D.B. et al v. GLOUCESTER TOWNSHIP SCHOOL DISTRICT et al
Filing
66
OPINION. Signed by Judge Noel L. Hillman on 3/28/2013. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
D.B. and L.B., on behalf of
H.B,
Plaintiffs,
Civil No. 08-5667 (NLH/KMW)
OPINION
v.
GLOUCESTER TOWNSHIP SCHOOL
DISTRICT, THOMAS D. SEDDON and
JOHN TIGHE,
Defendants.
APPEARANCES:
Christopher Leo Soriano, Esquire
Duane Morris LLP
1940 Route 70 East
Suite 200
Cherry Hill, New Jersey 08003
Attorney for Plaintiffs
Michael S. Mikulski, II, Esquire
Connor, Weber & Oberlies, P.C.
Ten Melrose Avenue
Suite 450
Cherry Hill, New Jersey 08003
Angela B. Kosar, Esquire
Connor, Weber & Oberlies, P.C.
236 W. Route 38
Suite 200
Moorestown, New Jersey 08057
Attorneys for Defendants
HILLMAN, District Judge
This matter comes before the Court on Plaintiffs’ motion
[Doc. No. 60] for attorneys’ fees and costs seeking a total award
in the amount of $546,355.531 pursuant to Section 1415(i)(3)(B)
of the Individuals with Disabilities Education Act (“IDEA”), 20
U.S.C. § 1415(i)(3)(B).
Defendant Gloucester Township School
District (“the District”) opposes Plaintiffs’ and requests that
the Court deny the motion in its entirety, or alternatively,
reduce the total award of fees to $335,319.13 and not award any
costs.
The Court has considered the parties’ submissions, and
decides this matter pursuant to Federal Rule of Civil Procedure
78.
For the reasons expressed below, Plaintiffs’ motion will be
granted in part with respect to an award of attorneys’ fees and
denied without prejudice in part as to Plaintiffs’ request for
costs.
However, the total award of attorneys’ fees will be
reduced to $414,140.85.
I.
JURISDICTION
Plaintiffs brought this action pursuant to the IDEA, 20
1
Plaintiffs proposed form of order [Doc. No. 60-2]
submitted with the present motion seeks a total judgment in the
amount of $548,995.53, including approximately $9,290.21 in costs
for the law firm of Duane Morris LLP. However, Plaintiffs’
motion and the billing records submitted to the Court reflect a
total amount of costs for Duane Morris of only $6,650.21, a
difference of approximately $2,640. The reason for this
discrepancy is unclear, but the Court will begin its
determination of a reasonable award of fees and costs from the
prospective that Plaintiffs’ maximum award is $546,355.53, not
$548,995.53. The $546,355.53 Plaintiffs seek includes
$531,207.50 in attorneys fees and $15,148.03 in costs for work
completed by several legal service providers.
2
U.S.C. §§ 1400-1491, asserting that Defendants failed to provide
H.B. with a free appropriate public education (“FAPE”).
Accordingly, the Court exercises jurisdiction over this action
pursuant to 20 U.S.C. § 1415(i)(2) and 28 U.S.C. § 1331.
II.
BACKGROUND
In light of the extensive procedural history of this case
and because the Court writes primarily for the parties who are
familiar with the background, the Court sets forth below a
summary of this case as detailed by the Third Circuit Court of
Appeals.
As the Third Circuit explained:
D.B. and L.B. (“Plaintiffs”) challenged
Individualized Education Plans (“IEPs”) developed for
their minor daughter, H.B., who is [an autistic]
student in New Jersey’s Gloucester Township School
District[]. ...
... In 2008, Plaintiffs, acting on H.B.’s behalf,
filed an amended petition for a due process hearing,
challenging [the District’s] proposed IEPs for the
2007-2008 and 2008-2009 school years. The ALJ who was
assigned to the case concluded that Plaintiffs “have
not met their burden of proof of establishing that [a
free appropriate public education (“FAPE”)] was not
provided or that H.B. should be placed in the regular
education program for a longer period of time than
what was established by [the District].”
Thereafter, Plaintiffs filed suit in District
Court, [before the Honorable Joseph E. Irenas,]
challenging the ALJ’s decision and asserting claims
under the IDEA, the Americans with Disabilities Act,
the Rehabilitation Act of 1973, 42 U.S.C. § 1983, and
the New Jersey Law Against Discrimination. Their
amended complaint also challenged the proposed IEP for
the 2009-2010 school year.
