TB v. MOUNT LAUREL BOARD OF EDUCATION

Filing 51

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/30/2012. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

T.B., a minor, individually
and by his Parent, J.K.,

HON. JEROME B. SIMANDLE
Civil No. 09-4780 (JBS/KMW)

Plaintiff,
v.

OPINION

MOUNT LAUREL BOARD OF
EDUCATION,
Defendant.

APPEARANCES:
Jamie Epstein, Esq.
1101 Route 70 West
Cherry Hill, NJ 08002
Counsel for Plaintiff
Carl Tanksley, Jr., Esq.
PARKER MCCAY PA
Building 4 East
Suite 102a
Lawrenceville, NJ 08648
Counsel for Defendant
SIMANDLE, Chief Judge:
I.

INTRODUCTION
This matter comes before the Court upon Plaintiff’s

application for attorney’s fees pursuant to the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400.
Item 39].

[Docket

Plaintiff’s application seeks $56,120 in attorney’s

fees and costs.

Defendant Mount Laurel Board of Education

opposes this motion on the ground that Plaintiff’s application

1

for attorney’s fees and costs contains, among other things, an
unreasonable, unwarranted hourly rate, coupled with unreasonable
and excessive hours.

The principal issue presented is whether

Plaintiff's counsel has demonstrated a reasonable hourly rate for
his services in the context of a fee application for which no
contrary evidence has been submitted by the objecting party.

The

second issue is whether the hours claimed are reasonable for the
tasks performed by an attorney of the applicant's experience and
knowledge of this subject matter, and in light of the degree of
success obtained.

For the reasons discussed herein, the Court

will award Plaintiff $45,494 in attorney’s fees and costs.

II.

BACKGROUND
The instant motion was filed following the Court’s

determination that Plaintiff, T.B. and his mother, J.K.,
qualified as “prevailing parties” for the purpose of attorney’s
fees under the IDEA.

The procedural history and underlying facts

of this case are described in detail in the Court’s June 20, 2011
opinion, see T.B. v. Mount Laurel Bd. of Educ., Civ. No. 09-4780,
2011 WL 2473327, 2011 U.S. Dist. LEXIS 66682 (D.N.J. June 20,
2011), and are reviewed herein only to the extent necessary to
serve as a context for the fee application under consideration.
T.B., a student in the Mount Laurel School System, has been
eligible, under the IDEA, for special education.

2

Id. at *1.

On

January 23, 2009, T.B.’s mother, J.K., filed a due process
petition pursuant to 20 U.S.C. § 1415, alleging that T.B.’s
existing education plan was inadequate and improper.

Id.

The

petition identified various shortcomings in T.B.’s existing
education plan, and sought further remedies including behavior
and psychiatric evaluations, as well as, the development of a
reasonable individualized education plan (IEP) with measurable
goals.

Id.

The district administrators, in response to the

petition, met with J.K. and offered a solution and plan.
*2.

J.K. rejected the offer.

Id. at

Id.

On February 25, 2009, the matter was transferred to the
Office of Administrative Law for a hearing scheduled for March 9,
2009, before ALJ James-Beavers.

Id.

Subsequently, the parties

retained legal counsel and eventually reached a settlement on
July 15, 2009.

Id.

ALJ James-Beavers issued an order five days

later containing the settlement terms ordering the parties to
comply.

Id.

On September 17, 2009, Plaintiff filed a complaint

to collect attorney fees as provided for in the IDEA, and claimed
for damages and fees pursuant to NJLAD.

[Docket Item 2].

On September 30, 2010, Defendant filed three motions, a Rule
12(c) motion for judgment on the pleadings, a Rule 12(b)(6)
motion, and a Rule 60 motion to dismiss.

3

[Docket Items 20-22].

While Plaintiff failed to file a timely response to the motions,1
on December 3, 2010, Plaintiff subsequently filed a motion for
summary judgment seeking to be found as the prevailing party.
[Docket Item 29].
December 20, 2010.

Defendant filed an opposition brief on
[Docket Item 33].

This Court, among other

things, denied Defendant’s motions and held that Plaintiff was
the prevailing party before the ALJ, and ordered Plaintiff’s
counsel, attorney Jamie Epstein, to submit the necessary
materials to this Court to determine the proper fee pursuant to
Local Civil Rule 54.2.

T.B., 2011 WL 2473327, at *9.

The

instant motion for attorney’s fees was subsequently filed.

III. DISCUSSION
The award of attorney’s fees and costs in this case is
authorized pursuant to the IDEA.

Specifically, under 20 U.S.C. §

1415(i)(3)(B), “[i]n any action or proceeding brought under this
section, the court, in its discretion, may award reasonable
attorney’s fees as part of the costs to the parents of a child
with a disability who is the prevailing party.”

20 U.S.C. §

1415(i)(3)(B).
A.

Prevailing Party

Under Buckhannon Bd. and Care Home, Inc. v. West Virginia

1

Plaintiff’s response [Docket Item 27] to Defendant’s
motions was eventually filed on November 15, 2010, but not
considered by this Court in its decision.
4

Dep’t of Health and Human Res., 532 U.S. 598, 604 (2001), in
deciding whether a party is a prevailing party, “enforceable
judgments on the merits and court-ordered consent decrees create
the ‘material alteration of the legal relationship of the
parties’ necessary to permit an award of attorney’s fees.”

The

party seeking attorney’s fees must “receive at least some relief
on the merits of [their] claim before [they] can be said to
prevail.”

State Teachers’ Ass’n v. Garland Indep. Sch. Dist.,

489 U.S. 782, 792 (1989).

In the Third Circuit, a court must

determine whether: (1) the plaintiff obtained relief on a
significant claim in the litigation; and (2) there is a causal
connection between the litigation and the relief obtained from
the defendant.

See Metro. Pittsburgh Crusade for Voters v. City

of Pittsburgh, 964 F.2d 244, 250 (3d Cir. 1992).

Furthermore,

“[m]ost courts have permitted plaintiffs to recover attorneys’
fees for success on the administrative level,” in IDEA cases.
P.G. v. Brick Twp. Bd. of Educ., 124 F.Supp. 2d 251, 260 (D.N.J.
2000) (citing Field v. Haddonfield Bd. of Educ., 769 F.Supp.
1313, 1329 (D.N.J. 1991)).
This Court previously found that “[t]he undisputed facts [of
this case] show that the ALJ ordered the parties to comply with a
settlement that materially altered the legal status of the
parties from their status both before and after [Defendant’s
previous] offer.

Therefore, Plaintiff was the prevailing party

5

in this action.”2
B.

T.B., 2011 WL 2473327, at *9.

Calculation of the Lodestar

The starting point for this Court’s determination of
reasonable attorney’s fee is calculation of the lodestar amount,
which is “the number of hours reasonably expended multiplied by a
reasonable hourly rate.”

Penn. Env’t Def. Found. v. CanonMcMill,

152 F .3d 228, 231 (3d Cir. 1998)(citing Hensley v. Eckerhart,
461 U.S. 424, 433 (1983)); see also Blakey v. Continental
Airlines, Inc., 2 F.Supp. 2d 598 (D.N.J. 1998).

In applying the

lodestar formula, it is imperative for a district court to
“carefully and critically evaluate the hours and the hourly rate
set forth by counsel.”

Blakey, 2 F.Supp. 2d at 602.

Once the

lodestar is calculated, the district court is permitted to adjust
fees depending on the success of the party seeking fees.

2

Penn.

This Court held:

[T]he undisputed facts show[ed] that the final settlement
that the ALJ ordered the parties to comply with was more
favorable than the initial offer [of the defendant] in at
least three ways: the initial offer was only to “put in
the IEP that the parent has requested that T.B. not be
restrained,” but not to actually change the disciplinary
procedures; T.B.’s behavior intervention plan is, under
the final settlement, to be overseen by the expert who
developed it, an important provision not offered in the
February letter; and, unlike the final settlement’s
concrete requirement of fifty hours of compensatory
education, the initial offer was only an offer to discuss
the appropriate compensatory education, containing no
promise of compensatory education in any amount. Each of
these standing alone is a significant modification.
T.B., 2011 WL 2473327, at *8.
6

Env’t Def. Found., 152 F.3d at 232 (citing Hensley, 461 U.S. at
433).
1.

Hourly Rate

The reasonable hourly rate is determined by reference to the
marketplace.

See Missouri v. Jenkins, 491 U.S. 274, 285 (1989)

(“We have consistently looked to the marketplace as our guide to
what is ‘reasonable.’”)

The attorney’s customary billing rate is

the proper starting point for calculating fees.

Cunningham v.

City of McKeesport, 753 F.2d 262, 268 (3d Cir. 1985).

Indeed,

“the court should assess the experience and skill of the
prevailing party’s attorney[] and compare [his] rates to the
rates prevailing in the community for similar services by lawyers
of reasonably comparable skill, experience, and reputation.”
Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).

The

party seeking to recover attorney’s fees has the initial burden
of “producing sufficient evidence of what constitutes a
reasonable market rate for the essential character and complexity
of the legal services rendered in order to make out a prima facie
case.”

Lanni v. New Jersey, 259 F.3d 146, 149 (3d Cir. 2001);

L.J. ex rel. V.J. v. Audubon Bd. of Educ., 373 F. App’x 294, 296
(3d Cir. 2010).

The hourly rate to be determined is a reasonable

rate at the time of the fee application, not at the past dates
when services may have been rendered.
If the burden is met, the party opposing the fee award can

7

rebut the reasonableness of the proffered hourly rate with record
evidence.

Smith v. Philadelphia Hous. Auth., 107 F.3d 223, 225

(3d Cir. 1997).

If hourly rates are disputed with actual

evidence rather than mere argument, the court must conduct a
hearing to determine the reasonable market rates.

Id.

A

district court may not set attorney’s fees based upon “a
generalized sense of what is usual and proper, but ‘must rely
upon the record.’”

Evans v. Port Auth., 273 F.3d 346, 362 (3d

Cir. 2001) (quoting Smith, 107 F.3d at 225).

However, “[w]here

the Plaintiffs meet their prima facie burden, ‘and the opposing
party has not produced contradictory evidence, the district court
may not exercise its discretion to adjust the requested rate
downward.’”

Killian v. Johnson & Johnson, Civ. No. 07-4902, 2009

WL 537666, at *16 (D.N.J. Mar. 4, 2009)(quoting Washington v.
Philadelphia Court of Common Pleas, 89 F.3d 1031, 1036 (3d Cir.
1996)).
In this case, Plaintiff’s counsel, attorney Jamie Epstein,
has furnished his affidavit stating, among other things, that his
hourly rate is $400 per hour, which he claims is consistent with
the accepted hourly rate of qualified attorneys in the practice
area of education law.

He has 20 years of experience as a member

of the New Jersey bar specializing in the field of education law
before administrative agencies and trial courts, and personal
experience in providing educational services to educationally

8

handicapped children.

Mr. Epstein further submits several

exhibits supporting his attorney fees including: affidavits of
three experienced education law practitioners3 stating that $400
per hour is a reasonable rate for someone of Mr. Epstein’s
experience and expertise, and well within the range of prevailing
rates charged by attorneys with comparable skill and experience
in New Jersey; an article and chart from the September 2005 issue
of the New Jersey Law Journal reflecting billing rates at law
firms in New Jersey for the year 2005 - “[t]he average mean rate
for partners in New Jersey firms is $394.”
Attorney’s Fees at P-3-12, P-28-30.

Pl’s Motion for

He also submitted evidence

of the retainer agreement and billing of a fee-paying client at
the $400 rate (P-25-27), as well as retainer agreements in
contingent fee-shifting cases at a $400 hourly rate. (P-13-24).
The affidavits of attorneys Greenwald, Giles and Johnson
recite prevailing local rates for similarly experienced attorneys
specializing in education law.

Greenwald's rate is $375 for all

clients, as she does not accept clients on a contingent fee
basis.

According to Ms. Greenwald, Rebecca Spar's rate is $375,

Ted Sussan's rate is $425, and Jane Wesler's rate is $375, each
taking cases only on a non-contingent basis.

Mr. Giles does not

state his hourly rate but is familiar with rates of lawyers

3

These affiants are Staci Greenwald, Esq. (P-1-8), David
Giles, Esq. (P-9-10) and Guy Johnson, Esq. (P-11-12).
9

throughout the state practicing in this specialty and finds $400
is "within the range of prevailing rates."

(P-10 at ¶ 14.)

Mr.

Johnson's services in special education, school law, real estate
and commercial litigation are billed at $325 per hour.
¶¶ 1-2.)

(P-11 at

He further has attested Mr. Epstein, in addition to

practicing law for 20 years, also has 15 years of additional
professional experience with the disabled and handicapped,
justifying the $400 hourly rate.

The Court finds that these

submissions satisfy the requirements as set forth in Rode v.
Dellarciprete, 892 F.2d at 1190, and are sufficient evidence
establishing a reasonable rate.
Defendant challenges the rate of $400 per hour as
unreasonable for an attorney with Mr. Epstein’s experience and
reputation.

Defendant argues that Mr. Epstein does not compare

to the attorneys who submitted affidavits supporting and
justifying his $400 per hour rate.
Mot. at 18.

Def.’s Br. in Opp. to Pl’s

Defendant points to numerous previous cases in this

district where Mr. Epstein’s fees were disputed.

However,

Defendant has not provided any evidence in the record of contrary
rates except for its argument that lower rates were deemed
appropriate for Mr. Epstein in previous matters.
insufficient.

This is

See Killian, 2009 WL 537666, at *16 (finding the

defendant’s argument that significantly lower rates were approved
for attorneys litigating similar cases was insufficient to rebut

10

a prevailing party’s prima facie showing of a reasonable hourly
rate when unsupported by any evidence in the record).

The Third

Circuit has been explicit about the opponent's burden stating:
"It is not enough merely to contest the claimed hourly rate;
rather, [the opponent] must submit evidence of a different hourly
rate."

Smith v. Phila. Housing Authority, 107 F.3d at 225

(emphasis added).

Thus, Defendant has provided no contrary

evidence “necessary to determine whether [Mr. Epstein’s] rate is
reasonable.”

Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 195

F. App’x 93, 98 n.4 (3d Cir. 2006).4
In other words, where Mr. Epstein has submitted evidence of
his actual billing rate of $400 per hour accompanied by three
affidavits of practitioners in this community attesting to the

4

In Tenafly Eruv Association, the Third Circuit noted that
the party opposing the counsel’s hourly rate argued that, “once
the claimed hourly rate is disputed, a hearing is necessary to
determine whether the rate is reasonable.” Tenafly Eruv Ass’n,
195 F. App’x at 98 n.4. But “it is not enough merely to contest
the claimed hourly rate; rather, [the opposing party] must submit
evidence of a different reasonable hourly rate.” Id. Stating
“conclusorily that the requested rates [were] ‘excessive’ and
cit[ing] two District Court cases . . . awarding lower fees to
different attorneys in different cases” was insufficient; thus,
“[a] hearing [was] not merited in [those] circumstances.” Id.
Only after the opposing party brings forward sufficient evidence
is it necessary for the court to “assess the experience, skill
and reputation of Plaintiffs’ attorneys and compare their rates
to the rates in the relevant market for similar services by
attorneys of comparable experience, skill and reputation.” Apple
Corps. Ltd. v. Int’l Collectors Soc’y, 25 F.Supp. 2d 480, 492
(D.N.J. 1998). Therefore, since the Defendant has not put forth
any record evidence contesting Plaintiff’s $400 hourly rate, a
hearing is not necessary.
11

reasonableness of this rate in education law litigation, the
burden of opposition shifted to the objecting party to produce
contradictory evidence, and here the Mt. Laurel Board of
Education has not done so.

Thus, as the Third Circuit has

previously cautioned, the district court "may not exercise its
discretion to adjust the requested rate downward."
Philadelphia Court of Common Pleas, 89 F.2d at 1036.

Washington v.
This

District Court is, of course, bound by this precedent and the
objecting party has made no effort to distinguish the prior
holding.
Therefore, the Court is constrained to approve Mr. Epstein’s
rate of $400 per hour as reasonable.
Furthermore, Defendant challenges Mr. Epstein’s reduced rate
of $100 for paralegal work that Mr. Epstein himself performed,
such as exhibit “reproduction and copying,” as well as “reviewing
notices or drafting letters to attorneys regarding scheduling
issues.”

Def.’s Br. in Opp. to Pl’s Mot. at 4, 13.

Paralegal

work, if performed by an attorney, can be billed only at
paralegal rates, while purely secretarial work is not compensable
because it is subsumed in overhead and built into the attorney's
fee for services.

See Missouri v. Jenkins, 491 U.S. 274, 285-88

(1989)(holding that "purely clerical or secretarial tasks should
not be billed at a paralegal rate, regardless of who performs
them"); Halderman by Halderman v. Pennhurst State School & Hosp.,

12

49 F.3d 939, 942 (3d Cir. 1995)("when a lawyer spends time on
tasks that are easily delegable to non-professional assistance,
legal service rates are not applicable"); Lipsett v. Blanco, 975
F.2d 934, 940 (1st Cir. 1992)(finding that "filing motions,
translating depositions, and the like-fell into the gray area
between purely clerical tasks and those properly entrusted to a
paralegal").
The services for which compensation is claimed in this case
appear to be of a paralegal nature rather than purely clerical,
as paralegals are routinely used to perform such tasks as
producing exhibit books; Mr. Epstein's performance of this
paralegal duty at $100 per hour is reasonable as is the 3.5 hours
claimed on April 25, 2009.5

However, Defendant again fails to

provide any contrary evidence in the record “necessary to
determine whether [Mr. Epstein’s paralegal] rate is reasonable.”6
Tenafly Eruv Ass’n, 195 F. App’x at 98 n.4.

