D.I. v. PHILLIPSBURG BOARD OF EDUCATION

Filing 15

OPINION filed. Signed by Judge Mary L. Cooper on 5/18/2011. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
D.I., o/b/o R.G.,
Plaintiff,
v.
PHILLIPSBURG BOARD
OF EDUCATION,
Defendant.

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: CIVIL ACTION NO. 10-2602 (MLC)
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MEMORANDUM OPINION
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COOPER, District Judge
Plaintiff, D.I., on behalf of her minor child R.G., brings
this action under the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400 et seq., seeking an award of
attorneys’ fees and related costs pursuant to 20 U.S.C. §
1415(i)(3)(B).

(Dkt. entry no. 1, Compl.)

Plaintiff now moves

for summary judgment, arguing that she (1) is the prevailing
party in the underlying matter, and (2) should be awarded
attorneys’ fees and related costs as to both the underlying
matter and the current fee application.

(Dkt. entry no. 9, Pl.

Mot. Summ. J.; Pl. Br. at 1; Stoloff Cert. at 4.)

Defendant,

Phillipsburg Board of Education, opposes the motion.

(Dkt. entry

no. 12, Def. Opp’n.)
The Court decides the motion on the papers without oral
argument, pursuant to Federal Rule of Civil Procedure (“Rule”)
78(b).

For the reasons that follow, the Court holds that

Plaintiff may recover $16,152.50 in attorneys’ fees and $613.99
in related costs.
BACKGROUND
R.G. has been a student in the Phillipsburg School District
since kindergarten.

R.G. is classified as multiply disabled, and

has received special education services since 2003.
no. 9, Pl. Stmt. Facts at ¶ 2; Compl. at 2.)

(Dkt. entry

Plaintiff, through

counsel, sent a letter to Defendant in January 2010 requesting
that Defendant provide R.G. the following independent educational
evaluations:

(1) neuropsychological evaluation, (2) audiological

and auditory processing evaluation, and (3) speech-and-language
evaluation. (Pl. Stmt. Facts at ¶ 3; Compl. at 2; dkt. entry no.
12, Def. Stmt. Facts at ¶ 1.)

Plaintiff also requested that

Defendant order a functional behavior assessment for R.G.

(Dkt.

entry no. 12, Souders Cert., Ex. A, 1-27-10 Letter from Pl.
Counsel to Def. Counsel (“1-27-10 Letter”).)
Defendant petitioned for a due process hearing on March 3,
2010, to determine which evaluations, if any, it would be
obligated to provide.

(Pl. Stmt. Facts at ¶ 4; Def. Stmt.

at ¶ 4; Compl., Ex. A, Due Process Pet.)

Facts

During a March 17, 2010

mediation conference, the parties agreed that Defendant would
provide (1) an “in-house” functional behavior assessment, and (2)
an independent audiological and auditory processing evaluation.
(Pl. Stmt. Facts at ¶ 6; Def. Stmt. Facts at ¶ 5.)

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The remaining

two evaluations remained in dispute between the parties, and a
due process hearing was scheduled for April 16, 2010.

(Pl. Stmt.

Facts at ¶ 8.)
The parties reached a settlement on the morning of the due
process hearing, before the hearing occurred.

(Id. at ¶ 9.)

The

settlement was memorialized in a Final Consent Order providing
that Defendant would provide (1) “an ‘in-house’ (i.e. Districtconducted) Functional Behavior Assessment,” (2) “an independent
audiological and auditory-processing evaluation(s),” and (3)
$3,500 toward the cost of “an independent neuropsychological
evaluation,” to be conducted by an evaluator selected by the
presiding Administrative Law Judge (“ALJ”).

(Compl., Ex. B,

Phillipsburg Bd. of Educ. v. C.G. and D.I. o/b/o R.G., OAL dkt.
no. EDS 03318-2010, Final Consent Order dated 4-22-10.)

The

Final Consent Order stated:
This Consent Order is without prejudice to the rights,
claims and defenses of both parties on the issue of any
application for attorney’s fees. As neither the issue
of prevailing party status or attorneys fees was before
this tribunal, no determination has been made as to
whether either party is the prevailing party.
(Final Consent Order at ¶ 9.)
Defendant opposes Plaintiff’s fee application on the bases
that the relief granted to Plaintiff was incomplete in relation
to the four evaluations sought, and that the numbers of hours
expended by Plaintiff’s counsel on the underlying matter and

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current fee application are unreasonable in comparison to its own
time expenditures.

