B.B. et al v. New York City Department of Education
ORDER ADOPTING IN PART REPORT & RECOMMENDATION for 38 Report and Recommendations. The Court accepts Defendants objections for the reasons discussed supra. Having reviewed the relevant issues de novo, and upon careful consideration, the Court f inds error in the Magistrate Judge's assessment of the appropriate hourly rates and compensable hours for Plaintiffs' counsel. Accordingly, the Court adopts the R&R in part and reverses the R&R in part. The fees and costs to be paid to Plaintiffs are reduced to a total of $19,116.13. The Clerk of Court is respectfully directed to enter judgment in favor of Plaintiffs and close this case. (Signed by Judge Valerie E. Caproni on 3/8/2018) (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
B.B. and G.B., individually and on behalf of
NEW YORK CITY DEPARTMENT OF
ORDER ADOPTING IN PART
VALERIE CAPRONI, United States District Judge:
On June 6, 2017, Plaintiffs B.B. and G.B. filed a lawsuit seeking attorneys’ fees and
costs, claiming to have prevailed in an administrative hearing pursuant to the Individuals with
Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”), which contains a fee-shifting
provision. See Complaint [Dkt. 1]. On November 1, 2017, plaintiffs moved for summary
judgment on their claim [Dkts. 15–19]. The Court referred the matter to Magistrate Judge Aaron
for a Report and Recommendation [Dkt. 36].
On January 29, 2018, Magistrate Judge Aaron issued a report recommending that
Plaintiffs’ motion be granted in part, finding that the hourly rate of plaintiffs’ junior lawyer was
excessive, and reducing the compensable hours each lawyer worked to correct for excessive
billing. See Report and Recommendation (“R&R”) [Dkt. 38]. Defendant filed timely objections
to the R&R on February 12, 2018, see Defendant’s Objections to Magistrate Judge’s Report and
Recommendation (“Obj.”) [Dkt. 39], to which Plaintiffs responded. See Plaintiffs’ Response to
Defendant’s Objections to the Report and Recommendation (“Obj. Resp.”) [Dkt. 40].
For the following reasons, the Court ADOPTS THE R&R IN PART, and REVERSES to
the extent that the Court further reduces the fees and costs awarded to Plaintiffs.
In reviewing a report and recommendation, a district court “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1). When no timely objections are made to a magistrate judge’s report, a
district court may adopt the report unless a “clear error on the face of the record” is present.
Phillips v. Reed Grp., Ltd., 955 F. Supp. 2d 201, 211 (S.D.N.Y. 2013) (quoting Nelson v. Smith,
618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)). Where a party has made specific, written objections
to the R&R, “[t]he district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); see also United States
v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (citing 28 U.S.C. § 636(b)(1)). To warrant de
novo review, the objections must be “specific” and “address only those portions of the proposed
findings to which the party objects.” Pineda v. Masonry Constr., Inc., 831 F. Supp. 2d 666, 671
(S.D.N.Y. 2011) (citation omitted). If “a party’s objections are conclusory or general, or simply
reiterate original arguments, the district court reviews the [magistrate judge’s report and
recommendation] for clear error.” Id.
Defendant has raised specific objections to the R&R, asserting that the Magistrate Judge
erred by: failing to reduce Plaintiffs’ senior attorney’s rate as excessive given her experience;
failing to consider the factors from Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th
Cir. 1974), when determining the senior attorney’s appropriate hourly rate; failing to consider the
Plaintiffs’ limited success when determining the award; and failing to eliminate the “fees on
fees” accrued in litigating the fee petition. See Obj. at 3–13. Plaintiffs attempted to rebut each
of Defendant’s objections. See Obj. Resp. at 4–23.
1. Ms. DeCrescenzo’s Hourly Rate is Excessive
The Court agrees with Defendant that the Magistrate Judge erred in setting Ms.
DeCrescenzo’s hourly rate at $400. In awarding fees in IDEA suits, district courts consider both
the prevailing market rates for such legal services, as well as case-specific factors, namely the
Johnson factors.1 G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 894 F. Supp. 2d 415, 426–29
(S.D.N.Y. 2012) (citations omitted).
As pointed out by the Defendant, the case cited in the R&R to support Ms.
DeCrescenzo’s rate, E.F. ex rel. N.R. v. New York City Dep't of Educ., No. 11 CIV. 5243 GBD
FM, 2014 WL 1092847 (S.D.N.Y. Mar. 17, 2014), involves an attorney who appears to be more
experienced than Ms. DeCrescenzo, while other cases cited by Defendant suggest that the
prevailing market rate for an attorney with her level of experience is between $300 and $350 per
hour. See R&R at 5; Obj. at 4–5. Plaintiffs contend that the cases Defendant cites are inapt, and
point to their own set of cases to suggest a market rate in line with the R&R’s finding. Obj.
Resp. at 4–11.
