J.L. et al v. HARRISON TOWNSHIP BOARD OF EDUCATION et al
OPINION. Signed by Judge Renee Marie Bumb on 5/11/2017. (TH, )
[Docket No. 101]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
J.L., a minor, individually and
by her Parents K.L. and J.L.,
Civil No. 14-2666 (RMB/JS)
HARRISON TOWNSHIP BOARD OF
EDUCATION and CLEARVIEW BOARD
Jamie Epstein, Esq.
107 Cherry Parke, Suite C
Cherry Hill, New Jersey 08002
Attorney for Plaintiffs J.L., a minor, individually and
by her Parents K.L. and J.L.
Brett E.J. Gorman, Esq.
Parker McCay PA
9000 Midlantic Drive, Suite 300
Mt. Laurel, New Jersey 08054
Attorney for Defendants Harrison Township Board of
Education and Clearview Board of Education
BUMB, UNITED STATES DISTRICT JUDGE:
After years of protracted and hostile litigation, on August
19, 2016, this Court issued an Opinion and Order on Plaintiffs’
Motion for Attorney’s Fees [Docket Nos. 95, 96].
addressed Plaintiffs’ request for attorney’s fees as a
prevailing party and found that Plaintiffs’ counsel had engaged
in bad faith and improperly prolonged the litigation in order to
inflate his fees.
As a result, in addressing Plaintiffs’ first
Motion for Attorney’s Fees, the Court granted, in part, denied,
in part, and reserved, in part.
Specifically, the Court found
that Plaintiffs were entitled to reasonable attorney’s fees as
prevailing parties, which, however, represented only a fraction
of the hours billed by Plaintiffs’ counsel, Jamie Epstein, at a
reasonable hourly rate to be determined at a hearing on a later
date, unless Defendants agreed to the $500 hourly rate requested
Mr. Epstein attacks this latter statement as an
advisory opinion by the Court.
Shortly thereafter, on August 31, 2016, Defendants’
counsel, Brett Gorman, submitted a letter on the public docket
advising the Court and Plaintiffs that Defendants stipulated to
Plaintiffs’ requested hourly rate of $500 [Docket No. 97],
thereby obviating the need for a hearing regarding the
appropriate hourly rate.
Remarkably, over approximately the
next two weeks, counsel for the parties attempted to negotiate a
proposed form of order for the Court’s consideration and
signature in light of Defendants’ stipulation to Plaintiffs’
requested hourly rate.
Unfortunately, yet unsurprisingly, these
Defendants’ counsel submitted a proposed
form of order on September 13, 2016 [Docket No. 98].
day, the Court issued a Final Order and Judgment, noting that
Defendants had stipulated to Plaintiffs’ requested rate of $500
per hour, without conceding that this represented an appropriate
market rate [Docket No. 99].
A month later, Plaintiffs moved once again for attorney’s
fees incurred as a result of the negotiations regarding the
submission of a simple proposed form of order, originally
requesting in excess of $3,250 [Docket No. 101].
briefing on this motion, Plaintiffs now demand $5,000 in
attorney’s fees [Docket No. 109].
The Court has considered the
parties’ submissions and finds Plaintiffs’ requested attorney’s
fees of $5,000 to be not only excessive and unreasonable, but
For the reasons set forth herein, Plaintiffs’
Second Motion for Attorney’s Fees is denied.
On August 25, 2015, this Court ruled that Plaintiffs were
the prevailing parties in the underlying litigation, pursuant to
the Individuals with Disabilities Act, 20 U.S.C. § 1400, et seq.
(“IDEA”), and Section 504 of the Rehabilitation Act, 29 U.S.C.
§ 794 [Docket Nos. 69, 70].
Under IDEA, a prevailing party may be awarded reasonable
attorney’s fees, as follows:
(B) Award of attorney’s fees. (i) In general, in any
action or proceeding brought under this section, the
attorney’s fees as part of the costs--
(I) to a prevailing party who is the parent of a child
with a disability.
