J.L. et al v. HARRISON TOWNSHIP BOARD OF EDUCATION et al
Filing
69
OPINION FILED. Signed by Judge Renee Marie Bumb on 8/25/15. (js)
Not for Publication
[Dkt. Nos. 24, 42 and 45]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
J.L., a minor, individually and
by her Parents K.L. and J.L.,
Plaintiffs,
Civil No. 14-2666 RMB/JS
OPINION
v.
HARRISON TOWNSHIP BOARD OF
EDUCATION AND CLEARVIEW BOARD
OF EDUCATION,
Defendants.
Appearances:
Jamie Epstein, Esquire
107 Cherry Parke, Suite C
Cherry Hill, New Jersey 08002
Attorney for Plaintiffs
Brett E.J. Gorman, Esquire
Parker McCay PA
9000 Midlantic Drive, Suite 300
Mt. Laurel, New Jersey 08054
Attorney for Defendants
Bumb, U.S. District Judge:
On May 14, 2014, Plaintiffs, K.L. & J.L., individually and
on behalf of their minor child, J.L., filed a First Amended
1
Complaint against Defendants Harrison Township Board of Education
(“Harrison”) and Clearview Board of Education (“Clearview”)
(collectively “Defendants” or “School District”) seeking relief
under three separate statutes:
the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., Section 504 of
the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”), and the
New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et
seq., (“LAD”).1
In Count One of the Complaint, Plaintiffs sought an award of
“reasonable attorney’s fees and costs [pursuant to 20 U.S.C. §
1415(i)(3)(B)] because they are the parents of J.L., a child with
a disability, who is the prevailing party in her . . . due
process proceeding.” Compl. at ¶ 21.
Count Two requested
attorney’s fees as the “prevailing party” under Section 504 of
the Rehabilitation Act, 29 U.S.C. § 794a.
Finally, in Count
Three, Plaintiffs asserted a claim under the LAD against
Defendant Harrison only.
By Opinion and Order entered December 19, 2014, the Court
dismissed the LAD claim without prejudice and converted
Defendants’ then pending Motion to Dismiss Counts One and Two
1
The Complaint also mentions the Americans With Disabilities
Act, 42 U.S.C. § 12101 et seq. (“ADA”), which presumably was in
error as there are no counts based on the ADA.
2
[Docket No. 24] to a Rule 56(a) Motion for Summary Judgment
pursuant to Federal Rule of Civil Procedure 12(d).
Consequently,
Defendants’ Motion to Dismiss converted to a Motion for Summary
Judgment [Docket No. 39], and Defendants’ filed a Certification
in Support Thereof [Docket No. 41].
Plaintiffs filed a Motion
for Summary Judgment Declaring Plaintiffs Prevailing Parties in
the Administrative Proceedings [Docket No. 45] as well as a
Motion to Amend the First Amended Complaint [Docket No. 42].
Upon completion of the briefing, the Court set the matter down
for a hearing.
I.
Background
The following facts are not in dispute.
Plaintiff, J.L., is
a student with numerous severe disabilities that cause her to
have cognitive, learning, hearing and vision disorders.
Plaintiff J.L. resided with her parents K.L. and J.L. in the
Township of Mullica Hill, County of Gloucester, in the State of
New Jersey, during the relevant time period.
Defendant
Clearview, located in Mullica Hill, New Jersey, and Defendant
Harrison, located in Harrison Township, New Jersey, are the
“local educational authorit[ies]” as defined by 20 U.S.C. §
1401(a) and are responsible for ensuring compliance with all
3
federal mandates under IDEA and Section 504 for those residing in
the Township of Mullica Hill, New Jersey.
A.
Request for Due Process
Plaintiffs contended that while attending public school, the
Defendants failed to provide J.L. with a free and appropriate
education, commonly referred to as a FAPE, in the least
restrictive environment and failed to accommodate her
disabilities.
As a result, Plaintiffs filed a Request for Due
Process Hearing (the “Petition”) on August 27, 2013, under IDEA,
Section 504, and the ADA with the New Jersey Department of
Education (“NJDOE”).
Ex. D1.2
In their Petition, Plaintiffs set
forth the following requests for relief:
A. Provide [JL.] with additional evaluations in areas
of suspected disabilities, accommodations of her
numerous disabilities, and appropriate IEP, appropriate
placement and extended school year;
B. Provide [J.L.] with compensatory education;
C. Reimburse [J.L.’s] parents for any out of pocket
expenses incurred in obtaining services and evaluations
for [J.L.] that should have been provided by the school
district(s).
D. Prohibit Harrison Township School District from
allowing [J.L.’s] parents’ consent.
2
Exhibits beginning with “D” refer to exhibits introduced at the
hearing before this Court on July 14, 2015.
4
E. All other remedies available under IDEA, 504 & ADA
and reserve the right to bring all civil actions and
against all other parties not within the jurisdiction
of NJOAL.
Ex. D1, at 5.
B.
Motion for Summary Decision Before the ALJ
Approximately four months after the filing of the Petition,
on December 23, 2013, Defendants filed a Motion for Summary
Decision claiming that due to their Offers of Judgment dated
December 6, 2013, and December 12, 2013, as well as concessions
they made on the record on December 17, 2013, the Petition was
moot and the matter should be dismissed.
opposed the Motion.