Therefore, the Court

will apply the $400 hourly fee to reasonable attorney hours

5

In comparison, defense attorney Russell Weiss also
performed the service of "preparation of exhibits" on July 6,
2009, for which he billed Mt. Laurel Board of Education at his
usual attorney rate of $165 per hour. (See P-46.) Mr. Epstein,
in contrast, is seeking $100 per hour in recognition of the
paralegal nature of these services.
6

See Glass v. Snellbaker, Civ. No. 05-1971, 2008 WL
4416450, at *6 n.1 (D.N.J. Sept. 23, 2008)(quoting Missouri, 491
U.S. at 285) (noting that “the ‘reasonable attorney’s fee’
provided for by statute should compensate the work of paralegals,
as well as that of attorneys.”).
13

performed, and the $100 hourly fee to reasonable paralegal hours
performed for this case.
2.

Reasonable Hours

After the hourly rate is determined, the Court must
determine whether the number of hours expended was reasonable.
Hensley, 461 U.S. at 433.

For this, the Court must examine the

record to determine that the hours billed are not “unreasonable
for the work performed.”

Washington, 89 F.3d at 1037.

“Hours

are not reasonably expended if they are excessive, redundant, or
otherwise unnecessary.”
461 U.S. at 433).

Rode, 892 F.2d at 1183 (citing Hensley,

Compensable activities include the preparation

of filing the lawsuit, background research, productive attorney
discussions and strategy sessions, negotiations, routine
activities such as making telephone calls and reading mail
related to the case, monitoring and enforcing a favorable
judgment, and travel among other things.

See City of Riverside

v. Rivera, 477 U.S. 561, 573 n.6 (1986); see also Maldonado v.
Houston, 256 F.3d 181, 184-85 (3d Cir. 2001); Posa v. City of
East Orange, Civ. No. 03-233, 2005 WL 2205786, at *4 (D.N.J.
Sept. 8, 2005).

In addition, time spent drafting and litigating

a fee application is compensable.

See Planned Parenthood v.

Attorney General of the State of N.J., 297 F.3d 253, 268 (3d Cir.
2002).
In its evaluation, the district court has “a positive and

14

affirmative function in the fee fixing process, not merely a
passive role.”

Maldonado, 256 F.3d at 184.

The district court

must “go line, by line” through the billing records supporting
the fee request.

Evans, 273 F.3d at 361.

As part of the

determination of reasonable hours expended, attorneys seeking
fees must document the hours for which payment is sought “with
sufficient specificity. . . . [W]here the documentation of hours
is inadequate, the district court may reduce the award
accordingly.”

Washington, 89 F.3d at 1037 (internal citations

omitted); R.C. v. Bordentown Reg’l Sch. Dist. Bd. of Educ., Civ.
No. 05-3309, 2006 WL 2828418, at *3 (D.N.J. Sept. 29, 2006).
Plaintiff submits a fee application totaling $570 in costs,
and 136.8 hours amounting to $51,990 in attorney’s fees, plus an
additional $3,560, which represents 8.9 hours for litigating his
fee application.

In support of the hours spent, Plaintiff

submitted a computer printout detailing Mr. Epstein’s fees and
associated activities.

Pl’s Mot. for Attorney’s Fees at P-39-44.

Defendant argues that Mr. Epstein’s fee application reveals
several omissions justifying the hours billed.
Opp. to Pl’s Mot. at 6.

Def.’s Br. in

Defendant further argues that Mr.

Epstein’s fee application contains numerous billing entries that
are unreasonable or not itemized appropriately, and thus should
be denied or reduced.

Def.’s Br. in Opp. to Pl’s Mot. at 6-7.

After examining Mr. Epstein’s detailed billing printout,

15

Pl’s Mot. for Attorney’s Fees at P-39-44, the Court has
determined that Mr. Epstein’s fees should be reduced.

Mr.