20 U.S.C. § 1415(i)(3)(B)(i)(I).
IDEA, however, mandates a
reduction in fees whenever the court finds that “the parent, or
the parent’s attorney, during the course of the action or
proceeding, unreasonably protracted the final resolution of the
20 U.S.C. § 1415(i)(3)(F)(i).
Similarly, the Rehabilitation Act authorizes an award of
attorney’s fees to a prevailing party in the court’s discretion:
(b) In any action or proceeding to enforce or charge a
violation of a provision of this title, the court, in
its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee as part of the costs.
29 U.S.C. § 794a(b).
While a prevailing party may collect reasonable attorney’s
fees, the “prevailing party is not automatically entitled to
compensation for all the time its attorneys spent working on the
case; rather, a court awarding fees must decide 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.”
Cmty. Org. v. Honeywell Int’l, Inc., 726 F.3d 403, 416 (3d Cir.
2013) (internal citations and quotations omitted) (emphasis
added); see also Am. Bd. of Internal Med. v. Von Muller, 540
F. App’x 103, 106-07 (3d Cir. 2013) (“Even prevailing parties
are not automatically entitled to attorneys’ fees, however, as
whether to grant a fee request is a discretionary decision left
to the district courts.
In exercising its discretion to decide
whether to award attorneys’ fees, district courts are to
consider frivolousness, motivation, objective unreasonableness
(both in the factual and in the legal components of the case)
and the need in particular circumstances to advance
considerations of compensation and deterrence.”) (internal
citations and quotations omitted).
Importantly, a prevailing
party is entitled “to a reasonable fee, not a windfall.”
v. E. Reg’l High Sch. Dist., 386 F. App’x 186, 189 (3d Cir.
As to specific billing entries, “once the fee petitioner
‘submit[s] evidence supporting the hours worked and rates
claimed,’ the party opposing the fee application has the burden
to challenge the reasonableness of the requested fee.”
v. City of Philadelphia, 582 F.3d 447, 459 (3d Cir. 2009)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); citing
Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)).
satisfy this burden, the party opposing a motion for fees must
“identify the portion of the fee request being challenged and
state the grounds for the challenge with sufficient specificity
to give the fee applicants notice that they must defend the
contested portion of their fee petition.”
Bell v. United
Princeton Property, Inc., 884 F.2d 713, 715 (3d Cir. 1989).
“Once the adverse party raises sufficiently specific
objections to the fee request, a district court ‘has a great
deal of discretion to adjust the fee award in light of those
Taylor v. USF-Red Star Exp., Inc., 212 F. App’x
101, 111 (3d Cir. 2006) (quoting Rode, 892 F.2d at 1183).
Moreover, although a court generally may not reduce a fee
petition on its own initiative in the absence of specific
objections from the party, the court may sua sponte “reduce
requested fees with respect to matters within the judge’s
Bell, 884 F.2d at 718-19.
“it should not be overlooked that the awarding of an attorney
fee is a judicial action and, regardless of the parties’
indifference to it, a court need not lend its imprimatur to an
inappropriate order merely because there was no objection to its
McKenna, 582 F.3d at 459 n. 13.
After Defendants agreed to stipulate to Plaintiffs’
requested hourly rate, all that was left for the parties to do
was submit a straightforward proposed form of order for this
Court’s consideration and signature embodying this agreement.
This was a simple administrative task that any sensible and
experienced attorneys could have easily completed in well under
Nevertheless, Mr. Epstein now seeks $5,000 in
attorney’s fees incurred in connection with performing this
single task. 1
On its face, this request is unconscionable.
Plaintiffs contend that they are automatically and
categorically entitled to all attorney’s fees requested that
Defendants have not specifically challenged.
See Interfaith, 726 F.3d at 416; Von Muller, 540
F. App’x at 106-07; McKenna, 582 F.3d at 459 n. 13.
“has a positive and affirmative function in the fee fixing
analysis, not merely a passive role.”