Plaintiffs ultimately moved for summary judgment
on their IDEA claim, and Defendants moved for summary
judgment on all of Plaintiffs’ claims. On November
17, 2010, the District Court vacated the ALJ’s
decision and granted summary judgment in favor of
3
Plaintiffs to the extent their IDEA claim sought
equitable relief. The court also ordered Defendants
to “draft an [IEP] for H.B. in accordance with the
procedural requirements of the IDEA.” The court noted
that “[a]ttorneys’ fees and related costs are
available to Plaintiffs to the extent they are the
prevailing party and make a proper motion before this
Court for such fees.” To the extent Plaintiffs’ IDEA
claim sought damages, the District Court granted
summary judgment in Defendants’ favor. The court also
granted Defendants’ motion for summary judgment on
Plaintiffs’ § 1983 claim, and dismissed Plaintiffs’
remaining claims as moot.
After Defendants filed [their] appeal, Plaintiffs
moved for attorneys’ fees and costs as prevailing
parties pursuant to § 1415(i)(3)(B). The District
Court dismissed that motion without prejudice, and
granted Plaintiffs leave to “reraise” the motion nunc
pro tunc “pending the outcome of Defendants’ appeal.”
D.B. v. Gloucester Twp. School Dist., 489 F. App’x 564, 565 (3d
Cir. 2012) (citations omitted) (hereinafter, “D.B. II”).
On July 29, 2012, the Third Circuit affirmed the November
17, 2010 Opinion and Order by the Honorable Joseph E. Irenas
granting Plaintiffs’ summary judgment motion on their claim for
equitable relief under the IDEA.
67.
D.B. II, 489 F. App’x at 565-
In accordance with Judge Irenas’ April 28, 2011 Order,
Plaintiffs submitted the present motion for attorneys’ fees and
costs on August 20, 2012 after Defendants’ appeal was resolved.
The case was subsequently reassigned to this Court for resolution
of the present motion.
III. DISCUSSION
Pursuant to Section 1415(i)(3)(B) of the IDEA, “a prevailing
party who is the parent of a child with a disability” is entitled
4
to seek attorney's fees and costs.
20 U.S.C. §
1415(i)(3)(B)(i)(I); see also 34 C.F.R. § 300.517(a).
In the
context of awarding attorneys’ fees under the IDEA, a party may
be considered a “prevailing party” if the he or she “succeed[s]
on any significant issue in litigation which achieves some of the
benefit the parties sought in bringing the suit.”
See, e.g.,
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); J.O. ex rel. C.O.
v. Orange Twp. Bd. of Educ., 287 F.3d 267, 271 (3d Cir. 2002).
To determine if a party was a prevailing party, the Court
utilizes a two-prong test and examines (1) whether plaintiffs
achieved relief; and (2) whether there is a causal connection
between the litigation and the relief from the defendant.
J.O.,
287 F.3d at 271 (citing Wheeler v. Towanda Area Sch. Dist., 950
F.2d 128, 131 (3d Cir. 1991)).
To be eligible for a fee award,
“[a] party need not achieve all of the relief requested nor even
ultimately win the case” so long as the plaintiff achieves some
of the benefit sought in a lawsuit.
J.O., 287 F.3d at 271
(citing Wheeler, 950 F.2d at 131).
Section 1415(i)(3)(B) requires that any discretionary award
of attorneys’ fees under the IDEA be reasonable.
According to
the Third Circuit, “a reasonable fee is [, generally,] one which
is adequate to attract competent counsel, but which do[es] not
produce windfalls to attorneys.”
Pub. Interest Research Group of
New Jersey, Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995)
5
(internal quotations and citation omitted).
“‘[Third Circuit]
case law construing what is a reasonable fee applies uniformly to
all fee shifting statutes.’”
Damian J. v. School Dist. of
Philadelphia, 358 F. App’x 333, 335 (3d Cir. 2009) (citing
Goodman v. Pa. Turnpike Comm'n, 293 F.3d 655, 677 (3d Cir.
2002)).
In assessing the reasonableness of an attorneys’ fee
award under the IDEA, the Court must employ the well recognized
“lodestar” method applicable under other fee-shifting statutes
which entails multiplying the total number of hours reasonably
expended by a reasonable hourly rate.
See Damian J., 358 F.
App’x at 335 (“‘The starting point for determining the amount of
a reasonable fee is the lodestar”) (citation omitted); see also
Hensley, 461 U.S. at 433.
While the lodestar is “strongly
presumed to yield a reasonable fee[,]” Washington v. Phila. Cnty.
Ct. of Common Pleas, 89 F.3d 1031, 1035 (3d Cir.1996), “it may
still require subsequent adjustment.”
UAW Local 259 Soc. Sec.
Dep't v. Metro Auto Ctr., 501 F.3d 283, 290 (3d Cir. 2007).
It is the “party seeking attorney fees [that] bears the
ultimate burden of showing that its requested hourly rates and
the hours it claims are reasonable.”
Interfaith Cmty. Org. v.