Epstein’s fees will be reduced due to his work on Plaintiff’s
late opposition brief and subsequent motion which was not
considered by this Court; his double billing of travel costs; his
unreasonable time spent drafting his fee application; and his
unreasonable time spent for trial preparation.
In this Court’s previous opinion in this matter, it was held
that Mr. Epstein’s “fee request . . . should not seek
compensation for deficient performance, [i.e.] his preparation of
the opposition brief that was not considered [Docket Item 27], as
well as the unsuccessful motion for late filing of that brief
[Docket Item 28].”

T.B., 2011 WL 2473327, at *9.

Accordingly,

the Court finds that Mr. Epstein’s fee is reduced by the 13.2
hours he spent reviewing Defendant’s motions filed on September
30, 2010,7 as well as the preparation of his late brief in
opposition to these motions.

Therefore, Mr. Epstein’s total fee

will be reduced by $5,280.8
Mr. Epstein also billed $64 for travel to and from trial on
April 28, 2009 and July 15, 2009.

Pl’s Mot. for Attorney’s Fees

7

See Defendant’s Rule 12(b)(6), Rule 60 and Rule 12(c)
motions. [Docket Items 20-22].
8

See Pl’s Mot. for Attorney’s Fees at P-43. In Mr.
Epstein’s billing printout, he properly documents that the time
spent drafting a Motion for Extension, [Docket Item 28], is not
chargeable.
16

at P-39, P-41.

Mr. Epstein also includes the identical travel

costs in his “TOTAL COSTS” on P-44 of his billing records.

This

Court will not permit Mr. Epstein to recover for identical travel
costs.

Accordingly, Plaintiff’s total court costs will be

reduced from $570 to $506.
In addition to the adjustments discussed above, Defendant
asks the Court to reduce the rate of compensation for five other
items: 1) “1/13/09 Drafted Legal Representation Agreement (3pp),”
billed for 0.3 hours, totaling $120 in fees; 2) “1/23/09 Draft
Petition,” billed for 1.1 hours, totaling $440 in fees; 3)
“4/25/09 Producing 4 (165 PGS) exhibit notebooks,” billed at the
paralegal rate for 3.5 hours, totaling $350 in fees; 4) “5/913/09 Reviewed 5-6-09 ltr from atty w/discovery (335 pp listed
below),” billed for 5.4 hours, totaling $2,160 in fees; and 5)
the 11.1 hours billed from July 18, 2011 to July 20, 2011 in
submitting and preparing his fee petition.
First, the Court finds that the 11.1 hours Mr. Epstein spent
drafting his fee application unreasonable.

Prior to this matter,

Plaintiff was found to be the prevailing party for the purposes
of attorney’s fees.

T.B., 2011 WL 2473327, at *9.

Additionally,

Mr. Epstein previously drafted a demand letter and affidavit for
services on July 24, 2009, for which he billed 1.9 hours.
Furthermore, Plaintiff’s motion for attorney’s fees and the
supporting brief and exhibits total 137 pages.

17

Plaintiff’s

exhibits include 76 pages of photocopies of Defendant’s counsel’s
billing statements.

Plaintiff’s brief in support of the motion

amounts to 10 pages, 3 pages of which are merely a restatement of
this Court’s statement of facts from T.B., 2011 WL 2473327.
Therefore, considering this, as well as Mr. Epstein’s experience
filing fee applications,9 the time spent drafting his fee
application should be reduced.

The Court shall reduce those 11.1

hours to a reasonable time of 5.9 hours, which the Court finds
reasonable under the above circumstances.
On July 12, 2009 to July 14, 2009, Mr. Epstein billed 10
hours for trial preparation.

However, nowhere in the record does

it indicate that a trial was scheduled for July 15, 2009; rather,
a settlement conference took place on that date.
2473327, at *2.

T.B., 2011 WL

Additionally, Mr. Epstein previously billed 9.1

hours for trial preparation on April 26, 2009 to April 27, 2009.
Mr. Epstein’s billing record shows that he separately billed for
reviewing discovery materials received after April 2009.
Therefore, considering this, the time spent for trial preparation
from July 12, 2009 to July 14, 2009 should be reduced to a
reasonable time allocatable to settlement conference

9

See, e.g, Deptford Twp. Sch. Dist. v. H.B. ex rel E.B.,
279 F. App’x 122 (3d Cir. 2008); L.J. ex rel. V.J. v. Audubon Bd.
of Educ., Civ. No. 06-5350, 2009 WL 995458 (D.N.J. Apr. 13, 2009)
aff’d, 373 F. App’x 294 (3d Cir. 2010); J.N. v. Mt. Ephraim Bd.
of Educ., Civ. No. 05-2520, 2007 WL 4570051 (D.N.J. Dec. 21,
2007); P.N. v. Clementon Bd. of Educ., Civ. No. 02-1351, 2007 WL
1186552 (D.N.J. Apr. 20, 2007).
18

preparations.