Interfaith, 726 F.3d
at 416 (internal citations and quotations omitted).
permit Plaintiffs to recover Mr. Epstein’s unreasonable
attorney’s fees would amount to an abdication of this Court’s
Thus, the Court will consider each of
Defendants’ challenges to Plaintiffs’ fee request and evaluate
the reasonableness of each of Mr. Epstein’s billing entries
prior to lending its judicial imprimatur to any additional fee
The Court will not permit Plaintiffs to recover
attorney’s fees for “hours that are excessive, redundant or
Holmes v. Millcreek Twp. Sch. Dist.,
In their own words, Plaintiffs demand further attorney’s
fees to compensate them for “Plaintiffs’ counsel’s efforts in
dealing with Defendants’ counsel’s obstruction to fulfilling the
Court’s advisory opinion in regards to obtaining a stipulation.”
Epstein Aff. ¶ 4 [Docket No. 101-2].
205 F.3d 583, 595 (3d Cir. 2000) (quoting Hensley v. Eckerhart,
461 U.S. 424, 434 (1983)).
Defendants argue that “Plaintiffs’ counsel engaged in
another pattern of uncooperative conduct in order to increase
his overall fee.”
Defs. Opp. Br. at 4 [Docket No. 107].
IDEA mandates a reduction in fees whenever the
court finds that “the parent, or the parent’s attorney, during
the course of the action or proceeding, unreasonably protracted
the final resolution of the controversy.”
The Court had previously found that
Mr. Epstein had unreasonably protracted this litigation.
Opinion at 48-50.
It is now clear to the Court that its Opinion
appears to have had no positive effect.
This entire litigation
before this Court could have been resolved several months ago.
Plaintiffs’ counsel could have submitted a limited supplemental
fee application accounting for his reasonable fees incurred in
connection with his collaborative discussions with Defendants’
Plaintiffs’ appeal could have proceeded in a timely
Instead, Plaintiffs’ appeal of this Court’s Final
Order and Judgment has since been stayed pending the resolution
of the instant motion [Docket No. 110].
to IDEA, 20 U.S.C. § 1415(i)(3)(F)(i), Plaintiffs’ requested
attorney’s fees must be reduced to reflect Mr. Epstein’s
unreasonable protraction of the final resolution of this
Plaintiffs are only entitled to recover reasonable
20 U.S.C. § 1415(i)(3)(B)(i)(I) (“. . . 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.”) (emphasis added);
29 U.S.C. § 794a(b) (“. . . the court, in its discretion, may
allow the prevailing party . . . a reasonable attorney’s fee as
part of the costs.”) (emphasis added).
Here, in light of the
procedural posture of the litigation, reasonable attorney’s fees
would be minimal.
Generously speaking, experienced counsel
acting in good faith could have completed the one outstanding
task--collaborating with opposing counsel to prepare a proposed
form of order--in under an hour.
A supplemental fee petition to
account for these limited additional fees reasonably should have
taken no longer than thirty minutes for a skilled attorney to
This is the most Plaintiffs should properly be permitted
to recover, especially in light of Mr. Epstein’s repeated
unreasonable protraction of this case and his bad faith conduct
throughout the litigation.
The Court will nonetheless evaluate
each of Mr. Epstein’s billing entries and identify and exclude
those that are unreasonable, “excessive, redundant, or otherwise
See Holmes, 205 F.3d at 595.
Between August 19, 2016, the date on which this Court
issued its Opinion, and August 31, 2016, the date on which
Defendants advised the Court and Plaintiffs that they no longer
contested Plaintiffs’ requested rate of $500 per hour [Docket
No. 97], Mr. Epstein amassed an additional $800 in attorney’s
fees for 1.6 hours spent on various tasks.
These fees are excessive.
First, on August 20, 2016, Mr. Epstein billed thirty
minutes reviewing and analyzing the Court’s “opinion , order
 regarding hourly rate” and eighteen minutes communicating
with his client, also “regarding hourly rate.”