Plaintiff contends that Defendant’s

opposition to the motion must be disregarded under Local Civil
Rule 6.1 for failure to comport with the briefing schedule.
(Dkt. entry no. 14, Pl. Reply at 1-2.)

The Court, in the

interest of justice, will consider the late-filed opposition
papers.

See Anchorage Assocs. v. V.I. Bd. of Tax Rev., 922 F.2d

168, 175 (3d Cir. 1990) (stating that a movant is not
automatically entitled to summary judgment simply because the
non-movant does not oppose the motion).
DISCUSSION
I.

Legal Standards For Attorneys’ Fees Under the IDEA
A.

“Prevailing Party” Status

The fee-shifting provision of the IDEA provides that a
court,

“in its discretion, may award reasonable attorneys’ fees

as part of the costs . . . to a prevailing party who is the
parent of a child with a disability.”
1415(i)(3)(B)(i)(I).

20 U.S.C. §

The parties do not dispute that R.G. is a

“child with a disability” for purposes of the IDEA.
“In order to be a ‘prevailing party,’ a party must be
‘successful’ in the sense that it has been awarded some relief by
a court.”

P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d

Cir. 2006) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598, 603 (2001)); see
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also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (stating that
parties are “prevailing” where they “succeed on any significant
issue in litigation which achieves some of the benefit the
parties sought in bringing suit”).

Thus, a party need not

achieve all of the relief requested in order to be eligible for a
fee award.

J.O. ex rel. C.O. v. Orange Twp. Bd. of Educ., 287

F.3d 267, 271 (3d Cir. 2002).

The relief awarded must constitute

a “change in the legal relationship of the parties” that is
“judicially sanctioned.”

Buckhannon, 532 U.S. at 605; P.N., 442

F.3d at 853.
A stipulated settlement may confer prevailing party status
where it (1) contains mandatory language, (2) is entitled
“Order,” (3) bears the signature of a judge, and (4) provides for
judicial enforcement.

John T. ex rel. Paul T. v. Del. Cnty.

Intermed. Unit, 318 F.3d 545, 558 (3d Cir. 2003) (citing
Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 165 (3d Cir.
2002)).

Consent decrees entered by an ALJ in administrative

proceedings are judicially enforceable through an action under 42
U.S.C. § 1983 and state law.

P.N., 442 F.3d at 854-55; see also

Buckhannon, 532 U.S. at 604 (“[S]ettlement agreements enforced
through a consent decree may serve as the basis for an award of
attorney’s fees. . . . [A] consent decree . . . is a courtordered change in the legal relationship between the plaintiff
and the defendant.”) (internal quotation and citations omitted).

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B.

Reasonable Attorneys’ Fee

The fee award to a prevailing party under the IDEA “shall be
based on rates prevailing in the community in which the action or
proceeding arose for the kind and quality of services furnished.”
20 U.S.C. § 1415(i)(3)(C).

“The most useful starting point for

determining the amount of a reasonable fee is the number of hours
reasonably expended on the litigation multiplied by a reasonable
hourly rate.”

Hensley, 461 U.S. at 433.

This figure, called the

“lodestar,” is “strongly presumed to yield a reasonable fee.”
Washington v. Phila. Cnty. Ct. of Common Pleas, 89 F.3d 1031,
1035 (3d Cir. 1996).
The party seeking an award of attorneys’ fees bears the
burden of establishing the reasonableness of both the hours
worked and rates claimed.

Hensley, 461 at 433; Apple Corps v.

Int’l Collectors Soc’y, 25 F.Supp.2d 480, 484 (D.N.J. 1998).
Upon such a showing, the burden shifts to the party opposing the
fee to contest the reasonableness of either the hourly rate
requested or the number of hours expended.

Id. at 485.