C.
Ex. D19.
Plaintiffs
Ex. D20.
ALJ Decision
On January 28, 2014, the Honorable John Schuster, ALJ, heard
oral argument on Defendants’ motion.
48-2.
See Transcript, Docket No.
By a written decision dated that same day, Judge Schuster
dismissed the Petition, finding:
. . . that the relief sought in the petition has been
met by the respondents at least as to the issues over
which this court has jurisdiction. By voluntarily
agreeing to provide all the relief specifically sought
in the petition, there no longer exists a controversy
upon which this court can rule. Once a case does
become moot prior to judicial resolution, it is
appropriate to dismiss the petition. Oxfeld v. N.J.
5
State Bd. of Educ., 68 N.J. 301 (1975), Nini v. Mercer
County Comm. College, 202 N.J. 98, 117-118 (2010).
. . .
Based on the finding that petitioner has received
by way of offer an affirmative response to all of its
demands as set forth in the petition, I CONCLUDE that
controversy no longer exists, meaning this case has
become moot and therefore the petition should be
DISMISSED.
Ex. D23.
D.
Plaintiffs did not appeal Judge Schuster’s decision.
District Court Complaint
On April 27, 2014, Plaintiffs filed a Complaint with this
Court seeking attorneys’ fees and costs as the “prevailing party”
under IDEA and Section 504.3
The issue of attorneys’ fees is now
before this Court for summary disposition.
II.
Summary Judgment
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
A fact is “material” if it will Aaffect the outcome of
the suit under the governing law . . . .” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute is Agenuine@ if
it could lead a “reasonable jury [to] return a verdict for the
3
As mentioned, Plaintiffs also sought relief under the ADA,
which this Court presumes was in error as no count alleged an ADA
violation.
6
nonmoving party.”
Id.
When deciding the existence of a genuine
dispute of material fact, a court’s role is not to weigh the
evidence: all reasonable Ainferences, doubts, and issues of
credibility should be resolved against the moving party.@
Meyer
v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983).
In their initial submissions, the parties strongly disputed
the course of conduct of the parties during the five-month period
from August 23, 2013 (the filing of the Due Process Petition) to
January 28, 2014 (Judge Schuster’s decision).
In an attempt to
understand exactly what happened, the Court instructed counsel
for both sides to appear for a hearing.
The Court questioned
both counsel and received various documents into evidence.4
A.
Findings of Fact
The following sets forth the Court’s findings of fact:
On August 29, 2013, two days after the filing of the
Petition, counsel for Defendants, Brett Gorman, Esq., sent an
email to Jamie Epstein, Esq., counsel for Plaintiffs stating:
It appears we get to meet again in your newly filed
petition. I just started wading through it and since
4
The Court did not have either attorney swear under oath or
affirm under penalty of perjury. The Court viewed counsels’
obligation under Rule 11 of the Federal Rules of Civil Procedure
sufficient to make credibility decisions if necessary. Neither
counsel objected to this procedure.
7
we already have a dialogue, I thought I would check in
to see what the parents are looking for and if you can
provide me with a settlement offer. Since school is
starting shortly, we may be able to work something out
quicker than usual. Let me know.
Thank you and I hope you are well.
Ex. D2.
The next day, August 30, 2013, Mr. Epstein responded:
We’ll see after we get Answers and discovery from BOTH
respondents.
Id.
On September 4, 2013, Mr. Gorman replied:
If you do not want to discuss settlement at this point,
that is your call. But since it appears you are
looking for independent evaluations and the child is
staying in district, it would probably be in the best
interest of everyone to see if we cannot sort through
these issues. Let me know when you are ready to talk
settlement and I would happily entertain such
discussions.
In the interim, do you have any dates for mediation? I
think this matter would benefit from mediation and
delving into any remaining issues between the parties.
Let me know.
Id.
Mr. Epstein replied about an hour later:
We’ll see after we get appropriate Answers and complete
discovery from BOTH respondents. Answers due 9/16,
Discovery due 9/11.
Id.
8
That same day, Mr. Gorman disputed that discovery was due on
September 11 (15 days post-petition), writing:
But we have been over the discovery issue in these
cases before. The discovery deadline is nowhere near
September 11th and while the Districts will provide a
timely response, nothing is due by the 11th. We have
not even had mediation scheduled yet. So I think we
can have discussions prior to the release of any and
all discovery. If not, at least provide me with some
mediation dates so that we can delve into possible
settlement.
Id.
Mr. Epstein did not respond.
On September 5, 2013, Defendants filed their Answer.
Additionally, the Office of Special Education Programs of the New
Jersey Department of Education (“OSEP”) had opened a case in this
matter on August 27, 2013, the date of the Petition.
Dr. Dolores
Walther of OSEP advised Mr. Gorman by e-mail dated September 6,
2013, that if the parties wished to engage in mediation conducted
by OSEP, he was to provide dates of availability.
