Gibson, et al v. Forest Hills Local School District Board of Education
Filing
83
ORDER granting in part 73 Supplemental Motion for Attorney Fees. Signed by Judge Susan J. Dlott on 7/1/15. (wam)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Jim and Laurie Gibson, as next friends
of Chloe Gibson,
Plaintiffs,
v.
Forest Hills Local School District
Board of Education,
Defendant.
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Case No. 1:11-cv-329
Judge Susan J. Dlott
Order Awarding in Part Supplemental
Motion for Attorney Fees
This matter is before the Court on Plaintiffs’ Supplemental Motion for Attorneys’ Fees
(Doc. 73). The Court previously issued an Order Granting Motion for Attorney Fees (“Attorney
Fees Order”) on July 15, 2014 awarding Plaintiffs Jim and Laurie Gibson, as prevailing parties,
reasonable attorney fees in the amount of $300,000. (Doc. 67 at PageID 1408, 1420.) The
Gibsons now seek the following supplemental attorney fees: (1) an award of $64,783 for the
“fees for fees” award; (2) an award of $3,540.50 for time spent to obtain an order forcing Forest
Hills to pay a transition services invoice; and (3) an award of $18,201.50 for time spent opposing
a Motion to Stay. (Doc. 73-1 at PageID 1454–56.) For the reasons that follow, the Court will
GRANT IN PART the Supplemental Motion for Attorneys’ Fees and award supplemental
attorney fees in the amount of $27,641.25.
I.
The procedural history of this case is well-known to the Court and to the parties. It need
not be restated here. Instead, the Court will dive into the determination of the amount of
supplemental attorney fees to which the Gibsons are entitled for each category of fees set forth
above.
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A.
“Fees for Fees” Award
The Gibsons seek supplemental attorney fees for the time spent litigating the initial fee
award. Forest Hills strongly contested the Gibson’s initial Motion for Attorney Fees. It
challenged the hourly fee rates sought by the Gibsons’ attorneys, the sufficiency and
appropriateness of individual billing entries, and reasonableness of the total fee award sought. In
the Attorney Fees Order, the Court concluded that Plaintiffs had achieved significant, if limited,
success on behalf of Chloe. (Id. at PageID 1416, 1419–20.) The Court awarded reasonable
attorney fees in the amount of $300,000, less than one-half the amount of the $800,000 award
which the Plaintiffs had sought. (Id. at PageID 1419–20.)
The Gibsons now seek a “fees for fees” award in the amount of $64,783, the full amount
they incurred in litigating the initial attorney fees issue. The Sixth Circuit has held that “a lawyer
should receive a fee for preparing and successfully litigating the attorney fee case after the
original case is over.” Coulter v. Tenn., 805 F.2d 146, 151 (6th Cir. 1986). In an effort to
discourage protracted litigation of an attorney fees case, the Sixth Circuit further has held that
“[i]n the absence of unusual circumstances, the hours allowed for preparing and litigating the
attorney fee case” should not exceed three percent of the hours of the main case if the case was
resolved on paper and five percent of the hours of the main case if the case required a trial. Id.;
see also Northeast Ohio Coalition for Homeless v. Sec’y of Ohio, 695 F.3d 563, 574 (6th Cir.
2012) (applying Coulter). Courts apply the Coulter rule by awarding “fees for fees” in the
amount of three or five percent of the lodestar calculation or of the primary fees awarded. Auto
Alliance Int’l, Inc. v. U.S. Customs Serv., 155 F. App’x 226, 229 (6th Cir. 2005) (awarding three
percent of lodestar); Bank One, N.A. v. Echo Acceptance Corp., No. 04-cv-318, 2009 WL
973556, at *2 (S.D. Ohio Apr. 10, 2009) (“[A] practical rule of thumb has developed that the
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supplemental award should be limited to three percent of the award for the main case when it is
decided on the papers without a trial.”).
The Gibsons assert that this case presents an exception in which the three- or fivepercent fee cap should not be applied. Forest Hills disagrees. Forest Hills contends that the
Coulter rule applies and that Plaintiffs should be awarded no more than three percent of the
$300,000 fees awarded, or $9,000.
Ohio district courts have awarded supplemental fees awards in excess of the Coulter fee
cap in IDEA cases. Rist v. Hartford Life and Acc. Ins. Co., No. 1:05-cv-492, 2011 WL 6101633,
at *8 (S.D. Ohio Nov. 14, 2011), report and recommendation adopted, 2011 WL 6086028 (Dec.