Honeywell Int’l, Inc., 426 F.3d 694, 703 n.5 (3d Cir. 2005)
(citation omitted).
In order to meet this burden, the party
seeking fees is initially required to submit evidence supporting
the hours worked and the rates claimed.
6
Id.
To the extent the
opposing party seeks to challenge the fees sought, “the opposing
party must ... object ‘with sufficient specificity’ to the
request.”
Id.
Where the opposing party raises objections, “the
party requesting fees must demonstrate to the satisfaction of the
court that its fee request is reasonable.”
Id.
“If the party opposing the fee petition meets its ‘burden of
proving that an adjustment is necessary,’ ... the court has wide
discretion to adjust the attorneys’ fee for a variety of reasons
such as inadequate documentation of hours spent, reasonableness
of hours expended or duplication of efforts.”
Apple Corps. Ltd.
v. Int’l Collectors Soc., 25 F. Supp. 2d 480, 485 (D.N.J. 1998)
(citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.
1990); Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir.
1983)).
The Court, however, is not permitted to “decrease a fee
award based on factors not raised by the adverse party.”
Rode,
892 F.2d at 1183; see also McDonald v. McCarthy, 966 F.2d 112,
119 (3d Cir. 1992) (holding that a district court “may not, sua
sponte, reduce the award requested unless such order is based on
the court’s personal knowledge as to the time expended on the
case”).
IV.
ANALYSIS
A.
Prevailing Party Status
As a threshold matter, the District challenges whether
Plaintiffs qualify as prevailing parties in this matter such that
7
an award of attorneys’ fees is appropriate.
In the view of the
Defendant District, Judge Irenas’ November 17, 2010 Opinion and
Order “essentially ordered that a new IEP meeting be conducted”
but “did not find that the IEP created for the minor plaintiff
violated the IDEA or any other statute, law or regulation.”
(Br.
in Opp’n to Pls.’ Mot. for Attys’ Fees and Costs [Doc. No. 64]
(hereinafter, “Defs.’ Opp’n”), 10.)
Defendants contend that
Judge Irenas simply “ruled that the IEP was not created in
accordance with the procedures established in the IDEA” and
declined to “rule on what the contents of the new IEP should be
or provide any directives” in that regard.
(Id. at 11.)
For the
District, the defining aspect of Judge Irenas’ Opinion which
purportedly prohibits an award of attorneys’ fees here is the
abscence of any rulings regarding whether the content of the
disputed IEPs was appropriate.
(Id.)
The District characterizes
Judge Irenas’ ruling as one which “directed [the District] to
have a new IEP meeting[,]” and since a new IEP meeting is
required by law each spring, the District was not ordered to do
anything different than it was already doing prior to, and as a
result of, the litigation.
(Id. at 12, 14) (citing Wheeler, 950
F.2d at 132).
The District’s argument that Plaintiffs are not prevailing
parties in this matter is wholly without merit.
In opposing
Plaintiffs’ motion, the District substantially mischaracterizes
8
the nature of Judge Irenas’ prior ruling.
As set forth supra, Plaintiffs may qualify as prevailing
parties if they achieved relief on any of their claims and if
there was a causal connection between the litigation and that
relief.
J.O., 287 F.3d at 271 (citing Wheeler, 950 F.2d at 131).
A liberal standard applies when assessing the first prong of
whether Plaintiffs achieved relief on any of their claims, and
the Court must make a “commonsense comparison between the relief
sought and obtained.”
Wheeler, 950 F.2d at 131.
Plaintiffs need
not have achieved all of their requested relief to qualify as
prevailing parties so long as they achieve some of the benefit
sought in the lawsuit.
Id.
To demonstrate the requisite casual
connection between the litigation and the relief achieved as
delineated in the second prong, Plaintiffs must establish that
the litigation “changed the legal relations of the parties such
that defendants were legally compelled to grant relief[.]”
Wheeler, 950 F.2d at 132; see also Farrar v. Hobby, 506 U.S. 103,
111–12 (1992) (explaining “a plaintiff ‘prevails’ when actual
relief on the merits of his claim materially alters the legal
relationship between the parties by modifying th defendant's
behavior in a way that directly benefits the plaintiff.”)
So
long as the defendant’s behavior is modified in a manner that
directly benefits the plaintiff, an award of fees is appropriate
and “the degree of the plaintiff's overall success goes [only] to
9
the reasonableness of the award ... not to [its] availability[.]”
Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S.
782, 792–93 (1989).
In this case, a commonsense comparison between the relief
sought and that obtained demonstrates that Plaintiffs clearly
achieved at least some benefit from the lawsuit.
Specifically,
as Judge Irenas noted, Plaintiffs sought “injunctive relief ...
requir[ing] the ... District to, amongst other things, create a
new Individualized Education Program ... for H.B.”
D.B. ex rel.
H.B. v. Gloucester Tp. School Dist., 751 F. Supp. 2d 764, 767
(D.N.J. 2010) (hereinafter, “D.B. I”).
In challenging the 2007-
2008 IEP, the 2008-2009 IEP, and the 2009-2010 IEP, Plaintiffs
argued that the District predetermined H.B.’s placement and
thereby committed a procedural violation of the IDEA because the
District denied Plaintiffs, as H.B.’s parents, a meaningful
opportunity to participate in the IEP decision making process as
required under the Act.
Id. at 771.
Judge Irenas cited
substantial authority in support of Plaintiffs’ position and
recognized that “[p]redetermination of an IEP can be grounds for
finding a violation of the IDEA, in particular because
predetermination can serve to exclude parents from meaningfully
participating in the decision making process.”
Id.
After a thorough and careful review of the administrative
record and the evidence before him, Judge Irenas concluded that
10
Plaintiffs have shown that for each of the IEPs
before the Court, the School District had come to
definitive conclusions on H.B.'s placement without
parental input, failed to incorporate any
suggestions of the parents or discuss with the
parents the prospective placements, and in some
instances even failed to listen to the concerns of
the parents. It is clear from the evidence before
the Court that the IEPs were predetermined, and
therefore the School District denied the parents any
meaningful participation in the development of the
IEPs in violation of IDEA.
Id. at 772 (emphasis added).
Based on the explicit finding that
the District committed a procedural violation of the IDEA and
that Plaintiffs were denied their statutory right to meaningfully
participate in the IEP process, Judge Irenas granted Plaintiffs’
First Claim for Relief under the IDEA seeking equitable relief,
vacated the administrative law judge’s decision and order, and
ordered the District “to draft an IEP for H.B. in accordance with
the procedural requirements of the IDEA.”
Id. at 773.
From the
outset, Plaintiffs clearly sought to compel the District to
create a new IEP for H.B. and Judge Irenas ordered the District
to do precisely that .... draft an IEP in accordance with the
procedural requirements of the IDEA – i.e., without
predetermining H.B.’s placement and giving Plaintiffs a
meaningfully opportunity to participate.
Accordingly, Plaintiffs
have satisfied the first prong of the prevailing party analysis
because they achieved at least some of the relief they sought.
It is also apparent that a causal connection exists here
between the litigation and the relief achieved.
11
Prior to Judge
Irenas’ November 17, 2010 ruling, the District repeatedly
predetermined H.B.’s placement status prior to engaging in the
IEP process — putting the proverbial cart before the horse and
making final placement decisions before creating the IEP.
771-772.
Id. at
As Judge IRenas explained, however, “a student’s
placement must be based on the IEP, and not the other way
around.”
Id. at 771.
In each instance, the District denied
Plaintiffs any meaningful participation in developing their
daughter’s IEPs, a statutory right created by the IDEA.
772.
Id. at
In vacating the administrative law judge’s decision and
order and ordering the District to draft an IEP in accordance
with the procedural requirements of the IDEA, Judge Irenas
granted Plaintiffs actual relief on the merits of their IDEA
claim which materially altered the legal relationship between
Plaintiffs and the District.
Judge Irenas’ ruling modified the District’s behavior in a
significant way.
Rather than basing H.B.’s IEP on a
predetermined placement selected by the District without parental
input as it had in the 2007-2008, 2008-2009, and 2009-2010 school
years, Judge Irenas directed the District to properly engage in
the IEP process by working with Plaintiffs to develop an IEP for
H.B. that determined her placement and provided Plaintiffs
meaningful participation in the process.
This ruling had a clear
and direct benefit for Plaintiffs who, until that time, had been
12
utterly frozen out of the IEP process such that they were unable
to offer input or have discussions with District representatives,
their alternative placement suggestions were rebuffed, and their
questions were “literally met with only silence.”
Id. at 771-72.
Judge Irenas’ ruling thereby modified the District behavior and
directly benefitted Plaintiffs, who, for the first time, were
given a chance at meaningful participation in the process.
Accordingly, the Court finds here that Plaintiffs qualify as
prevailing parties and are entitled to an award of attorneys
fees.
For similar reasons, the Court also rejects the District’s
alternative argument that any relief awarded to Plaintiffs was de
minimus.
(See Defs.’ Opp’n 24-25.)
Here again, the District
mischaracterizes the relief award by Judge Irenas as simply
ordering a new IEP meeting be held as already required annually
by law.
As set forth more fully above, Judge Irenas’ ruling
provided substantially more relief than ordering a new IEP
meeting.
It provided Plaintiffs with their first chance to have
meaningful participation in the IEP process for H.B. where the
District had previously prevented them from doing so in violation
of the IDEA.
B.
Whether Any Reduction in Fees is Proper
Plaintiffs contend that the Court cannot reduce their
requested attorneys’ fees because the express language of 20
U.S.C. § 1415(i)(3)(G) prohibits such a reduction.
13
(Pls.’ Mem.
of Law in Supp. of Mot. for Award of Attys’ Fees and Costs [Doc.
No. 60-1] (hereinafter, “Pls.’ Mem.”), 12.)
Section
1415(i)(3)(G) provides in pertinent part
The provisions of subparagraph F [factors for
reduction of fees] shall not apply in any action or
proceeding if the court finds that the State or local
educational agency unreasonably protracted the final
resolution of the action or proceeding or there was a
violation of this Section.
20 U.S.C. § 1415(i)(3)(G).
Plaintiffs argue, without citation to
any controlling or even persuasive authority, that because Judge
Irenas found that the District committed a procedural violation
of Section 1415(f)(3)(E)(ii) regarding impeding the rights of
parents to participate in the decision-making process, that
violation precludes the District from seeking to reduce
Plaintiffs’ attorneys’ fees.
(Pls.’ Mem. 12-13.)
The Court’s
independent review of the case law does not support Plaintiffs’
interpretation of the IDEA in this respect.
In the absence of at
least some persuasive, if not binding, authority on this point,
the Court must reject Plaintiffs’ argument and will consider the
District’s objections seeking to reduce the total fees in this
case.2
2
The Court also summarily rejects Plaintiffs’ argument that
a reduction of fees is improper here because the Court could find
that the District unreasonably protracted the ultimate resolution
of this litigation. (Pls.’ Mem. 14.) Other than highlighting
that the District appealed Judge Irenas’ November 17, 2010 ruling
to the Third Circuit, which it was well within its rights to do,
Plaintiffs point to absolutely no evidence from which the Court
could conclude the District unreasonably protracted resolution of
14
C.
Breakdown of Fee Award Sought by Plaintiffs
Plaintiffs seeks an award of attorneys’ fees totaling
$531,207.50.
(Pls.’ Mem. 14.)
The award requested by Plaintiffs
seeks fees for services furnished by four different legal service
providers on this matter:
(1) Duane Morris LLP — $185,756.00;
(2) WolfBlock LLP — $205,762.50;
(3) The Public Interest Law Center of Philadelphia
(“the Law Center”) — $112,194.00; and
(4) Reisman Carolla Gran LLP (“Reisman”) —
$27,495.00.
(Id.)
Plaintiffs also seek to recover $15,148.03 in costs
between Duane Morris — $6,650.21; WolfBlock — $7,113.22; and the
Law Center — $1,384.60.
D.
(Id.)
The District’s Objections to Plaintiffs’ Fees
1.
The Requested Hourly Rates are Unreasonable
In seeking an award of attorneys’ fees, Plaintiffs request
reimbursement at the following hourly rates: $390 per hour for
attorneys from the Law Center and Reisman; between $160 and $325
per hour for various attorneys from WolfBlock; and between $350
and $410 per hour for various attorneys from Duane Morris.
The
District challenges these asserted rates and argues that
Plaintiffs have made no showing that these asserted rates are
reasonable for this particular type of case, Plaintiffs made no
effort to prove these rates meet those of an adequately
this case.
15
experience attorney in the area of education law, and Plaintiffs
did not submit any additional support for these fees beyond
attorney affidavits.
(Defs.’ Opp’n 19.)
In IDEA cases, a reasonable hourly rate is calculated
according to “market rates prevailing in the community in which
the action or proceeding arose for the kind and quality of
services furnished.”
20 U.S.C. § 1415(i)(3)(C).
A similar
analysis is generally applied in other areas of federal law where
an award of attorneys' fees to the prevailing party is
authorized. See, e.g., Blum v. Stenson, 465 U.S. 886, 895-96 n.
11 (1984); Washington, 89 F.3d at 1035; Student Pub. Interest
Research Group, Inc. v. AT & T Bell Labs., 842 F.2d 1436, 1448
(3d Cir. 1988) (“PIRG”).
Thus, the Court may look to these cases
to determine the rate to be awarded in an IDEA case.
Plaintiffs, as the prevailing party, must establishing by
way of satisfactory evidence, “in addition to [the] attorney's
own affidavits, that the requested hourly rates meet this
standard.”
Washington, 89 F.3d at 1035 (citations and internal
quotations omitted).
As the Third Circuit has previously
indicated, the prevailing party has the burden of demonstrating
“‘the community billing rate charged by attorneys of equivalent
skill and experience performing work of similar complexity[.]’”
Id. at 1036 (citation omitted).
“This burden is normally
addressed by submitting the affidavits of other attorneys in the
16
relevant legal community, attesting to the range of prevailing
rates charged by attorneys with similar skill and experience.”
S.D. v. Manville Bd. of Educ., 989 F. Supp. 649, 656 (D.N.J.
1998).
If the prevailing party satisfies its initial burden, the
opponent may challenge the proffered hourly rate but only with
record evidence.
Smith v. Philadelphia Hous. Auth., 107 F.3d
223, 225 (3d Cir. 1997).
If the opponent fails to do so, the
district court may not reduce the requested rate.
F.3d at 1036.
Washington, 89
“The Third Circuit has been explicit about the
opponent's burden stating: ‘[i]t is not enough merely to contest
the claimed hourly rate; rather, [the opponent] must submit
evidence of a different hourly rate.’”
T.B. v. Mount Laurel Bd.
of Educ., No. 09-4780, 2012 WL 1079088, at *4 (D.N.J. Mar. 30,
2012) (citing Smith, 107 F.3d at 225) (emphasis omitted).
With respect to the $390 hourly rate charged by attorneys
(Judith Gran and Barbara Ransom) at the Law Center and at
Reisman, the Court finds Plaintiffs have met their burden of
demonstrating that $390 per hour is reasonable in light of the
community billing rate charged by attorneys of equivalent skill
and experience performing work of similar complexity.
Plaintiffs
submitted the affidavit of Jennifer R. Clarke, Esquire, the
Executive Director at the Law Center, an attorney who did not
perform any work in this matter, verifying that the rate of $390
17
per hour is more than reasonable and substantially less that the
rates charged in southern New Jersey for work of comparable
complexity in light of the extensive experience of these
attorneys, ranging from about twenty to thirty years of practice
in multiple areas of education law.
The Court similarly finds that the rates charged for
attorneys at Duane Morris and WolfBlock are also reasonable,
based on the representations in the Clarke Affidavit.
Although
the Clarke Affidavit speaks to the reasonable rates for attorneys
at the Law Center, it also serves to substantiate the rates
charged by WolfBlock attorneys, all of which are substantially
less than $390 per hour, as well as the rates charged by Duane
Morris attorneys which average out to $381 per hour.
Having found that the hourly rates charged are reasonable in
this instance and supported by the Clarke Affidavit, the Court
declines to reduce these hourly rates despite the District
objections.
The District clearly contests these hourly rates,
but that is simply not enough.
See T.B., 2012 WL 1079088, at *4
(citing Smith, 107 F.3d at 225).
In order for the Court to
reduce these hourly rates, the District was required to submit
evidence in support of a different hourly rate.
The District has
failed to submit any such evidence to the Court and therefore,
the rates charged by Plaintiffs’ attorneys will not be reduced.
18
2.
Hours Expended are Unreasonable3
In fashioning an award of attorneys’ fees, the “prevailing
party is not automatically entitled to compensation for all the
time its attorneys spent working on the case[.]”
Cmty. Org., 426 F.3d at 711.
Interfaith
“Hours that would not generally be
billed to one's own client are not properly billed to an
adversary.”
Pub. Interest Research Group, 51 F.3d at 1188.
As a
result, the Court must determine “whether the hours set out were
reasonably expended for each of the particular purposes described
and then exclude those that are excessive, redundant, or
otherwise unnecessary.”
Interfaith Cmty. Org., 426 F.3d at 711
(internal quotations and citation omitted).
In reviewing these
charges, the Court cannot reduce an award sua sponte but “only in
response to specific objections made by the opposing party.”
Id.
In support of its contention that the hours expended in this
matter by Plaintiffs’ attorney are unreasonable, the District
3
Initially, the District objects to any time billed by
Plaintiffs’ attorneys for “attendance at IEP meetings and
discussions regarding IEP meetings” on the basis that this time
is outside the scope of this litigation and is impermissible
under 20 U.S.C. § 1415(i)(3)(D)(ii). (Defs.’ Opp’n 17.) That
Section specifies that “[a]ttorneys' fees may not be awarded
relating to any meeting of the IEP Team unless such meeting is
convened as a result of an administrative proceeding or judicial
action, or, at the discretion of the State, for a mediation
described in subsection (e).” However, the District fails to
identify any specific time entries for IEP meetings which should
be disallowed on the basis that they were not the result of
administrative or judicial action, and therefore no time will be
reduced on that basis.
19
submits the Certification of James P. Schratz [Doc. No. 64-5] and
relies on the Schratz Certification as a form of an expert report
to attack Plaintiffs’ billing records and reduce Plaintiffs’
award of attorneys’ fees.
