Opinion
21 Civ. 11208 (VEC) (GWG)
04-28-2023
E.W., INDIVIDUALLY AND ON BEHALF OF A.G., Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff E.W., individually and behalf of her son, A.G., brought this action against defendant New York City Department of Education (“DOE”) in connection with an administrative proceeding brought to enforce A.G.'s right to a “free appropriate public education” (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. See Complaint, filed Dec. 30, 2021 (Docket # 1) (“Compl”), ¶¶ 22, 33, 84, 181.
The plaintiff withdrew most of her claims early in the federal action and now moves for attorney's fees and costs. For the reasons that follow, plaintiff's request should be granted in the amount of $37,286.08.
See Notice of Motion, filed Oct. 14, 2022 (Docket # 21) (“Mot.”); Rule 56.1 Statement, filed Oct. 14, 2022 (Docket # 22); Declaration of Andrew K. Cuddy, filed Oct. 14, 2022 (Docket # 23) (“A. Cuddy Decl.”); Declaration of Michael J. Cuddy, filed Oct. 15, 2022 (Docket # 24) (“M. Cuddy Decl.”); Declaration of Steven J. Alizio, filed Oct. 15, 2022 (Docket # 25) (“Alizio Decl.”); Declaration of Benjamin Kopp, filed Oct. 15, 2022 (Docket # 26) (“Kopp Decl.”); Memorandum of Law in Support of Plaintiff's Summary Judgment Motion, filed Oct. 15, 2022 (Docket # 27) (“E.W. Mem.”); Defendant's Response to Plaintiff's Local Rule 56.1 Statement of Material Facts, filed Nov. 18, 2022 (Docket # 29) (“Rule 56.1 Response”); Declaration of Emily Goldman, filed Nov. 18, 2022 (Docket # 30) (“Goldman Decl.”); Declaration of Kristin Pekala, filed Nov. 18, 2022 (Docket # 31) (“Pekala Decl.”); Declaration of Thomas Lindeman, filed Nov. 18, 2022 (Docket # 32) (“Lindeman Decl.”); Declaration of Martin Bowe, filed Nov. 18, 2022 (Docket # 33) (“Bowe Decl.”); Defendant's Opposition to Plaintiff's Motion for Attorneys' Fees and Costs, filed Nov. 18, 2022 (Docket # 34) (“Opp. Mem.”); Reply Declaration of Michael J. Cuddy, filed Dec. 9, 2022 (Docket # 35) (“M. Cuddy Reply Decl.”); Reply Declaration of Benjamin Kopp, filed Dec. 9, 2022 (Docket # 36) (“Kopp Reply Decl.”); Reply Declaration of Andrew K. Cuddy, filed Dec. 9, 2022 (Docket # 37) (“A. Cuddy Reply Decl.”); Memorandum of Law in Support of Plaintiff's Summary Judgment Motion, filed Dec. 9, 2022 (Docket # 38) (“Reply”); Letter from Thomas Lindeman, filed Mar. 17, 2023 (Docket # 42) (“Lindeman Supp. Let.”); Letter from Benjamin Kopp, filed Mar. 24, 2023 (Docket # 43) (“Kopp Supp. Let.”).
I. BACKGROUND
On June 17, 2019, E.W. filed a request for a hearing with DOE pursuant to the procedures outlined in the IDEA, claiming that her child was not receiving a FAPE for the school year 2019-2020 and that she was entitled to public funding for the placement of her son, A.G., in a specialized non-public school. See Request for Impartial Hearing, dated June 17, 2019 (Docket # 24-3). E.W. alleged that her son had been diagnosed with Autism Spectrum Disorder with intellectual disability and language impairment, and required “an appropriate program of special education and related services.” Id. at 2. The matter was heard by an Impartial Hearing Officer (“IHO”), who held a 20-minute pre-hearing conference and a subsequent hearing, which lasted approximately 2 hours. Rule 56.1 Response ¶¶ 33-34, 40-41; Transcript, dated Aug. 1, 2019 (Docket # 24-4), at 1, 24. E.W. presented three witnesses and DOE presented no witnesses. Rule 56.1 Response ¶ 41. The DOE presented exhibits and crossexamined E.W.'s witnesses at the hearing. Id. ¶ 41. On November 11, 2019, the IHO found for E.W. in part, and ordered that DOE reimburse E.W. and provide direct funding for the school placement for the 2019-2020 year. Id. ¶¶ 42-47; Finding of Facts and Decision, dated Nov. 11, 2019 (Docket # 24-6).
Although E.W. provides information regarding a case for the 2018-2019 school year, see Rule 56.1 Statement ¶¶ 10-22, Cuddy Law Firm did not represent E.W. in that case, id. ¶ 11, and E.W. does not seek fees for that case in the instant action, see A. Cuddy Decl. ¶¶ 72-74 (seeking fees for the 2019-2020 case, 2020-2021 case, and instant federal action).