Mr. Gorman
replied:
Again, thank you for reaching out. The Districts have
filed an answer and have requested mediation. I
informed Mr. Epstein, who represents Petitioners in
this matter, that the District would like to proceed
with mediation and requested available dates but I have
not received mediation dates as of yet. The District
would very much like to proceed with mediation and is
available prior to the end of the 30 day period.
9
I am cc’ing Mr. Epstein to this email so he is aware of
my communication in response to your email and the
District’s position regarding mediation. I will
contact Ms. Arnold with dates, when I receive same from
Petitioners.
Ex. D3.
Mr. Gorman sent a subsequent e-mail which was inexplicably
not recorded (only the header was saved), to which Mr. Epstein
simply responded:
Mr. Gorman;
Pls read the petition.
Id.
Minutes later, Mr. Gorman replied:
I have made numerous attempts to obtain either
mediation dates or a settlement proposal from you. You
have refused on every occasion even after I informed
you that the Districts would be willing to review the
relief set forth in your petition. Your unwillingness
to enter into good faith negotiations is noted and
memorialized in our email communications. I will
provide dates the Districts are available for mediation
to OSEP.
Id.
Minutes later, Mr. Epstein wrote:
p.s. pls don’t forget my discovery, you can just send
it on a cd, thx.
Id.
10
The parties appeared before the Honorable John R. Futey,
ALJ, as part of a settlement conference on October 7, 2013.
Ex. D4.
See
According to Mr. Gorman, (as he represented to this
Court as well as his correspondence to the Honorable Patricia
Kerins, infra,) Plaintiffs made an “extraordinary settlement
demand” that day that was not set forth in the Petition – that
is, a neuro-psychologist of Plaintiffs’ choice should consult and
provide training to the District’s IEP Team up to 6 hours per
month as to all aspects of J.L.’s special needs.
See Ex. D10.
According to Defendants, this extraordinary relief was not
available under IDEA.
Thus, Defendants wrote to Judge Kerins on
October 11, 2013, asking her to “order Petitioners to amend the
Petition for Due Process to include this extraordinary relief and
also order a briefing schedule [to address the availability of
such relief].”
Ex. D4.
In Mr. Gorman’s view,
. . . the resolution of this issue [would] likely
result in settlement of the entirety of the case as the
Districts have indicated multiple times to Petitioner’s
counsel, prior to and at the settlement conference, a
willingness to resolve Petitioners’ concerns. Finally,
such action will avert needless litigation.
Id.
11
That same day, October 11, 2013, Plaintiffs filed a motion
to dismiss Defendants’ Answer as well as a motion to compel
discovery.
[Docket No. 47-6, at 56-63].
See also Ex. D7.
On
October 18, 2013, Defendants filed a reply along with a Motion to
Amend the Answer.
Judge Kerins conducted oral argument on
October 29, 2013. Ex. D7.
Plaintiffs argued before Judge Kerins that the Answer failed
to comply with N.J.A.C. 6A: 14-2.7(e)(1-4).
Under this
provision, a school district’s response to a due process petition
must include:
(aa) an explanation of why the agency proposed or
refused to take the action raised in the complaint;
(bb) a description of other options that the IEP Team
considered and the reasons why those options were
rejected;
(cc) a description of each evaluation procedure,
assessment, record, or report the agency used as the
basis for the proposed or refused action; and
(dd) a description of the factors that are relevant to
the agency’s proposal or refusal.
20 U.S.C. § 1415(c)(2)(B)(i)(I)(aa)-(dd); see also N.J.A.C.
6A:14-2.7(e)(1-4).
This provision applies “if the district
has not sent a prior written notice to the parent regarding
the subject matter contained in the parent's due process
12
request.” N.J.A.C. 6A:14-2.7(e).5
Judge Kerins agreed that
Defendants’ Answer, which contained general admissions or
denials of allegations without substantive explanation did
not satisfy the IDEA requirements, but she found that
Plaintiffs had “failed to show that they have suffered any
substantive injury where respondents’ have remedied the
violation by filing an amended answer.”
See Ex. D7.
Plaintiffs had argued before Judge Kerins that “[b]y
withholding the required disclosures in its response, the
[Defendants] have hindered the [Plaintiffs’] ability to
substantiate their claims and assess [Defendants’]
defenses.”
From her decision, it appears Judge Kerins was
not persuaded.
As to Plaintiffs’ motion to compel discovery, Judge Kerins
rejected Plaintiffs’ position that discovery was due within 15
days of the filing of the Petition and discovery demand.
She
found that because discovery had been turned over – at least by
November 16, 2013, consisting of about 2,500 pages – well in
advance of the “five-day rule,” N.J.A.C. 1:6-10.1, five business
5
It is unclear whether this provision actually applied here as
it appears there had been a dialogue prior to the filing of the
Petition. See Ex. D2. In any event, as set forth infra, Judge
Kerins found no “substantive injury.”
13
days before the date of the hearing, Defendants had complied with
their discovery obligations.
Ex. D7.
The hearing was not until
December 17, 2013, and discovery had been turned over more than a
month before, well in advance of the required five days.
By
decision entered on December 2, 2013, Judge Kerins denied both of
Plaintiffs’ motions and granted Defendants’ Motion to Amend the
Answer.
In the meantime, before Judge Kerins’ ruling, the parties
had engaged in several telephone conferences with the court.
