D.S et al v. VOORHEES TOWNSHIP BOARD OF EDUCATION

Filing 21

OPINION. Signed by Judge Renee Marie Bumb on 12/21/2016. (tf, )

NOT FOR PUBLICATION

[Dkt. No. 16, 17]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
D.S. & B.S., individually and
on behalf of M.S.,
Plaintiffs/CounterclaimDefendants,
v.

Civil No. 16-131 (RMB/JS)
OPINION

VOORHEES TOWNSHIP BOARD OF
EDUCATION,
Defendant/CounterclaimPlaintiff.
APPEARANCES:
Catherine Merino Reisman
Reisman Carolla Gran LLP
19 Chestnut St.
Haddonfield, N.J. 08033-1810
Attorney for Plaintiffs/
Counterclaim-Defendants
Howard S. Mendelson
Davis & Mendelson, L.L.C.
20 E. Clementon Rd.
Suite 205-N
Gibbsboro, N.J. 08026
Attorney for Defendant/
Counterclaim-Plaintiff
BUMB, United States District Judge:
THIS MATTER comes before the Court upon motions for summary
judgment filed by both parties in this case,
Plaintiffs/Counterclaim-Defendants D.S. and B.S., individually
and on behalf of their son M.S. (“Plaintiffs”), and

Defendant/Counterclaim-Plaintiff Voorhees Township Board of
Education (“Defendant School Board”).

(Mot. Summ. J. [Dkt. No.

16] (Defendant School Board’s motion); Mot. Summ. J. [Dkt. No.
17] (Plaintiffs’ motion)).

The action is one for attorney fees

under the Individuals with Disabilities Education Act (“IDEA”),
among other grounds.1

As set forth below, the Court GRANTS

Plaintiffs’ motion for summary judgment on their claim for
attorney fees, but only insofar as the Court determines
Plaintiffs are the “prevailing party” with regard to achieving
stay put rights on the 504 Plan.

The Court RESERVES on the

issue of the amount of the attorney fees to be awarded.

The

Court DENIES Defendant School Board’s motion for summary
judgment insofar as it relates to dismissal of the Complaint,
but GRANTS the motion with regard to any other relief upon which
Plaintiffs seek to be a prevailing party other than the stay put
rights discussed below.

The Court additionally GRANTS

Plaintiffs’ motion for judgment on the pleadings (improperly
styled a motion for summary judgment) on Defendant School
Board’s counterclaim for its own attorney fees.
I.

FACTUAL BACKGROUND
Plaintiffs filed a Petition for Due Process in July 2014

challenging the Defendant School District’s proposed

1

The parties’ arguments deal only with fees pursuant to IDEA.
2

declassification of M.S. as special needs and proposal to
provide him with a speech-only Individualized Education Program
(“IEP”).

(Def.’s 56.1 St. & Pls.’ Resps. ¶ 1 (“Def.’s St. &

Pls.’ Resps.”) [Dkt. Nos. 16, 20-1]).

Specifically, Plaintiffs

argued that Defendant School Board’s proposed declassification
would impede M.S.’s rights under IDEA.

(Id.; see also Def.’s

56.1 St. Ex. A (“First Due Process Petition”)).

The relief

requested by Plaintiffs in the First Due Process Petition was:


Maintenance of M.S.’s eligibility for special education;



A finding that the School District’s proposed June 19, 2014
Speech-only IEP did not offer a Free Appropriate Public
Education (“FAPE”);



An order that the Defendant School Board’s proposed speechonly IEP be amended to address all of M.S.’s needs related
to his disability (to keep M.S. classified and have him
receive an IEP addressing issues other than speech); and



Attorney fees and costs of suit, including expert witness
fees.

(Def.’s St. & Pls.’ Resps. ¶ 2).
A settlement agreement was reached between the parties on
November 21, 2014.
Settlement”)).

(Id. at ¶ 3; Def.’s 56.1 St. Ex. B (“2014

The 2014 Settlement dictated that M.S.’s

educational needs would be independently evaluated by Rowan
University and “the parties shall utilize said (independent)
evaluation to hopefully reach agreement concerning M.S.’s
eligibility or ineligibility for special education services.”
(Def.’s St. & Pls.’ Resps. ¶ 3).