The

Court has wide discretion to adjust the attorneys’ fee if the
nonmovant has shown that the fee requested is unreasonable, or if
the lodestar is not reasonable in light of the results obtained.
F.B. v. E. Orange Bd. of Educ., No. 08-1206, 2008 WL 4513874, at
*7 (D.N.J. Sept. 30, 2008).

However, the Court may not adjust

the prevailing party’s requested attorneys’ fees for reasons not

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raised by the objecting party.

McDonald v. McCarthy, 966 F.2d

112, 119 (3d Cir. 1992) (holding that a district court “may not,
sua sponte, reduce the award requested unless such order is based
on the court’s personal knowledge as to the time expended on the
case”).
II.

Legal Standards Applied Here
A.

“Prevailing Party” Status

Plaintiff argues that she is entitled to reasonable
attorneys’ fees as the prevailing party, because “by having
obtained three of the four evaluations, Plaintiff obtained the
relief she sought.”

(Pl. Br. at 6.)

Defendant contends that

while it voluntarily agreed to provide two of the four
evaluations sought by Plaintiff, “Plaintiff only achieved a
fraction of what they [sic] sought to achieve relative to the
independent evaluations in question.”

(Def. Stmt. Facts at ¶ 9.)

Specifically, Defendant points out that it (1) did not agree to
provide the “speech-and-language” independent evaluation sought
by the Plaintiff, and (2) only agreed to pay $3,500, not the
entire amount, toward a neuropsychological evaluation, which it
contends is different from the “neuro-psycho-educational
evaluation” sought by Plaintiff in her initial letter to
Defendant seeking independent educational evaluations.

1

(Id.)1

Any allusion by Defendant to the fact that the functional
behavior assessment was ordered to occur “in-house,” or by the
District, as opposed to independently, as a basis for diminishing
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Plaintiff concedes that she did not prevail as to the speech
and language evaluation.

This fact does not foreclose prevailing

party status; “as long as a plaintiff achieves some of the
benefit sought in a lawsuit, . . . the plaintiff can be
considered the prevailing party for purposes of a fee award.”
Wheeler v. Towanda Area Sch. Dist., 950 F.2d 128, 131 (3d Cir.
1991).
Defendant’s arguments regarding the degree to which
Plaintiff prevailed in seeking a neuropsychological evaluation
appear specious.

The undisputed record shows that (1) the ALJ

ultimately appointed the independent neuropsychological evaluator
originally suggested by Plaintiff, and (2) the $3,500 figure
Defendant agreed to pay towards an independent neuropsychological
evaluation satisfied that evaluator’s bill in full.

(Compl., Ex.

B, 4-22-10 Order on Expert Appointment (appointing Dr. Joel
Morgan, Ph.D, “as the neuropsychological evaluator to conduct an
independent evaluation of R.G. . . . consistent with the terms
and conditions of the Consent Order dated April 22, 2010”); 1-2710 Letter (stating that Plaintiff had selected Dr. Morgan to
conduct the “neuro-psycho-educational evaluation”); dkt. entry

the degree to which Plaintiff should be considered a prevailing
party, is irrelevant. Plaintiff never specified in her original
demand letter to Defendant that she wanted the functional
behavior assessment to occur independently, as opposed to the
other three evaluations sought. (See 1-27-10 Letter; Def. Opp’n
at 8.)
8

no. 14, Stoloff Reply Cert. & Ex. A, Billing Statement of Dr.
Morgan (showing $3,500 amount due for “Neuropsychological
Evaluation, Complete”); compare Def. Stmt. Facts at ¶ 9 (stating
that Plaintiffs sought “neuro-psycho-educational” evaluation)
with Def. Opp’n at 8 (“Plaintiff sought . . . a neuropsychological evaluation”).)

Defendant has made no showing in

support of its bare contention that a “neuro-psycho-educational
evaluation” differs from the “neuropsychological evaluation” in
the educational context as ordered by the ALJ.

In light of the

fact that the ALJ selected the evaluator originally proposed by
Plaintiff to carry out the evaluation, and ordered Defendant to
pay the exact amount ultimately charged by that evaluator, we
find that Plaintiff prevailed fully in seeking and receiving an
independent neuropsychological evaluation.
Plaintiff succeeded in obtaining three out of four of the
evaluations sought, thereby achieving “some of the benefit . . .
sought” in the due process proceedings.
at ¶¶ 1-3.)