The Court shall reduce those 10 hours to a

reasonable time of 3 hours to prepare for the settlement
conference in a case where he had already committed significant
time to learning about the case.
Defendant's objections to the other items - drafting legal
representation agreement, drafting petition, the clustering of
dozens of entries during the May 9-13 period into one 5.4 hour
amount - are overruled as substantially documented and
reasonable.
C.

Adjustment of Fees Based on Overall Success

Applying the rules set out above to the attorney’s fees and
costs requested in this case, the Court finds that the lodestar
amount totals $45,896.10

Once the lodestar is calculated, the

district court is permitted to adjust fees depending on the
success of the party seeking fees.

Penn. Env’t Def. Found., 152

F.3d at 232 (citing Hensley, 461 U.S. at 433.)

Specifically, the

district court may adjust the amount, which is “primarily based
on the degree of success that the plaintiff obtained.”

Id.

Where a plaintiff presents different claims for relief

10

This amount is calculated from Mr. Epstein’s total
requested fee award of $56,120, including the additional $3,560
for the 8.9 hours of work on the Reply Brief, reduced by (1)
$5,280, which represents Mr. Epstein’s work on Plaintiff’s late
opposition brief and subsequent motion; (2) $64, which represents
Mr. Epstein’s double billing of travel costs; (3) $2,080, which
represents Mr. Epstein’s unreasonable time spent drafting his fee
application; and (4) $2,800, which represents Mr. Epstein’s
unreasonable time spent for trial preparation.
19

that are based on unrelated facts and legal theories,
courts should exclude fees for time expended in
unsuccessful claims. However, where much of counsel’s
time was devoted generally to the litigation as a whole,
making it difficult to divide the hours expended on a
claim-by-claim basis, the district court should focus on
the significance of the overall relief obtained by the
plaintiff in relation to the hours reasonably expended on
the litigation. [T]he most critical factor is the degree
of success obtained. In exercising its discretion in
fixing the award, the district court may attempt to
identify specific hours that should be eliminated, or it
may simply reduce the award to account for the limited
success.
Field v. Haddonfield Bd. of Educ., 769 F.Supp. 1313, 1322 (D.N.J.
1991) (internal citations, quotations, and footnotes omitted);
see also Holmes v. Millcreek Twp. School Dist., 205 F.3d 583,
595-96 (3d Cir. 2000) (awarding one-fourth of fees where
plaintiff prevailed on some but not all claims).
In this case, this Court previously “decline[d] to exercise
supplemental jurisdiction over the [NJLAD] claim” and noted that
“[o]ther than a handful of paragraphs composed for [Plaintiff’s
partial summary judgment] motion, the Court is not aware of any
resources having been spent litigating the NJLAD claim in this
Court.”

T.B., 2011 WL 2473327, at *6.

Consequently, this Court

held that “[t]he fee request should also not include time
expended on the NJLAD claim.”

T.B., 2011 WL 2473327, at *9

Therefore, Plaintiff’s award of attorney’s fees must be reduced
to reflect the degree of success in this action in accordance
with the principles articulated in Hensley. See Hensley, 461 U.S.
at 434-35 (distinct unsuccessful claims are not entitled to fee
20

compensation).
Mr. Epstein’s billing records between the time Defendant
filed its three motions on September 30, 2010 [Docket Items 2022] and the time this Court issued the June 20, 2011 Order and
accompanying Opinion do not differentiate the amount of time
specifically spent on Plaintiff’s IDEA claim and NJLAD claim.
Thus, due to the minimum amount of time Mr. Epstein spent on the
NJLAD claim, as previously determined by this Court in T.B., 2011
WL 2473327, at *6, the remaining hours11 during the
aforementioned time period will be reduced by five percent.

This

results in a reduction of 1.035 hours, totaling $402; the
previous total amount billed was $8,040, and the resulting
reduced amount will be $7,638.12
Defendant further argues that, under Hensley, this Court
should adjust Mr. Epstein’s fees since “the overall relief
obtained by Plaintiff was minimal in relation to the hours
expended.”