According to this Certification,
Schratz is a licensed attorney who conducts legal audits for law
firms, government entities, private clients, insurance companies,
and corporations throughout the country, and he has conducted
approximately 900 legal fee audits over the last sixteen years.
(Schratz Cert. ¶¶ 1, 4.)
The District retained Schratz for the
purpose of reviewing Plaintiffs’ attorneys’ invoices and
conducting an audit of the billing records from August 2007
through November 2010.4
(Id. ¶¶ 23-24.)
Schratz raises four primary issues related to the billing
records submitted by Plaintiffs’ attorneys in support of the fee
request here: (1) problems inherent in block billing, (2)
vagueness of the entries, (3) overstaffing, and (4) overbilling.
With respect to block billing and vagueness of the entries,
4
The Court notes that Plaintiffs’ attorneys continued to
expend time on this matter well beyond November 2010 as reflected
in the billing records submitted to the Court. Accordingly,
Schratz’s assessment of Plaintiffs’ fees does not represent a
complete picture of the fees sought in this case, and essentially
leaves unchallenged all time billed by Plaintiffs’ attorneys’
after November 2010. Because the Court is not permitted to
“decrease a fee award based on factors not raised by the adverse
party[,]” see Rode, 892 F.2d at 1183, the Court will permit
recovery for virtually all time billed from December 1, 2010,
except where specific entries on challenged on another
independent basis.
20
Schratz’s Certification and the Court’s independent review of the
billing records submitted by Plaintiffs reflect that all of
Plaintiffs’ attorneys engaged in block billing in this case and
that the records are replete with vague entries.5
However, the
instances of block billing and vague entries were significantly
more prominent in the records of WolfBlock and Duane Morris.
The
use of block billing and the rampant presence of vague entries in
the billing records submitted to the Court make it virtually
impossible for the Court to fairly and accurately assess the
reasonableness of the hours actually expended on this matter
since its inception in 2007.
In response to the Schratz Certification, Plaintiffs make no
substantive arguments in support of the challenged hours and
practices.
Instead, Plaintiffs argue that the District’s counsel
engaged in similar conduct such that Plaintiffs’ attorneys should
not be faulted for the manner in which they billed their hours
when defense counsel billed the District in much the same
fashion.
(Pls.’ Reply [Doc. No. 65] 14-17.)
This argument is
not sufficient to satisfy Plaintiffs’ burden of demonstrating the
reasonableness of the hours expended on this matter.
5
Simply
Examples of vauge entries included in the billing records
are “Review documents”, “Prepare for trial”; “Trial Preparation”;
“Various follow-ups”; “Conference calls re: matter”; “Strategy
meeting”; “IEP meeting issues”; “Settlement follow ups”;
“Continue work on trial prep”; “conference call”; “Research re:
strategy”; “Reading email from co-counsel”; “Work on Letters and
matters re: discovery”.
21
pointing the finger across the table and objecting because “they
did it too!” is not a legal argument which the Court can give an
credence to.
Accordingly, the Court will adopt Schratz’s
recommendation that WolfBlock’s fees be reduced by eight percent
(8%) for the block billing and vague entries; that Duane Morris’
fees be reduced by five percent (5%) for the same; and that
neither the Law Center nor Reisman will have their fees reduced
on this basis.
(Schratz Cert. ¶¶ 27(1)-27(3).)
On the issue of overstaffing, the Schratz Certification
demonstrates that for seventeen (17) different proceedings, at
least two and sometimes three attorneys were present.
Cert. ¶29(1).)
(Schratz
Schratz proposes reducing the duplicative charges
for these fees by $30,768.75 for WolfBlock, $2,549.00 for Duane
Morris, $10,471.50 for the Law Center and $1,033.50.
also Ex. 9 to Schratz Cert. [Doc. No. 64-20] 1.)
(Id.; See
Schratz arrived
at these specific reductions by disallowing the fees charged for
the lower billing attorney’s rate where the attorneys are from
the same provider, or by disallowing fifty percent (50%) of each
attorney’s fee where the attorneys are from different providers;
or where two attorney from one provider are present and the third
attorney was from a different provider, by disallowing the fees
charged for the lower billing attorney between the two common
attorneys and then disallowing 50% of each remaining attorney’s
fees.
(Schratz Cert. ¶ 29(1).)
22
Again, beyond pointing the finger back at defense counsel
Plaintiffs have failed to submit any evidence justifying that
these otherwise duplicative charges for time billed by multiple
attorneys present at 17 separate proceedings is warranted.
It is
Plaintiffs’ burden to demonstrate the reasonableness of the hours
expended once Defendant has objected.
Plaintiffs’ have not done
so here, and the Court therefore adopts Schratz recommended
reductions for multiple appearances by counsel.