In
particular, on November 15, 2013, the parties discussed the
specific relief Plaintiffs were seeking.
Ex. D6.
As a follow-up
to that call, Mr. Gorman wrote to Mr. Epstein on November 20,
2013:
As per Judge Kerins’ recommendation on the call of
Friday, kindly specify the relief your client seeks in
2(a) and 2(b) of your petition. Please also include
specific evaluations requested by J.L., all specific
IEP accommodations requested by J.L., and the specific
compensatory education claim.
Additionally, kindly specify the relief you mentioned
on the November 15, 2013 call with Judge Kerins which
is not set forth in your petition regarding oversight
of J.L.’s IEP.
Ex. D6 (emphasis added), Ex. D9.
Mr. Epstein did not reply.
14
Against this backdrop, on December 6, 2013, Defendants
made what they considered to be the first offer of judgment.
[T]he District makes the following offer of judgment,
pursuant to 20 U.S.C.A. §1415(i)(3)(B)(i), that
reflects the only information you have provided to the
Districts. In regards to 2(a), the Districts offer to
conduct additional evaluations, amend J.L.’s IEP to
provide an appropriate placement, and offer extended
school year. In regards to 2(b), the Districts are
willing to provide compensatory education to J.L. In
regards to 2(c), and this is the only area upon which
you have provided specific information in your email
dated November 11, 2013, the Districts will reimburse
the parents for the approximate $5,587 worth of
expenses for the evaluations. In regards to 2(d), the
Harrison Township School District agrees that it will
not allow J.L.’s educational or health records to be
disclosed to third parties without J.L.’s parents’
consent.
Ex. D9.
Mr. Gorman wrote in that same letter:
As that is the sole relief that you have set forth in
the petition, and you have failed to further specify
the relief sought at either of the telephone
conferences with Judge Kerins or the settlement
conference with Judge Futey, the Districts have made as
expansive an offer of judgment as possible under the
information it has received. As the District has made
an offer of judgment that meets the relief you seek in
your petition, I will request that the hearing on
December 17, 2013, be adjourned to permit you time to
further specify the relief you seek. Please consider
this a settlement offer pursuant to 20 U.S.C.A.
§1415(i)(3)(D)(i).
Id.
15
For the first time, December 9, 2013, Mr. Epstein responded
with specific demands which incorporated “the recommendations of
[Plaintiff’s] experts.”
Ex. D10.
In response, Defendants amended their offer of judgment on
December 12, 2013, to address Plaintiffs’ demands:
Now that you have provided the Districts with more
specific information through a letter dated December
10, 2013, the Districts amend their initial offer of
judgment letter as follows.
First, Clearview will conduct Independent Evaluations
as follows: an Assistive Technology, Speech Pathology,
Physical Therapy, and Occupational Therapy. Clearview
will hold its annual IEP meeting that will include a
transition plan within ninety (90) days of completion
of the above referenced independent evaluations.
Second, Harrison will reimburse the parents $5,587.00
for all out of pocket expenses for privately obtained
evaluations and services.
Third, Clearview will amend J.L.’s current
Individualized Education Program to include the
recommendations made by Dr. Nagle as set forth on pages
2 through 5 of his report dated December 10, 2013 with
the following exceptions. As to the use of an iPad,
Clearview recommends waiting for the Assistive
Technology evaluation to determine the appropriate use
of the iPad. As to videotaping J.L., Clearview will
permit the parents to videotape J.L. but will not do so
or be responsible for any videotaping of J.L. The
District will also require the signed release from the
parents of any other students videotaped. J.L.’s IEP
will be amended to include the remainder of Dr. Nagle’s
recommendations. Additionally, Clearview will amend
J.L.’s IEP to include the recommendations set forth by
Elizabeth Smith on pages 15 and 16 of her report dated
November 8, 2013.
16
Fourth, Clearview will expunge Dr. Kandis Press’s
disagreement to eligibility as set forth on September
4, 2012 and Dr. Press will not have any direct or
indirect communication with staff regarding J.L.
Fifth, Clearview will appoint Bryan Hendricks as case
manager. Mr. Hendricks will have obtained, at the end
of the 2013-2014 school year, his Ph.D. with a
specialty in neuropsychology. Mr. Hendricks is also a
Diplomat in the National Academy of Neuropsychologists.
Sixth, Harrison will provide J.L. with fifty (50) hours
of compensatory education at mutually convenient
locations, days and times during off school hours.
J.L. may unilaterally reduce the frequency and duration
of the compensatory education with 24 hours’ notice to
Harrison.
Seventh, Clearview and Harrison will not allow J.L.’s
educational or health records to be disclosed to
person(s) not authorized by FERPA or HIPPA without
J.L.’s parents written consent.
Mr. Gorman wrote:
As the above offer does, indeed, exceed your request in
the Due Process Petition, the Districts will request
that Judge Kerins dismiss this matter as the Petition
for Due Process is now moot. Please consider the above
an offer of judgment pursuant to 20 U.S.C.A.
§1415(i)(3)(D)(i).
Ex. D13.
The December 6, 2013 offer and December 12, 2013
supplemental offer are hereinafter referred to collectively as
the “Offer of Judgment.”
