Warren-Gonzalez et al v. Department of Education of the Commonwealth of Puerto Rico et al
Filing
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ORDER GRANTING 1 Complaint, filed by Maria Del Carmen Warren-Gonzalez, Z.C.W., 16 Supplemental Motion for Attorney's Fees and Costs filed by Maria Del Carmen Warren-Gonzalez, Z.C.W. Defendants are jointly and severally liable to Plaintiffs in the amount of $14,647.70, plus any interest accrued. Judgment shall enter accordingly. Signed by Judge Jose A. Fuste on 11/13/2015.(mrj)
UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
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MARÍA DEL CARMEN WARRENGONZÁLEZ, et al.,
Civil No. 3:15-cv-01566 (JAF)
Plaintiffs,
v.
DEPARTMENT OF EDUCATION OF
THE COMMONWEALTH OF PUERTO
RICO, et al.,
Defendants.
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ORDER
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Plaintiff, Mrs. María del Carmen Warren-González, personally and on behalf of
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her daughter, Z.C.W., an adult with disabilities, brings this action for attorney’s fees and
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costs pursuant to section 1415(i)(3)(B) of the Individuals with Disabilities Education Act
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(hereinafter “IDEA”), 20 U.S.C. § 1415(i)(3)(B). (Docket Nos. 1, 10, & 11). IDEA’s
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section 1415(i)(3)(B) provides that a federal district court can award attorneys’ fees and
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costs to the parents of a child with a disability who is a prevailing party in an
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administrative proceeding. See 20 U.S.C. § 1415(i)(3)(B). See also 34 C.F.R.
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§ 300.517(a)(1)(i) (2010).
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In the verified complaint, Plaintiffs request an award of the attorney’s fees and
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costs incurred in administrative proceeding number 2013-100-083, plus additional fees
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and costs incurred in the present litigation. Plaintiffs seek fees computed at an hourly rate
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of $135 per hour for the work of Attorney Francisco J. Vizcarrondo-Torres and $50 per
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hour for the work of paralegal Marta Díaz-Fonseca, totaling 105 hours and $13,475.25,
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for the period of November 11, 2013, through May 12, 2015, plus an additional $561.50
Civil No. 3:15-cv-01214 (JAF)
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in costs, for an initial request of $14,036.75. Plaintiffs have since supplemented their
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initial request to include the fees they have incurred since May 12, 2015. (ECF No. 16.1)
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Plaintiffs request additional fees for 7.7 hours, or $1,039.50, and additional costs of
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$3.45. Plaintiffs’ request now totals $15,079.70 ($14,514.75 in attorney and paralegal
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fees and $564.95 in costs).
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20 U.S.C. § 1415(i)(3)(B) provides that “[i]n any action or proceeding brought
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under [section 1415 of the IDEA], the court, in its discretion, may award reasonable
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attorneys’ fees as part of the costs . . . to a prevailing party who is the parent of a child
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with a disability.” “Under the IDEA, . . . the aggrieved child’s parents . . . . may seek
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attorneys’ fees as prevailing parties” through its fee-shifting provision. Smith v.
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Fitchburg Pub. Sch., 401 F.3d 16, 18 n.1 (1st Cir. 2005). The fees awarded “shall be
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based on rates prevailing in the community in which the action or proceeding arose for
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the kind and quality of services furnished. No bonus or multiplier may be used in
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calculating the fees awarded under this subsection.” 20 U.S.C. § 1415(i)(3)(C). The First
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Circuit has explained that the IDEA’s fee-shifting provision should be interpreted in a
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manner consistent with the fee-shifting statute of the Civil Rights Act, 42 U.S.C.
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§ 1988(b), and other similar fee-shifting statutes. Doe v. Boston 2 Pub. Sch., 358 F.3d 20,
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26 (1st Cir. 2004).