The Johnson factors are: “(1) the time and labor required; (2) the novelty and difficulty of the questions; (3)
the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due
to acceptance of the case; (5) the attorney’s customary hourly rate; (6) whether the fee is fixed or contingent; (7) the
time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results
obtained; (9) the experience, reputation, and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the
nature and length of the professional relationship with the client; and (12) awards in similar cases.” G.B. ex rel. N.B.
v. Tuxedo Union Free Sch. Dist., 894 F. Supp. 2d 415, 428 (S.D.N.Y. 2012) (citation omitted). A court does not
need to make specific findings as to each factor as long as it considers all of them when setting the fee award. E.F.
ex rel. N.R. v. New York City Dep’t of Educ., No. 11 CIV. 5243 GBD FM, 2014 WL 1092847, at *3 (S.D.N.Y. Mar.
17, 2014) (citing Lochren v. Cnty. of Suffolk, 344 F. App’x 706, 709 (2d Cir. 2009); G.B., 894 F. Supp. 2d at 428).
Additionally, the R&R makes no reference to the Johnson factors, implicitly or explicitly,
in setting Ms. DeCrescenzo’s rate. The Court hereby considers these case-specific factors,
noting in particular that the underlying administrative action involved relatively minimal effort,
and involved a brief, uncontested hearing resulting in limited success beyond that conceded by
the Defendant. See Defendant’s Memorandum of Law in Opposition to Plaintiffs’ Motion for
Attorneys’ Fees (“Opp.”) [Dkt. 20] at 5–9; Obj. at 9–12.
Accordingly, the Court reduces Ms. DeCrescenzo’s hourly rate from $400 to $350.
2. The Hours Billed by Ms. DeCrescenzo and Mr. Brown Are Excessive
The Court largely adopts the Magistrate Judge’s reasoning and assessment of the hours
billed by Plaintiffs’ counsel, but agrees with Defendant that the Magistrate Judge’s reductions
did not go far enough in eliminating charges for excessive billing.
As to Ms. DeCrescenzo’s hours, the Court finds that an additional reduction of five hours
is warranted. As noted by the Magistrate Judge, Ms. DeCrescenzo billed considerable time
preparing for and attending a hearing that lasted only a few minutes and that generated limited
relief beyond what the parties had already agreed to, and she prepared a boilerplate complaint for
the federal action. See R&R at 6. Accordingly, after reviewing the parties’ submissions—
Plaintiffs’ billing logs in particular, see Billing Logs [Dkts. 17-3, 29-1]—and considering the
various factors at issue, the Court finds that Ms. DeCrescenzo’s compensable hours are 30.4, at a
billable rate of $350 per hour, for a total of $10,640.
And as to Mr. Brown’s hours, the Court also finds additional reductions to be warranted.
Because Mr. Brown worked on the federal case and not the administrative action, his fees are
essentially “fees on fees,” that is, fees incurred by litigating the fee application. As noted in the
R&R, whose reasoning this Court adopts, while attorneys are generally entitled to recover the
reasonable cost of making a fee application, Mr. Brown’s fees are excessive. R&R at 6–7.
Defendant suggests that the Court should entirely reject Plaintiffs’ “fees on fees”—effectively
rendering none of Mr. Brown’s time compensable—or, in the alternative, reduce the “fees on
fees” by 50%. See Defendant’s Memorandum of Law in Sur-Reply to Plaintiffs’ Motion for
Attorneys’ Fees (“Sur-reply”) [Dkt. 37] at 5. Upon its review of the Billing Logs and
consideration of the various factors at issue, the Court finds an approximate 50% reduction in
Mr. Brown’s fees appropriate, rather than the R&R’s one-third reduction. Mr. Brown’s
compensable time is thus 40 hours of work, at $200 per hour,2 for a total of $8,000.
Although the Court concurs with Plaintiffs’ arguments that attorneys who practice in the
area of IDEA and other similar civil rights areas must be adequately compensated for their time,
fee-shifting statutes are not a license to soak one’s opponent or to engage in a highly inefficient
practice of law. In this case, a competent attorney should not have needed more than 40 hours to
litigate this fee petition. The legal basis for fee petitions is well-plowed acreage, leaving the task
of the attorney to marshal the facts to support the number of hours expended on the underlying
matter. While Plaintiffs are very critical of Defendant’s tactics in this litigation, the Court notes
that the Defendant made a very reasonable offer to Plaintiffs to settle this fee dispute, which was
rejected. See Offer of Judgment [Dkt. 21-1].
The Court accepts Defendant’s objections for the reasons discussed supra. Having
reviewed the relevant issues de novo, and upon careful consideration, the Court finds error in the
Plaintiffs did not object to the adjustment to Mr. Brown’s billing rate made by the Magistrate Judge, and
the Court finds no clear error. Nor did Defendant object to the $476.13 of costs assessed in the R&R and the denial
as to Ms. Lolis’s hours, as to which the Court also finds no clear error. See R&R at 5, 7.
Magistrate Judge’s assessment of the appropriate hourly rates and compensable hours for
Plaintiffs’ counsel. Accordingly, the Court adopts the R&R in part and reverses the R&R in part.
The fees and costs to be paid to Plaintiffs are reduced to a total of $19,116.13. The Clerk of
Court is respectfully directed to enter judgment in favor of Plaintiffs and close this case.
United States District Judge
Date: March 8, 2018
New York, New York
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