On December 17, 2013, the parties appeared before Judge
Kerins.
Mr. Gorman set forth on the record that Defendants were
17
willing to provide Plaintiffs with the full relief they were
seeking.
Mr. Epstein objected to Mr. Gorman’s “discussing
settlement offers with the Court.”
48-1].
Transcript, at 9 [Docket No.
At this juncture, apparently recognizing that a
settlement was not forthcoming, Mr. Gorman responded that the
terms were not in the nature of a settlement offer, but that the
Petition was moot because the District had agreed to all of
Plaintiffs’ demands.
Mr. Epstein, however, raised concern as to
Judge Kerins’ ability to hear the case in light of her knowledge
of the settlement terms and intimated her possible recusal.
Judge Kerins took the matter under advisement.
She also directed
Defendants to file a formal motion to dismiss based on mootness.
[Docket No. 48-1].
On December 20, 2013, Judge Kerins recused herself.
Thereafter, on December 26, 2013, Defendants filed a formal
Notice of Motion for Summary Decision.
Ex. D19.
Defendants
argued that because “they were already offering to exceed the
relief Petitioners sought in their Petition for Due Process, and
can consequently obtain at the Due Process Hearing . . . there
[were] no issues for the Court to determine . . . and the
Petition for Due Process [was] moot.”
Ex. D19, at 5-6.
Plaintiffs opposed the motion, contending that the matter had not
18
settled (even though the issue before the ALJ was one of
mootness, not settlement).
step further:
Plaintiffs’ opposition paper went one
it accused Mr. Gorman of violating Rule 3.3 of the
New Jersey Rules of Professional Conduct by not being candid with
the tribunal about the status of the case.
On January 14, 2014, the Honorable John Schuster III, ALJ,
conducted oral argument on Defendants’ Motion for summary
decision.
Judge Schuster examined each of Plaintiffs’ fifteen
demands that Plaintiffs contended Defendants had failed to meet.
Judge Schuster rejected each of Plaintiffs’ arguments.
By
Decision dated January 28, 2014, Judge Schuster made the
following Findings of Fact:
Based on the papers submitted and the arguments of
counsel, I make the following findings. Petitioner
sought relief as specified in the petition.
Respondent’s position is it has voluntarily offered all
the relief requested. The details of the relief
requested and what has been offered are set forth below
using the petition as the basis for petitioner’s
demands.
A.1 Relief: Provide J.L. with additional evaluations
in the areas of suspected disabilities. Offered:
Respondent will complete evaluations regarding
Assistive technology, Vocational, Speech pathology,
Physical therapy and Occupational therapy.
A.2 Relief: Provide J.L. with an appropriate IEP.
Offered: Respondent will amend J.L.’s IEP to
incorporate the recommendations set forth in the
19
evaluations completed to date, including accommodations
and placement set forth therein.
A.3
Relief: Provide J.L. with extended school year
services. Offered: Respondent will include J.L. in
its Extended School Year Program.
B.
Relief: provide J.L. with compensatory education.
Offered: Compensatory Occupational Therapy
education will be provided for 100 half-hour
sessions, even though only 80 sessions were
recommended in the Occupational Therapy
evaluation. I also FIND J.L.’s Neuropsychological
Evaluation did not indicate that J.L. was entitled
to compensatory education.
C.
Relief: Reimburse J.L.’s parents for expenses
incurred for services and evaluations. Offered:
Respondent shall pay the parents $5,587.00
representing the full amount requested.
D.
Relief: Prohibit release of J.L.’s records without
parental consent. Offered: Respondent will not
release J.L.’s records without parental consent.
E.
Relief: All other remedies available under the
law. Offered: Too general a request to provide a
service to J.L.
Ex. D23.
Judge Schuster held that because Plaintiffs had received “by
way of offer an affirmative response to all of its demands as set
forth in the petition,” the case was moot, and therefore
dismissed the Petition.
Id.
As previously noted, Plaintiffs did
not appeal Judge Schuster’s decision.
20
B.
The Parties’ Arguments
Defendants appear to first contend that Plaintiffs are not
the “prevailing party” entitled to attorneys’ fees as a matter of
law because there was no judicial determination of the merits by
Judge Schuster.
Plaintiffs, however, contend that Judge
Schuster’s decision ordered enforceable relief and, as such, was
a judicially sanctioned order entitling them to fees.
Defendants next contend that Plaintiffs are prohibited from
receiving attorneys’ fees as a matter of law because their offers
of judgment (described below), which Plaintiffs refused, exceeded
the relief ultimately obtained by the parents.
Defendants rely
upon 20 U.S.C. § 1415(i)(3)(D)(i-iii) discussed infra.
Specifically, Defendants contend that they made an offer of
judgment on December 6, 2013, Ex. D9, ten days prior to the
hearing date [required under 20 U.S.C. § 1415(9)(3)(D)(i)(I)],
and a supplemental offer of judgment on December 12, 2013, Ex.
D13, both of which Plaintiffs refused.
Plaintiffs counter that
first, Defendants failed to make a timely offer.