Hensley, 461 U.S. at 433.

(See Final Consent Order
The Final Consent Order

awarding these benefits contains mandatory language, bears the
signature of an ALJ, and is judicially enforceable.
P.N., 442 F.3d at 854-55.

(Id.)

See

We therefore conclude that Plaintiff

is the prevailing party here.

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B.

Determination of Reasonable Attorneys’ Fees & Costs
1.

Attorneys’ Fees
a.

Calculation of the Lodestar

Plaintiff’s counsel charges an hourly rate of $175.00.
(Stoloff Cert. at 3.)

Plaintiff has provided the declarations of

two experienced special education law practitioners, who state
that $175.00 per hour is a reasonable rate for someone of
Plaintiff’s counsel’s experience and expertise, and well within
the range of prevailing rates charged by attorneys with
comparable skill and experience in New Jersey.
9, Holland Decl. & Lowenkron Decl.)

(Dkt. entry no.

Defendant does not challenge

the reasonableness of Plaintiff’s counsel’s hourly rate.
Opp’n at 8; Souders Cert. at ¶ 13.)

(Def.

Therefore, the Court accepts

Plaintiff’s counsel’s $175.00 hourly rate for purposes of
calculating the lodestar.

See F.B., 2008 WL 4513874, at *11

(finding counsel’s requested rate reasonable where counsel
provided “affidavits from two local attorneys” who perform
comparable legal work “attesting that the fees requested are
within prevailing market rates,” where defendant did not object
to those rates); P.G. v. Brick Twp. Bd. of Educ., 124 F.Supp.2d
251, 261-62 (D.N.J. 2000).
Plaintiff’s counsel asserts that he spent 68 hours in
representing Plaintiff in the underlying matter and 24.3 hours
representing Plaintiff in this action.
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(Stoloff Cert. at 2-3 &

Ex. B, Timesheet for “fee-on-fee” (“Fee Application Timesheet”);
Compl., Ex. C, Timesheet for due process proceedings (“Due
Process Proceedings Timesheet”).)

Defendant contends only that

its counsel “has expended far less – perhaps one-half (1/2) – of
the time expended by” Plaintiff’s counsel in the underlying due
process proceedings, and “has expended far less than Attorney
Stoloff on this entire case.”

(Def. Stmt. Facts at ¶ 10; Souders

Cert. at ¶ 13; see also Def. Opp’n at 8.)
We find that Plaintiff has adequately supported the
reasonableness of the hours expended by counsel in both the
underlying due process proceedings and this action for fees with
detailed timesheets submitted in connection with the Complaint
and the motion for summary judgment.
Due Process Proceedings Timesheet.)

(Fee Application Timesheet;
The Court’s close review of

these timesheets reveals no excessive or unnecessary preparation
by counsel, and we conclude that the time spent by Plaintiff’s
counsel on these matters has been reasonable.
F.Supp.2d at 262-63.

See P.G., 124

Defendant’s bare allegation that its

counsel expended “perhaps one-half” of the time expended by
Plaintiff’s counsel, without more, fails to carry Defendant’s
burden of showing that Plaintiff’s counsel’s time expenditures
are unreasonable.

See J.N. v. Mt. Ephraim Bd. of Educ., No. 05-

2520, 2007 WL 4570051, at *2 (D.N.J. Dec. 21, 2007) (“The higher
the hourly rate charged by an attorney based upon his or her

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skill or experience, the shorter the time it should take the
attorney to perform a particular task.”).

Therefore, we accept

Plaintiff’s contention that her counsel spent 92.3 hours on the
underlying due process proceedings and the current fee
application for purposes of calculating the lodestar.

The

lodestar for Plaintiff’s attorney’s fee is thus ($175.00 x 92.3)
= $16,152.50.
b.

Adjustment of Fee Award Based on Degree of
Success Obtained

Defendant contends that Plaintiff’s attorney’s fee is
“excessive and in no manner commensurate with . . . the limited
success achieved in the underlying due process proceedings,” and
urges the Court to exercise its discretion to adjust the fee
amount downward based on Plaintiff’s “limited or partial
success.”

(Def. Opp’n at 6-8.)