On June 16, 2020, E.W. again filed a request for impartial hearing with DOE with respect to the 2020-21 school year, alleging largely the same facts as the 2019 case and claiming entitlement to remain at A.G.'s current school. See Request for Impartial Hearing, dated June 16, 2020 (Docket # 24-9). The IHO held a status conference, Rule 56.1 Response ¶ 88, after which DOE filed a six-page motion to dismiss portions of E.W.'s request. Id. ¶¶ 93-94. In denying the motion, the IHO determined DOE's argument to be “frivolous” and indicated that it had “wasted substantial time and energy of the tribunal while delaying [the] matter gratuitously.” Id. ¶¶ 95-96; Interim Order Granting Amendment, date Mar. 6, 2021 (Docket # 24-14). The IHO held a hearing on July 14, 2021, at which four witnesses gave testimony, and which lasted 2 hours 35 minutes. Rule 56.1 Response ¶ 105; see Transcript, dated July 14, 2021 (Docket # 24-16). The IHO held a conference on July 19, 2021, id. ¶¶ 107-09, and then a hearing on August 3, 2021, at which E.W. presented two witnesses, and which lasted less than an hour. Id. ¶¶ 110-11. On August 3, 2021, the IHO found for E.W., and ordered the DOE to reimburse attendance costs, pay outstanding tuition costs, pay the costs of independent assessments requested by E.W., and reimburse the cost of independent assessments previously conducted. Id. ¶¶ 115-17; Finding of Facts and Decision, dated Aug. 3, 2021 (Docket # 24-19).
On December 30, 2021, E.W. filed the instant complaint in the Southern District of New York. See Complaint, filed Dec. 30, 2021 (Docket # 1). On October 7, 2022, E.W. withdrew various causes of action by stipulation. See Stipulation and Order, dated Oct. 7, 2022 (Docket #19). Also on October 7, 2022, DOE made an offer of settlement in the amount of $38,000.01, which was rejected. See Lindeman Decl. ¶ 22; Offer, dated Oct. 7, 2022 (Docket # 36-12). On October 14, 2022, E.W. filed the instant motion for summary judgment on the issue of attorney's fees and costs under the IDEA. See Mot.
The offer of settlement included “all claims for attorneys' fees, costs and expenses.” See Offer ¶ 2.
II. DISCUSSION
The IDEA grants a court discretion to “award reasonable attorneys' fees as part of the costs . . . to a prevailing party who is the parent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B)(i)(I). A “prevailing party” is one who succeeds “on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.” G.M. ex rel. R.F. v. New Britain Bd. of Educ., 173 F.3d 77, 81 (2d Cir. 1999) (quoting Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989)). Thus, “[i]f the guardian of a child with a disability successfully enforces his or her rights under the IDEA in an administrative action, the statute authorizes courts to award reasonable attorney fees to the guardian.” Id. at 80. DOE does not contest that the plaintiff is entitled to an award of attorney's fees and costs. See Opp. Mem. at 4.
The Second Circuit has held that “[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 186 (2d Cir. 2008) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). This calculation yields a “presumptively reasonable fee,” which is also referred to as the “lodestar.” Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (citations and internal quotation marks omitted). The lodestar figure “includes most, if not all, of the relevant factors constituting a reasonable attorney's fee.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 543 (2010) (internal quotation marks omitted) (quoting Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 566 (1986)).
E.W. argues that “the reasonable fee [in this case] is one that does not permit DOE to attack, prolong, and accrue fees [in] this matter further with ‘subsection (F)' challenges,” E.W. Mem. at 4, making reference to 20 U.S.C. § 1415(i)(3)(F). Section 1415(i)(3)(F) holds that “whenever the court finds that . . . the amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience; [or] the time spent and legal services furnished were excessive considering the nature of the action or proceeding . . . the court shall reduce, accordingly, the amount of the attorneys' fees awarded under this section.” Section 1415(i)(3)(G) then provides that this provision “shall not apply in any action or proceeding if the court finds that the . . . educational agency unreasonably protracted the final resolution of the action.” E.W. fails to articulate precisely how she believes that Section 1415(i)(3)(F) and (G) should apply in this case. In any event, her argument as to the DOE's “unreasonable protraction” consists only of the allegations that “DOE's failures in its hearing system (including to have any IHO appointed within the first several months after filing of the DPC for case 194451), using settlement and litigation strategies as stall tactics, and shifting from nearly non-objection to firm opposition - whether taken individually or altogether - are objectively unreasonable, prolonged the proceedings, and delayed A.G.'s . . . relief for several months and even years, well beyond the 75 days from [due process complaint] by which the IHOs must issue decisions.” E.W. Mem. at 4. E.W. cites to no evidence in the record, however, and makes no further argument regarding “unreasonable protraction” in her Memorandum. E.W.'s reply memorandum again mentions the law in broad terms, but fails to identify the substance of the relief sought or the factual basis on which it could be granted. See Reply at 9. We thus do not address the applicability of Section 1415(i)(3).
