D. et al v. New York Department of Education
OPINION AND ORDER re: 14 FIRST MOTION for Summary Judgment . filed by M. D. For the foregoing reasons, Plaintiff is awarded $28,289.95, consisting of (1) $21,037.50 in attorneys' fees for the administrative proceeding before Defendant; (2) $6,695 in attorneys' fees for this proceeding and (3) $557.45 in costs. Plaintiff is awarded post-judgment interest on this amount, calculated at the applicable statutory rate. The Clerk of Court is respectfully directed to close the motion at Docket No. 14 and the case. (As further set forth in this Order.) (Signed by Judge Lorna G. Schofield on 7/16/2021) (cf) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
M.D., individually and on behalf of L.D., a child :
with a disability,
THE NEW YORK DEPARTMENT OF
20 Civ. 6060 (LGS)
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge:
Plaintiff brings this action pursuant to the fee-shifting provisions of the Individuals with
Disabilities in Education Act (“IDEA”), 20 U.S.C. § 1415(i)(3). Plaintiff filed a motion for
summary judgment seeking $67,596.73 in attorneys’ fees and costs for work performed by the
Cuddy Law Firm (“CLF”). Defendant New York City Department of Education (“DOE”)
opposes, arguing that Plaintiff’s counsel billed excessive numbers of hours at excessive rates. For
the reasons set forth below, the motion is granted in part. Plaintiff’s counsel is awarded
$21,037.50 in attorneys’ fees for the administrative proceeding before Defendant, $6,695.00 in
attorneys’ fees for this proceeding and $557.45 in costs.
Plaintiff M.D. is the parent of L.D., a child classified as a student with speech or
language impairment by Defendant’s Committee on Special Education (“CSE”). On October 17,
2018, CLF, a law firm specializing in cases brought under the IDEA, filed a due process
complaint (“DPC”) on behalf of Plaintiff, alleging that L.D. was denied a free appropriate public
education (“FAPE”) for the 2016-17, 2017-18 and 2018-19 school years. The DPC sought (1)
neuropsychological, vocational and occupational therapy evaluations of L.D.; (2) placement of
L.D. in a class of no more than twelve students; (3) a determination that L.D. was exempt from
foreign language curricular requirements and (4) one-to-one instruction in post-secondary skills
and speech language therapy. The case was assigned Impartial Hearing Officer Case Number
A three-hour hearing on the merits of the DPC was held on March 5, 2019. At the
hearing, Plaintiff submitted fifty-four pieces of documentary evidence, presented a witness and
testified in support of her claims. Defendant did not present any witnesses and submitted two
pieces of documentary evidence. The parties agreed that Plaintiff should be provided the relief
sought, and Plaintiff prevailed at the hearing. Plaintiff submitted a post-hearing brief, and the
IHO subsequently issued Findings of Fact and Decision granting the relief Plaintiff sought in the
On January 2, 2020, Plaintiff submitted a demand for attorneys’ fees to Defendant’s
Office of Legal Services. Defendant did not respond, the demand was not settled and on August
4, 2020, Plaintiff filed the instant action, seeking costs, expenses and attorneys’ fees for the
administrative action and this action. In total, Plaintiff seeks $67,596.73 in attorneys’ fees and
costs, consisting of $36,780.00 for fees in the administrative proceeding, $29,665.00 for work in
this proceeding and $1151.73 in costs.