The portion of this Court’s Opinion regarding the
applicable hourly rate is less than eight pages long.
Opinion at 53-61.
The Court sees no reason why Mr. Epstein
spent thirty minutes reviewing this brief section and an
additional eighteen minutes communicating with his client
regarding the hourly rate.
The hourly rate had presumably
already been discussed between counsel and Plaintiffs, given
that it was the hourly rate that Plaintiffs requested.
only 0.2 hours should have been expended on these tasks.
Numbers in brackets refer to the billing entries set forth
in Plaintiffs’ initial bill submitted in connection with the
instant motion [Docket No. 101-3].
In billing entry , counsel documented twenty-four
minutes spent “research[ing] RMB stipulation opinions” on August
The Court agrees with Defendants that no legal
research was necessary to draft a stipulation as to the hourly
This was merely an administrative task.
As such, the
Court finds the time reflected in this entry to be unreasonable
The Court will not award any fees incurred for
research that was entirely unwarranted in light of the
procedural posture of the case.
Additionally, on the same day,
Plaintiffs’ counsel documented four separate entries for email
communications with Defendants’ counsel.
These entries are duplicative of one another.
Plaintiffs have not substantiated their request for twenty-four
minutes of email correspondence between Mr. Epstein and
Mr. Gorman on a single day.
A reasonable attorney’s fee for
this email correspondence is $50, representing 0.1 hours.
On August 31, 2016, Plaintiffs’ counsel billed 0.2 hours
reviewing and analyzing Defendants’ letter advising Plaintiffs
and the Court that they stipulated to Plaintiffs’ requested
Billing Entry .
Defendants’ letter [Docket
No. 97] is barely half a page long.
to review and analyze it.
Six minutes is ample time
Thus, Plaintiffs should only be
permitted to recover fees for 0.1 hours for this task.
Next, on September 8, 2016, Mr. Epstein billed 0.2 hours
(or $100) reviewing and analyzing Defendants’ proposed
Billing Entry .
Defendants challenge this
entry, arguing that the time spent reviewing and analyzing the
proposed stipulation was unreasonable, given that the document
is less than two pages long.
Plaintiffs respond that
Mr. Epstein had to check the quotations from the Court’s Opinion
included in the proposed stipulation, even though Mr. Epstein
had already billed for reviewing and analyzing the Court’s
This task was totally unnecessary and, in any case,
reviewing a less-than-two-page document and searching the
Court’s Opinion on the online public docket should not require
The Court finds that 0.1 hours properly
reflects the time reasonably spent reviewing and analyzing
Defendants’ brief proposed stipulation.
Then, over the course of two days, September 8 and 9, 2016,
Mr. Epstein billed a total of 0.4 hours corresponding via email
with Mr. Gorman regarding a proposed stipulation as to the
Billing Entries , , .
again, redundant and excessive.
These are, once
Only 0.2 hours should be
permitted for email correspondence between Mr. Epstein and
Mr. Gorman on this subject.
On September 11, 2016, Mr. Epstein billed 1.1 hours
“prepar[ing] for hourly rate trial,” which he knew would never
occur in light of Defendants’ stipulation to Plaintiffs’
requested hourly rate.
Billing Entry .
Regardless of the
parties’ disputes regarding the language of the proposed
stipulation, it was clear that Defendants no longer contested
Plaintiffs’ requested rate.
Indeed, Defendants had publicly
advised the Court and Plaintiffs of their position eleven days
Defendants properly challenge this entry as
The Court finds that Mr. Epstein inappropriately
and needlessly billed 1.1 hours (or $550) preparing for a
hearing that he knew was moot and would never occur.
billing entry is disallowed in its entirety.
Next, Plaintiffs’ bill reflects two entries on September
13, 2016: 0.2 hours reviewing Defendants’ “proposed
(un-stipulated to) stipulation” and 0.3 hours analyzing the same
“proposed (un-stipulated to) stipulation.”