Def.’s Br. in Opp. to Pl’s Mot. at 8.

However, as

this Court previously held that “the undisputed facts show that
the final settlement that the ALJ ordered . . . was more
11

As discussed earlier, supra text accompanying notes 56, the Court has already reduced Mr. Epstein’s hours billed
during this same time period by 13.2 hours.
12

Hours Billed
19.9
0.8
TOTAL

Reduced Hours
18.905
0.76

21

Rate
$400/hr
$100/hr

Reduced Fee
$7,562
$76
$7,638

favorable than the initial offer in at least three ways. . . .
[Furthermore e]ach of these [ways] standing alone is a
significant modification” of the “status quo” of the parties,
thus favoring Plaintiff.

T.B., 2011 WL 2473327, at *8.

The results obtained were rather substantial changes in
Plaintiff's favor in the context of a complex matter where the
child was being subjected to corporal punishment and adversive
conditioning.

The Consent Order provided for a remedy that the

Board would not agree to before commencement of the litigation,
including a 1:1 aide, a psychiatric evaluation, a behavior
assessment with oversight by a behavior analyst including review
of the school's crisis intervention policies, 50 hours of
compensatory education within 90 days, a rewritten IEP and
preclusion of restraints, according to Ms. Greenwald's Affidavit
(P-6 at ¶ 13.)

This result was achieved despite the school

district's strenuous defense that used significantly more defense
attorney hours than Plaintiff claims in this fee application.
If, as Defendant claims, the matter was neither novel nor
complex,13 its position is inconsistent with its attorneys'

13

The Court has also considered Defendant's argument that
the relief obtained in the Consent Order was not much different
from what the school district offers in the normal course, as
amplified in the Affidavit of Diane G. Willard. The district did
not offer these benefits or protections to Plaintiff before
enduring substantial litigation. If the district would have been
forthcoming at a much earlier date with the proposal Dr. Willard
says she intended to make, then perhaps much of the effort
expended by Plaintiff in achieving these results would not have
22

expenditure of 300 billable hours in the matter.

Where the

degree of success obtained in this settlement is weighed, the
Court is not left with the impression that the fee being awarded
here is disproportionate to that success.

Thus, the Court finds

that Plaintiff did in fact reach a level of success which makes
the Plaintiff's remaining reasonably expended hours a
satisfactory basis for the fee award.
As a further check on the reasonableness of the hours spent
to achieve this successful result, it may be instructive to
review the hours billed by defense counsel for comparable
services.

These defense billing statements are in the record (P-

45-121) spanning many tasks and itemized services.

The fact is

that defense counsel billed for almost 300 hours, which Affiant
Staci Greenwald, Esq., computes as including over 60 hours
related to due process, 75 hours drafting the Answer, 70 hours
related to discovery and 80 hours related to dispositive motions.
(P-1,6 at ¶ 15.)

Attorney Greenwald notes Defendant's attorneys

used over twice as many hours in defending this case (and not
including time opposing this fee application) as Mr. Epstein
claims in his prosecution of it.
with these figures.

Defendant does not take issue

Whatever Mr. Epstein's track record may be

in submitting questionable, excessive or improperly documented
fee applications in other IDEA cases, the application here is not

been necessary.
23

one of them, with the exceptions of the relatively minor
reductions noted above.
Therefore, the Court finds that only the five percent
adjustment to the lodestar amount is necessary in order to deduct
the amount of time spent on the NJLAD claim, and that no other
reduction is necessary to bring the lodestar into proportion to
the degree of success achieved on the IDEA claims.14

III. CONCLUSION
Therefore, for the reasons discussed above, the Court will
grant Plaintiff’s fee application in the reduced amount of
$45,494.

The accompanying Order will be entered.

March 30, 2012
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

14

The Court will note that this litigation could have been
resolved more efficiently and expeditiously if the parties were
able to work together on the administrative level for a speedy
resolution to this dispute. As a result of the litigious delay
experienced in this case, the school district ultimately incurred
extensive legal fees and was prevented from reaching a resolution
for a protracted period of time. Likewise, this dispute over
attorney's fees should have been susceptible to early resolution
in a spirit of openness and compromise, rather than this two-year
battle centered only upon fees. When resources and funding for
school districts is being decreased and curtailed, expeditious
resolutions of cases such as this on the administrative level
would save the public from having to bear the burden of
unnecessary and costly attorney fees incurred by the school board
and instead, better utilize the public's funding to aid programs
such as those at issue in this case.
24