The 2014 Settlement also

3

provided that the parties shall be responsible for the payment
of their own attorney fees, and indicated that neither party
will be considered a “prevailing party” for any purpose.

(Id. ¶

3).
Consistent with the 2014 Settlement, an independent
evaluation was carried out by Rowan University.

(Id. at ¶ 4;

Def.’s 56.1 St. Ex. C (“Independent Evaluation”)).

Defendant

School Board and Plaintiffs disagree whether the Independent
Evaluation established that M.S. should be declassified as
special needs.

(Id. at ¶ 4.)

The Individual Evaluation itself

does not make any recommendation regarding whether M.S. should
be declassified, but does note that “the present findings are
very encouraging in terms of [M.S.]’s many cognitive strengths
and positive adjustments to his present kindergarten program”
and “the school-based occupational and speech and language
therapies are resulting in improvement of skills and should be
continued with reinforcement at home.”

(Independent Evaluation

at Recommendations ¶¶ 1, 6).
In July 2015, Defendant School Board offered a speech-only
IEP and occupational therapy services under a 504 Plan, but
Plaintiffs did not agree to this resolution and filed a second
due process petition challenging his declassification.
56.1 St. Ex. D (“Second Due Process Petition”)).

Plaintiffs’

Second Due Process Petition sought the following relief:
4

(Def.’s



A finding that, pending resolution of the dispute,
Defendant School Board must provide stay put programming
based upon the last agreed-upon IEP;



Declaring that Defendant School Board’s actions in refusing
to implement M.S.’s stay put programming violate IDEA;



A finding that the July 2015 offer of a speech-only IEP was
not a FAPE;



Attorney-fee reimbursement; and



Miscellaneous other relief.

(Def.’s St. & Pls.’ Resps. ¶ 6).

D.S. states in a declaration

in support of Plaintiffs’ motion for summary judgment that
Plaintiffs filed the Second Due Process Petition seeking
“reinstatement of M.S.’[s] stay put speech programming at a
private provider, Rizza Miro Associates, because [Defendant
School Board] had unilaterally terminated those services in
July, 2015” and a finding that the speech-only IEP with
occupational therapy services pursuant to a 504 Plan was not a
FAPE.

(D.S. Dec. ¶ 3(a)-(b) [Dkt. No. 17-3]).

Plaintiffs were,

according to D.S.’s declaration, particularly concerned that
occupational therapy services under a 504 Plan would not have
stay put rights.

At the time of filing the Second Due Process

Petition, Plaintiffs additionally sought to exclude the
Independent Evaluation in a motion in limine, however, this
motion was denied by the presiding Administrative Law Judge
(“ALJ”).

(Id. ¶ 7).

After the denial of the motion in limine, the parties
appeared for a settlement conference and were able to resolve
5

the disputes underpinning the matter and reached a second
settlement.

(Def.’s 56.1 Statement Ex. E (“2015 Settlement”)).

The 2015 Settlement provided the following relief:
1. The parties agree that, effective November 9, 2015,
the stay put IEP will no longer be in effect.
Instead, effective November 9, 2015, M.S. shall have
a speech-only IEP.
a. The speech-only IEP shall include services provided by
Rizza Miro, two times per week for 30 minutes per
session for the remainder of the 2015-2016 school
year. Services shall start the week of November 9,
2015. The Board shall issue a purchase order
immediately, to ensure that services are available
beginning the week of November 9, 2015. If Rizza Miro
cannot provide service beginning the week of November
9, 2015, then any missed sessions shall be made up
prior to June 20, 2016. The make-up sessions shall be
available in addition to the regularly scheduled
sessions.
b. Both parties waive their right to stay put as to the
provider (including Rizza Miro) and frequency of
speech services.
c. Effective November 9, 2015, M.S. will begin receiving
speech services within the school district 1 time per
week for 25 minutes per session.
d. At the end of the 2015-2016 school year, the Board
shall fund an independent speech and language
evaluation by a mutually agreed upon provider, to
determine continued services.
2. The parties agree that, effective November 9, 2015,
M.S. will receive occupational therapy (“OT”)
services pursuant to a 504 plan, as follows.
a. The 504 plan will provide that the Board will pay for
Dipa Patel, or, if Dipa Patel is not available, a
mutually agreed-upon OT, to travel to M.S.’s school
and consult with the school-based therapist and
teachers.
b. These consultations shall occur in November[] 2015 and
February 2016, subject to provider availability. The