Defendants challenge these entries as excessive and
unreasonable, given that their proposed order [Docket No. 98-1]
is no more than two pages long.
Plaintiffs attempt to justify
the thirty minutes purportedly spent by Mr. Epstein reviewing
and analyzing the two-page proposed order by stating that the
time was “spent in further analysis  and how to respond to
the improper and shocking stipulation .”
Pls. Reply Br.
at 3 [Docket No. 108]. 3
The Court agrees with Defendants that
the 0.5 hours billed reviewing and analyzing the two-page
proposed order is excessive.
Additionally, billing entry 
is subsumed within entry .
In light of the duplicative and
excessive billing, only 0.1 hours should be awarded.
On September 14, 2016, Plaintiffs’ counsel billed 0.2 hours
reviewing and analyzing this Court’s Final Order and Judgment.
Billing Entry .
Defendants respond that “the time spent
reviewing the final order in this case, which was two and [a]
half pages, was excessive.”
Defs. Opp. Br. at 7.
The Final Judgment and Order [Docket No. 99] is no
more than two and a half pages and contains no information
previously unknown to the parties.
There is no reason why
reviewing and analyzing the Final Order and Judgment should have
taken twelve minutes.
Additionally, the Court sees no
reasonable justification for Mr. Epstein’s eighteen-minute entry
for communications with his clients regarding the hourly rate on
While the Court would not expect or require consent to a
proposed order admitting bad faith, the Court does not find the
inclusion of such language to be “improper and shocking”.
Indeed, the language in the proposed order that Plaintiffs
contend is “improper and shocking” actually consists of direct
quotations from this Court’s Opinion. In any event, according
to Mr. Epstein’s billing records, he had already reviewed these
“improper” quotations on September 8, 2016. See Pls. Reply Br.
at 3; Billing Entry .
the following day.
Billing Entry .
At most, 0.2 hours were
reasonably expended on these tasks.
In connection with the instant motion, Plaintiffs demand a
total of $2,750 in attorney’s fees, reflecting 5.5 hours spent
by Mr. Epstein in drafting his various filings.
; Pls. Reply Br. at 5; Pls. Letter [Docket No. 109].
request is egregious.
The Court has reviewed Plaintiffs’ scant
submissions and finds them wanting.
All three submissions--
Plaintiffs’ opening motion papers [Docket No. 101], Plaintiffs’
supplemental letter brief [Docket No. 105], and Plaintiffs’
reply brief [Docket No. 108]--are woefully deficient, in
addition to being entirely devoid of merit.
The Court cannot
lend its judicial imprimatur to such an excessive and
Specifically, in billing entry , Plaintiffs request
$1,000 for two hours spent by Mr. Epstein drafting the instant
Plaintiffs’ motion was patently insufficient.
entirety of the submission was five pages, including a full page
for each of the notice of motion [Docket No. 101] and proposed
order [Docket No. 101-1], both of which are form documents.
brief was submitted.
Instead, Plaintiffs submitted a two-page,
six-paragraph affidavit from Mr. Epstein that included no
justification or explanation of the time billed whatsoever
[Docket No. 101-2].
Finally, Plaintiffs submitted a spreadsheet
entitled “10/13/16 JL BILL,” setting forth Mr. Epstein’s billing
entries and corresponding requests for fees [Docket No. 101-3].
Next, Plaintiffs brazenly demand an additional $750 in
attorney’s fees incurred for 1.5 hours spent drafting a response
to this Court’s October 28, 2014 Order.
[Docket No. 105].
Pls. Supp. Br. at 3
On October 28, 2014, due to the inadequacy
of Plaintiffs’ initial submission, the Court ordered Plaintiffs
to submit a supplemental letter brief in support of their
request for attorney’s fees, addressing, in particular, certain
glaringly problematic entries [Docket No. 104].
submitted a less-than-three page response [Docket No. 105]. 4
supplemental brief should not have been needed in the first
Nonetheless, a $750 bill for drafting that response is
Finally, Plaintiffs request $1,000 for two hours billed by
Mr. Epstein for drafting Plaintiffs’ reply brief.
was only presented in the reply brief and, thus, Defendants have
not had an opportunity to respond.
