. The Supreme Court has stated
that “[w]ithout question a parent of a child with a disability has a particular
and personal interest in fulfilling ‘our national policy of ensuring equality of
opportunity, full participation, independent living, and economic selfsufficiency for individuals with disabilities.’” Winkelman v. Parma City Sch.
Dist., 550 U.S. 516, 529 (2007) (quoting 20 U.S.C. § 1400(c)(1)) (emphasis
11

added). That obvious personal interest prevents an attorney-parent from
having the “emotional detachment” necessary to provide his child with
effective representation. S.N., 448 F.3d at 603. An interpretation that bars
attorney-parents from recovering attorneys’ fees therefore bolsters the
statutory policy behind the IDEA’s fee-shifting provision.14
The basis for concluding that the IDEA does not permit this recovery
has only become stronger since Doe, Woodside, S.N., and Ford were decided.
There have been two notable developments in the IDEA since then. First, in
Winkelman—which was decided one year after the most recent of these
decisions—the Supreme Court ruled that the IDEA grants parents
“independent, enforceable rights” that “encompass the entitlement to a free
appropriate public education for the parents’ child.” Winkelman, 550 U.S.
at 533.

This decision allows non-attorney parents to appear in IDEA

proceedings pro se to prosecute IDEA claims on their own behalf. See id. at
535. By holding that parents have enforceable rights under the IDEA, the
Supreme Court blurred the line between whether an attorney-parent is truly

Because the Court’s holding is based upon an interpretation of the
IDEA, this blanket bar on attorney-parents recovering attorneys’ fees must
apply even in instances—as is the case here—where the child was adequately
represented by his attorney-parent. See Ford, 461 F.3d at 1091 (noting that
“on some occasions, attorney-parents will provide independent, reasoned
representation to their children,” but nonetheless holding that its
interpretation of the statute “will better serve Congress’ intentions”).
12
14

representing only his child’s interests when appearing in IDEA proceedings,
or if he is also representing his own. 15 The opinion suggests that those rights
are necessarily intertwined. If the attorney-parent is necessarily vindicating
his own interests when appearing in his child’s IDEA proceeding, then the
reasoning in Kay is directly applicable to the IDEA.
Second, each of Doe, Woodside, S.N., and Ford applied the previous
version of the IDEA attorneys’ fees provision. 16 The earlier version provided
that the court had the discretion to “award reasonable attorneys’ fees as part
of the costs to the parents or guardian of a child or youth with a disability
who is the prevailing party.” 20 U.S.C. § 1415(e)(4)(B) (2004). The Fourth
Circuit in Doe noted that the wording of this provision supported a reading
that an attorney-parent does not represent himself when he pursues IDEA
services in a due process hearing. Doe, 165 F.3d at 262-63. The court

This line is particularly blurry in this case. The record here is
ambiguous as to whether James Nader was himself a party in the due process
hearing. The formal request for a due process hearing that the Naders filed
does not clearly state whether they themselves were parties. See R. Doc. 1913. The appearances page in the transcript for the first day of hearings states
that James Nader was appearing “for the minor child and parents.” R. Doc.
26-4 at 3 (emphasis added). But in his Decision and Order, Judge Cooper
stated that James and Michelle Nader “requested a hearing on behalf of
[their] minor child.” R. Doc. 19-5 at 2.
16
S.N. and Ford were both decided after the IDEA was amended in 2004,
but each still applied the prior version of the provision, which was in effect
when the district courts rendered their decisions. See S.N., 448 F.3d at 602
& n.2; Ford, 461 F.3d at 1090.
13
15