6

outside OT consultant will spend one hour with school
staff and/or observing M.S.
c. If either the parent or school district proposes a
change in OT services, the other party will have all
procedural rights available with an IEP, including
“stay put” rights.
d. OT goals and objectives shall be developed in
consultation with the consulting occupational
therapist and District staff.
Subject to the last sentence in this paragraph,
petitioners, on behalf of themselves and M.S., and the
District, mutually release and forever discharge each
other, it/their officers, employees, administrators,
agents and servants from any and all past, present claims
including but not limited to the allegations in the
Complaint docketed at OAL Docket No. EDS 11654-2015S.
Provided, however, that the parties understand that
neither party has waived their right to “prevailing
party” attorney’s fees.
(Def.’s 56.1 St. Ex. E (emphasis in original)).
On December 8, 2015, ALJ Crowley, after reviewing the
settlement agreement, entered an order finding that “[t]he
parties have voluntarily agreed to the settlement” and “the
[2015 Settlement] fully disposes of all issues in controversy
between them and is consistent with the law.”
(“ALJ Order”) [Dkt. No. 7]).

(Am. Compl. Ex.

As such, the ALJ ordered “that the

parties comply with the settlement and that these proceedings be
concluded.”
II.

(Id.)

LEGAL STANDARD
Summary judgment shall be granted if “the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

7

14 Fed. R.

Civ. P. 56(a).

A fact is “material” if it will “affect the

outcome of the suit under the governing law . . . .”
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson

A dispute is

“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.” Id.
When deciding the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”

Meyer v. Riegel Prods.

Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983). However, a mere
“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial.

Anderson, 477 U.S. at 252.

Further,

a court does not have to adopt the version of facts asserted by
the nonmoving party if those facts are “utterly discredited by
the record [so] that no reasonable jury” could believe them.
Scott v. Harris, 550 U.S. 373, 380 (2007).

In the face of such

evidence, summary judgment is still appropriate “where the
record . . . could not lead a rational trier of fact to find for
the nonmoving party . . . .”

Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
8

with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”

Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
56(c)).

Then, “when a properly supported motion for summary

judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
trial.’”
56(e)).

Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
The non-movant’s burden is rigorous: it “must point to

concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995);
Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing
Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228
(3d Cir. 2009)) (“[S]peculation and conjecture may not defeat
summary judgment.”).
III. ANALYSIS
The Court first addresses the parties’ cross-motions for
summary judgment regarding Plaintiffs’ request for attorney fees
under IDEA, 20 U.S.C. § 1415(i)(3)(B)(i)(I) and other
provisions.

(Am. Compl. ¶¶ 66, 67).

The Court then addresses

Plaintiffs’ motion for summary judgment on Defendant School
Board’s counterclaim for attorney fees.

9

A. Plaintiffs’ Claim of Attorney Fees Under IDEA
Under IDEA's fee-shifting provision, a district court may,
at its discretion, award reasonable attorney fees as part of the
costs to a “prevailing party who is the parent of a child with a
disability.” 20 U.S.C. § 1415(i)(3)(B)(i)(I).

A plaintiff

“prevails” within the meaning of this provision, “when actual
relief on the merits of [the] claim materially alters the legal
relationship between the parties by modifying the defendant's
behavior in a way that directly benefits the plaintiff.”

P.N.

v. Clementon Bd. of Educ., 442 F.3d 848, 855 (3d Cir.2006),
cert. den'd, 549 U.S. 881 (quoting Farrar v. Hobby, 506 U.S.
103, 111–12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)); see also
Moorestown Twp. Bd. of Educ. v. S.D., 811 F. Supp. 2d 1057,
1084–85 (D.N.J. 2011).
In order to be deemed a prevailing party, a plaintiff must
“succeed on any significant issue in litigation which achieves
some of the benefit the parties sought in bringing suit.”

John

T. v. Del. Cnty. Intermediate Unit, 318 F.3d 545, 555 (3d Cir.
2003) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
“The ‘touchstone’ of the inquiry is ‘the material alteration of
the legal relationship of the parties.’”

A.P. v. N. Burlington

Cnty. Reg. Bd. of Educ., Civ. A. No. 09-5811, 2010 WL 2817194,
at *4 (D.N.J. July 15, 2010) (quoting John T., 318 F.3d at 555).
Thus, in adjudicating prevailing party status, courts in this
10

Circuit apply a two-prong test: (1) whether the parents achieved
relief on any of their claims, id. at *4 (citing Wheeler v.
Towanda Area Sch. Dist., 950 F.2d 128, 131 (3d Cir. 1991)), and
(2) whether there is a causal connection between the litigation
and the relief achieved.

Id. (citing Wheeler, 950 F.2d at 132).

Prior to turning to the issue of whether Plaintiffs have
met the requirement of either prong of that test, however, the
Court must briefly address the threshold issue of whether the
2015 Settlement has “judicial imprimatur.”

See John T., 318

F.3d at 560-61 (refusing to grant prevailing party status when
the settlement was reached out of court).

In order for a

settlement to possess judicial imprimatur: (1) the agreement
must contain mandatory language, (2) the agreement must be
entitled “Order”; (3) the agreement must bear the judge’s
signature; and (4) the agreement must be judicially enforceable.
Buckhannon Bd. & Care Home, Inc. v. W.V. Dep’t of Health & Human
Res., 532 U.S. 598, 601 (2001); see also A.P., 2010 WL 2817194,
at *5 (citing Buckhannon, 532 U.S. at 601).

Defendant School

Board does not challenge that the ALJ’s Order obligating the
parties to comply with the settlement provides judicial
imprimatur.

The Court, upon review, agrees that the November

2015 contains mandatory language, that the ALJ’s Decision
Approving Settlement “orders” compliance with it, that it bears
the ALJ’s signature, and that it is judicially enforceable.
11

(See ALJ Order).

As such, absent any challenge by Defendant

School Board, the Court holds that the threshold requirement of
judicial imprimatur has been met by the 2015 Settlement.
Instead of challenging that requirement, Defendant School
Board argues that Plaintiffs have not met the first prong of the
“prevailing party” inquiry — whether the parents achieved any
relief on the merits.

(Def.’s Br. at 5 (“[T]he central issue

for the Court [to] consider is whether or not Plaintiffs can
demonstrate that they were ‘prevailing parties’ in the second
administrative law proceeding; the proceeding which resulted in
Plaintiffs agreeing to the very same program and placement the
School District had sought for M.S. in the first administrative
law proceeding . . . .”).

A liberal standard applies to this

prong in favor of finding that a plaintiff prevailed.

“As long

as the plaintiff achieves some of the benefit sought initially,
he can be considered a prevailing party.”

Id.; see also D.B. v.

Gloucester Twp. Sch. Dist., No. Civ. 08-5667 (NLH), 2013 WL
1314464, at *4 (D.N.J. Mar. 28, 2013) (“A liberal standard
applies when assessing the first prong of whether Plaintiffs
achieved relief on any of their claims[.]”).

Nevertheless, the

plaintiff is not entitled to the status if the relief obtained
is de minimis or interim in nature.

K.N. v. Passaic Bd. of

Educ., Civ. No. 11-399 (JLL), 2011 WL 5157280, at *6 (D.N.J.
Oct. 28, 2011); see also John T., 318 F.3d at 558 (holding that
12

non-merits-based preliminary relief cannot be the foundation of
attorney fees claim).
Defendant School Board first argues that Plaintiffs
achieved no relief beyond interim relief.

In support of this

argument, Defendant School Board relies upon John T. v. The
Delaware County Intermediate Unity, 318 F.3d 545 (3d Cir. 2003).
There, the Third Circuit ruled that a plaintiff was not entitled
to prevailing party status after achieving preliminary relief
because the District Court did not resolve any merits-based
issue in the plaintiff’s favor to provide that relief.
559.

Id. at

Defendant School Board also relies upon J.O. v. Orange

Twp. Bd. of Educ., 287 F.3d 267 (3d Cir. 2002).

In that case,

the Third Circuit held that an order, which was not based upon
the merits of the parties’ arguments and that was “effective
only until appropriate placement could be found for [the
student] or until a further Order of an [ALJ], or until the
issuance of a final decision in this matter[,]” did not confer
prevailing party status.

Id. at 274.

Again, this was because

“[a]lthough parents who achieve favorable interim relief may be
entitled to prevailing attorney’s fees as long as the interim
relief granted derived from some determination on the merits,
the District Court neither erred nor abused its discretion in
denying fees in this case.”

Id.

13

The Court disagrees with Defendant School Board that the
2015 Settlement contemplated or provided interim relief.

This

agreement did not come about, unlike the relief in John T., as a
result of a preliminary injunction motion.

318 F.3d at 558-59.

Moreover, this relief was not intended to serve as a stop-gap
measure until other relief could be identified, as in J.O.
F.3d at 274.

287

Instead, the parties’ agreement was intended to be

the final resolution of the matter between them, with the
exception of attorney fees.
belief shared by the ALJ.

(2015 Settlement at 3).
(ALJ Order).

This was a

Upon a review of

similar cases, the Court holds this is sufficient to render any
relief Plaintiffs achieved permanent in nature.

See K.N., 2011

WL 5157280, at *8 (“The Second Consent Order does not constitute
‘interim relief’ since the language of the order explicitly
states that it ‘fully disposes of all issues in controversy
between [the parties]’ and that ‘these proceedings be
concluded.’”).
Nevertheless, the question remains – as Defendant School
Board emphasizes repeatedly – whether the 2015 Settlement
amounts to relief on Plaintiffs’ Second Due Process Petition at
all.

Defendant School Board argues that Plaintiffs are not

entitled to prevailing party status because the 2015 Settlement
was “the very same program and placement the School District had
sought for M.S. in the first administrative law proceeding, in
14

exchange for the School District agreeing to temporarily
maintain the ‘stay put’ services and provider Plaintiffs had
requested.”

(Def.’s Br. at 5 (emphasis added)).

In response, Plaintiffs cite four specific measures by
which the Plaintiffs achieved concessions from Defendant School
Board in the 2015 Settlement:


The Board had discontinued private speech services, and
ultimately resumed them in connection with the settlement;



Defendant School Board was required to fund an independent
speech and language evaluation by a mutually agreed upon
provider, to determine continued services, at the end of
the 2015-2016 year;



Defendant School Board funded consultation with a private
occupational therapist in November 2015 and February 2016;
and



D.S. would have stay put rights to occupational therapy,
despite the fact that it would be provided under a Section
504 Plan.

(Pls.’ Br. at 5-6).
In assessing prevailing party status, this Court is
required to make a “commonsense comparison between the relief
sought and obtained.”

K.N., 2011 WL 5157280, at *5 (citing

Wheeler, 950 F.2d at 131).

To make this process

straightforward, the relief sought and obtained is summarized in
the below table:

15

(Second Due Process Petition ¶¶ 30, 33, 37).

Indeed, much of

the “relief” achieved resembles the settlement offer Defendant
School Board had been putting forth prior to the commencement of
the Second Due Process Petition. (Def.’s St. & Pls.’ Resps. ¶ 5
(Plaintiffs admit Defendant School Board offered a speech-only
IEP and other services requested by Plaintiffs in exchange for
Plaintiffs’ consent to declassification)).

The above table also

shows that Plaintiffs achieved no stay put programming based
upon the last agreed-upon IEP, which they sought.

Likewise, no

determination was made that Defendant School Board violated
IDEA, nor was any determination made by the ALJ or the parties
concerning attorney fee reimbursement.
Specifically, Plaintiffs did not succeed in demonstrating
that the speech-only IEP offered by the Defendant School Board
was not a FAPE.