Second,
Plaintiffs aver that the relief they received exceeded the offers
of Judgment, namely, with respect to compensatory education and
attorneys’ fees.
21
Defendants’ third argument is that even assuming Plaintiffs
were the prevailing party and were not barred by the offers of
judgment, Plaintiffs should still be estopped from receiving any
attorneys’ fees because of Plaintiffs’ bad faith conduct.
As
will be developed below, Defendants contend that “Plaintiffs
subverted every effort by the Districts to provide them with
relief . . . and needlessly prolonged the hearing for no gain.”
[Docket No. 24-1, 15 15].
Plaintiffs respond that it was
Defendants, not them, who stood in the way of a resolution.
According to Plaintiffs, Defendants’ failure to timely turn over
discovery or to plead the appropriate Answer impeded the
resolution of the case.
The Court now turns to each of these arguments.
C.
Conclusions of Law
1.
Prevailing Party Status
20 U.S.C. § 1415(i)(B) provides for an award of attorney’s
fees to a prevailing party stating:
(B) Award of attorney’s fees. (i) In general, in any
action or proceeding brought under this section, the
court, in its discretion, may award reasonable
attorney’s fees as part of the costs - (I) to a prevailing party who is the parent of a child
with a disability.
22
Similarly, the Rehabilitation Act authorizes an award of
attorney’s fees to a prevailing party.
29 U.S.C. § 794a:
(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.
In deciding whether a party is a prevailing party, there
must be a judicially sanctioned “material alteration of the legal
relationship of the parties.”
Buckhannon Board and Care Home,
Inc. v. West Virginia Dept. of Health and Human Resources, 523
U.S. 598, 604 (2001).
Thus, the court must, first, determine
whether the plaintiff obtained relief on a significant claim and
whether there is a causal connection between the litigation and
defendant.
Metro Pittsburgh Crusade for Voters v. City of
Pittsburgh, 964 F.2d 244, 250 (3d Cir. 1992).
Second, the court
must determine under Buckhannon whether the change in the legal
relationship between the parties was judicially sanctioned.
Clearly, there is no dispute here that Plaintiffs achieved
the relief they sought in their litigation with Defendants - indeed, Defendants acceded to all their requests for relief.
Moreover, Judge Schuster put his judicial imprimatur on the
relief Plaintiffs received, i.e., the changes in the legal
23
relationship of the parties when he entered his Order which
provided:
I hereby ORDER that the petition be and is hereby
DISMISSED and respondent shall provide to the
petitioner all the relief offered in satisfaction of
the demands set forth in the petition. I further ORDER
an IEP meeting to be scheduled at the earliest
opportunity for the purpose of incorporating the offers
of services made in this matter. I further ORDER those
services to commence as soon as practicable after
parental consent is received.
This decision is final pursuant to 20 U.S.C.A. §
1415(i)(1)(A) and 34 C.F.R. § 300.514 (2012) and is
appealable by filing a complaint and bringing a civil
action either in the Law Division of the Superior Court
of New jersey or in a district court of the United
States. 20 U.S.C.A. § 1415(i)(2); 34 C.F.R. § 300.516
(2012).
Thus, by its plain terms the Order provided for judicial
enforcement.
The Order (1) contained mandatory language
(“respondent shall provide to the petitioner all the relief
offers”), (2) contained a subheading “Order”, (3) bore Judge
Schuster’s signature, and (4) directed the parties to comply with
certain terms.
John T. ex rel. Paul T. v. Delaware County
Intermediate, 318 F.3d 545, 558 (3rd Cir. 2003).
Accordingly, the Court holds that under Buckhannon
Plaintiffs are in fact prevailing parties under IDEA and Section
504 of the Rehabilitation Act.
24
2.
Offer of Judgment
Defendants also contend that IDEA prohibits the award of
attorneys’ fees and costs when an offer of judgment is denied but
exceeds the relief obtained by the parents.6
The statute reads:
(i) In general. Attorneys' fees may not be awarded and
related costs may not be reimbursed in any action or
proceeding under this section for services performed
subsequent to the time of a written offer of settlement
to a parent if—
(I) the offer is made within the time prescribed
by Rule 68 of the Federal Rules of Civil Procedure
or, in the case of an administrative proceeding,
at any time more than 10 days before the
proceeding begins;
(II) the offer is not accepted within 10 days; and
(III) the court or administrative hearing officer
finds that the relief finally obtained by the
parents is not more favorable to the parents than
the offer of settlement.
20 U.S.C. 1415(i)(3)(D)(i-iii).
Distilled to its essence, Defendants’ argument is that
because the District’s made their Offer of Judgment ten days
prior to the first hearing date, which Plaintiffs rejected, and
because Judge Schuster found that the relief Plaintiffs requested
6
Defendants do not address the Rehabilitation Act but presumably
rely upon Federal Rule of Civil Procedure 68.
25
was less than Plaintiffs’ demands, attorneys’ fees are
prohibited.
Plaintiffs argue several points.
First, they contend that
the Offer of Judgment, as amended on December 12, 2013, was not
made within ten days before the hearing date.7
This is true.
But the reason Defendants amended (and expanded) their Offer was
due to Plaintiff’s dilatory conduct.
