Warren-Gonzalez et al v. Department of Education of the Commonwealth of Puerto Rico et al

Filing 17

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

1
2
3
4

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.
5
6

ORDER

7

Plaintiff, Mrs. María del Carmen Warren-González, personally and on behalf of

8

her daughter, Z.C.W., an adult with disabilities, brings this action for attorney’s fees and

9

costs pursuant to section 1415(i)(3)(B) of the Individuals with Disabilities Education Act

10

(hereinafter “IDEA”), 20 U.S.C. § 1415(i)(3)(B). (Docket Nos. 1, 10, & 11). IDEA’s

11

section 1415(i)(3)(B) provides that a federal district court can award attorneys’ fees and

12

costs to the parents of a child with a disability who is a prevailing party in an

13

administrative proceeding. See 20 U.S.C. § 1415(i)(3)(B). See also 34 C.F.R.

14

§ 300.517(a)(1)(i) (2010).

15

In the verified complaint, Plaintiffs request an award of the attorney’s fees and

16

costs incurred in administrative proceeding number 2013-100-083, plus additional fees

17

and costs incurred in the present litigation. Plaintiffs seek fees computed at an hourly rate

18

of $135 per hour for the work of Attorney Francisco J. Vizcarrondo-Torres and $50 per

19

hour for the work of paralegal Marta Díaz-Fonseca, totaling 105 hours and $13,475.25,

20

for the period of November 11, 2013, through May 12, 2015, plus an additional $561.50

Civil No. 3:15-cv-01214 (JAF)

-2-

1

in costs, for an initial request of $14,036.75. Plaintiffs have since supplemented their

2

initial request to include the fees they have incurred since May 12, 2015. (ECF No. 16.1)

3

Plaintiffs request additional fees for 7.7 hours, or $1,039.50, and additional costs of

4

$3.45. Plaintiffs’ request now totals $15,079.70 ($14,514.75 in attorney and paralegal

5

fees and $564.95 in costs).

6

20 U.S.C. § 1415(i)(3)(B) provides that “[i]n any action or proceeding brought

7

under [section 1415 of the IDEA], the court, in its discretion, may award reasonable

8

attorneys’ fees as part of the costs . . . to a prevailing party who is the parent of a child

9

with a disability.” “Under the IDEA, . . . the aggrieved child’s parents . . . . may seek

10

attorneys’ fees as prevailing parties” through its fee-shifting provision. Smith v.

11

Fitchburg Pub. Sch., 401 F.3d 16, 18 n.1 (1st Cir. 2005). The fees awarded “shall be

12

based on rates prevailing in the community in which the action or proceeding arose for

13

the kind and quality of services furnished. No bonus or multiplier may be used in

14

calculating the fees awarded under this subsection.” 20 U.S.C. § 1415(i)(3)(C). The First

15

Circuit has explained that the IDEA’s fee-shifting provision should be interpreted in a

16

manner consistent with the fee-shifting statute of the Civil Rights Act, 42 U.S.C.

17

§ 1988(b), and other similar fee-shifting statutes. Doe v. Boston 2 Pub. Sch., 358 F.3d 20,

18

26 (1st Cir. 2004).

19

Defendants stipulate that Plaintiffs prevailed in the administrative hearing and are

20

entitled to attorney’s fees and costs under the IDEA. There is no dispute over the

21

reasonableness of the hourly rate charged. “Fees are presumptively reasonable where the
1

Defendants did not object to any of the requested fees and costs in the Supplemental Motion.

Civil No. 3:15-cv-01214 (JAF)

-3-

1

requesting party has multiplied a reasonable hourly rate by the number of hours

2

reasonably spent on litigation.” See Gay Officers Action League v. Puerto Rico, 247 F.3d

3

288, 293 (1st Cir. 2001) (citing Hensley, 461 U.S. at 433). The First Circuit has adopted

4

the “lodestar approach,” in which “the trial judge must determine ‘the number of hours

5

reasonably expended on the litigation multiplied by a reasonable hourly rate.’” Id. (citing

6

Hensley, 461 U.S. at 433). In the lodestar method, “the judge calculates the time counsel

7

spent on the case, subtracts duplicative, unproductive, or excessive hours, and then

8

applies prevailing rates in the community (taking into account the qualifications,

9

experience, and specialized competence of the attorneys involved).” Id. (citing Lipsett v.

10

Blanco, 975 F.2d 934, 937 (1st Cir. 1992)).