Plaintiffs did, however, secure a specific

provider (Rizza Miro Associates) for speech services.

The

Second Due Process Petition explicitly seeks the resumption and
preservation of services from this provider.

(Second Due

Process Petition ¶¶ 37 (“Thus, even if the July 9, 2015 IEP were
an offer of FAPE (and it is not), the Board would be responsible
for maintenance of services at Rizza Miro.”)).4

Yet, there is no

Defendant School Board concedes the fact that it made the
concession of services provided by Rizza Miro in exchange for
accepting other portions of their settlement offer. (Def.’s Br.
at 5 (Plaintiffs agreed to “the very same program and placement
4

17

evidence that the speech services offered by the School denied a
FAPE and Plaintiff, beyond wanting the specific services of
Rizza Miro, has produced no such evidence.

As such, this did

not materially alter the legal relationship of the parties.
Moreover, Plaintiffs were also able to secure “stay put”
rights to the occupational therapy services that M.S. would
receive under a 504 Plan.

This was the case despite the fact

that Defendant School Board does not dispute that a 504 Plan
does not ordinarily provide stay put rights.5

It is this relief

that was not offered in the settlement, but is a protection than
would have otherwise been available to M.S. under the
settlement.

Thus, the Court finds that this is enough, if

barely, to demonstrate some relief for Plaintiffs that
materially altered their legal relationship )in a very limited
way, however).

Plaintiffs could, after the 2015 Settlement,

the School District had sought for M.S. in the first
administrative law proceeding, in exchange for the School
District agreeing to temporarily maintain the ‘stay put’
services and provider Plaintiffs had requested.”)).
5 D.S.’s Declaration makes the argument that this was central to
the purpose of bringing the Second Due Process Petition. (D.S.
Dec. ¶ 3). The Court finds this to be a somewhat convenient and
post-hoc argument, given it nowhere appears in the Second Due
Process Petition. Nevertheless, it appears that the relief
obtained was, at least, generally similar to the relief sought.
P.G. v. Brick Twp. Bd. of Educ., 124 F. Supp. 2d 251, 260
(D.N.J. 2000) (“Plaintiffs will be prevailing parties even
though the relief they obtained is not identical to the relief
they specifically demanded, as long as the relief obtained is of
the same general type.”) (quoting Institutionalized Juveniles v.
Sec. of Pub. Welfare, 758 F.2d 897, 912 (3d Cir. 1985)).
18

legally enforce their 504 Plan with stay put rights: for
instance, they could enforce the specific time, quantity and
nature of services as agreed in the 2015 Settlement.
With regard to the second prong of the inquiry – whether
the Second Due Process Petition has a causal relationship with
the relief achieved, Defendant School Board does not appear to
genuinely contest this.6

Indeed, Defendant School Board concedes

the 2015 Settlement came about during a hearing before the ALJ
on the settlement.

(Def.’s Br. at 6).

The Court does not

agree, see supra, that the 2015 Settlement was precisely the
“same settlement” that had been offered pre-petition, as it had
one narrow modification – it granted 504 stay put protection for
the occupational therapy.

As a result of the Second Due Process

Petition, Plaintiffs were able to achieve slightly more than
Defendant School Board was offering.

Put differently, viewing

the parties pre-petition positions on a spectrum, with Defendant
School Board on one side offering a speech-only IEP and 504 Plan
without stay put rights, and Plaintiffs on the other side
seeking re-classification, it seems clear to this Court that the
only relief Plaintiffs received as a result of the Second Due
Process Petition was a 504 Plan deemed to have stay put rights.7

The issue of causation is only mentioned in passing by
Defendant School Board. (Def.’s Br. at 7).
7 Whether this can even be considered merits-based relief, as
required under a prevailing party analysis, given that a 504
6

19

Defendant School Board has offered no explanation for this
shift, and the only clear one appears to be the Second Due
Process Petition.
Accordingly, if by a very narrow of margin, Plaintiffs’
relief achieved in the 2015 Settlement is sufficient to label
them a prevailing party as to a very specific component of the
general relief requested in the Second Due Process Petition.
Specifically, Plaintiffs prevailed in achieving: the retention
of stay put rights for occupational therapy services.