7, 2011); Gross v. Perrysburg Exempted Village Sch. Dist., 306 F. Supp. 2d 726, 742 (N.D. Ohio
2004); Moore v. Crestwood Loc. Sch. Dist., 804 F. Supp. 960, 969–70 (N.D. Ohio 1992). The
Gross and Rist courts stated that an exception to the Coulter fee cap can be appropriate in IDEA
cases if most of the attorneys’ work in the case occurred at the administrative proceeding level
and attorney fees must be obtained through new litigation. Rist, 2011 WL 6101633 at *8–9. The
Moore court stated that an exception can be appropriate in an IDEA case if the school district
takes a “less than moderate position” or acts to unnecessarily delay or protract the dispute. 804
F. Supp. at 970–72. Finally, the Gross court stated that a departure from the Coulter fee cap is
fair in IDEA cases when the parents and child with disabilities has a difficult time finding
competent counsel familiar with unique area of law. 306 F. Supp. 2d at 743.
Nonetheless, the Court will not depart from the Coulter rule in this IDEA case. First, the
Gibsons requested and were awarded attorney fees for services their attorneys performed during
the administrative hearing stage of this case. (Doc. 51-1 at PageID 1008; Doc. 67 at PageID
1409–10, 1419–20.) The Gibsons did have to initiate a federal action to obtain attorney fees, but
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the primary thrust of the federal litigation was whether Forest Hills provided Chloe Gibson with
a free appropriate public education. The federal litigation was substantive. The Coulter
supplemental fee cap, therefore, does not disadvantage the Gibsons as IDEA plaintiffs in this
case. Next, protracted fee litigation is not necessarily sufficient reason to avoid the Coulter cap
on supplement fees. See Auto Alliance Int’l, 155 F. App’x at 229. This Court determined that
both parties bear responsibility for the protracted nature of this litigation. (Doc. 67 at PageID
1417–18.) The Moore factor of awarding higher fees where the opponent caused protracted
litigation or took a “less than moderate position” does not justify an exception to the Coulter cap
here. Finally, the Gibsons have not established that an exception to Coulter should be applied
here because they had a difficult time securing competent counsel.
The Court will apply the Coulter five-percent standard for cases that are resolved
following a trial. The primary administrative hearing at the state level lasted more than twenty
non-consecutive days during 2010. (Doc. 25 at PageID 705.) It involved the testimony of
numerous witnesses, the presentation of volumes of documentary evidence, and the presentation
of videotaped evidence. The parties then were encouraged to file unusually lengthy briefs at this
level to educate the Court as to the requirements of the IDEA and the particulars of the parties’
disputes. The Court will award Plaintiffs $15,000 ($300,000 × 5%) in supplemental attorney
fees for the litigation of the initial attorney fees award.
B.
Enforcing the Court’s February 11, 2014 Order for Defendant to Pay the Invoice for
a Transition Services Evaluation
The Gibsons seek $3,540.50 in fees for the time their counsel expended obtaining the
Order Granting Motion for Payment of Invoice for Transition Evaluation (“Invoice Payment
Order”). Forest Hills does not contest the Gibsons’ entitlement to these requested fees.
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Accordingly, the Court will award the Gibsons $3,540.50 in attorney fees for services rendered
to secure the Invoice Payment Order.
C.
Opposition to Stay During Pendency of the Appeal
Forest Hills filed its Motion to Stay on June 27, 2014. (Doc. 64.) The Gibsons seek
attorney fees in the amount of $18,201.50 for services expended to oppose Forest Hills’s Motion
to Stay. The Gibsons’ attorneys and paralegals spent 68.4 hours preparing its opposition brief to
the Motion to Stay. (Doc. 73-1 at PageID 1455).
Forest Hills does not dispute that attorney fees can be awarded, but they argue that fees in
the amount of $18,201.50 are excessive. Forest Hills does not challenge the hours on an entryby-entry basis. Rather, it argues generally that the four-factor standard for issuing a stay was
well-known and did not require hours of legal research. It also argues that the Gibsons’
attorneys and paralegals billed an excessive amount of time on clerical work and on consultation
with each other. Finally, it criticizes the Gibsons’ attorneys for spending 17.6 hours of time on
anticipatory research before it was served with Forest Hills’s Motion to Stay. (Doc. 73-1 at
PageID 1482–90.) Forest Hills suggests that the Court award the Gibsons $3,540.50 in fees for
the opposition to the Motion to Stay, the same amount the Court will award the Gibsons for
securing the Invoice Payment Order.