A. Reasonable Hourly Rates
1. Law Governing Rates
To determine an appropriate hourly rate in cases involving statutory attorney's fees, Arbor Hill directs that a court engage in the following process:
[T]he district court, in exercising its considerable discretion, [is] to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate. The reasonable hourly rate is the rate a paying client would be willing to pay. In determining what rate a paying client would be willing to pay, the district court should consider, among others, the Johnson factors; it should also bear in
mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively. The district court should also consider that such an individual might be able to negotiate with his or her attorneys, using their desire to obtain the reputational benefits that might accrue from being associated with the case.522 F.3d at 190 (emphasis in original). The “Johnson factors” are those laid out in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). These 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.Arbor Hill, 522 F.3d at 186 n.3 (citing Johnson, 488 F.2d at 717-19).
Arbor Hill identified the following factors to be considered in determining what a reasonable, paying client would be willing to pay:
the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) that an attorney might expect from the representation.Id. at 184.
Importantly, Arbor Hill held that a court must “step[] into the shoes of the reasonable, paying client, who wishes to pay the least amount necessary to litigate the case effectively.” Id. at 184 (emphasis added). In other words, whether the attorneys command the rates they seek in the marketplace is not dispositive of the rate that they are to be awarded. Rather, “Arbor Hill demands that we determine the cheapest hourly rate an effective attorney would have charged.” Knox v. John Varvatos Enterprises Inc., 544 F.Supp.3d 384, 387 (S.D.N.Y. 2021).
Here, the Cuddy Law Firm (“CLF”) seeks fees for work performed on E.W.'s behalf by three attorneys and six paralegals on E.W.'s 2019-2020 case, the 2020-2021 case, and the instant federal case. See A. Cuddy Reply Decl. ¶ 30. For Michael Cuddy and Andrew Cuddy, CLF seeks a rate of $550. Id. DOE counters that $367.50 is an appropriate rate. See Opp. Mem. at 4. For Benjamin Kopp, CLF seeks $400 per hour except for certain hours of administrative work billed at $225. A. Cuddy Reply Decl. ¶ 30. DOE proposes a rate of $160. Opp. Mem. at 4. For each paralegal, CLF seeks $225 per hour, A. Cuddy Reply Decl. ¶ 30, and DOE proposes $100 per hour. Opp. Mem. at 4. DOE also asks the Court to reduce Michael and Andrew Cuddy's rate to $200 for their work in the instant federal court action. Id.
2. Analysis
The governing statute provides that fees are to be awarded “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)(C). DOE, however, argues that CLF should be awarded prevailing rates in the Northern District, where CLF's law offices are located, rather than those in the Southern District of New York. Opp. Mem. at 8-9. The DOE cites a single case in which a law firm was awarded out-of-district rates in an IDEA case, id., - a case that dealt with a matter for which “there [was] no evidence that [CLF] conducted any work in, or felt it necessary to travel to, the Southern District . . . at any time.” See K.L. v. Warwick Valley Cent. Sch. Dist., 2013 WL 4766339, at *9 (S.D.N.Y. Sept. 5, 2013). In other words, K.L. necessarily found that the matter “arose” in the Northern District. DOE makes no argument that the matter here “arose” in the Northern District. Thus, we evaluate plaintiff's claim by reference to rates within the Southern District of New York. See C.D. v. Minisink Valley Cent. Sch. Dist., 2018 WL 3769972, at *6 (S.D.N.Y. Aug. 9, 2018) (“The relevant community for the purposes of determining a reasonable rate is the Southern District of New York, where both this litigation and the underlying administrative proceedings are centered.”); accord T.H. v. New York City Dep't of Educ., 2022 WL 16945703, at *4 n.2 (S.D.N.Y. Nov. 15, 2022); H.A. v. New York City Dep't of Educ., 2022 WL 580772, at *5 n.6 (S.D.N.Y. Feb. 25, 2022).
We turn next to the experience of the personnel for whom fees are sought. Andrew Cuddy has been practicing law for over twenty-five years and has been practicing special education law for over twenty. A. Cuddy Decl. ¶ 38. Michael Cuddy has been practicing law for over thirty years and has been practicing special education law for roughly thirteen. Id. ¶ 39. Benjamin Kopp has been practicing law for seven years and has been practicing special education law for three to four years. Id. ¶ 40.
As for paralegals, Shobna Cuddy has worked as a paralegal for special education cases for fifteen years. Id. ¶ 41. Amanda Pinchak has three years of experience and has earned a paralegal certificate. Id. ¶ 44. Cailin O'Donnell has four years of experience as a paralegal, not all of it in special education, id. ¶ 42, ChinaAnn Reeve has between one and two years of experience in special education practice, id. ¶ 43, and the remaining paralegals, Bianco and Meghezzi, each have less than one year of experience. Id. ¶¶ 45-46.
As for the nature of the work, the instant case involved two due process claims, each of which involved hearings, exhibits, and testimony from several witnesses. See Rule 56.1 Response ¶¶ 40-41, 105, 111. The total hearing time was only about five-and-a-half hours. See id. E.W. does not contend that the representation involved novel questions of fact or law, and the total hearing time alone suggests a lack of complexity to the case.
E.W. argues that CLF is entitled to higher rates than those sought by DOE here. See E.W. Mem. at 5-14. E.W. focuses largely on what she considers to be the prevailing rates in the community. See id. But the only direct evidence E.W. offers of rates actually paid by clients consists of the sworn declaration of a single IDEA practitioner, Steven J. Alizio. See id. at 6-7; Alizio Decl.
Alizio's declaration reflects that some unstated number of clients in special education cases have paid him $400 per hour. See Alizio Decl. ¶¶ 9, 17. He does not say how many such clients there are. Assuming that there are at least two such clients, this declaration provides evidence only that there are some individuals who have paid this hourly rate. It certainly provides no evidence of the rates that “prevail[] in the community” generally. 20 U.S.C. § 1415(i)(3)(C). We thus remain “hampered in our effort to fix an appropriate rate by the fact that there is little evidence to support the notion that there is a market among paying clients for engaging the IDEA litigation services provided by plaintiff's lawyers.” O.R. v. New York City Dept. of Educ., 340 F.Supp.3d 357, 364 (S.D.N.Y. 2018). Instead, it appears that such work is compensated almost exclusively through attorney fee applications.
While we have considered all the Arbor Hill and Johnson factors to the extent there is information in the record, we will not make findings as to each factor. See Lochren v. Cty. of Suffolk, 344 Fed.Appx. 706, 709 (2d Cir. 2009) (“Arbor Hill did not hold that district courts must recite and make separate findings as to all twelve Johnson factors.”). Instead, we note that there is no showing that this case involved novel or difficult questions or unusual skill. We also note that virtually none of the evidence presented by E.W. is informative as to the “least amount necessary to litigate the case effectively.” Arbor Hill, 522 F.3d at 184. The Court, however, is familiar from experience with hourly rates in a wide variety of practice areas, arising largely from the fact that attorneys often reveal hourly rates actually paid by clients during the many dozens of settlement conferences that the Court conducts each year. From this experience, the Court is aware that even within a given practice area, there is frequently a wide range of rates charged by attorneys and that attorneys at the lower end advocate with effectiveness before the Court. The City's proposed rates fit well within this range in many areas of practice.
We also look for guidance to cases that have awarded fees to CLF in other IDEA matters. While there are rare cases awarding rates in line with what CLF seeks here, see Y.G. v. New York City Dep't of Educ., 2022 WL 1046465, at *2 (S.D.N.Y. Apr. 7, 2022) (awarding Andrew Cuddy $550, Kopp $375, and paralegals $225 after a “heavily contested” administrative hearing), far more have awarded fees at a lower hourly rate. In H.A. v. New York City Dep't of Educ., 2022 WL 580772 (S.D.N.Y. Feb. 25, 2022), the court awarded $375 to Andrew Cuddy and Michael Cuddy, $250 to Kopp, and $100 to the paralegals. Id. at *7-8. Other cases have awarded rates in line with H.A. See T.A. v. New York City Dep't of Educ., 2022 WL 3577885, at *5 (S.D.N.Y. Aug. 19, 2022) (awarding Andrew Cuddy $375 per hour, which “reflects what the Court finds a reasonable paying client would be willing to pay”); F.N. v. New York City Dep't of Educ., 2022 WL 3544128, at *4 (S.D.N.Y. Aug. 18, 2022) ($375 per hour for Andrew Cuddy); R.P. v. New York City Dep't of Educ., 2022 WL 1239860, at *4 (S.D.N.Y. Apr. 27, 2022) ($375 per hour for Andrew Cuddy); M.D. v. New York Dep't of Educ., 2021 WL 3030053, at *3 (S.D.N.Y. July 16, 2021) (awarding $375 per hour for Andrew Cuddy and Michael Cuddy, reasoning that this rate “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”); H.C. v. N.Y.C. Dep't of Educ., 2021 WL 2471195, at *14 (S.D.N.Y. June 17, 2021) ($360 per hour for Andrew Cuddy and Michael Cuddy where “the proceedings were ultimately minimally contested”). While there are also many cases awarding rates in the $400-$420 range for the senior Cuddy attorneys, we are ultimately persuaded by Judge Caproni's decision in M.R. v. New York City Dept. of Educ., 2022 WL 16575767 (S.D.N.Y. Oct. 31, 2022), which awarded a $367.50 hourly rate for Andrew Cuddy. Id. at *2. In light of some minimal inflation since that date, and to bring the rate in line with some of the cases cited here, we believe a rate of $375 for the senior Cuddy attorneys is appropriate. We note that the hearings here were relatively simple, did not consume many hours, and did not require any complex litigation.
As for Kopp, we are aware of cases in which Kopp has been awarded $200 or $225 per hour. See, e.g., Y.S. v. New York City Dep't of Educ., 2022 WL 4096071, at *3 (S.D.N.Y. Sept. 6, 2022) ($200); N.A. v. New York City Dep't of Educ., 2022 WL 17840273, at *7 (S.D.N.Y. Aug. 15, 2022) ($225), adopted, 2022 WL 17581774 (S.D.N.Y. Dec. 12, 2022). Nonetheless, Judge Caproni in an earlier iteration of M.R. awarded Kopp $168 per hour. See M.R. v. New York City Dep't of Educ., 2022 WL 4396835, at *3 (S.D.N.Y. Sept. 23, 2022). As noted, we find her reasoning persuasive, though we conclude that given the passage of time, he should be awarded $180.00 per hour.
We will not address all the arguments set forth by plaintiff in favor of the rates she seeks for the attorneys in this case, as many amount to policy arguments not tethered to the requirements of case law. One such argument is that plaintiff should be awarded the rates sought to counteract the alleged “dearth” of lawyers providing representation in IDEA cases. E.W. Mem. at 9. However, plaintiff does not provide any evidence from which we could draw an inference that rates in the range sought by DOE would not support a sufficient number of attorneys to take on IDEA cases. For example, plaintiff provides no evidence that IDEA clients have had difficulty securing attorneys because of particular rates set.
Finally, as for the paralegals, we are persuaded by Judge Caproni's conclusion in M.R. that a rate of $100 for a paralegal is appropriate except in instances where the paralegal has “an associate's degree and substantial experience in the field,” M.R., 2022 WL 4396835, at *2 (S.D.N.Y. Sept. 23, 2022), on reconsideration, 2022 WL 16575767 (S.D.N.Y. Oct. 31, 2022), in which case a $125 rate is appropriate. The descriptions of the paralegals' education and experience provided by plaintiff indicate that only two have associate degrees or higher (Cailin O'Donnell and ChinaAnn Reeve). A. Cuddy Decl. ¶¶ 41-46. But neither of these two is described as having had “substantial experience” acting in a paralegal experience in IDEA litigation. See id. ¶¶ 42-43. Accordingly, all paralegals should be awarded $100 per hour. We note that Shobna Cuddy, Cailin O'Donnell, ChinaAnn Reeve, Burhan Meghezzi, and Amanda Pinchak were among the paralegals in M.R., and were awarded $100 per hour each. See 2022 WL 4396835, at *2-3.
3. Fee Reductions for Federal Court Action
The DOE argues that, regardless of the award for the two administrative actions, the court should “us[e] $200/hour for all attorney hours billed for the federal action,” except for a rate of $160 for Kopp, “if the [c]ourt finds CLF is entitled to recover at all for the federal work.” Opp. Mem. at 4. This argument cites only to C.B. v. New York City Dep't of Educ., 2019 WL 3162177 (S.D.N.Y. July 2, 2019). See id. In C.B., however, the court awarded attorney's fees for the federal action, but held that work performed after an offer of settlement would be valued at “a junior associate's rate” because it found that the quality of work performed after the offer was insufficient to “justify . . . fees for two senior attorneys.” Id. at *12. That holding does not support a wholesale reduction in attorney's fees for the federal action even before an offer of settlement. Nor does DOE cite to any other rule that would allow the court to fix different rates for the federal action. Therefore, fees should be awarded for work performed before the settlement offer in the federal action at the same rate as the two administrative actions.
B. Reasonable Number of Hours Expended
In evaluating the reasonableness of hours expended, courts consider “not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992). A claimant is only to be compensated for “hours reasonably expended on the litigation,” and not for “hours that are excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 433-34.
“Because attorney's fees are dependent on the unique facts of each case, the resolution of this issue is committed to the discretion of the district court.” Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992) (citing Hensley, 461 U.S. at 437). In exercising this discretion, a court looks to “its own familiarity with the case and its experience with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.” Id. at 1153 (citation and internal quotation marks omitted).
The Supreme Court has cautioned that “trial courts need not, and indeed should not, become green-eyeshade accountants.” Fox v. Vice, 563 U.S. 826, 838 (2011); see also Buckhannon Bd. & Care Home v. W.Va. Dep't of Health and Human Res., 532 U.S. 598, 609 (2001) (fee requests “should not result in a second major litigation”) (quoting Hensley, 461 U.S. at 437). As Fox stated, “[t]he essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time.” 563 U.S. at 838.
As a result, a district court is not required to “set forth item-by-item findings concerning what may be countless objections to individual billing items.” Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994). Rather, a court may use a percentage reduction “as a practical means of trimming fat from a fee application.” McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006) (internal quotation marks and citation omitted); accord Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998); Lewis v. Roosevelt Island Operating Corp., 2018 WL 4666070, at *7 (S.D.N.Y. Sept. 28, 2018).
We first address the hours spent at the administrative level and then the hours for the federal proceeding.
1. Administrative Hearing Hours
Plaintiff has submitted time records that were kept pursuant to CLF's policy that “requires contemporaneous timekeeping.” A. Cuddy Decl. ¶ 69; Case No. 183551 Billing Statement, annexed to A. Cuddy Decl. (Docket # 23-17); Case No. 194451 Billing Statement, annexed to A. Cuddy Decl. (Docket # 23-18); Federal Action Timesheets, annexed to A. Cuddy Decl. (Docket # 23-19). The entries reflect the following expenditures of time for the first administrative proceeding: Michael Cuddy, 42 hours plus 5.5 hours of travel; Andrew Cuddy, 1.7 hours; Shobna Cuddy, 1.1 hours; Cailin O'Donnell, 0.3 hours; Amanda Pinchak, 2 hours; Emma Bianco, 0.5 hours; Burhan Meghezzi, 0.6 hours. See A. Cuddy Reply Decl. ¶ 30. For the second administrative proceeding, the entries reflect the following expenditures of time: Michael Cuddy, 43.9 hours; Andrew Cuddy, 1.6 hours; Shobna Cuddy, 1.1 hours; Cailin O'Donnell, 2.4 hours. Id.
The billing requests reflect no travel expenses for Case No. 194451. See A. Cuddy Reply Decl. ¶ 30.
DOE challenges CLF's claimed hours, arguing that CLF “overbill[ed] at every stage of the administrative process.” Opp. Mem. at 20. While we will not address all such arguments, we begin by rejecting DOE's argument that it was inappropriate for an attorney to spend 0.9 hours reviewing billing for an administrative proceeding. See Id. at 22. The very case cited by DOE, id., actually awarded 1.5 hours for an attorney's compilation of time entries. R.G. v. New York City Dept. of Educ., 2019 WL 4735050, at *4 (S.D.N.Y. Sept. 26, 2019).
DOE also complains about “block billing,” see, e.g., Bowe Decl. ¶ 25, which occurs where “task descriptions are aggregated together into a single block of time so that it is impossible to tell what amount of time is allocated to each task.” O.R. v. New York City Dep't of Educ., 340 F.Supp.3d 357, 370 (S.D.N.Y. 2018). DOE alleges that CLF billed numerous entries in which attorneys list several tasks in a single cell on the billing record. See Bowe Decl. ¶ 25; Lindeman Decl. ¶¶ 5, 9. We note that many of these entries actually break down the billed tasks into much smaller increments. For example, one entry is identified by DOE as “bill[ing] 5.7 hours,” but actually consists of sub-entries billed at increments between 0.1 and 3.8 hours, for each of which an individualized description is provided. See Lindeman Decl. ¶ 5-6; Case No. 183551 Billing Statement at 2. Nonetheless, there remain instances of the unnecessary combination of tasks into a single entry. See, e.g., Time Entry of August 1, 2019, Case No. 183551 Billing Statement at 7 (combining entry for participating in hearing with entry regarding preparation of “[notes] to case file” following the hearing).
DOE also complains of billing of 0.10 hour entries for tasks that should take less than six minutes. Opp. Mem. at 21-22. As one case
[t]he practice of billing a tenth of an hour for a discrete task is not inherently problematic. But, when an attorney on a single day bills multiple 0.10 hour entries for [discrete] tasks, where the tasks individually appear likely to have
occupied less than 0.10 hours and in total appea[r] likely to have occupied less than the sum total of the 0.10 hour increments, such a practice can improperly inflate the number of hours billed beyond what is appropriate.C.D. v. Minisink Valley Cent. Sch. Dist., 2018 WL 3769972, at *8 (S.D.N.Y. Aug. 9, 2018). DOE identifies a total of six hours billed in 0.10 hour increments, Opp. Mem. at 22, across the proceedings for which CLF proposes nearly 220 total hours expended. See A. Cuddy Reply Decl. ¶ 30. By contrast, in Hernandez v. Boucherie, LLC, 2019 WL 3765750 (S.D.N.Y. Aug. 8, 2019), one case upon which DOE relies, the court trimmed hours attributable to minimalincrement billing where attorneys had billed 7.5 hours of six-minute increments in a case comprising less than 40 total hours of proposed time. See id. at *5-6. Given that these minimalincrement entries represent about 3% of the hours claimed here, we do not view these entries as warranting a significant reduction in hours, though we agree that there are a number of instances where the task billed as 0.1 hours should have taken less than six minutes. See, e.g., Time Entry of July 8, 2021, Case No. 194451 Billing Statement at 13 (billing 0.10 hours to review a “confirmation of DOE receipt of affidavits”).
DOE identifies numerous entries which it claims represent unreasonable expenditures of time in proportion to the task described. See Lindeman Decl. ¶¶ 7-9, 12-15; Opp. Mem. at 20-22. While we will not dissect every time entry, we agree that some tasks took more hours to accomplish than necessary. For example, a 0.40 hour entry on June 3, 2019 bills a senior attorney's time for what appears to be merely the “[r]eceiv[ing]” of an email with attachments. See Time Entry of June 3, 2019, Case No. 183551 Billing Statement at 2. We do not find that entries of this kind predominate, however.
In light of the above, and having reviewed the records, we conclude that a 5% reduction in hours is sufficient to reduce the entries to a reasonable amount of time.
We treat the request for time billed to travel separately. Cuddy billed a total of 5.5 hours of travel between his office and hearings that took place in New York City. See A. Cuddy Reply Decl. ¶ 30; Time Entry for Nov. 7, 2019, Case No. 182551 Billing Statement at 12. DOE contends that no hours should be awarded for CLF's travel time in this case. Opp. Mem. at 23-24. We agree. The hypothetical paying client contemplated by the Arbor Hill standard, who is paying Southern District rates, would not hire an attorney who had to incur 5.5 hours of travel to attend administrative hearings in New York City. See M.D. v. New York Dep't of Educ., 2021 WL 3030053, at *5 (“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.'”) (quoting K.F. v. New York City Dep't of Educ., 2011 WL 3586142, at *6 (S.D.N.Y. Aug. 10, 2011)). Thus, CLF should be awarded no hours for travel.
In sum, the following hours should be awarded for the administrative matters: Michael Cuddy, 81.605 hours; Andrew Cuddy, 3.135 hours; Shobna Cuddy, 2.09 hours; Cailin O'Donnell, 2.565 hours; Amanda Pinchak, 1.9 hours; Emma Bianco, 0.475 hours; Burhan Meghezzi, 0.57 hours. Thus, the administrative fee award should be as follows:
| Time Keeper | Hours Claimed | Hours Awarded | Hourly Rate | Total |
| Michael Cuddy | 85.9 | 81.605 | $375 | $30,601.88 |
| Michael Cuddy (Travel) | 5.5 | 0 | $187.5 | $0 |
| Andrew Cuddy | 3.3 | 3.135 | $375 | $1,175.63 |
| Shobna Cuddy | 2.2 | 2.09 | $100 | $209.00 |
| Cailin O'Donnell | 2.7 | 2.565 | $100 | $256.50 |
| Amanda Pinchak | 2 | 1.9 | $100 | $190.00 |
| Burhan Meghezzi | 0.6 | 0.57 | $100 | $57.00 |
| Emma Bianco | 0.5 | 0.475 | $100 | $47.50 |
| TOTAL | 102.7 | 92.34 | n/a | $32,537.50 |
2. Federal Action Hours
A prevailing party in an IDEA case is entitled to seek fees incurred in preparing a fee application. See, e.g., K.L. v. Warwick Valley Cent. Sch. Dist., 584 Fed.Appx. 17, 20 (2d Cir. 2014). Nonetheless, a district court's exercise of discretion in awarding fees allows for “great leeway” in judging the reasonableness of hours spent on a fee application. Gagne v. Maher, 594 F.2d 336, 344 (2d Cir. 1979), aff'd, 448 U.S. 122 (1980). Additionally, the Supreme Court has held that “the determination of fees should not result in a second major litigation.” Fox, 563 U.S. at 838 (internal quotation marks omitted); accord Ortiz v. Chop't Creative Salad Co., 89 F.Supp.3d 573, 590 (S.D.N.Y. 2015). Indeed, “[i]f the fee claims are exorbitant or the time devoted to presenting them is unnecessarily high, the judge may refuse further compensation or grant it sparingly.” Gagne, 594 F.2d at 344. Recognizing district courts' discretion concerning fee application awards, the Second Circuit has found “no abuse of discretion in [a] district court's decision to award no fees for the time spent litigating . . . [a] fee petition.” K.L., 584 Fed.Appx. at 20 (emphasis added).