This

relief meets the relatively low bar of achieving “some” relief
they sought in bringing the Second Due Process Petition.
2011 WL 5157280, at *5 (quoting John T., 318 F.3d at 555).

K.N.,
It

does not, however, warrant an unfettered award of the lodestar
requested by Plaintiffs in the Amended Complaint.

It, in fact,

warrants a comparatively small award given it represents a
sliver of the relief sought.
While this ruling permitting any fee award is perhaps an
expansive view of “prevailing party” status, the Court believes
the case law dealing with IDEA allows for an expansive reading
of “prevailing party.”

Specifically, this holding comports with

Plan does not give stay-put relief, has not been addressed by
the parties. If the Court has overlooked case law that a
prevailing party does not prevail by getting relief to which he
is not legally entitled, but which the parties agree to
nonetheless agree to provide, the Court will entertain a Rule
7.1 motion for reconsideration.
20

the parent-friendly provisions of IDEA and the liberal reading
of “prevailing” status that is to be afforded to a plaintiff.
F.B. v. E. Orange Bd. of Educ., No. CIV.08-1206 DRD, 2008 WL
4513874, at *4 (D.N.J. Sept. 30, 2008) (“Under this ‘liberal’
standard, a plaintiff may be considered a prevailing party as
long as he or she achieves some of the benefit sought in a
lawsuit, even though the plaintiff does not ultimately succeed
in obtaining a favorable judgment.” (internal quotation marks
omitted)); D.S. v. Neptune Twp. Bd. of Educ., 264 F. App'x 186,
189 (3d Cir. 2008) (“The purpose of the fee provision in IDEA is
to enable parents or guardians of disabled children for whom the
statute was enacted to effectuate the rights provided by the
statute.”) (citation omitted).

As stated, supra, the relief

sought and the relief obtained need not be identical.

The

relief obtained need only be of the same general type.

P.G.,

124 F. Supp. 2d at 260.
Moreover, the narrowness of Plaintiffs’ relief in achieving
prevailing status is not an inquiry meant for the phase of
determining whether Plaintiffs are entitled to “prevailing
party” status.

Rather, when the relief is not complete or

somewhat marginal (but more than de minimis), the proper course
is an adjustment to the reasonable amount of fees given the
extent of relief.

As has been stated by courts in this

District: “[t]o the extent the degree of relief is relevant, it
21

is relevant only to the amount of the fee award, not to the fee
award's availability.”

J.N. v. Mt. Ephraim Bd. of Educ., No.

CIV.A.05-02520, 2007 WL 928478, at *4 (D.N.J. Mar. 26, 2007).
As such, even viewing the facts in the light most favorable
to Defendant School Board, the Court GRANTS Plaintiffs’ motion
for summary judgment insofar as it seeks a determination that
Plaintiffs are a “prevailing party” on the issue of the 504
Plan’s stay put rights.

For that reason, the Court also DENIES

Defendant School Board’s motion for summary judgment to that
extent it seeks outright dismissal of Plaintiffs’ operative
Complaint, but GRANTS it insofar as Plaintiffs seek to be
prevailing parties on any other relief.

In the Order that

accompanies this Opinion, the Court will instruct the parties to
prepare additional briefing on the issue of the proper attorney
fee to be awarded to Plaintiffs in light of the very narrow
grounds on which they prevailed.8
B. Defendant School Board’s Counterclaim for Attorney Fees
Defendant School Board also counterclaims for fees of its
own.

Plaintiffs purport to seek summary judgment on this claim,

The Court anticipates Plaintiffs’ fee award would be a small
fraction of the amount requested as the limited relief was
perhaps obtained with little or no argument from the School
Board, and thus, little cost or time expenditure by Plaintiffs.
Given the relief obtained was a very small fraction of the
relief sought, the parties may wish to discuss a settlement of
this matter prior to providing supplemental briefing.
8

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but their arguments actually appear based on facts alleged in
the pleadings,9 not evidence in the record as would be proper for
summary judgment.

(Pls.’ Br. at 9-10 (discussing Defendant

School Board’s allegations)).

As such, the Court treats

Plaintiffs’ motion as one for judgment on the pleadings,
pursuant to Federal Rule of Civil Procedure 12(c).
Under IDEA, a court in its discretion may award reasonable
attorney fees to a school district from a parent “if the
parents’ complaint or subsequent cause of action was presented
for any improper purpose such as to harass, to cause unnecessary
delay, or to needlessly increase the cost of litigation.”
U.S.C. § 1415(i)(3)(C).

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Defendant School Board’s position, as

set forth in in its briefing, is that in failing to accept the
recommendations of the Independent Evaluation, which the parties

The standard for review of a claim under Rule 12(c) is
identical to that under Federal Rule of Civil Procedure
12(b)(6). See Fed. R. Civ. P. 12(h)(2); see also Turbe v. Gov't
of the Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991).
Dismissal of a pleading pursuant to Rule 12(b)(6) is proper
‘only if it is clear that no relief could be granted under any
set of facts that could be proved consistent with the
allegations.’” Hackensack Riverkeeper, Inc. v. Del. Ostego
Corp., 450 F.Supp.2d 467, 484 (D.N.J. 2006) (quoting Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984)). The allegations
contained in the pleading are to be accepted as true. Cruz v.
Beto, 405 U.S. 319, 322 (1972). A party will also be “given the
benefit of every favorable inference that can be drawn from
those allegations.” Schrob v. Catterson, 948 F.2d 1402, 1405
(3d Cir. 1991). However, the party must make factual
allegations and cannot rely on “conclusory recitations of law.”
Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173,
179 (3d Cir. 1988).
9

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agreed in the 2014 Settlement would allow them to “hopefully
reach agreement concerning M.S.’s eligibility or ineligibility
for special education services[,]” the Plaintiffs’ Second Due
Process Petition was brought for an improper purpose.

Without

deciding that such allegations would state a claim, the Court
holds that the allegations in the counterclaim fall short of
that argument.
Having determined that, at least in a limited regard, the
Plaintiffs are prevailing parties and that the 2014 Settlement
only “hoped” it would resolve the issues between the parties,
the Court first notes that it a dubious proposition that it
would award attorney fees to Defendant School Board.

Indeed,

the counterclaim as pled by Defendant School Board concedes that
Plaintiffs “received relief for issues,” albeit ones which were
a part of a settlement previously offered.

As discussed, supra,

however, the Court disagrees (at least partially) with Defendant
School Board’s position that the 2015 Settlement was a mirror
image of what is alleged to have been offered prior to the
Second Due Process Petition.

Defendant School Board’s statement

that the ALJ upheld the Defendant School Board’s position is
unsupported at best and a legal conclusion, otherwise.
At base, Defendant School Board’s allegations regarding
Plaintiffs’ improper purpose, only suggesting Plaintiffs lost on
all counts before the ALJ and that they ultimately accepted a
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settlement that had been offered to them previously, are
insufficient, particularly where the Court has reviewed record
evidence in connection with Plaintiffs’ claim for attorney fees
and determined that Plaintiffs prevailed on a limited issue.
Having done so, the Court dismisses Defendant School Board’s
claim for attorney fees.
IV.

CONCLUSION
In conclusion, the Court GRANTS Plaintiffs’ motion for

summary judgment on their claim for attorney fees, insofar as
the Court determines Plaintiffs are the “prevailing party” with
regard to stay put protection on the 504 Plan.

The Court

RESERVES on the issue of the amount of the attorney fees to be
awarded and, as set forth in the accompanying Order, requires
additional briefing on the issue of the proper attorney fee to
be awarded.

The Court DENIES Defendant School Board’s motion

for summary judgment on that issue, but GRANTS the motion to the
extent Plaintiffs seek to be prevailing parties on any other
relief obtained.

The Court additionally GRANTS Plaintiffs’

motion for judgment on the pleadings (improperly designated as a
motion for summary judgment) on Defendant School Board’s
counterclaim for its own attorney fees.
DATED: December 21, 2016

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s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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