Defendants had been asking
Plaintiffs for almost four months to give specific demands, yet
Plaintiffs failed to do so.
Hence, fairness would seem to
dictate that Plaintiffs should not profit from their own
misconduct; that they should be estopped from arguing that
Defendants failed to comply with the ten-day deadline.
Plaintiffs additionally argue that the Offer of Judgment was
not more favorable than the relief they obtained because (1) the
Offer did not include pre-offer fees and costs to which they are
entitled and (2) Judge Schuster ordered more compensatory
education than what Defendants had offered.
7
As to the latter
Plaintiffs’ argument that the hearing date was October 7, 2013,
is specious. In their Amended Complaint, they admit that no due
process hearing occurred before Judge Futey. Moreover, their own
evidence submitted to this Court demonstrated that because the
matter did not settle before Judge Futey at a settlement
conference, the Judge assigned it to Judge Kerins for a due
process hearing. Counsel for both parties acknowledged in
writing Judge Futey’s Order. See Docket No. 45-3, at 2.
26
argument, Plaintiffs are plainly wrong.
Defendants offered fifty
hours, see Ex. D13, and Judge Schuster ordered 100 half-hour
sessions, actually noting that Plaintiffs’ own expert recommended
only 80 such sessions.
Ex. D23.
As to pre-offer attorneys’
fees, this Court has found that Plaintiffs were the prevailing
party.
The Offer, however, did not offer to pay attorneys’ fees
and costs.
Thus, Judge Shuster’s Order was not more favorable
than Defendants’ offer.
Accordingly, Defendants’ argument on
this ground fails.8
3.
Bad Faith
Finally, Defendants argue that when a plaintiff does not
negotiate in good faith by unjustifiably rejecting a settlement
offer or unreasonably protracts the case’s final resolution, like
Plaintiffs did here, that party should lose the right to
attorneys’ fees.
Defendants cite to 20 U.S.C. § 1415(F) which
provides in relevant part:
(F) Reduction in amount of attorneys’ fees.
court finds that - -
8
[W]henever the
Had Defendants’ Offer of Judgment included reasonable
attorneys’ fees, the Court would have been required to resolve
the estoppel issue related to the timing, see supra. It need not
resolve this issue, however.
27
(i) 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 shall reduce, accordingly, the amount of the
attorneys’ fees awarded under this section.9
The Court conducted a full-day hearing in this matter.
During the hearing, this Court labored to get a straight answer
from Mr. Epstein as to why he simply did not respond to Mr.
Gorman’s requests for a resolution.
impeded the Court’s task.
Mr. Epstein’s persiflage
Nonetheless, the record is abundantly
clear that Mr. Epstein unnecessarily and unreasonably protracted
this litigation.
Mr. Gorman reached out to Mr. Epstein almost
immediately to ascertain what relief specifically Plaintiffs were
seeking with a view towards Defendants meeting those demands.
9
The federal regulation effectuating 20 U.S.C. § 1415(F), 34
C.F.R. § 300.517(c)(4)(i), provides:
Except as provided in paragraph (c)(5) of this section,
the court reduces, accordingly, the amount of the
attorneys’ fees awarded under section 615 of the Act,
if the court finds that—
(i) The parent, or the parent’s attorney, during the
course of the action or proceeding, unreasonably
protracted the final resolution of the controversy.
Defendants focus exclusively on IDEA and not the
Rehabilitation Act which does not appear to have an
analogous statute. Nonetheless, the Court, in its
discretion, must determine whether fees should be awarded.
The factors set forth in IDEA address the reasonableness
inquiry.
28
Rather than extending even the courtesy of a reply to Defendants’
request to settle, Mr. Epstein demanded discovery first, telling
this Court that he wanted to “see” what his chances were at
trial.
Such conduct is troubling in several respects.
IDEA was
passed to reverse the history of neglect where disabled children
in America sat idly in regular classrooms biding time until they
were old enough to “drop out.”
52 (2005).
Schaffer v. Weast, 546 U.S. 49,
It was not meant to be a windfall for lawyers.
When
Plaintiffs filed their Due Process Petition, they should have
understood, and presumably did understand the relief they were
seeking.
Why Mr. Epstein could not have communicated those
demands, at a minimum with reservation of the right to adjust
Plaintiffs demand(s) upon evaluations, is confounding.
Plaintiffs had obtained numerous private evaluations in which the
professionals made various and specific recommendations for
additional evaluations, assistive technology, and special
education services and accommodations.
4-5.
See Docket No. 45-2, at
Thus, Plaintiffs were well aware of the specific relief
they were seeking.
When this Court pressed Mr. Epstein as to why
he simply did not ask for the services his clients wanted, the
Court received no credible explanation.
29
Instead, Mr. Epstein contrived several excuses.
Each excuse
was a disingenuous attempt to justify Plaintiffs’ unreasonable
delay of the litigation.
First, Mr. Epstein insinuated in his
opposition papers that the Offer of Judgment extended by Mr.
Gorman was not authorized because there was no record of approval
by the Board of Education or any recorded minutes approving the
Offer by the Board of Education.
unsupported by the record.
This is a manufactured excuse,
Plaintiffs next contend, through Mr.