Plaintiff replies that because

her counsel achieved an “excellent result” based on the
litigation as a whole, the Court should award the entire
attorney’s fee requested.

(Pl. Br. at 11.)

See Hensley, 461

U.S. at 435-36 (“Where a plaintiff has obtained excellent
results, his attorney should recover a fully compensatory fee
. . . If, on the other hand, a plaintiff has achieved only
partial or limited success, the product of hours reasonably
expended on the litigation as a whole times a reasonable hourly
rate may be an excessive amount.”).

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We find that an award of the full lodestar amount is
appropriate here.

The Hensley Court rejected “a mathematical

approach comparing the total number of issues in the case with
those actually prevailed upon.”

Id. at 435 n.11.

The relief

sought by Plaintiff was, generally, up-to-date independent
educational evaluations in order to optimize the formulation of
R.G.’s Individualized Education Plan.

(See Compl. at ¶¶ 3-5.)

The elements of the relief sought were related in that they were
all (1) sought to be paid at public expense, pursuant to 34
C.F.R. § 300.503 et seq. and N.J.A.C. § 6A:14-2.5(c) et seq., and
(2) sought from Defendant, as opposed to multiple defendants.
Cf. Hensley, 461 U.S. at 434-35 (noting that some lawsuits may
involve “different claims for relief that are based on different
facts and legal theories” such that “counsel’s work on one claim
will be unrelated to his work on another claim,” and that no fee
may be awarded for counsel’s work on an unsuccessful unrelated
claim).

Because the relief sought here was related, we decline

to attempt to “divide the hours expended on a claim-by-claim
basis.”

Id. at 435.2

2

The Due Process Proceedings Timesheet reveals few, if
any, time expenditures made specifically as to the speech-andlanguage evaluation request. While Plaintiff’s preferred
audiological and neuropsychological evaluators are mentioned by
name in that timesheet, the speech-and-language evaluator was not
so referenced. Given that so little time was expended on the
speech-and-language evaluation, it is apparent that Plaintiff’s
counsel’s expenditure of time “was reasonable in relation to the
success achieved.” Hensley, 461 U.S. at 436.
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Plaintiff, by achieving three out of four of her related
objectives in the proceedings below, achieved more than “limited
or partial success.”
436.

(Def. Opp’n at 6.)

Hensley, 461 U.S. at

Rather, we characterize Plaintiff’s counsel as having

“obtained excellent results” and therefore find that he “should
recover a fully compensatory fee.”

Id. at 431.

We will not

reduce the attorney’s fee as urged by Defendant.
2.

Costs

Plaintiff seeks an award of costs in the amount of $297.99
in the underlying matter and $369.00 in connection with the
current fee application.

(Stoloff Cert. at 3-4; Fee Application

Timesheet; Due Process Proceedings Timesheet.)

Defendant

contends that it “should not be responsible for counsel’s parking
expenses” but otherwise does not challenge the reasonableness of
the costs listed in the timesheets, which are limited to copying,
mailing, faxing, and the $350.00 filing fee for instituting this
action.

(Def. Opp’n at 9.)

Expenses such as “filing fees . . . and expenditures
associated with compiling and sending papers to the court” and
the opposing party are reasonable, and will be awarded here.
F.B., 2008 WL 4513874, at *12.

Parking and travel expenses,

however, are not recoverable.

L.T. ex rel. B.T. v. Mansfield

Twp. Sch. Dist., No. 04-1381, 2009 WL 2488181, at *3 (D.N.J. Aug.
11, 2009); see generally 28 U.S.C. § 1920; Arlington Cent. Sch.

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Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297-98 (2006).
Therefore, Plaintiff’s counsel’s parking expenses, which total
$53.00, will be excluded from the award of costs.

The Court will

order an award of costs of $263.99 in the underlying due process
proceeding and $350.00 in the current fee application, for a
total award of costs of $613.99.
CONCLUSION
For the reasons stated above, the Court will (1) grant the
motion for summary judgment, and (2) award attorneys’ fees and
related costs to Plaintiff in the amount of $16,766.49.

The

Court will issue an appropriate order and judgment.

s/ Mary L. Cooper
MARY L. COOPER
United States District Judge

Dated:

May 18, 2011

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