The Court ordinarily is loath to opine on the specific number of hours it reasonably
should take to research and draft a particular legal brief. Nonetheless, the Court agrees that the
hours spent by the Gibsons’ counsel seem excessive in light of the particular facts surrounding
the Motion to Stay. Forest Hills prepared a Motion to Stay which it now concedes had “virtually
no likelihood” of success. (Doc. 64 at PageID 1365–66.) Forest Hills conceded the irreparable
harm factor and made only cursory arguments about the harm to Chloe Gibson factor and the
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public interest factor. In fact, Forest Hills cited no case law or other legal authority in support of
its arguments for any of these three factors. Instead, Forest Hills focused its argument on the
likelihood of success on the merits factor. Forest Hills argued that the Gibsons were unlikely to
be successful on appeal because Court erred in finding that Forest Hills failed to adequately
provide transition services to Chloe Gibson.
Little legal research was needed to oppose the Motion to Stay in these circumstances.
The anticipatory research counsel performed before Forest Hills filed the Motion to Stay was not
per se unreasonable. Forest Hills had informed the Gibsons of its intention to move for a stay at
least as early as April 29, 2014. (Doc. 55 at PageID 1267.) Ultimately, however, the legal
standards for the issuance of a stay were not contested. Nonetheless, given the significance of
the transition services remedy to Chloe Gibson, it was reasonable for the Gibsons’ attorneys to
research when and why courts have granted stays in IDEA cases. Similarly, the substantive issue
upon which Forest Hills based its likelihood of success argument was known to the parties, but
reasonably required a legal refresher.
In the final analysis, the Court will not award almost seventy hours of legal fees for this
effort. The Court has the authority to reduce the fees awarded to a reasonable amount. See e.g.,
Jarvis v. Mich. Bell Tel. Co., No. 08-12262, 2009 WL 1406400, at *4 (E.D. Mich. May 19,
2009) (reducing by almost one half the hours for which fees would be awarded on a motion to
compel); Deal v. Hamilton Cnty. Dep’t of Educ., No. 1:01-CV-295, 2006 WL 2854463, at *17–
18 (E.D. Tenn. Aug. 1, 2006) (reducing by one third the hours for which fees on a motion would
be awarded), aff’d sub nom. Deal v. Hamilton Cnty. Dep’t of Educ., 258 F. App’x 863 (6th Cir.
2008); Watkins & Son Pet Supplies v. Iams Co., 197 F. Supp. 2d 1030, 1033–34 (S.D. Ohio
2002) (awarding no time for services provided for by one attorney and reducing by more than
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one half the hours for which fees would be awarded for a second attorney on a motion for
sanctions). The Court, accordingly, will award fees for only one-half of the hours spent to
oppose the Motion to Stay:
ATTORNEY/PARALEGAL RATE
Attorney Kristin Hildebrant
$310
HOURS
REQESTED
.5
Attorney Virginia Wilson
$310
50.5
25.25
$7827.50
Attorney Kerstin Sjoberg-Witt $270
.5
.25
$67.50
Attorney Jason Boylan
$250
4.2
2.1
$525.00
Paralegal Laura Bordeau
$95
12.7
6.35
$603.25
TOTAL
HOURS
AWARDED
.25
FEE
AWARDED
$77.50
$9,100.75
(Doc. 73-1 at PageID 1455.) The Court will award the Gibsons attorney fees in the amount of
$9,100.75 for services performed to oppose the Motion to Stay.
II.
For the foregoing reasons, the Gibsons’ Supplemental Motion for Attorneys’ Fees (Doc.
73) will be GRANTED IN PART. The Court will award (1) $15,000 for a “fees on fees”
award; (2) $3,540.50 to secure the Invoice Payment Order; and (3) $9,100.75 for time spent
opposing the Motion to Stay. Accordingly, the Gibsons are awarded a total of $27,641.25 in
supplemental attorney fees.
IT IS SO ORDERED.
S/Susan J. Dlott__________________
Judge Susan J. Dlott
United States District Court
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