Epstein’s affirmation, that the first Offer of Judgment offered
only reimbursement of $5,587 for evaluations.
Statement of
Undisputed Material Facts, ¶ 60, Docket No. 45-2, at 10.
See
also Plaintiffs’ Brief in Support of Cross-Motion, Docket No. 454, at 19 (“Plaintiffs were ‘substantially justified’ in rejecting
the December 6, 2013 offer, as it only rewarded Plaintiffs with
$5,587 for past evaluations, and nothing more.”)
This is just
plainly false.
Mr. Epstein’s excuse that Defendants insisted on using their
own individuals to conduct evaluations of J.L. is also belied by
the record.
As early as September 4, 2013, days within the
filing of the Petition, Mr. Gorman wrote to Mr. Epstein “since it
appears you are looking for independent evaluations,” Ex. D2, it
was in everyone’s interest to resolve the case.
30
In the December
12, 2013, Offer, Defendants clearly stated “Clearview will
conduct Independent Evaluations.”
Ex. D13.
Apparently, however,
Plaintiffs wanted to choose the professionals “of her choosing.”
Ex. D15.
Why Plaintiffs never made this clear, either in their
Due Process Petition, which merely referred to “evaluations” in
earlier correspondence between counsel, is baffling.
See
Transcript before Judge Schuster, Docket No. 48-2, at page 38.
(“’Additional evaluations,’ so what was put on the record on
December 17th was that we would do these evaluations . . . as
independents [. because] their independence . . . was not placed
before the court on December 17th, but it would be provided.”)
At the hearing Mr. Epstein argued that independent did not mean
what it said.
It is a specious argument.
Mr. Epstein also argued as justification for the delay that
the Offers of Judgment were vague.
They were not.
If Plaintiffs
had any confusion or questions, however, Mr. Epstein should have
sought clarification.
Mr. Epstein has also argued that his
adversary’s desire to settle were not sincere.
This argument is
patently frivolous.
At the hearing and in his opposition papers, Mr. Epstein
made much of the fact that Defendants did not comply with the
mandatory resolution provisions provided for in 20 U.S.C. §
31
1415(f)(1)(B).
In fact, Mr. Epstein goes so far as to say that
“[p]erhaps [if] Defendant had held the meeting, Plaintiffs could
have resolved the case prior.”
4, at 28.
Br. Cross-Motion, Docket No. 45-
The Court flatly rejects such suggestion as
disingenuous and belied by the record.
Not one shred of paper,
e-mail or letter, evinced a cooperative view on the part of Mr.
Epstein.
As this Court noted on the record, it simply seemed as
if Mr. Epstein was trying “to pick a fight.”10
Even turning to the merits of the argument, however,
Plaintiffs’ argument is pure pettifoggery.
Section
1415(f)(1)(B)’s “resolution session” provides that prior to the
due process hearing, the district shall convene a meeting with
the parents and the IEP team within 15 days of receiving the
complaint unless the parents and the school district agree in
writing or agree to use the mediation process.
Plaintiffs argue
that even though they waived the resolution session and mediation
process in writing, see cover page to Request for Due Process
Hearing, Ex. D1, Defendants did not.
required to go forward.
As such, the resolution was
The Court disagrees.
Although
Defendants’ waiver could have been more explicit, a fair reading
10
Relatedly, Plaintiffs’ allegation before Judge Schuster that
Mr. Gorman committed an RPC violation was part of that combative
strategy; there was no factual basis to support it.
32
of Mr. Gorman’s correspondence demonstrated a sufficient waiver.
It is clear that, in lieu of the resolution session, Defendants
were pressing mediation.
In other words, Defendants effectively
waived the resolution session.
But even putting this issue
aside, Mr. Epstein’s representation that the case might have
settled at a resolution session is simply disingenuous.
At the end of the Court’s analysis, the Court is troubled by
Mr. Epstein’s conduct.
A reduction in fees is therefore clearly
warranted given the bad faith conduct of Mr. Epstein.
amount should be awarded remains to be decided.
What
The Court will
need to have a better understanding of how the discovery
Plaintiffs’ counsel insisted upon before responding to
Defendants’ requests affected, if at all, Plaintiffs’ demands.
It seems it did not.
Additionally, Plaintiffs’ apparent
insistence upon a neuro-psychologist to provide training to the
staff responsible for implementing the IEP appeared to be a
“stumbling block” that protracted the litigation.
viewed this demand to be impermissible under IDEA.
Defendants
Thus,
Plaintiffs’ basis for insisting upon such relief will need to
also be developed.
In the end, it may be that attorneys’ fees
should be limited to the filing of the Petition only.
The
parties will need to brief these issues and the record may need
33
to be further developed.
The Court will convene a conference to
set a briefing schedule.
Accordingly, for the reasons set forth above, Defendants’
motion for summary judgment is denied, in part, and granted, in
part, and Plaintiffs’ motion for summary judgment is granted, in
part.11
An appropriate Order will issue this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: August 25, 2015
11
In light of the above, and in the interest of judicial
efficiency, Plaintiffs’ Motion to Amend [Docket No. 42] shall be
administratively terminated pending resolution of the request for
attorneys’ fees.
34
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?