emphasized that “by providing fees ‘to the parents of a child or youth with a
disability who is the prevailing party,’” the provision makes clear that the
“party” who is the focus of the provision is the child, not the parent. Id. at
263 (quoting 20 U.S.C. § 1415(e)(4)(B) (2004)) (emphasis in original). But
the current IDEA provides that a court “may award reasonable attorneys’
fees . . . to a prevailing party who is the parent of a child with a disability.”
20 U.S.C. § 1415(i)(3)(B)(i)(I) (2005) (emphasis added). This reformulation
indicates that the “party” who is entitled to an award of attorneys’ fees is the
parent, not the child. Thus, the provision contemplates that an attorneyparent is a party to the IDEA proceedings. If that is the case, then Kay’s
holding would bear directly on the Court’s interpretation of the IDEA, as
Gahagan instructs it should.
Finally, plaintiffs’ argument that regulatory guidance from the U.S.
Department of Education (DOE) requires a different outcome is unavailing.
Plaintiffs point out that when the DOE promulgated its rules to implement
the 2004 amendments of the IDEA, it noted that “[o]ne commenter
recommended that § 300.517(a)(1)(ii) and (iii) be revised to refer to an
attorney of a parent or a parent because there are many parents who are
attorneys representing their children in due process hearings.” Assistance to
States for the Education of Children With Disabilities and Preschool Grants
14

for Children With Disabilities, 71 Fed. Reg. 46540, 46708 (Aug. 14, 2006)
(codified at 34 C.F.R. § 300.517). In response to this comment, the DOE
stated that it “decline[d] to add language to § 300.517(a)(1)(ii) to refer to a
parent who is an attorney, because the reference to ‘an attorney of a parent’
would include anyone serving as an attorney.” Id. (emphasis added). But
Section 300.517(a)(1)(ii)—the focus of this passage—corresponds to 20
U.S.C. § 1415(i)(3)(B)(i)(II), which is a different provision from the one that
permits a prevailing party parent to recover attorneys’ fees. It instead
provides that the court may award attorneys’ fees “to a prevailing party who
is a State educational agency or local educational agency against the attorney
of a parent who files a complaint or subsequent cause of action that is
frivolous, unreasonable, or without foundation. . . .”

20 U.S.C. §

1415(i)(3)(B)(i)(II). The phrase “an attorney of a parent”—which the DOE
interpreted in this guidance—does not appear in the provision allowing
prevailing party parents to recover attorneys’ fees.

See id. §

1415(i)(3)(B)(i)(I).
Plaintiffs do not cite any case where a federal district or appellate court
addressed whether this interpretation of § 1415(i)(3)(B)(i)(II) overruled
previous decisions that attorney-parents could not recover attorneys’ fees.
In fact, circuit court decisions issued after August 14, 2006—the date of the
15

DOE’s guidance—have continued to reinforce the rule that attorney-parents
cannot recover these fees. See, e.g., Weissburg v. Lancaster Sch. Dist., 591
F.3d 1255, 1260-61 (9th Cir. 2010) (holding that attorney-grandparents who
represent their grandchildren in IDEA proceedings may recover attorneys’
fees, but citing Ford, S.N., Woodside, and Doe in reaffirming that attorneyparents may not recover); Pardini v. Allegheny Intermediate Unit, 524 F.3d
419, 423-25 (3d Cir. 2008) (reaffirming that Woodside precluded attorneyparents from recovering attorneys’ fees); Van Duyn v. Baker Sch. Dist. 5J,
502 F.3d 811, 826 (9th Cir. 2007) (“The District correctly argues, however,
that attorney’s fees should not be granted to parent attorneys who represent
their children in IDEA proceedings.”

(citing Ford, 461 F.3d at 1090)

(emphasis in original)). Plaintiffs suggest that these post-August 2006
decisions do not bear on whether the DOE’s interpretation upended Doe,
Woodside, S.N., and Ford, because the guidance “has simply not been
presented to or considered by the federal courts.” 17 But plaintiffs discount
the possibility that the DOE’s guidance has not come up in this context
because in that guidance the DOE was not actually interpreting the provision
allowing prevailing party parents to recover their attorneys’ fees.

17

R. Doc. 26 at 4.
16

In all, the Court finds that James Nader is not entitled to recover his
attorneys’ fees under the IDEA.
B.