11

The logged hours are reasonably spent on litigation unless “duplicative,

12

unproductive, or excessive.” Id. In addition, after calculation of the initial “amount of the

13

award, attorney’s fees may be reduced because of (1) the overstaffing of a case, (2) the

14

excessiveness of the hours expended on the legal research or the discovery proceedings,

15

(3) the redundancy of the work exercised, or (4) the time spent on needless or unessential

16

matters.” Serrano v. Ritz-Carlton San Juan Hotel Spa & Casino, 808 F. Supp. 2d 393,

17

398 (D.P.R. 2011) (quoting Ramos v. Davis & Geck, Inc., 968 F. Supp. 765, 775 (D.P.R.

18

1997)) (internal quotation marks omitted)).

19

Defendants object, however, to specific time entries of Plaintiffs’ request and seek

20

a reduction of $2,179.20 for time they deem as repetitive, unproductive, excessive, and/or

21

constituting “mere clerical tasks.” Specifically, Defendants seek a $2,098.20 reduction

22

for drafting and reviewing documents, and planning and preparing for the administrative

Civil No. 3:15-cv-01214 (JAF)

-4-

1

hearing; $105.30 for fees associated with traveling; and $81.00 for e-mail

2

communications with the client, administrative law judges and Defendants’ counsels.

3

First, the court finds that the hourly rate requested is reasonable. This court has

4

previously found that $135.00 per hour for Attorney Vizcarrondo’s work is reasonable.

5

Hernandez-Melendez v. Puerto Rico, 2014 WL 4260811, *2 (D.Puerto Rico, Aug. 29,

6

2014) (“Based on Attorney Francisco J. Vizcarrondo-Torres’ expertise and experience

7

the rate of $135.00 per hour is found to be appropriate, if not at the lower end for

8

attorneys in the Puerto Rico community.”) Plaintiffs have met the burden to show the

9

reasonableness of the hourly rate. Defendants do not object to the hourly rate.

10

Similar to Hernandez-Melendez, Defendants want this court to apply a 40%

11

reduction in the fees requested stating that the time spent by Attorney Vizcarrondo-Torres

12

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:

13
14

The total contested entries where this court agrees that the hours billed are excessive total

15

5.1 hours, or $688.50. The court believes that an experienced lawyer, such as Attorney

16

Vizcarrondo-Torres, would ordinarily accomplish such reviewing and drafting of the

Civil No. 3:15-cv-01214 (JAF)

-5-

1

above documents in less time. Accordingly, the court deducts 1.6 hours from the time

2

spent drafting the proposed consent decree, .7 hours from the time spent filling out the

3

civil cover sheet and additional forms to attach to verified complaint, and .3 hours from

4

the time spent on final review and editing of the verified complaint, for a total deduction

5

of 2.6 hours, or $351.00. The court disagrees that the remaining contested fees are

6

excessive or duplicative.

7

Defendants next seek to cut the attorney’s fees by 40% for entries regarding the

8

travel time for Attorney Vizcarrondo-Torres. Defendants state these entries are vague

9

and/or excessive given that Attorney Vizcarrondo-Torres’s office is located within the

10

metropolitan area of San Juan and was merely traveling to and from the Municipality of

11

Carolina. The court disagrees. Here, the total time requested for travel time is 3.9 hours

12

spanning four occasions. Essentially, Attorney Vizcarrondo-Torres averaged less than

13

thirty minutes of drive time from his office in San Juan to his destinations in the

14

Municipality of Carolina. After reviewing the time entries, and with the knowledge of the

15

drive time in and around the San Juan metropolitan area, the court finds that the requested

16

fees are reasonable.

17

Finally, Defendants seek to deduct $81.00 in fees for .6 hours of time billed for

18

drafting email communications it identifies as clerical in nature. The court agrees that

19

“clerical or secretarial tasks ought not to be billed at lawyers’ rates, even if a lawyer

20

performs them.”

21

Defendants take issue with the following entries:

22

Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir. 1992).

Here, the

Civil No. 3:15-cv-01214 (JAF)

-6-

1
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.

2
3

The court agrees with Defendants that Plaintiffs have included time entries for clerical

4

tasks.

5

deduction of $81.00 of the requested fees.

Accordingly, the court deducts .6 hours for clerical tasks, amounting to a

6

Having reviewed the briefs and accompanying documentation, the court finds

7

Plaintiffs’ fee request is reasonable and, hereby, GRANTS Plaintiffs’ request for

8

attorneys’ fees as the prevailing party in the underlying administrative proceeding on

9

behalf of the minor child. Plaintiffs are awarded $14,082.75 in attorneys’ fees and

10

$564.95 in costs, totaling $14,647.70, plus interest. Defendants are jointly and severally

Civil No. 3:15-cv-01214 (JAF)

-7-

1

liable to Plaintiffs in the amount of $14,647.70, plus any interest accrued. Judgment shall

2

enter accordingly.

3

IT IS SO ORDERED.

4

San Juan, Puerto Rico, this 13th day of November, 2015.

5
6
7

S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE