J.L. et al v. HARRISON TOWNSHIP BOARD OF EDUCATION et al
Filing
95
OPINION FILED. Signed by Judge Renee Marie Bumb on 8/19/16. (js)
NOT FOR PUBLICATION
[Docket Nos. 42, 83, 93]
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)
v.
OPINION
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, UNITED STATES DISTRICT JUDGE:
K.L. and J.L., the parents of J.L., a minor and a child
with special needs, and J.L. (collectively, the “Plaintiffs”)
filed a due process petition against Defendants Harrison
Township Board of Education and Clearview Board of Education
(collectively, the “Defendants” or “School District”) with the
1
New Jersey Office of Special Education.
At the time the
petition was filed, J.L. attended seventh grade at the Clearview
Regional School District for the 2013-14 school year and had
previously attended the Harrison Township School District.
The
Plaintiffs’ petition for due process alleged that J.L.’s
Individual Educational Programs (“IEPs”) and accommodations were
inappropriate.
Within days of the request for due process, counsel for the
Defendants, Brett Gorman, reached out to J.L.’s lawyer, Jamie
Epstein, in an attempt to resolve the matter.
Despite being
immediately rebuffed by Mr. Epstein, Mr. Gorman persisted,
continuing to offer to provide J.L. with the relief the
Plaintiffs were seeking.
Mr. Epstein stonewalled and the
Plaintiffs’ attorney’s fees escalated.
Unable to resolve the matter, the Defendants moved for
summary judgment months later.
The Defendants argued to
Administrative Law Judge (“ALJ”) John Schuster, III, that the
petition should be deemed moot because the Defendants were
providing or were willing to provide all the relief J.L. sought
in the due process petition.
Judge Schuster agreed and
dismissed the petition as moot on January 28, 2014.
In the span
of a mere five months, having engaged in unnecessary and, in
fact, what appears to be spiteful protracted litigation, Mr.
2
Epstein had amassed fees in the amount of $49,450 by the time of
Judge Schuster’s Order.
After Plaintiffs filed a Complaint in federal court for
attorney’s fees, this Court held a hearing where it gave the
parties an opportunity to set forth the facts of what had
happened in the administrative proceedings.
Thereafter, the
Court found that the Plaintiffs had achieved prevailing party
status under Section 1415(i)(3)(B)(i)(I) of the Individuals with
Disabilities Education Act (“IDEA”) and Section 504 of the
Rehabilitation Act, 28 U.S.C. § 794a [Docket Nos. 69, 70].
Since the filing of the Complaint to the within motion, the
Plaintiffs’ amassed another $77,750 in attorney’s fees.
In total, the Plaintiffs seek to have the Defendants pay
$149,900 in fees, plus $11,314 in costs and expert fees.
There
is not one compelling fact, however, to justify the hefty award
Mr. Epstein seeks.
As will be discussed, Mr. Epstein presents
many arguments in support of his fees – some are a product of
revisionist history; some are plainly disingenuous; almost all
have no merit.
Suffice it to say that it has been a challenge
for this Court to sift through the record, to separate the facts
from fiction, the sophisms from paralogisms.
Indeed, this Court
has labored countless weeks reviewing this record; much of its
review has been hampered by Mr. Epstein’s obfuscation and tired
repetition of arguments this Court and the administrative law
3
courts have rejected.
It has been no easy task.
Enough is
enough.1
I.
LEGAL STANDARDS
The Defendants oppose the Plaintiffs’ motion for fees,
arguing that the flagrant bad faith of Mr. Epstein compels no
award.
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.
20 U.S.C. § 1415(i)(3)(F)(i).
“[A]s Congress recognized when it
mandated reduced fees for a parent who ‘unreasonably protracted
the final resolution,’ needless litigation frustrates the
[IDEA’s] objectives by fostering delay, exacerbating ill-will
among parties who should cooperate in educating the handicapped
child, and wasting the resources of all concerned.”
Johnson v.
Bismarck Pub. Sch. Dist., 949 F.2d 1000, 1004 (8th Cir. 1991).
Accordingly, if the parent or the parent’s attorney
unreasonably protracts the litigation, the “court shall reduce
1
Mr. Epstein’s arguments, contrasted with the record,
repeatedly brought to the Court’s mind a riddle attributable to
Abraham Lincoln: “How many legs does a dog have, if you call
his tail a leg? The answer is four, because calling a tail a
leg doesn’t make it a leg.” The Court has learned, through its
own painstaking and onerous analysis of Mr. Epstein’s arguments
and the record, as well as the valuable assistance of
Defendants’ counsel, that Mr. Epstein’s representation of the
record does not make it the record.
4
. . . the amount of attorney’s fees awarded under” IDEA.
20
U.S.C. § 1415(i)(3)(F) (emphasis added); see also Holmes v.
Millcreek Twp. Sch. Dist., 205 F.3d 583, 596 (3d Cir. 2000)
(reducing attorney’s fees award to one-fourth of the original
fee demand because parents and their counsel “needlessly
protracted [the litigation], extending far beyond what was
reasonable, given the nature of the issues involved in this
case, which are not novel” and noting that “it is apparent from
the record that the School District meant to comply with the
letter and spirit of the IDEA.
Thus, this case should have been
resolved years ago.”).
A court, in its discretion, may even deny attorney’s fees
under IDEA altogether where the parent or the parent’s attorney
unreasonably protracts the final resolution of the dispute.
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 parents
and parents’ attorney, Mr. Epstein, were not entitled to any
fees because they unreasonably and unnecessarily delayed the
resolution of the controversy); see also 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 unjustifiably rejected a settlement offer or when a
5
parent has unreasonably protracted the final resolution.”)
(emphasis added).
Similarly, the Rehabilitation Act provides that “the court,
in its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee as part of the costs.”
794a(b).
29 U.S.C. §
Attorney’s fees under the Rehabilitation Act, then,
are “not a matter of right but a matter of discretion.”
M.G. v.
E. Reg’l High Sch. Dist., 2009 WL 3489358, at *2 (D.N.J. Oct.
21, 2009) vacated and remanded on other grounds, 386 F. App’x
186 (3d Cir. 2010).
“The natural consequence of this discretion
is that sometimes an award is not justified at all . . . ‘may’
sometimes means ‘won’t.’”
Id. (quoting Brown v. Stackler, 612
F.2d 1057, 1059 (7th Cir. 1980)).
“The presence of bad faith
conduct on the part of a plaintiff would surely be an unusual
circumstance justifying a denial of an attorney’s fee.”
Graziano v. Harrison, 950 F.2d 107, 114 n. 13 (3d Cir. 1991)
(addressing attorney’s fees in context of Fair Debt Collection
Practices Act); accord In re Paoli R.R. Yard PCB Litig., 221
F.3d 449, 463 (3d Cir. 2000) (noting that, where appropriate,
district courts should consider “the unclean hands, or bad faith
or dilatory tactics, of the prevailing party” in determining a
costs award) (citing Smith v. Southeastern Pa. Transp. Auth., 47
F.3d 97, 99 (3d Cir. 1995)).
6
“Once the fee petitioner submits 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.”
McKenna v. City of Philadelphia, 582 F.3d
447, 459 (3d Cir. 2009) (internal quotations and alterations
omitted).
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).
Moreover,
although a court may not reduce a fee petition on its own
initiative in the absence of specific objections from the party,
id. at 718-19, the court may sua sponte “reduce requested fees
with respect to matters within the judge’s personal knowledge.”
Id. at 719; see also McKenna, 582 F.3d at 459 n. 13 (“[I]t
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 entry.”).
II.
ANALYSIS
As a preliminary matter, the Court notes that, after
finding that the Plaintiffs were prevailing parties, this Court
also found that “[a] reduction in fees is therefore clearly
7
warranted given the bad faith conduct of Mr. Epstein.”
25, 2015 Opinion at 33 [Docket No. 69].
August
Accordingly, contrary
to Plaintiffs’ position, the question now before the Court is
not whether Mr. Epstein’s fees should be reduced, but by how
much.
The Defendants first contend that no fees should be awarded
for any time up to Judge Schuster’s Order because Mr. Epstein
unreasonably protracted the resolution of this matter.
Specifically, Mr. Epstein’s insistence upon discovery was
“unnecessary, disingenuous, and intended to protract this
matter”.
Defendants’ Brief in Opposition to Motion for
Attorney’s Fees (“Defs. Opp. Br.”) at 4 [Docket No. 88].
The
Defendants further contend that the Plaintiffs’ demand for a
neuropsychologist to be chosen by the Plaintiffs and to train
school personnel was impermissibly designed to delay resolution
of the matter.
Id. at 12-18.
The Defendants next contend that from the time of Judge
Schuster’s Order until the filing of the present motion, Mr.
Epstein committed bad faith and unnecessarily protracted the
litigation before this Court.
Thus, in Defendants’ view, no
fees should be awarded for this time either.
Id. at 26.
Finally, in the event the Court awards any fees, Defendants
have posed objections to certain entries which this Court will
address.
Id. at 24-28.
8
A. Filing of the Due Process Petition
The Court first turns to the Defendants’ position that no
fees should be awarded from the time of the filing of the due
process petition (billing entry [118]2) to ALJ Kerins’s Order
(billing entry [328]) because Mr. Epstein’s conduct
unnecessarily protracted the litigation.3
As this Court found,
two days after the filing of the due process petition, Mr.
Gorman reached out to Mr. Epstein asking for a settlement offer.
As Mr. Gorman put it, “Since school is starting shortly, we may
be able to work something out quicker than usual.”
2013 Email at p. 4 [Docket No. 11-4].
August 29,
When Mr. Epstein did
reply, his retorts were nasty and uncooperative:
“We’ll see after we get Answers and discovery from
BOTH respondents.” August 30, 2013 Email at p. 4
[Docket No. 11-4].
“I’ll respond if and when I
appropriate Answer from the
the Respondents. ps; don’t
Jamie again.” September 4,
No. 11-4].
“Pls read the petition.”
p.2 [Docket No. 11-5].
receive a timely and
attorney(s) of record for
address me with “Hey”
2013 Email at p. 2 [Docket
September 5, 2013 Email at
2
Numbers in brackets refer to the billing entries set forth
in the Plaintiffs’ final bill [Docket No. 91-2].
3
The Court does not understand the Defendants to be
objecting to Mr. Epstein’s fees (other than the hourly rate)
incurred prior to the filing of the due process petition.
9
Mr. Epstein’s abject failure to engage in settlement discussions
or to even answer the most basic question – how can this case
settle? – is simply inexcusable.
From the very beginning to December 2013, Mr. Epstein
insisted on discovery – even though he was not entitled to it
until five days before the hearing and even though he, to this
day, has not adequately explained how discovery would have
assisted in settlement discussions.
During the July 14, 2015
hearing, this Court pressed Mr. Epstein for an answer.
Mr.
Epstein simply echoed the same refrain: that he wanted to see
what his chances were at trial.
See, e.g., July 14, 2015 Tr.
143:6-10 [Docket No. 86] (“I asked for discovery so I could
analyze the case and know what I wanted to ask for, to know what
I could get at trial . . . .”).
Yet, the Defendants wanted no
trial; they had conceded the relief sought in the petition.
Incredulously, Mr. Epstein continues to re-argue that Judge
Kerins and the Defendants (as well as this Court) misapplied the
rules of discovery and should have ordered discovery earlier.4
4
From day one, the Plaintiffs have inflexibly and
repeatedly claimed that they were owed discovery from the
Defendants within fifteen days of the filing of the due process
petition, citing the New Jersey Uniform Administrative Procedure
Rules (“UAPR” or “APA”), N.J.A.C. 1:1-10.4. Plaintiffs rebuffed
Defendants’ eager and continual offers to settle the matter and
instead persisted in their demand for discovery, thereby
prolonging the resolution of the dispute. Plaintiffs moved to
compel discovery before ALJ Kerins. Judge Kerins denied
Plaintiffs’ motion to compel discovery, explicitly stating that
10
the Plaintiffs were “attempting to impose the procedural
guidelines of the APA over the procedural guidelines of the
IDEA,” which is governed by N.J.A.C. 1:6A-10.1. Kerins Order at
4 [Docket No. 65-1, Ex. 7].
As the Defendants correctly point out and as Judge Kerins
held, “[d]iscovery in special education matters is governed by
the Administrative Procedure Rules for Special Education
matters,” not the UAPR. Defs. Opp. Br. at 4; accord N.J.A.C.
1:6A—1.1 (“The rules in this chapter shall apply to the notice
and hearing of matters arising out of the Special Education
Program of the Department of Education[.]”); New Milford Bd. of
Educ. v. C.R., 431 F. App’x 157, 159 (3d Cir. 2011) (applying
discovery deadlines set forth in N.J.A.C. 1:6A—10.1 to special
education matter). Under the applicable Rules, “[a]ll discovery
shall be completed no later than five business days before the
date of the hearing.” N.J.A.C. 1:6A—10.1(a).
N.J.A.C. 1:6A–1.1 also states, however, that “[a]ny aspect
of notice and hearing not covered by these special hearing rules
shall be govern by the [UAPR] contained in N.J.A.C. 1:1.”
Seizing upon this, Plaintiffs now argue before this Court that
N.J.A.C. 1:1-10.4(c), which requires that “[n]o later than 15
days from receipt of a notice requesting discovery, the
receiving party shall provide the requested information,” must
be read into the special hearing rules under N.J.A.C. 1:6A-1.1.
Specifically, Plaintiffs contend that “unless N.J.A.C. 1:6A—10.1
(the ‘five-day disclosure rule’) is explicitly inconsistent with
N.J.A.C. 1:1-10.4(c) then both timelines apply equally to a
special education case.” Plaintiffs’ Reply Brief (“Pls. Reply
Br.”) at 3 [Docket No. 90-1] (relying on J.G. v. Paramus Bd. of
Educ., 2008 U.S. Dist. LEXIS 30030, *8 (D.N.J. Apr. 11, 2008)
(“Discovery requests must be responded to within 15 days of
notice and service pursuant to N.J.A.C. 1:1-10.4. Additionally,
all discovery must be completed 5 business days before the first
hearing date under N.J.A.C. 1:6(a).”)). This appears to be the
first time Plaintiffs have meaningfully articulated any basis in
law for their obstinate demands for discovery -- over two and a
half years after the issue was decided by Judge Kerins.
Whether the discovery deadlines must be read together is
not presently before this Court. More importantly, the
resolution of that issue is immaterial to the task at hand. The
record is crystal clear that Plaintiffs, by refusing to engage
in any good faith settlement discussions and single-mindedly
commanding discovery, unreasonably protracted the resolution of
the dispute. Furthermore, to the extent Plaintiffs argue that
Defendants unreasonably protracted the litigation by not timely
providing discovery, the Court finds this argument to be
11
The Court finds that the fees related to Mr. Epstein’s
insistence that J.L. receive discovery before settlement
discussions are patently unreasonable.
That Mr. Epstein should
force a school district to turn over 2,500 pages of discovery in
the face of a school district’s offer to provide the due process
relief requested is unreasonable.5
That, by his own billing
records, Mr. Epstein had spent around 17 hours already reviewing
the school records prior to the petition makes Mr. Epstein’s
conduct even more inexcusable.6
better than the Defendants:
This Court cannot say it any
“Why Plaintiffs have continually
taken such a combative and needless position at multiple times
is baffling.”
Defs. Opp. Br. at 11.
Even worse, the billing
records do not reflect a single instance from August to November
entirely devoid of merit. Regardless of whether N.J.A.C. 1:110.4(c) applied in the underlying administrative proceedings,
Defendants clearly and indisputably complied with N.J.A.C. 1:6A10.1(c) by completing discovery at least five days in advance of
the hearing before Judge Kerins. But more to the point,
Defendants readily sought an amicable and speedy resolution to
the matter without resort to litigation. Meanwhile, Plaintiffs
unbendingly insisted upon discovery, even though, to date, they
are unable to articulate why such discovery was needed. See
12/9/2015 Tr. 5:15-22 [Docket No. 87]. The Court suspects
Plaintiffs’ true motivation to be fees.
5
That Mr. Epstein then sent Judge Kerins a letter
complaining that Defendants “unnecessarily burdened” Plaintiffs
with these documents is even more unreasonable. See 11/16/2013
Letter [Docket No. 47-5].
6
See, e.g., billing entries [38], [63], [103], and [112].
12
2013 when Mr. Epstein ever consulted his experts regarding an
appropriate settlement demand.
Mr. Epstein claims that his experts “were still waiting to
review the discovery and prior written notice [and that] when
J.L. finally received the discovery in the middle of November
2013, discussions with both experts resumed immediately.”
Reply Br. at 6.
disingenuous.
Pls.
This Court finds Mr. Epstein’s statement to be
For example, Elizabeth Smith’s Occupation Therapy
Evaluation was written after a November 18, 2013 evaluation of
J.L. and a November 22, 2013 classroom observation of J.L.
The
only records Ms. Smith reviewed were the current evaluations,
reports, and IEPs, all of which Plaintiffs had.
10].
[Docket No. 11-
Moreover, Dr. Drew A. Nagele amended his February 6, 2012
and June 14, 2013 reports on December 10, 2013, “in
consideration of additional records supplied by JL’s parents
from Audiology at DuPont, a 2012-2013 IEP draft revision, the
2012-2013 IEP as amended 3-5-13, and the 2013-2014 IEP,” not
records that counsel says were being withheld by Defendants.
Nagele Report [Docket No. 83-5 at 76].
These are all standard
documents that Plaintiffs certainly had at the time the petition
was filed.7
Mr. Epstein’s insistence on discovery and failure to
7
Even if, for some reason, the Plaintiffs did not have the
IEPs, as amended - which is belied by the due process petition –
Mr. Epstein could have limited his discovery requests. He did
not.
13
respond in good faith to the Defendants’ requests unnecessarily
delayed the resolution of this matter.8
Moreover, any fees associated with the Plaintiffs’ Motion
to Compel discovery are disallowed.
8
Such motion was frivolous
The following entries are therefore disallowed:
[127] 08/29/13 from BG: settlement offer
[131] 09/04/13 from BG: request for prior
written notice, answer
[132] 09/04/13 from BG: response to discovery
[133] 09/04/13 from BG: settlement and mediation
[134] 09/04/13 to BG: getting answers and
discovery
[136] 09/06/13 from BG: mediation availability
[137] 09/06/13 OSEP: mediation/resolution notice
[138] 09/09/13 from BG: discovery not provided
[139] 09/09/13 from BG: settlement and mediation
[140] 09/09/13 from BG: mediation availability
[147] 09/19/13 from BG: settlement issues,
discovery
[151] 09/22/13 to BG: supplemental discovery
[174] 10/01/13 legal research
[179] 10/02/13 KL: DL draft report
[185] 10/07/13 prepare/attend OAL hearing,
conference clients, travel 1.5 hours
[192] 10/09/13 to BG: draft letter to ALJ
objecting to untimely hearing date
[206] 10/16/13 Review 10/7/13 order
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.3/$150
0.2/$100
5.0/$2,500
0.3/$150
0.1/$50
It is ironic that Mr. Epstein billed for each time he
reviewed an e-mail or letter from Mr. Gorman to settle. Yet, he
did not respond in good faith. Any award of fees for such
conduct would reward bad conduct.
Furthermore, it is evident from the record that the hearing
before Judge Futey, documented in billing entry [185], was a
waste of time as it was during this hearing that the Plaintiffs
made the unsupportable demand to force the Defendants to hire
their neuropsychologist.
14
and, as Judge Kerins ruled, J.L.’s position was unsupported by
the law.
Kerins Order at 4-5 [Docket No. 65-1].9
Similarly, Mr. Epstein’s fees in opposing the Motion to
Amend the Answer will not be permitted.
This Court finds that
the Plaintiffs’ argument before Judge Kerins that, as a result
of a deficient Answer, Defendants “have hindered [Plaintiffs’]
ability to substantiate their claims and assess [Defendants’]
9
Accordingly, the following fees are disallowed:
[199] 10/11/13 to BG: draft motion to compel
discovery and prior written notice
[200] 10/11/13 review/analyze BG 10/11/13
letter To ALJ
[204] 10/15/13 from BG: schedule ALJ
telephone conference
[205] 10/15/13 prepare/attend ALJ telephone
conference, conference clients
[207] 10/18/13 Review 10/18/13 BG Motion And
discuss with clients
[209] 10/22/13 review BG 10/22/13 letter to
judge and discuss with clients
[212] 10/29/13 prepare/attend ALJ telephone
conference, conference clients
[217] 11/08/13 from BG: schedule telephone
conference
[218] 11/08/13 from BG: schedule ALJ telephone
conference
[219] 11/08/13 from BG: ALJ telephone
conference, discovery issues
[232] 11/13/13 from BG: schedule conference
call
[237] 11/16/13 draft letter detailing deficient
discovery responses to judge
[276] 12/10/13 to BG: five day disclosure plus
exhibits
4.6/$2,300
0.2/$100
0.1/$50
0.9/$450
0.9/$450
0.3/$150
1.6/$800
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.5/$250
0.2/$100
Additionally, billing entries [233] and [234] are denied as
duplicative of billing entry [232]. See infra n. 29.
15
defenses” to be absurd.
See Kerins Order at 4 (quoting
Plaintiffs’ 10/11/2013 Brief at 6).
Not even two months had
passed since the filing of the due process petition when the
Defendants filed their Motion to Amend the Answer.
Up until
that time, Mr. Epstein was dealing with an adversary who
continuously expressed a “willingness to resolve Petitioner’s
concerns” and who desired not to engage in protracted
litigation.
10/11/2013 Letter [Docket No. 83-5 at p. 43].
Therefore, fees incurred in opposing the Defendants’ Motion to
Amend the Answer will not be allowed.10
Finally, as this Court has previously written, the
stumbling block to the Defendants’ meeting all of the
Plaintiffs’ demands was the Plaintiffs’ insistence that the
school hire a neuro-psychologist chosen by the Plaintiffs to
train school personnel.
Mr. Gorman continuously pressed Mr.
Epstein as to the authority for demanding such drastic action;
10
The following fees are disallowed:
[231] 11/12/13 to BG: review/analyze motion to
amend answer and draft opposition
[235] 11/14/13 review BG letter to judge
[236] 11/15/13 prepare/attend ALJ telephone
conference, conference clients
[243] 12/03/13 Review 12/3/13 order and discuss
with clients
1.8/$900
0.1/$50
1.9/$950
0.2/$100
The Court will not allow billing entry [135] either, which
lists “REVIEW ANSWERS”. If the Answer was as deficient as Mr.
Epstein claims, the 0.3 hours billed to review the Answer is
exaggerated and, therefore, denied.
16
he also pointed out that such relief was not sought in the due
process petition.
Then, and to this day, the Plaintiffs have
failed to justify such demand.
It was not until December 9, 2013 that the Plaintiffs
finally responded to the Defendants’ position.
Specifically,
Plaintiffs demanded Defendants retain a “neuro-psychologist, of
J.L.’s choice, [who] shall consult and provide training to the
IEP Team up to 6 hours (including travel) per month as to all
aspects of J.L.’s special needs and, additionally, shall attend
all IEP and CST meetings that pertain to J.L.”
[Docket No. 83-5 at p. 60] (emphasis added).
12/9/2013 Letter
That Mr. Epstein
did not respond with such demand - which was not contained in
the petition - until December 9, 2013 is inexcusable.
Moreover,
such demand, had it been properly brought as a prayer for relief
in the petition could have been more swiftly addressed, as the
Defendants had requested.
At the end of the matter, the Plaintiffs neither amended
the petition nor justified the legal basis for insisting that
J.L. retain an expert chosen by J.L. to educate and train the
School District’s employees.
The reason is clear – no such
remedy is permissible under the law.
The Supreme Court and the Third Circuit have noted that it
is “mindful that [IDEA] leaves questions of educational policy
to state and local officials.”
Oberti by Oberti v. Bd. of Educ.
17
of Borough of Clementon Sch. Dist., 995 F.2d 1204, 1214 (3d Cir.
1993) (citing Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist.,
Westchester Cty. v. Rowley, 458 U.S. 176, 207 (1982)).
Furthermore, “‘once a court determines that the requirements of
the Act have been met’ neither parents nor courts have a right
to compel a school district to employ a specific methodology in
educating a student.”
W.R. v. Union Beach Bd. of Educ., 414 F.
App’x 499, 501 (3d Cir. 2011) (quoting Rowley, 458 U.S. at 208).
This rationale applies with equal force to personnel
decisions.
IDEA and the Rehabilitation Act do not permit
parents to make decisions regarding the personnel a school
district hires and assigns to provide educational services.
“The applicable law does not permit parents to usurp the school
district’s role in selecting its staff to carry out the IEP’s
provisions.”
G.K. ex rel. C.B. v. Montgomery Cty. Intermediate
Unit, 2015 WL 4395153, at *15 (E.D. Pa. July 17, 2015) (citing
Rowley, 458 U.S. at 209).
Moreover, while “parents are members
of the IEP team and entitled to full participation in the IEP
process, they do not have the right to control it.”
Id.
(internal citations and quotations omitted).
The New Jersey Supreme Court has also stated that it is
“local school boards [that] are vested with the managerial
prerogative ‘to deploy personnel in the manner which it
considers most likely to promote the overall goal of providing
18
all student with a thorough and efficient education.’”
D.R. and
S.R. on behalf of D.R. v. Ramsey Bd. of Educ., 2003 N.J. AGEN
LEXIS 960, *38 (May 16, 2003) (quoting Ridgefield Park Educ.
Ass’n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 157 (1978));
accord L.Z. and S.Z. on behalf of K.Z. v. Springfield Twp. Bd.
of Educ., 2007 N.J. AGEN LEXIS 684, *20 (Oct. 17, 2007) (“the
[School] District has the discretion and prerogative to select
personnel.”).
“Ultimately, staffing decisions are the province
of local school officials,” not the parents, or the parents’
counsel, and cannot be used to strong-arm school districts in
settlement negotiations.
See Ramsey Bd., 2003 N.J. AGEN LEXIS
960, *38.
In the Motion for Attorney’s Fees, however, the Plaintiffs
attempt to recast their demand, claiming that it was for “a
neuro-psychologist to monitor J.L.’s IEP compliance and train
staff members.”
Plaintiffs’ Brief in Support of Motion for
Attorney’s Fees at 4 [Docket No. 83-4].
Mr. Epstein spins pages
of legal argument regarding the propriety of a monitor.
He
slyly ignores the fact that all along he had demanded that the
Defendants hire a neuropsychologist of the Plaintiffs’ choice –
presumably Dr. Nagele.
First, in his December 9, 2013 letter,
Mr. Epstein demands that the neuro-psychologist be “of JL’s
choice.”
12/9/2013 Letter [Docket No. 83-5 at p. 60].
After
the Defendants received Dr. Nagele’s December 10, 2013 report
19
recommending a consulting professional with experience in
central nervous system disorders to observe implementation of
the IEP, the Defendants agreed to appoint Bryan Hendricks, who
had already been working with J.L. and who was soon to obtain
his Ph.D. with a specialty in neuropsychology.
Letter [Docket No. 83-5 at p. 63-64].
12/12/2013
Mr. Epstein fired off
another letter on December 16, 2013, demanding, yet again, “[a]
neuro-psychologist, of JL’s choice.”
12/16/2013 Letter [Docket
No. 83-5 at p. 73] (emphasis added).
Moreover, as discussed, after Judge Kerins’s decision, on
December 6, 2013, the Defendants made what was the first formal
Offer of Judgment.
at p. 58-59].
12/6/2013 Offer of Judgment [Docket No. 83-5
On December 9, 2013, Mr. Epstein finally
responded in writing with specific demands.
[Docket No. 83-5 at p. 60].
12/9/2013 Letter
In response, on December 12, 2013,
the Defendants amended their Offer of Judgment to address
Plaintiffs’ written demands.
12/12/2013 Amended Offer of
Judgment [Docket No. 83-5 at p. 63-64].
What is most remarkable
is that even after the Defendants offered to meet the
Plaintiffs’ demands, Mr. Epstein not only failed to timely
respond but racked up over $10,350 in fees before responding,
and an additional $1,450 in fees preparing his overdue response.
According to the Plaintiffs’ own billing records, the chronology
is as follows: on December 12, 2013, the Plaintiffs received the
20
Defendants’ December 12, 2013 responsive offer and Mr. Epstein
discussed it with his clients.
See billing entry [281].11
For
two days, however, December 14, 2013 and December 15, 2013, Mr.
Epstein engaged in trial preparation, amassing $5,300 in fees
for “trial preparation.”
See billing entries [282], [287].
It
was not until December 16, 2013 that Mr. Epstein responded to
the offer.
See billing entry [288].
Yet, on the same day, in
addition to billing 2.9 hours (and charging $1,450) for drafting
a mere two-page letter, see billing entry [288], Mr. Epstein
also billed 8.7 hours (and charged $4,350) in “trial
preparation,” see billing entries [289], [290], for a total of
11.6 hours billed on that day.
The amount Mr. Epstein billed for trial preparation,
without first making a reasonable and good faith effort to at
least respond to the Defendants’ counteroffer, is unacceptable.
Incredibly, even when Mr. Epstein did finally respond, on the
day before trial, he accused Mr. Gorman of “negotiating in bad
faith.”
12/16/2013 Letter [Docket No. 83-5 at p. 73].
It is
hard for this Court to understand such insolence and
11
Any contention by the Plaintiffs that the December 12,
2013 letter was not received that day (as the Court notes Mr.
Epstein’s language in his December 16, 2013 letter “By mailed
letter dated 12/12/13, rather than the customary email . . .
.”), is belied by Mr. Epstein’s own billing records. Billing
entry [281] reflects that on December 12, 2013, he “review[ed]/
Analyze[d] BG 12/12/13 Settlement Counter Offer.”
21
belligerence.
Because the Court finds the expenditure of fees
for trial preparation could and should have been avoided, it
will not allow such fees.12
On December 17, 2013, the parties appeared before Judge
Kerins.
At that hearing, Mr. Gorman expressed that he wished to
advise the Court as to the School District’s position.
Mr.
Epstein objected to any discussion of settlement on the record –
which apparently prompted Mr. Gorman to advise the Court that
the petition was moot because the School Districts were offering
all the relief sought in the petition.
The following colloquy
occurred:
MR. EPSTEIN: I have a standing objection to counsel
discussing settlement offers with the court and I just
12
Consequently, the following fees are disallowed:
[267] 12/09/13 KL: trial preparation
[273] 12/09/13 KL: pretrial disclosures
[277] 12/10/13 to BG: review/analyze JL’s
records and select trial exhibits
(470 pages)
[279] 12/10/13 to BG: review school’s letter to
ALJ to cancel trial and draft opposition
[282] 12/14/13 trial preparation
[284] 12/14/13 Draft objection to BG 12/12/13
disclosure of offer Letter to Judge
[287] 12/15/13 trial preparation
[288] 12/16/13 to BG: review schools [sic]
12/12/13 offer and draft response
[289] 12/16/13 trial preparation, conference
client
[290] 12/16/13 KL: trial preparation – Witness
questions
0.1/$50
0.1/$50
8.7/$4,350
0.4/$200
4.1/$2,050
0.3/$150
6.5/$3,250
2.9/$1,450
8.3/$4,150
0.4/$200
Additionally, billing entry [280] will be denied as it is
subsumed within billing entry [281].
22
want to confirm that I have an ongoing objection and
he can continue his argument.
THE COURT: I will -- I note for the record that it has
been Mr. Epstein’s position throughout the pendency of
this case and we have had several telephone
conferences regarding discovery issues that the – that
I not take an active involvement in any settlement
discussions in this matter. Am I correct, Mr.
Epstein?
MR. EPSTEIN: You’re absolutely correct.
THE COURT: Yes. And I do note that Mr. Epstein’s
correspondence to me of the other day -- I believe
yesterday I received it, raised the issue again since
Mr. Gorman had submitted correspondence to me, which
included settlement letters which had -- settlement
discussion letters that had passed back and forth
between the parties, and I -- I note that the issue
has been raised.
However, I am going to allow Mr. Gorman to place on
the record essentially what -- if it’s argument
regarding settlement discussions, then we’re at an
end. If Mr. Gorman is placing on the record the
district’s position regarding what it has conceded in
this matter and is willing to provide, based on that
representation by the district, I will allow Mr.
Gorman to proceed, also noting Mr. Epstein’s continued
objection regarding anything being provided to the
court regarding settlement discussions, all right?
MR. GORMAN: And to be clear, Judge, that is correct.
What I’m stating right now is not a settlement offer,
this is the district’s position is that these -- the
relief that petitioners are seeking has already been
provided by the district and thus the petition -- what
they’re seeking in the petition is now moot, I’m
requesting the court to dismiss this matter a[s] moot,
that’s what I’m presenting to the court. I’m putting
it on the record so that it’s clear and there is a
record as to what the district has -- is going to
provide in this matter.
23
MR. EPSTEIN: And I object if that’s the purpose he’s
putting them on because the court’s made it clear that
the court’s not dismissing anything without a formal
motion.
THE COURT: Well, yes, as we discussed in my chambers,
I am going to require a formal motion that Mr. Epstein
may respond to. However, I will allow Mr. Gorman to
continue as this is the -- this was scheduled to be
the first day of the hearing. The district has the
burden. If the district is conceding elements of the
case, or all of the elements of the case, then that is
appropriate that it place it on the record, but that
is what the district is doing.
Now, Mr. Epstein, you may of course, on the record
today, disagree with anything that the district is
proposing as ending this matter, that is why I -- I’m
going to require that a formal motion on the issue of
mootness be provided.
MR. GORMAN: Understood, Your Honor.
THE COURT: All right?
Mr. Gorman.
Thank you.
You may continue,
MR. GORMAN: Thank you. Now that takes care of 2C, the
second part of 2D which is prohibit Harrison Township
School District from allowing J.’s education or health
records be disclosed to third parties without J.’s
parents’ consent, absolutely the district will agree
to that, and that is all the specific relief that’s
set forth in the petition. The district has made
separate, you know, separate representations, but as
that does not obtain to the relief set forth in the
petition, unless there’s a mutual agreement from the
parties that the district will not add those other
terms -- other terms onto the record. But these are
the terms relating to the petition that the district
has provided and the district now contends, makes the
petition moot and the relief sought -- as the district
has exceeded and is already willing to provide
everything to petitioner. Now the only outstanding
issue here would be attorneys’ fees, and on the record
the district has sought to obtain an offer and has not
received one to date. Otherwise it would have
considered that.
24
12/17/2013 Hearing Tr. 9:12-12:18 [Docket No. 48-1] (emphasis
added).
Mr. Epstein responded that there was no settlement, that
his clients were entitled to an enforceable order, and that if
Judge Kerins was not going to disqualify herself, due to having
heard the School District’s terms, “then this matter should
proceed with the due process hearing immediately.”
8 (emphasis added).
Id. at 15:1-
The hearing continued:
[THE COURT:] What I am -- you may sit down, sir. What
I am presented here today is what appears to be an
issue of mootness –MR. GORMAN: Yes.
THE COURT: -- with concessions by the district.
They’re saying they have conceded everything. Mr.
Epstein and his clients disagree, all right?
I am not going to decide the issue of mootness today,
nor am I going to decide the issue of my recusal
today. This issue I first became aware of it
yesterday. I need to review that issue and make a
determination.
However, no matter what my determination is on
recusal, and I note that it is a serious issue that I
need to take a look at as I have been provided with
discussions re settlement between the parties when one
of the parties has specifically requested during the
course of the hearing that I not become involved in
detailed settlement negotiations.
I do wish to place on the record that in this case, as
I do in every case before me I do bring up the issue
of settlement with parties, I do counsel them to
continue to attempt to settle cases. In this case I
did not become involved as per Mr. Epstein’s request
in detailed settlement negotiations between the
parties. However, it appears I have become involved
in detailed settlement negotiations between the
25
parties as the district’s counsel provided me with
information regarding that and the offer of settlement
under Federal law which was provided to the parties.
So, with that caveat, given the short amount of time I
have had to review the issue of recusal I am not going
to rule on that today.
However, what I am going to do is I’m going to direct
the district should it determine that it wishes to
pursue in a formal way the issue of mootness that it
immediately file, and by “immediately” I mean
preferably by the end of the week a formal motion
because, you know, we need to get this case moving one
way or another; either it settles or we move on.
Id. at 18:22-20:12 (emphasis added).
What Judge Kerins recognized is that the matter appeared
moot except for attorney’s fees.
That could have been the end
of this litigation except for fees -- J.L. would have gotten the
relief Plaintiffs wanted.
But, unfortunately, it was not.
Upon
Mr. Epstein’s perplexing objection, Judge Kerins subsequently
recused herself on December 20, 2013, and the matter was set
before Judge Schuster on the Defendants’ motion for summary
decision.
Clearly, Mr. Epstein was well aware before and on December
17, 2013 that the Defendants were willing to provide all the
relief sought by the Plaintiffs in the petition.
Indeed, he
admits so in a letter dated December 20, 2013 addressed to Judge
Kerins.
12/20/2013 Letter [Docket No. 41-6] (“[I]t now appears
Respondents assert the Petition should be dismissed . . .
26
because they now agree to all the remedies in the Petition.”).13
Yet, Mr. Epstein pressed hard for a due process hearing.
Fees, of course.
Why?
He sought Judge Kerins’s recusal – even after
she informed the parties that it appeared the district had
“conceded everything.”
12/17/2013 Hearing Tr. 19:2-3.
Because
of Mr. Epstein’s hindrance, the hearing before Judge Kerins was
pointless; there was absolutely no reason why a trial had to be
The Court will not countenance such troubling conduct.14
held.
It was bad enough that Mr. Epstein pressed forward for a
due process hearing on December 17, 2013 before Judge Kerins,
when he clearly knew the Defendants would give J.L. what was
sought in the petition.
It is even more egregious that Mr.
Epstein boorishly opposed any adjournment of the due process
hearing even after the Defendants had filed their motion for
summary disposition on December 28, 2013.
Incredibly, the very
day after the parties argued the Defendants’ motion for summary
13
Mr. Epstein’s letter to Judge Kerins was simply uncalled
for. Upset that Mr. Gorman had disclosed to Judge Kerins the
fact that the Defendants were conceding the due process
petition, Mr. Epstein told Judge Kerins that she would “need to
review [the settlement] as part of a sanction motion and/or
referral to Attorney Ethics.” 12/20/2013 Letter [Docket No. 416]. Nobody likes a bully. Mr. Gorman is to be commended for
his professionalism and restraint. Moreover, apparently Mr.
Epstein does not reserve his bullying just for his adversaries,
but also extends his bullying to federal judges. See infra
n. 33.
14
Therefore, billing entry [291] will be disallowed in its
entirety.
27
decision before Judge Schuster on January 14, 2014, Mr. Epstein
wrote a letter apparently complaining, not to Judge Schuster,
but to the Chief ALJ that the Defendants (and Judge Schuster)
were delaying the January 28, 2014 trial date.
[Docket No. 65-2, Ex. 22].
1/23/2014 Letter
Of course, there were judicially
sound reasons to delay the trial.
A favorable decision by Judge
Schuster would have and, in fact, ultimately did obviate the
need for a trial.
Why Mr. Epstein fought the adjournment and
went so far as to go above Judge Schuster is not only troubling,
but violative of the most fundamental concepts of a lawyer’s
professionalism.
That a lawyer should want or desire to expend
an extraordinary amount of resources in preparing for a clearly
unnecessary trial is inimical to the Rules of Professional
Conduct by which a lawyer should conduct himself.
Knowing that the School District wanted to give the
Plaintiffs all the relief sought, Mr. Epstein went on to bill
more than $10,000 before receiving Judge Schuster’s Opinion,
which held that the due process petition was moot because the
Defendants had conceded all the relief Plaintiffs sought,
incidentally, a fact long known to Mr. Epstein.
Opinion [Docket No. 65-2, Ex. 23].
Schuster
The fees from December 19,
2013 to January 28, 2014 are all denied because they were
28
completely unnecessary and both could and should have been
avoided.15
15
Those fees are as follows:
[293] 12/19/13 to BG: draft fee demand letter
0.2/$100
[294] 12/20/13 to BG: withdraw the demand
letter, forward to letters [sic] to ALJ
0.1/$50
[295] 12/20/13 to BG: review 12/12/13 dismissal
ltr and draft/amend response
0.8/$400
[296] 12/20/13 review/analyze 12/20/13 order
and discuss with client
0.3/$150
[297] 12/20/13 review/analyze BG MTD and
discuss with clients
0.6/$300
[298] 12/23/13 from BG: objection to expert
fees in demand
0.1/$50
[299] 12/23/13 to BG: respond to BG opposition
to experts fees
0.1/$50
[302] 12/23/13 to BG: draft letter to chief ALJ:
schools improper disclosure to ALJ
0.2.$150
[303] 12/23/13 review/analyze BG 12/23/13 letter
to judge and discuss with clients
0.3/$150
[304] 01/02/14 from BG: request for adjournment
of hearing
0.1/$50
[305] 01/02/14 from BG: request for adjournment
of hearing
0.1/$50
[306] 01/02/14 from BG: request for adjournment
of hearing, conflict
0.1/$50
[307] 01/02/14 from BG: request for adjournment,
conflict
0.1/$50
[308] 01/02/14 from BG: request for adjournment
of 1/14 hearing
0.1/$50
[310] 01/02/14 to BG: draft letter to chief ALJ
objecting to schools trial postponement
request
0.3/$150
[311] 01/02/14 review notice of 1/14/14 hearing
0.1/$50
[312] 01/03/14 review BG letter regarding
hearing date
0.1/$50
[314] 01/06/14 to BG: review/analyze schools
motion to dismiss and draft opposition
9.1/$4,550
[315] 01/08/14 from BG: request to adjourn 1/28
hearing
0.1/$50
[316] 01/08/14 to BG: draft 2d ltr to chief ALJ
objecting to schools trial postponement
request
0.4/$200
29
The Plaintiffs never appealed that decision.
Thus, it was
as Mr. Gorman had represented on December 17, 2013 to Judge
Kerins.
$13,700 in attorney’s fees later, Judge Schuster
dismissed the petition as moot.
All of these fees could have
been avoided had Mr. Epstein engaged Mr. Gorman in a bona fide
settlement conversation.
One need only read the transcripts and
the correspondence to reach this conclusion.
The question remaining is whether any of the fees from the
filing of the due process petition to Judge Schuster’s Order,
not already disallowed, should be permitted.
answer is no.
The unequivocal
Courts have held that when a request for
attorney’s fees is so exorbitant or exaggerated so as to shock
the conscience of the court, fees may be outright denied.
See,
e.g., Fair Housing Council of Greater Washington, 999 F.2d 92,
96 (4th Cir. 1993); Brown, 612 F.2d at 1059.
[317] 01/08/14 KL: preparation for 1/14/14
hearing
[318] 01/11/14 review/Analyze BG 1/10/14 motion
for summary decision
[319] 01/14/14 prepare/attend OAL hearing,
conference clients, travel 1.5 hours
[320] 01/15/14 to BG: draft letters to ALJ Reba
and Futey objecting to postponement
[321] 01/23/14 Review 1/23/14 letter from judge
[322] 01/27/14 from BG: confirming hearing is
adjourned
[323] 01/28/14 review order and decision and
discuss with clients
30
0.1/$50
0.8/$400
5.5/$2,750
0.4/$200
0.1/$50
0.1/$50
0.4/$200
In Brown, for example, the Seventh Circuit affirmed the
district court’s decision to deny plaintiffs’ request for
attorney’s fees in its entirety because the claim was
“outrageously excessive.”
612 F.2d at 1059.
The Seventh
Circuit held that “[s]uch denial is an entirely appropriate, and
hopefully effective, means of encouraging counsel to maintain
adequate records and submit reasonable, carefully calculated,
and conscientiously measured claims when seeking statutory
counsel fees.”
Id.
Similarly, in Lewis v. Kendrick, the First Circuit reversed
an award of fees, finding that “turn[ing] a single wrongful
arrest into a half year’s work, and seek payment therefor, with
costs, amounting to 140 times the worth of the injury, is, to
use a benign word, inexcusable.”
1991).
944 F.2d 949, 956 (1st Cir.
The court refused to “tolerate, even by a partial award,
such an imposition by counsel on the defendants, and on the
court” and, accordingly, awarded no fees whatsoever.
Id.
Attorneys “are quasi-officers of the court and they are
expected to be careful and scrupulously honest in their
representations to the court. . . . Lawyers therefore must
exercise care, judgment, and ethical sensitivity in the delicate
task of billing time and excluding hours that are unnecessary.”
Hall v. Borough of Roselle, 747 F.2d 838, 842 (3d Cir. 1984).
Accordingly, when they fail to do so, fees may be denied in
31
their entirety.
See id. (citing Brown v. Stackler, 460 F. Supp.
446 (N.D. Ill. 1978), aff’d, 612 F.2d 1057 (7th Cir. 1980)); see
also M.G. v. E. Reg’l High Sch. Dist., 386 F. App’x 186, 189 (3d
Cir. 2010) (“If, 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 this case.
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 single day.
On this record, we find that fees
should not have been awarded.”) (internal citations and
quotations omitted); 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
32
billed for logging billing entries, noting that the request was
“unreasonable on its face, and borderline conscience-shocking”).
While these courts have generally addressed the
exaggeration of the amount of fees billed, as opposed to the
egregious conduct of the attorney, the Court finds the same
rationale applicable here.
Here it is not only the exorbitant
amount of fees billed that shocks the conscience, but also the
Plaintiffs’ strategy of unnecessarily protracting the litigation
in an apparent effort to continue accumulating fees.
The Defendants urge this Court to deny the Plaintiffs’
attorney’s fees request because it was the Defendants, not the
Plaintiffs, who were responsible for obtaining the relief for
J.L.
The Court could not agree more.
What is truly remarkable
about this case is that it was the Defendants’ counsel – not
Plaintiffs’ counsel – who persisted in getting J.L. the relief
J.L.’s parents sought when they filed the due process petition.
Mr. Epstein’s pattern of delay and obfuscation only served to
prolong the proceedings and prevent J.L. from getting the relief
ordered by Judge Schuster sooner.
Indeed, more than one half of
the school year passed without resolution.
Not only did Mr.
Epstein refuse to engage in any meaningful discussions, he
actively fought against settlement and even opposed the
Defendants’ motion for summary decision which ultimately
provided the Plaintiffs the relief they sought.
33
It is indeed a
great irony that Plaintiffs’ ultimate relief was obtained
through the application of Defendants’ counsel, not Plaintiffs’
counsel.
Why then should this Court grant fees for the legal
work done by Mr. Epstein after the due process petition was
filed, when, in reality, Mr. Epstein labored against the very
relief the Defendants were offering J.L.?
It should not.
In
short, this Court holds that an attorney should not be permitted
to recover fees for a result eventually obtained by his client,
but which that attorney had, for months, actively sought to
restrain.
An award of such fees would shock the conscience of
even the most forgiving jurist.
Sadly, the Court is not convinced that Mr. Epstein even
appreciates how unacceptable his conduct was and how the
Defendants actually sought to provide J.L. the relief Mr.
Epstein initially requested.
In Mr. Epstein’s Affidavit in
Support of the Plaintiffs’ Reply Brief, he makes the incredulous
statement that “[c]ontrary to Defendants’ representations there
was no finding that Plaintiffs’ counsel acted in bad faith and
unnecessarily protracted the litigation in this Court.”
Affidavit ¶ 18 [Docket No. 90-2].
If this Court’s Opinions -
which Mr. Epstein purports to have read and, in fact, has billed
several hours for reading - have little effect on Mr. Epstein’s
recognizing how lawyers should not behave, then, perhaps an
entire reduction in fees will.
34
Accordingly, the Court will disallow all remaining fees for
the period from the filing of the due process petition on August
27, 2013 through the filing of the present Complaint in federal
court on April 27, 2014.16
B. District Court Complaint
The Court next turns to the Defendants’ positon that no
fees should be awarded from the time of the filing of the
Complaint in federal court to the present motion because of Mr.
Epstein’s bad faith and litigation misconduct.
Although this
Court is tempted to deny these fees outright given Mr. Epstein’s
misconduct, it must avoid such temptation and review the record.
Certainly, the Plaintiffs were justified in opposing the
Defendants’ Motion for Summary Judgment.
Indeed, the Court
found that Plaintiffs achieved prevailing party status on August
25, 2015.
Opinion at 24 [Docket No. 69].17
16
Because the Court denies these fees, it need not address
the Defendants’ objections to Mr. Epstein’s consultation with
other attorneys, as documented in billing entries [152] and
[173].
17
Plaintiffs contend that “whether or not this Court
disposed of the argument as to whether Plaintiff was prevailing
party was not clear, as there was no explicit determination
within this Court’s August cite hearing [sic] regarding such.
It was not until December 9, 2015, that this Court determined
that Plaintiffs were the prevailing party.” Pls. Reply Br. at
10 (bold in original). This is plainly untrue, if not utter
nonsense. First, there was no August 2015 hearing – the Court
held the hearing on this issue on July 14, 2015. Second, while
the Plaintiffs are correct that the Court reserved its decision
at the hearing, the issue was unambiguously and explicitly
35
Yet, there is no question that in filing the Complaint and
litigating the attorney’s fees issue before this Court, Mr.
Epstein engaged in bad faith.
He continued, and continues, to
make arguments that were rejected by the ALJs.
distort the record.
He continues to
The Court will address Mr. Epstein’s
misconduct in three stages: the filing of the Complaint; the
Motion to Dismiss/for Summary Judgment; and the Motion for
Attorney’s Fees.
The filing of the Complaint was reasonable; the fees
incurred, however, were not.
Three hours will be disallowed.18
resolved when the Court held that the Plaintiffs were prevailing
parties under IDEA and Section 504 of the Rehabilitation Act in
its August 25, 2015 Opinion [Docket No. 69 at 24]. Why Mr.
Epstein’s confusion as to this point persists is unclear to the
Court, especially in light of the fact that, according to
billing entry [441], Mr. Epstein spent over 1.9 hours reviewing
and analyzing the Court’s Opinion and Order.
18
The Plaintiffs seek 5.5 hours for drafting the Complaint:
[329] 04/27/14 record review/draft complaint [1],
conference clients
3.0/$1,500
[336] 05/14/14 record review/draft amended
complaint, CCS [6]
2.5/$1,250
It is a fairly pro forma complaint, however, that an
experienced attorney can easily draft in 2.5 hours. 3.0 hours
are therefore disallowed.
Mr. Epstein also billed 0.5 hours for handling a clerical
overcharge error:
[331] 05/03/14 draft letter to clerk
overcharge [3]
[333] 05/13/14 draft letter to clerk:
overcharge [4]
36
0.2/$100
0.2/$100
[334] 05/13/14 review order to refund fees [5]
0.1/$50
Of these, 0.4 hours will also be disallowed. There is no
reason that drafting quick letters regarding an overcharge and
reviewing the refund order should have taken a full 0.5 hours.
In addition, when pleadings are filed, the Clerk of the
Court automatically generates a notice as to the return date.
Sometimes this Court also generates a quick notice. Incredibly,
Mr. Epstein billed a cumulative 2.3 hours, or $1,150, merely
reviewing these notices:
[340] 06/09/14 review clerks notice motion
deadlines
[341] 06/09/14 review/analyze order dismissing
MTD [12]
[345] 06/13/14 review/analyze order [16]
[352] 06/19/14 review text order [19]
[358] 06/23/14 review clerks MTD deadline
[359] 06/23/14 review text order scheduling
conference [25]
[360] 06/23/14 review text order rescheduling
conference [26]
[367] 07/01/14 review clerks notice
[369] 07/01/14 review clerks MTD deadline
[371] 07/01/14 review clerks notice of motion
deadline
[377] 07/24/14 review order adjourning
motion [32]
[378] 07/24/14 review clerks notice of motion
deadline
[403] 02/23/15 review clerks notice of motion
deadline
[405] 02/25/15 review clerks notice of motion
deadline
[413] 03/10/15 review order [51]
[414] 03/10/15 review clerks notice of motion
deadline
[426] 06/24/15 review order for hearing [61]
[435] 07/15/15 review minute entry [64]
[450] 09/10/15 review order rescheduling
conference
[455] 11/25/15 review clerks motion deadline
notice
[458] 12/01/15 review order [80]
37
0.1/$50
0.2/$100
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.1/$50
0.2/$100
0.1/$50
0.1/$50
0.1/$50
0.1/$50
Moreover, in opposing the Motion to Dismiss, Mr. Epstein billed
a whopping 23.3 hours in connection with filing an opposition
brief that consisted of a mere six pages (relative to the claim)
and had little value.
The Court will allow two hours.19
These hours will not be allowed. All could have been read
together in minutes. Only 0.1 hour will be allowed. As to
billing entry [426], the Court finds it utterly bewildering that
counsel can bill 0.2 hours for reviewing an order setting oral
argument, especially when counsel then bills another 0.2 hours
for reviewing the same order again with defense counsel in
billing entry [427].
Additionally, the hours billed for the unopposed protective
order are excessive and will not be allowed:
[362] 06/30/14 respond to BG: review proposed
jdp, draft amended proposed jdp
0.8/$400
[363] 07/01/14 from BG: approve protective order 0.1/$50
[365] 07/01/14 to BG: draft proposed protective
order
0.7/$350
[370] 07/01/14 draft motion for protective
order [29]
3.5/$1,750
[372] 07/03/14 review discovery confidential
order [30]
0.1/$50
[374] 07/19/14 to BG: execute protective order
agreement
0.1/$50
[381] 08/10/14 to BG: follow-up protective order
agreement signatures
0.1/$50
[382] 08/11/14 to BG: follow-up again on
agreement signatures
0.1/$50
19
The related billing entries are as follows:
[339] 06/06/14 review/analyze MTD [11],
conference clients (2.1 hours for
LAD n/c)
[354] 06/20/14 review/analyze refiled MTD
[21, 22] (.5 hours for NJ LAD part not
charged)
[356] 06/22/14 review/analyze amended MTD [24]
(.2 hours for NJ LAD part not charged)
[376] 07/21/14 draft 7.1 letter [31]
38
4.1/$2,050
1.1/$550
0.8/$400
0.2/$100
On December 19, 2014, this Court converted Defendants’
Motion to Dismiss to a summary judgment motion.
12/19/2014
Opinion [Docket No. 38].
It was a relatively short and
straightforward Opinion.
It should not have taken 2.5 hours to
review and “analyze” it.
See billing entries [390] and [391].
One hour will be permitted.
Plaintiffs billed over twenty hours for legal research and
drafting of the Plaintiffs’ Motion for Summary Judgment.
Court finds these fees excessive.
The
For the most part, the briefs
regurgitated the same worn arguments Plaintiffs had argued
before.
Because Plaintiffs did prevail, however, reasonable
fees will be allowed.
Four hours is more than reasonable.20
[379] 08/01/14 legal research opposition to MTD
(2.9 hours for NJ LAD part not charged)
[380] 08/04/14 draft opposition to MTD [33]
(3.1 hours for NJ LAD part not charged)
[383] 08/11/14 review/analyze reply brief [34]
(1.1 hours for NJ LAD part not charged)
[384] 08/11/14 draft letter: reply brief
improperly filed [35]
20
6.1/$3,050
7.7/$3,850
3.1/$1,550
0.2/$100
The following fees were unreasonable:
[395] 02/17/15 review/analyze BG amended
MSJ [41]
[398] 2/18/15 legal research/first draft MSJ
[400] 2/19/15 legal research/second draft MSJ
[401] 02/20/15 draft letter: deadlines [44]
[402] 2/20/15 final draft MSJ
[404] 02/24/15 review BG’s 7.1 letter [46]
[406] 3/2/15 review/analyze six volume
500 + pages administrative record
[407] 03/02/15 amend MSJ; administrative
record [47]
39
1.3/$650
7.3/$3,650
7.5/$3,750
0.2/$100
6.6/$3,350
0.1/$50
6.8/$3,400
0.2/$100
On July 14, 2015, the Court conducted a hearing on the
parties’ motions for summary judgment.
Plaintiffs billed 15.8
hours for the hearing and for preparation on the day before the
hearing.
See billing entries [433], [434].
In light of the
fact that this Court found much of what counsel was arguing to
be persiflage, pettifoggery, or pure obfuscation, in addition to
the inferior quality of the briefing – which reargued points
already rejected below - the total amount of fees requested
cannot stand.
The Court will disallow such fees.
Moreover,
spending 7.7 hours for the “preparation” for the summary
judgment hearing and “consult with francis j. Hartman, esquire”
is excessive.
See billing entry [433].
Moreover, it is not
clear how long the consultation with Mr. Hartman lasted and why
[408] 03/02/15 amend MSJ; transcripts [48]
[410] 03/09/15 from BG: agreed to extend
motion return date
[411] 03/09/15 to BG: extend deadline on [42]
[412] 03/09/15 draft letter extend
deadlines [50]
[415] 04/06/15 review/analyze/research MSJ
opposition [52]
[418] 04/09/15 first draft/research MSJ
reply brief
[419] 04/13/15 final draft/research MTA
reply brief [54] (7.1 hours for NJLAD
not charged)
[420] 04/13/15 final draft/research MSJ
reply brief [55]
[421] 04/14/15 draft MSJ reply amendment [56]
[422] 04/21/15 draft amendment to MSJ
reply [57]
[424] 04/21/15 draft amendment to MSJ [59]
40
0.1/$50
0.1/$50
0.1/$50
0.2/$100
8.1/$4,050
7.2/$3,600
0.0/$0
6.1/$3,050
0.2/$100
1.0/$500
1.0/$500
such consultation was needed when the issue before the Court was
simply whether Plaintiffs were the prevailing parties.
The
Court will disallow these hours.21
Moreover, Plaintiffs filed an unauthorized submission,
aptly characterized as a sur-reply, without this Court’s
permission.
8/12/2015 Letter [Docket No. 66].
Mr. Epstein
claims that the sur-reply serves as “Plaintiffs’ Notice of
Supplemental Authority as permitted by numerous New Jersey
District Court’s adaption of” Federal Rule of Appellate
Procedure 28(j).22
Id. (citing Atkins v. Capri Training Ctr.,
Inc., 2014 WL 4930906, at *10 (D.N.J. Oct. 1, 2014), appeal
dismissed (Feb. 6, 2015) and Hoffmann-La Roche Inc. v. Apotex
Inc., 2013 WL 323335, at *2 (D.N.J. Jan. 25, 2013)).
As a
21
In addition, the Court finds that the expenditure of 1.4
hours, as set forth in billing entries [427] to [432], was
unnecessary. While there was some confusion on the part of the
parties as to the hearing procedure – and the Court held a brief
conference, see billing entry [432], 0.5 hours is sufficient.
Accordingly, 0.9 hours will be disallowed.
22
FRAP 28(j) reads, in relevant part:
Citation of Supplemental Authorities. If pertinent and
significant authorities come to a party’s attention
after the party’s brief has been filed--or after oral
argument but before decision--a party may promptly
advise the circuit clerk by letter, with a copy to all
other parties, setting forth the citations. The
letter must state the reasons for the supplemental
citations, referring either to the page of the brief
or to a point argued orally. The body of the letter
must not exceed 350 words.
41
preliminary matter, the Federal Rules of Appellate Procedures
obviously do not apply in the District Court.
Additionally, the
district court cases cited by Plaintiff do not stand for the
proposition for which Mr. Epstein uses them.
Neither Atkins nor
Hoffman-La Roche apply a District of New Jersey “adaption” of
FRAP 28(j), as Mr. Epstein suggests.
Rather, many courts in the
District of New Jersey permit the filing of a notice of
supplemental authority, but only with leave of the court either
via the filing of a formal motion or an informal request for
leave to file such a notice.
See, e.g., Ocasio v. CoreLogic
Credco, LLC, No. CV 14-1585 (NLH/JS), 2015 WL 5722828, at *5
(D.N.J. Sept. 29, 2015) (granting defendant’s motion to provide
supplemental authority in support of summary judgment motion);
City Select Auto Sales, Inc. v. David Randall Associates, Inc.,
296 F.R.D. 299, 304 n. 1 (D.N.J. 2013) (granting parties’
motions for leave to cite supplemental authority); Krug v. Focus
Receivables Mgmt., LLC, 2010 WL 1875533, at *2 n. 1 (D.N.J. May
11, 2010) (granting plaintiffs’ motion to submit supplemental
authority); Smith v. Johnson & Johnson, 2008 WL 5427802, at *13
(D.N.J. Dec. 30, 2008), order aff’d, appeal dismissed, 593 F.3d
280 (3d Cir. 2010) (denying plaintiff’s motions to file
supplemental authority).23
23
Regardless, the Court reviewed Mr. Epstein’s letter,
notifying the Court of a recent decision of the Ninth Circuit
42
The unauthorized sur-reply was a mere two page document,
yet Mr. Epstein billed 2.9 hours, or $1,450, preparing it.
billing entry [438].
See
Nonetheless, the unauthorized submission
prompted the Defendants to expend resources and respond.
Plaintiffs’ sur-reply was unauthorized and unhelpful.
The three
hours billed for drafting the letter and reviewing Defendants’
response will not be permitted.24
By Opinion dated August 15, 2015, the Court found that
Plaintiffs were the prevailing parties, but that a reduction in
fees was “clearly warranted given the bad faith conduct of Mr.
Court of Appeals, T.B. ex rel. Brenneise v. San Diego Unified
Sch. Dist., 806 F.3d 451 (9th Cir. 2015), cert. denied sub nom.
San Diego Unified Sch. Dist. v. T.B., 136 S. Ct. 1679 (2016).
Ultimately, the Court did not rely upon Plaintiffs’ supplemental
authority in its August 2015 Opinion. The decision did not
present a significant change in the relevant law and merely
explained that “it should be recognized that the statute
specifies that the comparison of the settlement offer versus the
result of litigation must be made from the perspective of the
parents.” Id. at 478. This is simply a restatement of the
statute itself, which states that “[a]ttorneys’ 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 . .
. the court or administrative hearing offer 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) (emphasis added).
24
The following entries will not be permitted:
[438] 08/12/15 draft/research MSJ 28j
letter [66]
[440] 08/21/15 review/analyze BG 28j letter
Opposition [68]
43
2.9/$1,450
0.1/$50
Epstein.”
8/15/2015 Opinion at 35 [Docket No. 69].
The Court’s
ruling explicitly left only two issues that needed to be
briefed:
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.
Defendants viewed this demand to be impermissible
under IDEA. 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 to be further developed. The Court will
convene a conference to set a briefing schedule.
Id.
It should have been obvious that further discovery was not
needed, but that the Court needed a better understanding of
Plaintiffs’ positons as to why they delayed settlement of this
matter.
Yet, Plaintiffs expended hours upon hours seeking
discovery before this Court put a stop to it.
Pursuant to
Magistrate Judge Schneider’s Scheduling Order on October 8,
2015,25 Plaintiffs were directed to “serve a letter brief
25
Suspiciously, Mr. Epstein did not bill for reviewing this
Scheduling Order [Docket No. 75], even though he billed for
reviewing all other orders, including Magistrate Judge
Schneider’s Standing Order [Docket No. 76], which Judge
Schneider issued minutes after his Scheduling Order. This Court
cannot help but think that this gave Mr. Epstein “cover” to
offer an excuse for his late filing.
44
regarding whether plaintiff is entitled to discovery in
connection with plaintiffs’ motion for attorney’s fees and costs
by 10/22/2015.”
See Scheduling Order [Docket No. 75].26
Plaintiffs failed to timely comply.
More than one month
later, on November 15, 2015, Plaintiffs filed a “First Motion
for Discovery” [Docket No. 77].
The filing was in blatant
disregard of Judge Schneider’s Order.
It was late.
It was not
a letter brief.
It failed to set forth what discovery was
needed and why.
It is hard to comprehend Mr. Epstein’s flagrant
disregard of court orders.
These fees will not be allowed.
Because it appeared to this Court that Plaintiffs were,
once again, attempting to drag out the proceedings under the
guise of the need for discovery, the Court ordered oral
argument.
The parties appeared before the Court on December 9,
2015 to address Plaintiffs’ improper filing of a Motion to
Compel Discovery.
At the hearing, Mr. Epstein took the
remarkable position that Judge Schneider’s September 2, 2015
Order requiring discovery was still in effect even though Judge
Schneider subsequently ordered Plaintiffs to serve a letter
26
Incredulously, in the interim, Plaintiffs filed a request
for default after this Court ruled [Docket No. 79]. The Court
immediately issued an order denying the request as frivolous
[Docket No. 80]. Plaintiffs prudently seek no reimbursement for
the time expended drafting the request for default, see billing
entry [457], though Plaintiffs do seek reimbursement for the
time spent reviewing the Court’s denial of the request, see
billing entry [458]. The latter will be denied.
45
brief addressing why discovery was even necessary.
is, a specious argument.
It was, and
Mr. Epstein’s position as to why the
Plaintiffs needed discovery was almost surreal.
For what?
Mr.
Epstein answered the question as follows:
MR. EPSTEIN: We had no discovery in this case, we had
no disclosure in this case, we had no answer in this
case, I don’t know what their defenses are and we
don’t -- we don’t have the underlying facts as to what
happened with the discovery, why it was delayed for
three months, and we don’t have the underlying facts
as to what was the problem with the defense agreeing
to the neurophych [sic] to monitor and consult here.
12/9/2015 Tr. 5:15-22 [Docket No. 87].
But Defendants from
almost day one were not interested in pursuing defenses then or
now.
Sadly, this Court remains firmly convinced that Mr.
Epstein sought discovery solely to delay this case and churn
fees.
Accordingly, 11.9 hours related to this misconduct will
be disallowed.27
What remains are the fees spent by Plaintiffs in preparing
their motion for fees.
By this Court’s calculation, Plaintiffs
27
The following entries related to the discovery issue are
denied in their entirety:
[451] 10/07/15 draft joint discovery plan [74]
[454] 11/25/15 draft/research/discovery motion
as ordered [77]
[456] 11/30/15 review BG letter [78]
[458] 12/01/15 review order [80]
[459] 12/09/15 prepare/attend 1.0 hour hearing
review minute entry [81]
[460] 12/10/15 review/analyze order/conference
clients [82]
46
1.7/$850
6.1/$3,050
0.1/$50
0.1/$50
3.5/$1,750
0.4/$200
seek $16,800 related solely to the fee pleadings.
entries [461]-[479].
This amount is excessive.
See billing
From January 9,
2013 to August 27, 2013, Plaintiffs’ counsel billed $13,000 for
reviewing the Plaintiffs’ records, meeting with experts,
reviewing expert reports, and filing a due process petition.
See Billing entries [2]-[118].
Yet, in comparison, from
December 28, 2015 to February 23, 2016, Plaintiffs’ counsel
billed significantly more, including $2,500 which was
inexplicably billed for “Review [of] Administrative and District
Court record and transcripts.”
See billing entry [461].
Something is wrong with this picture.
The Court will therefore
disallow all fees related to the fee application, see billing
entries [461]-[479], except for four hours to account for the
preparation of Plaintiffs’ application for fees relating to the
filing of the due process petition, which this Court will allow.
Accordingly, for the period between the filing of the
Complaint [329] to the conclusion of this matter [479], the
Court finds that Mr. Epstein reasonably billed 25.6 hours.
The
Court, however, is compelled once again to ask whether this
number should be reduced further in light of Mr. Epstein’s
unprofessional, combative, and dilatory conduct.
And, once
more, the answer is unmistakably clear -- these fees must be
reduced.
47
At every step in this litigation, Mr. Epstein has done
nothing except foster delay, waste resources, and engender illwill with a School District that was willing to provide J.L. the
education the Plaintiffs sought.
To grant him reasonable
attorney’s fees for this conduct, without the reduction that is
mandated by IDEA, would merely reward his inappropriate and
unacceptable conduct.
See 20 U.S.C. § 1415(i)(3)(F) (“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 shall reduce, accordingly, the amount of attorney’s fees
awarded under” IDEA) (emphasis added); Johnson, 949 F.2d at 1004
(“[A]s Congress recognized when it mandated reduced fees for a
parent who ‘unreasonably protracted the final resolution,’
needless litigation frustrates the [IDEA’s] objectives by
fostering delay, exacerbating ill-will among parties who should
cooperate in educating the handicapped child, and wasting the
resources of all concerned.”).
As explained more fully above, see supra Section II.A.
pp. 30-33, where a parent’s attorney unreasonably protracts the
resolution of the litigation or engages in outrageous and
unconscionable conduct, a court may deny an award of fees
altogether.
See, e.g., M.G., 386 F. App’x at 188 n. 3, 189
(finding that “[i]f after following the proper procedures, the
48
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” and noting that “the egregiousness of [Mr. Epstein’s]
conduct alone could plausibly justify the outright denial of
attorney’s fees”); Deptford, 279 F. App’x at 126 n. 2 (finding
that “an award of attorneys’ fees would not be proper on the
particular facts of this case . . . 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 single
day.”); J.T., 118 F. App’x at 607 (affirming district court’s
decision to award no fees because parents and their attorney,
Mr. Epstein, unreasonably and unnecessarily delayed the
resolution of the dispute).
Likewise, when the prevailing party
acts in bad faith and engages in dilatory tactics, a court may
reduce the fee award.
See Graziano, 950 F.2d at 114 n. 13;
Paoli, 221 F.3d at 463.
This Court reiterates its finding that Mr. Epstein has
unnecessarily and unreasonably protracted the resolution of this
litigation for years.
What’s more, he has done so in an
unprofessional, at times unethical, and hostile manner.
Accordingly, the Court will reduce Mr. Epstein’s reasonable
attorney’s fees by approximately seventy-five percent.
49
In this
Court’s view, any higher award would only serve to undermine
IDEA’s objectives and provide Mr. Epstein with an unwarranted
windfall.
The Court will allow Plaintiffs to recover fees for
6.5 hours billed by Mr. Epstein at the applicable reasonable
hourly rate, which is yet to be determined.
C. Pre-Due Process Petition
Of the fees billed prior to the filing of the due process
petition this Court will permit, several appear to relate to
clerical tasks.
Mr. Epstein affirms in his Affidavit of
Services that he did not have any paraprofessionals work on the
case, but that tasks he performed “which could have been
performed by a paralegal were billed at $150 per hour.”
Affidavit of Services ¶ 25 [Docket No. 83-2].
Yet, the Court
does not find even one entry where Mr. Epstein billed at $150
per hour although he billed for many clerical tasks.28
Based on the description, the tasks described in the
following billing entries should have been billed at the paraprofessional rate of $150 per hour: [3]-[7]; [10]-[12]; [16];
[29]; [31]; [34]; [36]; [40]; [43]-[44]; [48]; [63 (3 hours)];
28
Defendants have not objected on this ground but this
Court has an obligation to ensure that Mr. Epstein’s
representations to the Court are true. See McKenna, 582 F.3d at
459 n. 13
50
[64]-[65]; [73]; [83]-[86]; [98]; [100]; [102]; [113]; [116];
[119]; [392]; [394]; [436]; [439]; and [445].29
29
The following billing entries are disallowed as
duplicative or subsumed within another entry. If two entries
were made on the same day, for the same or similar services, the
Court disallowed the greater.
[22] 2/15/13 from KL: dr. nagel [sic] expert
report
0.2/$100
(Denied as duplicative of [24])
[71] 6/10/13 from KL: update case status
0.1/$50
(Denied as duplicative of [70])
[88] 7/26/13 prep and attend telephone
0.5/$250
conference with DL
(Denied as duplicative of [90])
[122] 8/27/13 KL: case status
0.1/$50
(Denied as duplicative of [123])
[128] 08/30/13 case status
0.1/$50
(Denied as duplicative of [129])
[141] 09/09/13 OSEP: mediation/resolution Notice 0.1/$50
(Denied as duplicative or subsumed within [137])
[142] 09/10/13 OSEP: mediation/resolution Notice 0.1/$50
(Denied as duplicative or subsumed within [137])
[150] 09/19/13 OSEP: resolution notice
0.1/$50
(Denied as duplicative or subsumed within [137])
[161] 09/28/13 Review OSEP: transmittal notice
0.1/$50
(Denied as duplicative or subsumed within [156])
[189] 10/07/13 kl: conference call while
driving the court [sic]
0.5/$250
(Denied as improper double billing)
[252] 12/6/13 DN: review final report
0.4/$200
(Denied as duplicative of [254])
[253] 12/6/13 DN: final report
0.2/$100
(Denied as duplicative of [254])
[257] 12/7/13 DN: final report
0.2/$100
(Denied as duplicative of [256])
[272] 12/9/13 DN: final report
0.1/$50
(Denied as duplicative of [271])
[283] 12/14/13 KL: case status Office conference
with clients
0.7/$350
[285] 12/14/13 KL: Analysis of offers
0.3/$150
[286] 12/15/13 KL: Review DN bill
0.1/$50
(Each denied as duplicative or subsumed within the
others)
51
Accordingly, the Court will permit 6.9 hours, the ones
identified above, at the paraprofessional rate and the remaining
19.1 pre-petition hours at the reasonable hourly rate, to be
determined.