Sarah Didlake

The parties also dispute whether plaintiffs can recover attorneys’ fees
for legal services provided by Sarah Didlake. The Court finds that plaintiffs
may not recover attorneys’ fees in connection with Didlake’s legal services,
because there is no genuine dispute that James Nader directed Didlake’s
work throughout the IDEA proceedings. James Nader states that he has
been practicing law for over 35 years and is a Shareholder and Director at
Lobman, Carnahan, Batt, Angelle & Nader. 18 He has also been an adjunct
professor of law at Tulane University for over fifteen years.19 Didlake is a
recent law school graduate who has been practicing law as an associate
attorney with Lobman, Carnahan, Batt, Angelle & Nader for approximately
two years.20
Allowing plaintiffs to recover attorneys’ fees for Didlake’s legal services
would undermine the purpose behind barring attorney-parents from
recovering attorneys’ fees. Parents like James Nader, who have the resources
of a law firm at their disposal, would be able to direct the work of junior

18
19
20

R. Doc. 19-7 at 1.
Id. at 2.
R. Doc. 19-8 at 1-2.
17

attorneys but still recover fees for those attorneys’ services. They would thus
not be incentivized to obtain an independent third-party counsel to handle
their children’s hearings. A district court in the Southern District of New
York was faced with a similar attempt by a corporate attorney to recover
attorneys’ fees under the Fair Credit Reporting Act for services provided by
associates whose work he controlled and directed. See Menton v. Experian
Corp., No. 02-4687, 2003 WL 21692820, at *3 (S.D.N.Y. July 21, 2003).
That court held:
Allowing [the plaintiff] to recover attorney’s fees simply because
he utilized the assistance of two associates in the course of
litigating this matter would undermine the general rule
prohibiting attorneys’ fees for pro se litigants who are attorneys.
Here, [the plaintiff] is in control of this litigation, has appeared
at every hearing, and has signed every pleading. Simply because
he is fortunate enough have the resources of a large law firm,
including associate assistance, we will not allow him to
circumvent the rationale underlying the rule prohibiting a pro se
attorney from recovering his own fees.
Id. (internal citation omitted). As already addressed, the rationale for why
pro se litigants who are attorneys cannot recover attorneys’ fees is equally
applicable to attorney-parents in the context of the IDEA.
Like the attorney in Menton, here there is no material dispute that
James Nader controlled the litigation during the IDEA proceedings and
directed Didlake’s actions. See Baton Rouge Oil Chem. Workers Union v.
ExxonMobil Corp., 289 F.3d 373, 376 (5th Cir. 2002) (“In a bench trial, the
18

court has somewhat greater discretion to consider what weight it will afford
the evidence than it would in a jury trial” (internal quotation marks
omitted)).21

James Nader is a Shareholder and Director at Lobman,

Carnahan, Batt, Angelle & Nader, while Didlake is a junior associate. 22
Plaintiffs state in their statement of facts that James Nader “served as lead
counsel” in the IDEA proceedings.23 Indeed, James Nader states in an
affidavit that he “supervised” Didlake.24 Two reports from a November 20,
2017 telephone status conference in the IDEA proceedings indicate that only
the Naders, and not Didlake, participated on behalf of Benjamin Nader.25
Finally, Didlake’s subsidiary role in the proceedings is further shown by the
fact that only James Nader appeared as counsel on each day of the
hearings. 26

R. Doc. 1 (no jury demand in plaintiffs’ complaint); R. Doc. 7 (no jury
demand in defendant’s answer); R. Doc. 17 (no jury demand in defendant’s
amended answer); R. Doc. 37 at 13 (parties stating in their joint pretrial order
that this is a non-jury case).
22
R. Doc. 19-7 at 1; R. Doc. 19-8 at 1-2.
23
R. Doc. 28-1 at 2 ¶ 5.
24
R. Doc. 19-7 at 3.
25
See R. Doc. 21-2 at 1; R. Doc. 21-3 at 1.
26
See R. Doc. 21-4 (excerpted records from each day of the due process
hearings); R. Doc. 26-4 at 3 (appearances page for the due process hearings,
indicating that “Lobman, Carnahan, Batt, Angelle” appeared “for the minor
child and parents,” and naming only James Nader as the individual
attorney).
19
21

In all, plaintiffs are effectively attempting to recover attorneys’ fees for
any work performed by attorneys at Lobman, Carnahan, Batt, Angelle &
Nader in connection with these IDEA proceedings. But because there is no
genuine dispute that James Nader controlled that work, and because James
Nader is the parent of Benjamin Nader, plaintiffs are not entitled to recover
Didlake’s attorneys’ fees under the IDEA.

IV.

CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment

is GRANTED and plaintiffs’ motion for summary judgment is DENIED.
Plaintiffs’ complaint is DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this _____ day of May, 2019.
29th

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

20