Schratz has also convinced the Court that this overstaffing
of Plaintiffs’ case resulted in a significant amount of time
billed for intra-office conferencing whereby Plaintiffs’
attorneys were discussing the matter amongst themselves, beyond
what the Court would expect for a matter of this nature and that
reflected in other cases Schratz has audited.
29(2).)
(Schratz Cert. ¶
Moreover, to the extent these time entries were part of
the attorneys’ block billing, it is extremely difficult for the
Court to discern precisely how much of this conferencing was
necessary for the litigation strategy.
In light of these
difficulties, the Court again adopts Schratz’s across the board
percentage reductions of 8% for WolfBlock, 3% for Duane Morris,
5% for the Law Center, and 5% for Reisman.
(Id.)
Moreover, the Schratz Certification further demonstrates
that WolfBlock and Duane Morris engaged in a significant amount
of overbilling and the Court adopts Schratz’s recommendation to
23
reduce their fees by an additional 10% each as a result of the
unreasonable amount of hours billed for what appear to be
otherwise routine tasks.
In summary, with respect to those fees reviewed by Schratz
in the audit, the Court awards $129,495.38 in fees to WolfBlock;
$95,349.19 in fees to Duane Morris; $96,636.38 in fees to the Law
Center, and $13,838.18 in fees to Reisman.
Cert. [Doc. No. 64-20] 1.)
(See Ex. 9 to Schratz
This results in a total fee award of
$335,319.13 for all time billed prior to November of 2010.
However, because Duane Morris submitted billing records
demonstrating an additional $66,927.50 worth of fees for time
billed after that date which remains unchallenged by the
District, the Court also awards $66,927.50 to Duane Morris for a
total award of $162,276.09.
Similarly, Reisman also continued to
bill time on this matter after November of 2010 and submitted
billing records indicating additional fees in the amount of
$11,895.00, which Defendants have not challenged.
Accordingly,
the Court awards Reisman an additional $11,895.00, for a total
award to Reisman of $25,733.00.
3.
Costs for Experts are Not Recoverable
The District argues that the list of costs provided by Duane
Morris seeks reimbursement in the amount of $3,000 for an expert
witness fee paid to Dr. Dana Henning, along with other associated
expert costs.
(Defs.’s Opp’n 22.)
24
The District is correct on
this point.
The Third Circuit has repeatedly explained that,
consistent with United States Supreme Court precedent, “the IDEA
does not permit prevailing parents to recover expert fees.”
A.S.
ex rel. V.S. v. Colts Neck Bd. of Educ., 190 F. App’x 140, 142
n.2 (3d Cir. 2006) (citing Arlington Central Sch. Dist. Bd. of
Educ. v. Murphy, 548 U.S. 291 (2006)); see also A.W. v. East
Orange Bd. of Educ., 248 F. App’x 363, 365 (3d Cir. 2007) (“the
fee-shifting provision [of the IDEA] does not authorize a
prevailing parent to recover fees for services rendered by an
expert educational consultant in IDEA proceedings.”) (citing
Arlington, 548 U.S. 291).
Accordingly, Duane Morris’s attempt to recover costs in the
amount of $3,000 for the expert witness fee paid to Dr. Dana
Henning is denied.
E.
Fee Award
For the reasons set forth above, the Court adopts the
Summary of Findings and Recommendations attached as Exhibit 9 to
the Schratz Certification with respect to attorneys’ fees and
awards attorneys’ fees as follows in this case:
Legal Service Provider
Total Fee Sought
Total Fee Awarded
WolfBlock LLP
$205,762.50
$129,495.38
Duane Morris LLP
$185,756.00
$162,276.09
The Public Interest Law
Center of Philadelphia
$112,194.00
$96,636.38
25
Reisman Carolla Gran LLP
$27,495.00
$25,733.00
The total award of all attorneys’ fees requested in this
case is therefore, $414,140.85.
At this time, the Court denies
without prejudice Plaintiffs’ motion to the extent it seeks costs
in this action.
The Court’s review of the billing records as to
the costs incurred by the four legal service providers involved
demonstrates that these records fail to precisely set forth each
item and the cost incurred therefore, in a manner which the Court
an readily understand and appreciate in order to enter an
accurate award of costs at this time.
Plaintiffs are hereby
granted leave to file a renewed motion for costs which properly
complies with the detailed requirements of Local Civil Rule 54.1.
V.
CONCLUSION
Accordingly, the Court grants in part and denies without
prejudice in part Plaintiffs’ motion [Doc. No. 60] for attorneys’
fees and costs but reduces the total award as set forth herein.
Defendants shall reimburse Plaintiffs’ in the total amount of
$414,140.85 as set forth above.
An Order consistent with this
Opinion will be entered.
Dated: March 28, 2013
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
26
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