Under the IDEA, “the 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,” 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)(B)-(C). “[T]he court may award fees for
work on the fee application itself.” G.T. v. New York City Dep’t of Educ., No. 18 Civ. 11262,
2020 WL 1516403, at *3 (S.D.N.Y. Feb. 12, 2020) (quotation marks omitted). To calculate a
“presumptively reasonable fee,” a district court first determines the appropriate billable hours
expended and sets a “reasonable hourly rate.” Lilly v. City of New York, 934 F.3d 222, 229-30
(2d Cir. 2019) (citing Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany &
Albany Cnty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008)); accord R.G. v. New York City
Dep’t of Educ., No. 18 Civ. 6851, 2019 WL 4735050, at *2 (S.D.N.Y. Sept. 26, 2019). In
making this determination, a court should step “into the shoes of the reasonable, paying client,
who wishes to pay the least amount necessary to litigate the case effectively.” O.R. v. New York
City Dep’t of Educ., 340 F. Supp. 3d 357, 364 (S.D.N.Y. 2018) (quoting Arbor Hill, 522 F.3d at
184). However, “trial courts need not, and indeed should not, become green-eyeshade
accountants. The essential goal in shifting fees . . . is to do rough justice, not to achieve auditing
perfection.” C.B. v. New York City Dep’t of Educ., No. 18 Civ. 7337, 2019 WL 3162177, at *5
(S.D.N.Y. July 2, 2019) (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)). “[A] district court may
exercise its discretion and use a percentage deduction as a practical means of trimming fat from
a fee application.” M.D. v. New York City Dep’t of Educ., No. 17 Civ. 2417, 2018 WL 4386086,
at *4 (S.D.N.Y. Sept. 14, 2018) (quoting McDonald ex rel. Prendergast v. Pension Plan of the
NYSA-ILA Pension Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006)).
Defendant does not dispute that Plaintiff is a “prevailing party” entitled to recover under
the IDEA. The only issue is to determine presumptively reasonable billing rates, hours and costs
for Plaintiff’s counsel.
A. Billing Rates
The determination of a reasonable hourly rate “contemplates a case-specific inquiry into
the prevailing market rates for counsel of similar experience and skill to the fee applicant’s
counsel, an inquiry that may include judicial notice of the rates awarded in prior cases and the
court’s own familiarity with the rates prevailing in the district.” Townsend v. Benjamin Enters.,
Inc., 679 F.3d 41, 59 (2d Cir. 2012) (quotation marks omitted); accord K.L. v. Warwick Valley
Cent. Sch. Dist., 584 Fed. App’x 17, 18 (2d Cir. 2014) (summary order). Courts may also take
“judicial notice of past awards given to the same attorneys as counsel in the current case,
particularly for firms active in IDEA-related matters like CLF.” C.B., 2019 WL 3162177, at *5.
In determining a reasonable hourly rate, courts may not rely solely on comparable cases,
but must also consider the factors articulated in Johnson v. Ga. Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974). See H.C., v. New York City Dep’t of Educ., No. 20 Civ. 844, 2021 WL
2471195, at *4 (S.D.N.Y. June 17, 2021) (citing Arbor Hill, 522 F.3d at 190). The Johnson
(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.
H.C., 2021 WL 2471195, at *4 (citation omitted). A court need not make specific findings as to
each factor as long as it considers all of them when setting the fee award. See id. (citing Lochren
v. County Of Suffolk, 344 F. App’x 706, 709 (2d Cir. 2009) (summary order)).
1. Andrew and Michael Cuddy
Plaintiff seeks a rate of $500 per hour for CLF attorneys Andrew and Michael Cuddy,
arguing that their experience in special education law compares favorably to similarly-situated
attorneys. 1 In support of that proposed rate, Plaintiff submits a declaration from another attorney
who specializes in special education law in the Southern and Eastern Districts of New York, who
states that his hourly rate is $500 to $550. Plaintiff also provides affidavits of Andrew and
Michael Cuddy, stating that they typically charge $500 to $550 per hour in special education
cases. While these declarations are instructive, they are not “easily taken at face value,” C.B.,
2019 WL 3162177, at *7, given that they provide no specifics of rates charged to clients in
circumstances similar to this case.
Plaintiff cites several special education cases in which counsel was awarded a rate in the
$450 to $500 range. The facts of those cases bear little resemblance to the circumstances here.
In C.D. v. Minisink Valley Cent. Sch. Dist., No. 17 Civ. 7632, 2018 WL 3769972, at *1 (S.D.N.Y.
Aug. 9, 2018), Andrew Cuddy was awarded $450 per hour for a heavily-contested due process
proceeding that constituted “11 days of hearings spanning five months” and a cross-appeal to the
State Review Officer (“SRO”) for Defendant. In E.F. ex rel. N.R. v. New York City Dep’t of
Educ., No. 11 Civ. 5243, 2012 WL 5462602, at *1 (S.D.N.Y. Nov. 8, 2012), report and
recommendation adopted, 2014 WL 1092847 (S.D.N.Y. Mar. 17, 2014), counsel was awarded a
rate of $475 per hour for a hearing that spanned fourteen days and involved an SRO appeal. By
contrast, this proceeding involved a single hearing of approximately three hours, at which
Defendant agreed that Plaintiff was entitled to the relief sought. Similarly, in A.R. v. New York
Plaintiff argues for $500 per hour in her memoranda of law, but supplemental submissions to
her reply list a rate of $550 per hour for Andrew and Michael Cuddy. This Opinion construes
Plaintiff’s request to be for $500 per hour.
City Dep’t of Educ., No. 12 Civ. 7144, 2014 WL 5462465, at *8 (S.D.N.Y. Oct. 28, 2014), a
senior attorney with over 35 years’ special education experience was awarded a rate of $500 per
hour -- a rate that the court noted was on the high end for comparable cases. By contrast,
Andrew Cuddy has litigated special education cases since 2001, and Michael Cuddy has
practiced in the field since 2012.
The hourly rate applied in cases of similar size and complexity as this one -- in which
Defendant conceded failure to provide a FAPE at the first hearing and presented no witnesses -is generally in the $350 to $400 range for experienced attorneys like Andrew and Michael
Cuddy. See S.J. v. New York City Dep’t of Educ., No. 12 Civ. 1922, 2020 WL 6151112, at *4
(S.D.N.Y. Oct. 20, 2020), report and recommendation adopted as modified, No. 20 Civ. 1922,
2021 WL 100501 (S.D.N.Y. Jan. 12, 2021), modified, No. 20 Civ. 1922, 2021 WL 536080
(S.D.N.Y. Jan. 25, 2021) (awarding Andrew Cuddy $360 in an “essentially uncontested”
proceeding); R.G., 2019 WL 4735050, at *2 (awarding Andrew Cuddy $350 where Defendant
contested the necessity of an individualized education plan for the student at the hearing); C.B.,
2019 WL 3162177, at *8 (awarding Andrew and Michael Cuddy $400 where Defendant
produced two witnesses in a hearing that lasted 9.8 hours); A.D. v. New York City Dep’t of Educ.,
No. 18 Civ. 3347, 2019 WL 1292432, at *3 (S.D.N.Y. Mar. 11, 2019) (awarding $350 where
Defendant did not oppose plaintiff’s position at the hearing); M.D., 2018 WL 4386086, at *4
(awarding $360 where Defendant did not oppose).
The Johnson factors also support finding that Plaintiff’s proposed hourly rate for Andrew
and Michael Cuddy is unjustified. The amount of time and labor required here were relatively
small due to Defendant’s decision not to oppose Plaintiff’s DPC. Nor did the case involve novel
or difficult questions, or demand a relatively high level of skill; the issues raised were like those
in many other DPC proceedings in this District in which Defendant concedes at the outset that
the relief sought in a DPC is proper. See, e.g., S.J., 2020 WL 6151112, at *4. And as described
above, awarded rates in similar cases are significantly lower than those proposed by Plaintiff.
Although Plaintiff notes that (1) a successful outcome counsels for a higher award and (2) her
counsel took measures to reduce costs by allocating work to less expensive employees, those
considerations do not outweigh the other Johnson factors suggesting a lower rate.
In light of the affidavits from CLF and the outside attorney, the relationship between this
case and the recent cases involving CLF and the Johnson factors, Plaintiff’s requested rate of
$500 per hour for Andrew and Michael Cuddy is excessive. Given the nature of Plaintiff’s case
and Andrew and Michael Cuddy’s years of experience in special education law, a rate of $375
per hour is in line with what similar attorneys would receive in the Southern District of New
York in this matter and is an amount a reasonable client would pay.
2. Britton Bouchard
Plaintiff proposes a rate of $275 per hour for junior associate Britton Bouchard. Mr.
Bouchard was admitted to practice law in the State of New York in June 2020, and he prepared
the Complaint and other documents in this action. 2 Plaintiff provides an affidavit from Andrew
Cuddy stating that Mr. Bouchard’s customary rate is $375 per hour, as well as an affidavit from a
special education practitioner with three years of experience who states his standard rate is $400
per hour. As with the other declarations of standard rates submitted by Plaintiff, these
declarations are not “easily taken at face value,” C.B., 2019 WL 3162177, at *7, because they do
not provide any information regarding junior attorney rates in circumstances similar to this case.
Plaintiff argues for $275 per hour in her memoranda of law, but supplemental submissions to
her reply list a rate of $375 per hour for Britton Bouchard. This Opinion construes Plaintiff’s
request to be for $275 per hour.
Attorneys of Mr. Bouchard’s experience level are typically awarded lower rates in IDEA fee
proceedings. See S.J., 2020 WL 6151112, at *4-5 (awarding $200 to a junior CLF associate who
had practiced for four years and whose time was billed in connection with a motion for
attorneys’ fees); M.D., 2018 WL 4386086, at *3 (awarding $200 to junior CLF associates); R.G.,
2019 WL 4735050, at *3 (awarding $150 to associate with two years of experience in special
education litigation). Because Mr. Bouchard has less experience than the attorneys in those
cases, a reduction in his rate is warranted.
The parties also make the same arguments under the Johnson factors as they made for
Andrew and Michael Cuddy. Those factors counsel toward a lower rate for Mr. Bouchard for the
same reasons stated above. Based on the affidavits submitted in this case, the nature of
Plaintiff’s case, Mr. Bouchard’s level of experience and the Johnson factors, a rate of $150 per
hour is in line with what similar attorneys would receive in the Southern District of New York in
this matter and is an amount a reasonable client would pay.
3. Shobna Cuddy, Allison Bunnell, Amanda Pinchak, Sarah Woodard, John Slaski,
Plaintiff requests a rate of $150 per hour for legal assistants Raul Velez and John Slaski
and paralegals Shobna Cuddy, Allison Bunnell, Amanda Pinchak and Sarah Woodard. Rates for
paralegal work in comparable cases in this District are typically lower than $150 per hour.
“Paralegals, depending on skills and experience, have generally garnered between $100 and
$125 per hour in IDEA cases in this District.” H.C., 2021 WL 2471195, at *6 (quotation marks
A reasonable rate for each of the CLF assistants and paralegals is $100 per hour. Mr.
Velez worked for CLF for approximately three years. Mr. Slaski worked for CLF from May
2019 to December 2019, but Plaintiff provides no information regarding his overall level of
experience. Ms. Bunnell worked for CLF from 2016 to 2019, after gaining an unspecified
amount of prior experience as an administrative assistant in a state District Attorney’s office.
Ms. Pinchak worked for CLF from 2016 to 2019 and completed a paralegal certification in 2017.
In light of these individuals’ limited practical experience, $100 is a reasonable hourly rate. See,
e.g., id. Ms. Woodard has three years of paralegal experience and nineteen years of experience
as a legal assistant. Although she has many years of experience in the legal industry, her
experience as a paralegal is limited, and Plaintiff does not provide any detail as to how her prior
experience enhanced her qualifications as a paralegal. Similarly, Ms. Cuddy was a paralegal and
office manager with CLF’s predecessor and has served as CLF’s office administrator since 2012,
but Plaintiff provides no evidence of her specific qualifications. See R.G., 2019 WL 4735050, at
*3 (“When the fee-seeking party fails to explain what qualifications entitle the paralegal to a
higher rate, a rate at the bottom of the range is warranted.”).
In her reply brief, Plaintiff also requests $225 per hour for Shobna Cuddy and Cailin
O’Donnell, both of whom participated in reply briefing. Because Plaintiff provides no details of
Ms. O’Donnell’s qualifications, her rate is set to $100.
B. Hours Reasonably Expended
“A fee award should compensate only those hours that were ‘reasonably expended’ by
the attorneys on th[e] case.” S.J., 2020 WL 6151112, at *5 (quoting McDonald, 450 F.3d at 96).
“Whether a case was ‘particularly complicated’ or involved any ‘significant’ legal issues may be
considered in determining the reasonable number of hours a case requires.” Id. (quoting Millea
v. Metro-North R.R. Co., 658 F.3d 154, 167 (2d Cir. 2011)). “District courts have ‘ample
discretion’ in assessing the ‘amount of work that was necessary to achieve the results in a
particular case.’” Id. (quoting Ortiz v. Regan, 980 F.2d 138, 141 (2d Cir. 1992)).
1. Administrative Proceeding
Plaintiff requests compensation for 84.4 hours of CLF work on the administrative
proceeding, totaling $36,780.00. Based on a review CLF’s timekeeping records, an overall
twenty percent reduction in hours billed is appropriate.
CLF employees collectively billed 14.8 hours of work prior to filing the DPC. Review of
the time entries for the relevant dates shows that the tasks were related to preparation of the DPC,
consisting of communications with Plaintiff, review of school records relevant to the DPC and
drafting the DPC itself.
CLF employees collectively billed 26.1 hours in preparation for the hearing, despite time
records showing that Michael Cuddy learned that Defendant would not present a case-in-chief at
the hearing on December 18, 2018. While counsel of course needed to marshal arguments,
exhibits and evidence, even for an uncontested hearing, the hours expended by CLF are on the
high end for an unchallenged, three-hour hearing, particularly given that (1) the DPC was short
and straightforward, see H.C., 2021 WL 2471195, at *8, and (2) many tasks performed by
Michael Cuddy, such as performing initial records reviews or coordinating such reviews by
psychiatric evaluators, could have been delegated to an attorney with less seniority and with a
cheaper rate, see O.R., 340 F. Supp. 3d at 370. These factors warrant a reduction in the hours
Similarly, despite the uncontested nature of the hearing, Michael Cuddy billed 14.3 hours
to prepare a closing brief. He also billed 10.1 hours to implement the relief granted by the IHO’s
decision, such as communications with providers of agreed-upon services for M.D. While “postdecision activities that are useful and of a type ordinarily necessary to secure the final result
obtained from the litigation are compensable,” because “favorable decisions are often not self10
executing,” M.D., 2018 WL 4386086, at *5, closing briefing is not typically required to secure a
favorable decision in a case where Defendant concedes the relief sought, see id.; C.B., 2019 WL
3162177, at *11 (declining to reduce award for post-hearing brief only because defendant
contested the relief sought). These factors warrant a reduction in the hours awarded.
Plaintiff also seeks to recover fees for six hours of travel time by Michael Cuddy for the
hearing. No award for travel is warranted because “it is doubtful that a reasonable client would
retain an Auburn or Ithaca attorney over a New York City attorney if it meant paying New York
City rates and an additional five hours in billable time for each trip.” K.F. v. New York City Dep’t
of Educ., No. 10 Civ. 5465, 2011 WL 3586142, at *6 (S.D.N.Y. Aug. 10, 2011) (addressing CLF
attorney travel from Auburn, New York to New York City). Michael Cuddy’s travel entries are
deducted in full.
In light of the parties’ submissions, the record in this case and the governing legal
standard for reasonable hours expended, a reduction of twenty percent in CLF’s hours billed in
the administrative proceeding is appropriate. CLF is awarded fees at the following hours and
2. Federal Court Litigation
Plaintiff requests compensation for 76.2 hours of CLF work in this proceeding, totaling
$29,665.00. Based on a review of the hours billed by CLF’s counsel, a fifty percent reduction is
This litigation is limited to the issue of the reasonable amount of fees and costs that
CLF’s attorneys should be paid for prevailing on behalf of Plaintiff in an uncontested
proceeding. This is a “simple and straightforward issue.” S.J., 2020 WL 6151112, at *6. As
another court in this District persuasively observed in similar circumstances:
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.
B.B. v. New York City Dep’t of Educ., No. 17 Civ. 4255, 2018 WL 1229732, at *3 (S.D.N.Y. Mar.
8, 2018). In light of this case’s low degree of complexity -- Plaintiff filed the complaint,
followed by service and summary judgment briefing on the straightforward issues of fees -- a
reduction of attorney hours by fifty percent achieves rough justice.
In response, Plaintiff argues that Defendant unnecessarily forced this proceeding and
then protracted it by failing to respond to pre- and post-Complaint settlement demands. This
argument is unpersuasive, because any delay by Defendant has not rendered this proceeding
unduly complex or time-intensive. See S.J., 2020 WL 6151112, at *7 (reducing billed hours by
fifty percent where defendant engaged in tactics that drove up the plaintiff’s billed hours). CLF
is awarded fees at the following hours and rates:
“A district court may award reasonable costs to the prevailing party in IDEA cases.”
C.D., 2018 WL 3769972, at *12 (citing 20 U.S.C. § 1415(i)(3)(B)(i)(1)). Plaintiff seeks to
recover costs for lodging, faxing, mileage, parking, postage and filings.
An award of lodging expenses is not warranted. See C.D., 2018 WL 3769972, at *13
(“[T]he Court will not award any costs for lodging. An attorney who was sited within a
reasonable distance of the hearing location could commute daily to the hearings, obviating any
need for lodging.”). Though the parties do not specifically discuss the need for $20.00 in fax
costs, at $2.00 per page, these costs are unreasonable. See, e.g., R.G., 2019 WL 4735050, at *6
(denying fax costs when plaintiffs made no showing why communicating via fax was necessary
or appropriate, especially given that “[m]odern copy machines have the ability to scan
documents so that they can be emailed, a method of communication that costs virtually
The requested transportation costs -- consisting of $145 in mileage and $100 in parking
for the hearing -- are also unreasonable. Local counsel attending a hearing in New York City
would likely take public transit, some sort of commuter rail, or a short car ride. See H.C., 2021
WL 2471195, at *11. A reasonable reimbursement for transportation costs is $50 each way, for a
total of $100. See id.
Finally, Defendant acknowledges that Plaintiff’s $57.45 in postage costs is reasonable
and does not contest that Defendant incurred a $400 filing fee in this action. Accordingly,
Plaintiff is awarded the following costs: $100 for transportation, $57.45 in postage and $400 in
filing fees, for a total of $557.45.
D. Post-Judgment Interest
Plaintiff also requests an award of post-judgment interest from the date judgment is
entered. “Pursuant to 28 U.S.C. § 1961, the award of post-judgment interest is mandatory on
awards in civil cases as of the date judgment is entered.” S.J., 2021 WL 100501, at *5 (quoting
True-Art Sign Co. v. Local 137 Sheet Metal Workers Int’l Ass’n, 852 F.3d 217, 223 (2d Cir.
For the foregoing reasons, Plaintiff is awarded $28,289.95, consisting of (1) $21,037.50
in attorneys’ fees for the administrative proceeding before Defendant; (2) $6,695 in attorneys’
fees for this proceeding and (3) $557.45 in costs. Plaintiff is awarded post-judgment interest on
this amount, calculated at the applicable statutory rate.
The Clerk of Court is respectfully directed to close the motion at Docket No. 14 and the
Dated: July 16, 2021
New York, New York
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