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Defendants stipulate that Plaintiffs prevailed in the administrative hearing and are
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entitled to attorney’s fees and costs under the IDEA. There is no dispute over the
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reasonableness of the hourly rate charged. “Fees are presumptively reasonable where the
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Defendants did not object to any of the requested fees and costs in the Supplemental Motion.
Civil No. 3:15-cv-01214 (JAF)
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requesting party has multiplied a reasonable hourly rate by the number of hours
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reasonably spent on litigation.” See Gay Officers Action League v. Puerto Rico, 247 F.3d
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288, 293 (1st Cir. 2001) (citing Hensley, 461 U.S. at 433). The First Circuit has adopted
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the “lodestar approach,” in which “the trial judge must determine ‘the number of hours
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reasonably expended on the litigation multiplied by a reasonable hourly rate.’” Id. (citing
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Hensley, 461 U.S. at 433). In the lodestar method, “the judge calculates the time counsel
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spent on the case, subtracts duplicative, unproductive, or excessive hours, and then
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applies prevailing rates in the community (taking into account the qualifications,
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experience, and specialized competence of the attorneys involved).” Id. (citing Lipsett v.
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Blanco, 975 F.2d 934, 937 (1st Cir. 1992)).
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The logged hours are reasonably spent on litigation unless “duplicative,
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unproductive, or excessive.” Id. In addition, after calculation of the initial “amount of the
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award, attorney’s fees may be reduced because of (1) the overstaffing of a case, (2) the
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excessiveness of the hours expended on the legal research or the discovery proceedings,
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(3) the redundancy of the work exercised, or (4) the time spent on needless or unessential
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matters.” Serrano v. Ritz-Carlton San Juan Hotel Spa & Casino, 808 F. Supp. 2d 393,
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398 (D.P.R. 2011) (quoting Ramos v. Davis & Geck, Inc., 968 F. Supp. 765, 775 (D.P.R.
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1997)) (internal quotation marks omitted)).
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Defendants object, however, to specific time entries of Plaintiffs’ request and seek
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a reduction of $2,179.20 for time they deem as repetitive, unproductive, excessive, and/or
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constituting “mere clerical tasks.” Specifically, Defendants seek a $2,098.20 reduction
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for drafting and reviewing documents, and planning and preparing for the administrative
Civil No. 3:15-cv-01214 (JAF)
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hearing; $105.30 for fees associated with traveling; and $81.00 for e-mail
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communications with the client, administrative law judges and Defendants’ counsels.
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First, the court finds that the hourly rate requested is reasonable. This court has
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previously found that $135.00 per hour for Attorney Vizcarrondo’s work is reasonable.
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Hernandez-Melendez v. Puerto Rico, 2014 WL 4260811, *2 (D.Puerto Rico, Aug. 29,
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2014) (“Based on Attorney Francisco J. Vizcarrondo-Torres’ expertise and experience
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the rate of $135.00 per hour is found to be appropriate, if not at the lower end for
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attorneys in the Puerto Rico community.”) Plaintiffs have met the burden to show the
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reasonableness of the hourly rate. Defendants do not object to the hourly rate.
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Similar to Hernandez-Melendez, Defendants want this court to apply a 40%
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reduction in the fees requested stating that the time spent by Attorney Vizcarrondo-Torres
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was excessive. The court agrees with the Defendants on a number of the contested fees:
Description
Date
Hours
Billed
Rate
$
Amount Billed
$
1. Drafting of proposed consent decree
12/29/2014
and
12/30/2014
3.6
135.00
486.00
2. Draft civil cover sheet and category sheet forms
to attach to verified complaint
5/11/2015
1.00
135.00
135.00
3. Final reviewing, editing and preparation for filing
of verified complaint
5/12/2015
.5
135.00
67.50
Entries for reviewing and drafting documents and
legal research:
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The total contested entries where this court agrees that the hours billed are excessive total
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5.1 hours, or $688.50. The court believes that an experienced lawyer, such as Attorney
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Vizcarrondo-Torres, would ordinarily accomplish such reviewing and drafting of the
Civil No. 3:15-cv-01214 (JAF)
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above documents in less time. Accordingly, the court deducts 1.6 hours from the time
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spent drafting the proposed consent decree, .7 hours from the time spent filling out the
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civil cover sheet and additional forms to attach to verified complaint, and .3 hours from
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the time spent on final review and editing of the verified complaint, for a total deduction
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of 2.6 hours, or $351.00. The court disagrees that the remaining contested fees are
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excessive or duplicative.
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Defendants next seek to cut the attorney’s fees by 40% for entries regarding the
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travel time for Attorney Vizcarrondo-Torres. Defendants state these entries are vague
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and/or excessive given that Attorney Vizcarrondo-Torres’s office is located within the
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metropolitan area of San Juan and was merely traveling to and from the Municipality of
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Carolina. The court disagrees. Here, the total time requested for travel time is 3.9 hours
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spanning four occasions. Essentially, Attorney Vizcarrondo-Torres averaged less than
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thirty minutes of drive time from his office in San Juan to his destinations in the
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Municipality of Carolina. After reviewing the time entries, and with the knowledge of the
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drive time in and around the San Juan metropolitan area, the court finds that the requested
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fees are reasonable.
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Finally, Defendants seek to deduct $81.00 in fees for .6 hours of time billed for
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drafting email communications it identifies as clerical in nature. The court agrees that
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“clerical or secretarial tasks ought not to be billed at lawyers’ rates, even if a lawyer
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performs them.”
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Defendants take issue with the following entries:
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Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir. 1992).
Here, the
Civil No. 3:15-cv-01214 (JAF)
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Description
Date
Hours
Billed
Rate
$
Amount Billed
$
12/12/2013
0.10
135.00
13.50
2/25/2014
0.10
135.00
13.50
12/30/2014
0.10
135.00
13.50
12/30/2014
0.10
135.00
13.50
3/2/2015
0.10
135.00
13.50
4/20/2015
0.10
135.00
13.50
Entries for clerical tasks:
1. Draft various e-mail communications to DOE’s
counsel, attorney Brenda Virella and Pedro Solivan,
re: enclosing production of plaintiffs documentary
evidence.
2. Draft e-mail communication to DOE’s counsel,
attorneys Brenda VirellaPedro Solivan, re: enclosing
as requested production of Z.C.W.’s speech and
language therapy progress report and intervention
plan.
3. Draft e-mail communication to DOE’s counsel,
attorney Flory Mar De Jesus, re: proposed consent
decree.
4. Draft e-mail communication to Mrs. Maria del
Carmen Warren re: proposed consent decree.
5. Draft e-mail communication to DOE’s counsel,
attorney Flory Mar De Jesus, re: enclosing
preliminary comments to amended draft of the
consent decree submitted by the DOE.
6. Draft e-mail communication to DOE’s counsel,
attorney Flory Mar De Jesus, re: enclosing
settlement stipulation signed by plaintiffs counsel
and requesting counsel availability for her signing of
the document.
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The court agrees with Defendants that Plaintiffs have included time entries for clerical
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tasks.
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deduction of $81.00 of the requested fees.
Accordingly, the court deducts .6 hours for clerical tasks, amounting to a
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Having reviewed the briefs and accompanying documentation, the court finds
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Plaintiffs’ fee request is reasonable and, hereby, GRANTS Plaintiffs’ request for
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attorneys’ fees as the prevailing party in the underlying administrative proceeding on
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behalf of the minor child. Plaintiffs are awarded $14,082.75 in attorneys’ fees and
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$564.95 in costs, totaling $14,647.70, plus interest. Defendants are jointly and severally
Civil No. 3:15-cv-01214 (JAF)
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liable to Plaintiffs in the amount of $14,647.70, plus any interest accrued. Judgment shall
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enter accordingly.
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IT IS SO ORDERED.
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San Juan, Puerto Rico, this 13th day of November, 2015.
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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE
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