D. Total Reasonable Hours Expended
Mr. Epstein, as the attorney for the prevailing party, is
entitled to “a reasonable fee, not a windfall.”
App’x at 189.
M.G., 386 F.
Accordingly, as set forth above, Plaintiffs are
entitled to recover attorney’s fees for 19.1 hours billed prior
to filing the due process petition and 6.5 hours billed during
the federal court litigation, for a total of 25.6 hours, plus
6.9 hours at the paralegal rate of $150 per hour.
For the
reasons set forth below, the Court must a hold a hearing to
[443] 9/2/15 from BG: conference dates
(Denied as duplicative of [442])
[444] 9/2/15 from BG: conference dates
(Denied as duplicative of [442])
[447] 9/2/15 respond to BG: reschedule initial
scheduling conference follow-up
(Denied as duplicative of [446])
[449] 9/3/15 review BG letter to reschedule
conference [72]
(Denied as subsumed within [446]).
0.1/$50
0.1/$50
0.1/$50
0.1/$50
The Court cannot help but note that on August 27, 2013, Mr.
Epstein has five billing entries entitled “KL: case status.”
52
determine the reasonable hourly rate to be applied in this
matter to the 25.6 attorney hours.
Even assuming the hourly rate that Plaintiffs request,
Plaintiffs would be entitled to recover a total amount of
$12,800 in reasonable attorney’s fees.
In this Court’s view,
this is the type of award that would have appropriately been
recovered in a straightforward case.
This could have been a
straightforward case, if only Mr. Epstein had litigated in good
faith from the start.
Had he done so, Mr. Epstein would have
prepared and filed the due process petition.
The matter would
have been resolved expeditiously, as Defendants were eager to
accede to Plaintiffs’ reasonable demands.
J.L. would have
started the school year with the accommodations sought in the
due process petition instead of being forced to wait until the
following semester.
Plaintiffs would have then recovered their
reasonable attorney’s fees to properly compensate them for
reaching the best result for J.L. -- a successful, quick, and
amicable resolution to the dispute.
E. Reasonable Hourly Rate
To award Plaintiffs reasonable attorney’s fees, this Court
“must calculate the amount of the award beginning with the
lodestar, which is a reasonable hourly rate multiplied by a
reasonable number of hour expended.”
Ullman v. Superior Court
of Pennsylvania, 603 F. App’x 77, 80 (3d Cir. 2015) (citing
53
Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 177 (3d Cir.
2001).
As outlined above, the Plaintiffs are entitled
attorney’s fees for 25.6 hours billed at a reasonable hourly
rate, to be determined by this Court.
“[A] reasonable hourly rate should be determined by
examination of the prevailing market rates in the relevant
community at the time of the fee petition, not the time the
legal services were performed.
A court should assess the skill
and experience of the prevailing party’s attorneys and compare
their rates to the rates prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience,
and reputation.”
L.J. ex rel. V.J. v. Audubon Bd. of Educ., 373
F. App’x 294, 296 (3d Cir. 2010) (citing Lanni v. New Jersey,
259 F.3d 146, 149 (3d Cir. 2001); Rode v. Dellarciprete, 892
F.2d 1177, 1183 (3d Cir. 1990)).
Plaintiffs, as the party seeking to recover attorney’s
fees, carry “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.’”
F. App’x at 296 (quoting Lanni, 259 F.3d at 149).
L.J., 373
That burden
is ordinarily met through the submission of “affidavits prepared
by other attorneys in the relevant legal community.”
Access 4
All, Inc. v. Boardwalk Regency Corp., 2012 WL 3627775, at *4
54
(D.N.J. June 28, 2012).
Where that initial burden is met, the
burden shifts to the party disputing the fees to rebut the
reasonableness of the proposed hourly rate with record evidence.
L.J., 373 F. App’x at 296 (citing Smith v. Philadelphia Hous.
Auth., 107 F.3d 223, 225 (3d Cir. 1997)).
The Third Circuit has
held that “[i]f reasonable market rates are in dispute, a
hearing must be conducted.”
M.G., 386 F. App’x at 189 (emphasis
in original) (quoting Lanni, 259 F.3d at 149).
Plaintiffs claim that, in light of Mr. Epstein’s skill and
expertise in the area of special education law, as well as his
lengthy legal career, Mr. Epstein is entitled to an hourly rate
of $500.
Plaintiffs submit the affidavits of three attorneys,
among other documents, in support of the requested hourly fee.
Appendix to Affidavit of Services.
Defendants, in turn,
challenge this rate as excessively high compared to attorneys of
similar skill, experience, and reputation in the relevant
market.30
In support of their challenge, Defendants submit a
certification from Mr. Gorman setting forth that he has
consulted with various well-respected, experienced attorneys who
represent children and parents in special education matters and
30
Mr. Epstein has been reminded more than once “of his
obligation to not treat ‘his fee application as an opening offer
rather than a carefully calculated and honest fee request.’”
T.B. v. Mount Laurel Bd. of Educ., 2011 WL 2473327, at *9
(D.N.J. June 20, 2011) (quoting M.G., 2009 WL 3489358, at *6).
Apparently, he has not heeded this reminder.
55
that none of these attorneys have an hourly rate exceeding $400.
Defs. Opp. Br. at 22 [Docket No. 88]; Gorman Certification
[Docket No. 88-1].31
The Court finds this certification to be
sufficient to contest Plaintiffs’ requested hourly rate.
Accordingly, since Defendants dispute Mr. Epstein’s hourly rate,
this Court must hold a hearing as to the reasonable market rate
for attorneys of similar skill, experience, and reputation to
31
Mr. Epstein claims that “the (none too happy) attorneys
Defendants’ counsel certified were ‘consulted’ without their
informed consent. Defendant’s counsel failed to disclose to
them that the purpose of his stealth inquiry was to covertly
support Defendant’s opposition seeking a lower rate for their
parent attorney practice rate in this Court.” Pls. Reply Br. at
12 n. 1. In response, Mr. Gorman requested leave to file a
limited sur-reply, which the Court now grants, and submitted a
letter stating that he had obtained the informed consent of the
attorneys with whom he consulted regarding their hourly rates.
He also submitted signed certifications from each of the five
attorneys establishing the same. 3/4/2016 Letter [Docket No.
92].
The Court is appalled, but unsurprised, by the cavalier way
in which Mr. Epstein hurls such outlandish and serious
accusations without an iota of evidence. To add insult to
injury, Mr. Epstein subsequently filed a motion requesting that
the Court deny Defendants’ request to file a sur-reply or, in
the alternative, for leave to take discovery from the lawyers
with whom Mr. Gorman consulted [Docket No. 93]. This is yet
another example of Mr. Epstein’s scorched earth litigation
strategy. The Court, of course, grants Mr. Gorman’s request to
file the limited sur-reply. Any attorney should be granted the
opportunity to defend himself against such baseless accusations.
To the extent Mr. Epstein moves for leave to take discovery from
the attorneys with whom Mr. Gorman consulted regarding whether
Mr. Gorman obtained their informed consent, the motion is
denied. The Court finds that such discovery is merely a
collateral issue that Mr. Epstein seeks for the sole purpose of
continuing to rack up fees. The Court will not tolerate such
conduct any further. Accordingly, Plaintiffs’ motion [Docket
No. 93] is denied in its entirety.
56
Mr. Epstein, before it can determine the total amount of
attorney’s fees to which Plaintiffs may be entitled.
While this Court is not yet in a position to determine the
reasonable hourly rate in this matter, it feels obliged to
briefly address Plaintiffs’ position that they are entitled to a
$500 per hour rate because of Mr. Epstein’s extensive experience
in special education matters.
Mr. Epstein cites to a separate action before Judge Noel H.
Hillman, J.R. v. N.J. Department of Education, et al., Civil
Action No. 11-5060, in which Judge Hillman approved his
requested hourly rate of $550, as an example of where his
conduct was instrumental in bringing about a settlement and the
Court awarded substantial fees.
See Affidavit of Services ¶ 31;
2/3/2015 J.R. Transcript [Docket No. 83-3].32
It is encouraging
to see that Mr. Epstein has litigated one case in good faith in
this District.33
Mr. Epstein has had a history in this District
32
Plaintiffs also tout T.B. v. Mount Laurel Bd. of Educ.,
2012 WL 1079088, at *4 (D.N.J. Mar. 30, 2012), as an example of
a case where the district court granted Mr. Epstein’s requested
hourly rate. In T.B., however, the defendant provided no record
evidence to dispute Mr. Epstein’s requested rate. The district
court held that, without proper evidence to refute the requested
rate, it was “constrained to approve Mr. Epstein’s rate of $400
per hour as reasonable.” Id. The court nonetheless found that
the number of hours billed by Mr. Epstein was unreasonable and
reduced his requested fee amount. Id. at *6.
33
The Court cannot help but note that, since Judge
Hillman’s approval of the parties’ settlement in J.R., Mr.
Epstein has filed four motions in that matter, seeking to
57
of engaging in unreasonable behavior and overstating his fees.
See, e.g., M.G., 386 F. App’x at 188-89 (“We agree that the fee
petition submitted by Epstein was seriously deficient.
As the
District Court thoroughly explained, the quality of Epstein’s
representation in this case was woeful.
Furthermore, the hours
Epstein billed were not only excessive, but also either grossly
negligent or fraudulent. . . . Considered together, the
inaccuracies and exaggerations that plague Epstein’s fee request
seem consistent with the District Court’s finding that his
submission constituted an improper attempt to maximize his fee
award, as opposed to a good-faith representation of his billing
rate and the hours he reasonably expended obtaining relief for
M.G.”); L.J., 373 F. App’x at 298 (affirming district court’s
rejection of Epstein’s $400 hourly rate and noting that “[t]he
District Court articulated its reasoning for awarding a number
less than Epstein had been awarded in the past: his skill,
enforce and/or modify the terms of the parties’ settlement and
an award of additional attorney’s fees. Civil Action No. 115060, Docket Nos. 252, 256, 265, 282. Additionally, apparently
displeased that his submissions had not been addressed as
quickly as he would have liked, Mr. Epstein sent Judge Hillman a
letter -- oozing with sarcasm -- threatening to seek mandamus if
the court did not address his submissions as soon as possible.
Civil Action No. 11-5060, Docket No. 273 (“Perhaps Your Honor
would prefer Plaintiffs seek mandamus.”). The Court makes no
observations as to the merits of Mr. Epstein’s submissions in
that action, but instead merely observes that Mr. Epstein’s
take-no-prisoners approach to litigation remains in full swing,
and Mr. Epstein continues to incur fees, over a year and a half
after Judge Hillman approved the parties’ settlement.
58
experience, and performance in the litigation before the
District Court was unprofessional and contentious.
In the
District Court’s view, this unprofessionalism also warranted a
rate at the low end of what had been recently commanded for
cases of similar complexity.
This was a reasonable
determination.”); Deptford, 279 F. App’x at 126 n. 2 (noting
that, even if plaintiffs were the prevailing party, “an award of
attorneys’ fees would not be proper on the particular facts of
this case.
As the District Court noted, the relief achieved
here was ‘scant and unimpressive,’ and Appellees achieved no
relief on the LRE issue.
Moreover, Appellees’ attorney [Mr.