Plaintiffs’ reply brief
[Docket No. 108] is roughly a mere four pages long, contains
both factual and typographical errors, and responds to legal
arguments not presented by Defendants in their opposition brief.
The Court notes that Plaintiffs’ response is laden with
hostility towards both the Court and Defendants.
The Court finds this request to be unreasonable and excessive in
light of the brief submitted.
Had Mr. Epstein acted reasonably and in good faith, he
would have incurred only reasonable fees in connection with the
preparation of a proposed form of order.
He then would have
submitted a limited supplemental fee application, which
reasonably would have taken no more than thirty minutes.
reasonable attorney’s fee in connection with the preparation of
the supplemental fee request would have been $250.
Based upon the findings set forth above, under normal
circumstances, Plaintiffs would have been entitled to recover,
at most, a total amount of $750 in reasonable attorney’s fees.
This, unfortunately, is not a normal case.
As detailed in this
Court’s prior Opinion and in this Opinion, Mr. Epstein’s
litigation conduct not only forced counsel for Defendants to
expend unnecessary fees, it also required this Court, once
again, to divert its precious limited resources from the
hundreds of other cases on its docket in need of attention.
only right and just thing for this Court to do--if its grant of
discretion is to mean anything--is to deny outright all fees.
See, e.g., M.G., 386 F. App’x at 188 n. 3, 189 (noting that “the
egregiousness of [Mr. Epstein’s] conduct alone could plausibly
justify the outright denial of attorney’s fees” and stating that
“[i]f, after following the proper procedures, the Court remains
convinced that Epstein’s hourly rate and hours billed are
outrageously excessive, it retains the discretion to award
whatever fee it deems appropriate, including no fee at all”);
Deptford Twp. Sch. Dist. v. H.B. ex rel. E.B., 279 F. App’x 122,
126 n. 2 (3d Cir. 2008) (reversing district court’s finding that
plaintiffs were “prevailing parties” and award of attorney’s
fees, noting that “even if the District Court’s finding . . .
rendered Appellees the ‘prevailing party,’ an award of
attorneys’ fees would not be proper on the particular facts of
As the District Court noted, the relief achieved
here was ‘scant and unimpressive,’ . . . . Moreover, Appellees’
attorney [Mr. Epstein]--either through gross carelessness or
worse--initially sought fees that included 60 hours billed in a
On this record, we find that fees should not have
been awarded.”) (internal citations and quotations omitted);
J.T. ex rel. A.T. v. Medford Bd. of Educ., 118 F. App’x 605, 607
(3d Cir. 2004) (affirming district court’s decision that Mr.
Epstein and his clients were not entitled to any fees because
they unreasonably and unnecessarily delayed the resolution of
the controversy); John T. ex rel. Paul T. v. Delaware Cty.
Intermediate Unit, 318 F.3d 545, 557 (3d Cir. 2003) (noting
that, under Sections 1415(i)(3)(D)-(G), “attorney’s fees may be
prohibited or reduced . . . when a parent has unreasonably
protracted the final resolution.”) (emphasis added); L.J. ex
rel. V.J. v. Audubon Bd. of Educ., 2009 WL 995458, at *13
(D.N.J. Apr. 13, 2009), aff’d, 373 F. App’x 294 (3d Cir. 2010)
(denying outright Mr. Epstein’s request for “an astounding
$10,480 in attorney’s fees” for 26.2 hours billed for logging
billing entries, noting that the request was “unreasonable on
its face, and borderline conscience-shocking.”).
therefore, exercises its discretion and denies Plaintiffs’
request for additional attorney’s fees in its entirety.
Enough is enough.
For the foregoing reasons, Plaintiffs’ Second Motion for
Attorney’s Fees is denied.
An appropriate Order shall issue on
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: May 11, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?