Epstein]--either through gross carelessness or worse--initially
sought fees that included 60 hours billed in a single day.”);
C.G. & R.G. v. Winslow Twp. Bd. of Educ., 2015 WL 7760356, at *9
(D.N.J. Dec. 2, 2015) (accepting stipulated $425 hourly rate,
but noting “Mr. Epstein’s history of egregious conduct in fee
requests in the District of New Jersey” and of “grossly
overstating his fees,” and finding that “Mr. Epstein’s
inappropriate reaching for fees shocks the conscience of the
Court.”); T.B., 2011 WL 2473327, at *4-5 (“Mr. Epstein has been
repeatedly warned about his carelessness. . . . there are only
so many times Mr. Epstein can come before the Court claiming
that an error in his favor was a careless error rather than
59
professional incompetence before the neglect becomes
inexcusable.”).
Mr. Epstein’s pattern of overstating his fees and engaging
in unprofessional and unreasonable behavior has continued into
this litigation.
In this Court’s view, to say that Mr.
Epstein’s “skill, experience, and performance in the litigation
before” this Court has been “unprofessional and contentious” is
an understatement.
See L.J., 373 F. App’x at 298.
Mr.
Epstein’s skill, experience, and reputation will and must be
incorporated into the Court’s determination as to the
appropriate reasonable hourly rate.
Carey v. City of Wilkes-
Barre, 496 F. App’x 234, 236 (3d Cir. 2012) (reasonable hourly
rate is one that is “in line with those prevailing in the
community for similar services by lawyers of reasonably
comparable skill, experience and reputation.”) (quoting Blum v.
Stenson, 465 U.S. 886, 895 n. 11 (1984)); L.J., 373 F. App’x at
296 (“A court should assess the skill and experience of the
prevailing party’s attorneys and compare their rates to the
rates prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and
reputation.”).
Accordingly, at this time, the Court finds that Plaintiffs
are entitled to attorney’s fees for 25.6 hours billed at an
hourly rate to be determined at a later date after the Court
60
conducts a hearing, $1,035 in paralegal fees for 6.9 hours
billed at an hourly rate of $150, and $11,314.34 in costs and
retainer and expert fees.
The Court reserves as to the total
amount of attorney’s fees to which Plaintiffs are entitled until
such a time that the Court determines the appropriate reasonable
market rate after a hearing or the parties stipulate to a
reasonable hourly rate.34
F. Costs and Expert Fees
In addition to attorney’s fees, Plaintiffs also seek to
recover $11,314.34 in costs and fees, representing $2,314.34 in
administrative and other costs, such as filing fees, traveling
expenses, and copying services, $8,000 in retainer fees, and
$1,000 in expert fees for services rendered by Dr. Nagele
between August 17, 2013 and December 10, 2013.
Appendix to
Affidavit of Services at 14 [Docket No. 83-3].
34
The Court notes, once again, for the benefit of the
parties that, even at Mr. Epstein’s requested $500 per hour
rate, Plaintiffs would only be entitled to recover $12,800 in
attorney’s fees, compared to the initial amount requested of
$149,900. The Court also notes, consistent with the Third
Circuit’s directive in M.G., 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.” M.G., 386 F. App’x at
189. The Court further notes that Defendants may likely agree,
without conceding the appropriate market rate, to Plaintiffs’
requested rate rather than subjecting themselves to another,
perhaps lengthy hearing involving the testimony of various
attorneys.
61
Under the IDEA, a prevailing party may recover reasonable
attorney’s fees and costs related to the litigation.
§ 1415(i)(3)(B)(i)(I).
20 U.S.C.
While “[t]he fee-shifting provision of
[IDEA] authorizes the recovery of reasonable attorneys’ fees and
other enumerated costs,” it “does not authorize a prevailing
parent to recover fees for services rendered by an expert
educational consultant in IDEA proceedings.”
A.W. v. E. Orange
Bd. of Educ., 248 F. App’x 363, 365 (3d Cir. 2007) (citing
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291,
294 (2006) (holding that the fee-shifting provision of IDEA does
not authorize prevailing parents to recover fees for services
rendered by experts in IDEA actions)).
Under Section 504 of the
Rehabilitation Act, however, a prevailing party may recover
reasonable fees for expert services.
L.T. ex rel. B.T. v.
Mansfield Twp. Sch. Dist., 2009 WL 2488181, at *2 (D.N.J. Aug.
11, 2009) (noting that “the Rehabilitation Act incorporates the
remedies available under the Civil Rights Act of 1964, which
specifically provides for the taxation of expert fees.”).
Defendants do not contest Plaintiffs’ request for $2,314.34
in administrative and other costs and expenses and $8,000 in
retainer fees.
Accordingly, Plaintiffs, as the prevailing
party, are entitled to reimbursement of these costs pursuant to
IDEA and Section 504 of the Rehabilitation Act.
62
Defendants, however, dispute Plaintiffs’ request for $1,000
in expert fees for Dr. Nagele’s services.
According to
Defendants, Defendants have already paid Dr. Nagele’s costs and
fees through the final judgment issued by Judge Schuster on
January 28, 2014.
Defs. Opp. Br. at 30-31 [Docket No. 88].
Judge Schuster ordered that Defendants pay $5,587 to reimburse
the Plaintiffs for expert “expenses incurred for services and
evaluations . . . representing the full amount requested.”
Schuster Order at 3-4 [Docket No. 65-2, Ex. 23].
Defendants
also cite to Plaintiffs’ December 9, 2013 letter demanding that
Defendants reimburse Plaintiffs “$5,587.00 for all out of pocket
expenses for privately obtained evaluations and services since
8/28/11.”
12/9/2013 Letter ¶ 11.
Accordingly, Defendants
contend that the $5,587 already paid by Defendants represents
all expert fees and costs incurred by Plaintiffs from August 28,
2011 through the date of Judge Schuster’s Order on January 28,
2014 and, therefore, it is impermissible for Plaintiffs to now
request reimbursement of additional expert fees incurred during
this time period.
Plaintiffs, in turn, claim that $5,587 represented the full
amount that Dr. Nagele had billed Plaintiffs as of the date the
demand was initially made and, therefore, does not limit
Plaintiffs’ ability to obtain reimbursement for expert fees
billed later.
Plaintiffs note that Dr. Nagele had not yet
63
billed them this $1,000 at the time they made the demand.
Reply
Affidavit ¶¶ 24, 26-28 [Docket No. 90-2].35
The Billing Statement Summary provided to Defendants set
forth a series of expert fees and costs for services rendered
from January 11, 2012 through May 22, 2013.
Summary [Docket No. 65-1, Ex. 8].
that time was $5,587.
Id.
Billing Statement
The total amount billed at
As Plaintiffs had not yet been
billed the additional $1,000 by Dr. Nagele, they could not have
included this expense in its demand.
Perhaps Plaintiffs should
have been more forthright with Defendants regarding the
inevitable additional expert fees, for, while it is true that
they had not yet been billed yet, many, if not all, of the
services had already been rendered by the time of Plaintiffs’
request.
Nonetheless, Plaintiffs did demand that Defendants
reimburse them for an amount “TBD for all attorney’s fees and
expert’s fees incurred in the case.”
35
12/9/2013 Letter ¶ 12.
Plaintiffs appear to suggest that this “expert fee” would
not have been covered in Plaintiffs’ demand for reimbursement
“for all out of pocket expenses for privately obtained
evaluations and services since 8/28/11” rendered by Dr. Nagele,
regardless of when the services were rendered or when Plaintiffs
were billed. See Reply Affidavit ¶¶ 24-26 (“The $5,587 in
reimbursements . . . did not include expert’s fees. Plaintiffs
did not request reimbursement for their expert’s fees.
Plaintiffs[’] only expert fee is $1,000 for Dr. Nagele’s expert
services from 8/17/13 to 12/10/13.”). The Court sees no
relevant distinction between the expenses covered by the $5,587
amount and the expenses for which Plaintiffs seek reimbursement
now, except for when the Plaintiffs were billed.
64
The Court finds that the parties’ agreement did not limit
reimbursement of expert fees for the entire litigation to
$5,587.
That amount represented merely “all out of pocket
expenses” for experts’ services at the time the demand was made,
but Plaintiffs had not yet been billed the additional $1,000 by
Dr. Nagele.
Although Plaintiffs did not disclose the additional
$1,000 in expert fees in the underlying administrative
proceeding, Plaintiffs, as the prevailing party, are entitled to
reimbursement of expert fees under Section 504 of the
Rehabilitation Act.
Accordingly, Plaintiffs’ request for
reimbursement of this expert fee will be granted.
G. Defendants’ Request for Fees
Defendants also contend that they are entitled to recover
their own attorney’s fees under Federal Rule of Civil Procedure
11.
Defs. Opp. Br. at 32-33 [Docket No. 88].
Rule 11(b)
provides, in relevant part:
By presenting to the court a pleading, written motion,
or other paper . . . an attorney or unrepresented
party certifies that to the best of the person’s
knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances: (1) it is
not being presented for any improper purpose, such as
to harass, cause unnecessary delay, or needlessly
increase the cost of litigation; (2) the claims,
defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law; . . . .
Fed. R. Civ. P. 11(b)(1)-(2).
65
Defendants argue that, throughout this litigation,
Plaintiffs have acted frivolously, “improperly, unnecessarily
delayed this proceeding, and needlessly increased the cost of
litigation.”
Defs. Opp. Br. at 32.
Therefore, in Defendants’
view, Plaintiffs have violated Rule 11(b) and should be
sanctioned pursuant to Rule 11(c).
Rule 11(c)(1), however, states that a “motion for sanctions
must be made separately from any other motion and must describe
the specific conduct that allegedly violated Rule 11(b).”
Additionally, Rule 11(c) contains a so-called safe harbor
provision which dictates that the motion must first be served
upon the adversary, but not filed for twenty-one days, to allow
the adversary to take corrective action.
11(c)(2).
Moreover, sanctions can only be imposed “after notice
and a reasonable opportunity to respond.”
11(c)(1).
Fed. R. Civ. P.
Fed. R. Civ. P.
Accordingly, Defendants’ request for Rule 11
sanctions against Plaintiffs in the form of attorney’s fees,
which was made in their brief in opposition to Plaintiffs’
motion for fees, was improperly made and will be denied.36
36
The Court notes that, while it is well aware of its power
to impose sanctions on its own, pursuant to Rule 11(c)(3), it
chooses not to do so at this time. The Court nonetheless shares
Defendants’ concerns regarding Plaintiffs’ inappropriate conduct
throughout this litigation. While Defendants’ request for
sanctions was improperly made, it was not frivolous, as
Plaintiffs claim. See Pls. Reply Br. at 14. Furthermore, the
Court observes that sanctions pursuant to Rule 11(c) “must be
66
Metro. Life Ins. Co. v. Kalenevitch, 502 F. App’x 123, 125 (3d
Cir. 2012) (affirming district court’s denial of sanctions
request that was not made by separate motion and did not comply
with the twenty-one day safe harbor period).
III. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for
attorney’s fees [Docket No. 83] is granted, in part, denied, in
part, and reserved, in part.
The Court shall hold a hearing, on
a date to be agreed upon by the parties and presented to the
Court, regarding the appropriate reasonable hourly rate.
The
Court, in its discretion, declines to exercise supplemental
jurisdiction over Plaintiffs’ only remaining state law claim,
see 28 U.S.C. § 1367(c)(3), and, therefore, the Plaintiffs’
Motion to Amend [Docket No. 42] is denied as moot.37
Finally,
Plaintiffs’ motion to deny Defendants’ request for leave to file
limited to what suffices to deter repetition of the conduct or
comparable conduct by others similarly situated.” Fed. R. Civ.
P. 11(c)(4). Given Mr. Epstein’s long history of questionable
conduct in this District, see supra Section II.E. pp. 57-60, the
Court is skeptical that any sanction would actually deter Mr.
Epstein from engaging in similar litigation tactics in the
future. The Court, nevertheless, hopes that the significant
diminution of Plaintiffs’ fees alone, as outlined above, will
serve these purposes.
37
By Order dated August 25, 2015, this Court
administratively terminated Plaintiffs’ Motion to Amend, pending
the resolution of Plaintiffs’ request for attorney’s fees
[Docket No. 70]. At the time, the Court did not anticipate that
the fees portion of this matter would take as long as it has.
67
a sur-reply [Docket No. 93] is denied.
An appropriate Order
shall issue on this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: August 19, 2016
68
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