One case, Davis v. City of New Rochelle, 156 F.R.D. 549 (S.D.N.Y. 1994), found that the awards for time spent on fee applications have ranged between 8% and 24% of the award for time spent on the case itself. Id. at 561. Cases since Davis are similarly within this range. See, e.g., Baird v. Boies, Schiller & Flexner LLP, 219 F.Supp.2d 510, 525 (S.D.N.Y. 2002) (awarding on fee application 10% of total attorney's fees awarded); cf. Irish v. City of New York, 2004 WL 444544, at *8 (S.D.N.Y. Mar. 10, 2004) (awarding 3% of the 210 hours spent on the underlying case). Thus, in one case, where a litigant sought approximately 33% of the overall fees as expenses for the fee application, the court ultimately granted approximately 10% of the main award. See Knoll, 2006 WL 2998754, at *3-4.
Plaintiff's counsel submitted time records that identify the following hours expended in regard to the federal action prior to DOE's offer of settlement on October 7, 2022:
These hours are reflected on Exhibit A annexed hereto. They were calculated by using the numbered entries prepared by plaintiff of the Federal court hours, see Appendix Numbered Copy of Federal Billing Adjustment, annexed as Exhibit 2 to Kopp Supp. Let. (Docket # 43-2) (“Numbered Federal Timesheet”), and then subtracting out hours plaintiff removed from her fee request in the Kopp Supp. Let., section XI. The numbers here do not match what was provided by DOE, see Lindeman Supp. Let. at 2, in part because DOE's submission had mathematical errors and did not provide enough information about how the numbers submitted by DOE were reached. The numbers here also reflect that E.W. no longer seeks compensation for certain hours initially included in the billing records as reflected in the Kopp Supp. Let. at section XI.
Total Pre-Offer Hours
Time Keeper
Hours Billed
Kopp
19.1
Kopp (Paralegal)
18.48
M. Cuddy
2.9
A. Cuddy
2.9
S. Cuddy
2
Reeve
0.5
O'Donnell
3.1
TOTAL
48.98
Plaintiff asserts that a portion of these hours is attributable not to fees-on-fees but instead to the underlying administrative actions. E.W. identifies 5.5 hours billed in the federal action that are related not to the fee application, but to the implementation of IHO awards. See Kopp Supp. Let. at 6. E.W. asserts that “[t]he correct implementation breakdown” should attribute 1.9 hours of Kopp's time, 0.5 hours of M. Cuddy's time, 2.6 hours of O'Donnell's time, and 0.5 hours of Reeve's time to pre-offer work on the implementation of IHO orders for the underlying administrative actions. See id. (also including an additional 0.3 hours of M. Cuddy's time billed on October 14, 2022, after the offer of settlement). E.W. identifies the precise time entries that comprise these hours. Id. DOE argues that other figures should be used for each attorney but does not identify every time entry to which it refers. Lindeman Supp. Let. at 4. In light of the lack of support, we will not address DOE's contention as to the correct number of hours.
DOE also contends that work on the implementation of prior awards “should be compensated at a reduced rate,” arguing that the hours were “administrative in nature” or of “limited utility.” Id. at 4. Case law provides that “[p]ost-decision activities that are largely useful and of a type ordinarily necessary to secure the final results obtained are compensable.” C.B. v. New York City Dep't of Educ., 2019 WL 3162177, at *11 (S.D.N.Y. July 2, 2019) (punctuation and citation omitted). This may include “necessary lawyer-work” on the implementation of administrative awards, such as “supervising the paralegals, reviewing correspondence, and speaking with the DOE.” M.H. v. New York City Dep't of Educ., 2021 WL 4804031, at *19 (S.D.N.Y. Oct. 13, 2021). DOE has not even argued that the hours fall outside this category of “necessary lawyer-work,” and thus these hours must be compensated. Because E.W. is the sole party to provide a breakdown of implementation hours that is fully cited to the billing records, we use E.W.'s proposed 1.9 hours of Kopp's time, 0.5 hours of M. Cuddy's time, 2.6 hours of O'Donnell's time, and 0.5 hours of Reeve's time. Thus, the following hours should be awarded for work on the implementation of the underlying administrative actions:
Time Keeper
Hours Claimed
Hours Awarded
Hourly Rate
Total
Michael Cuddy
0.5
0.5
$375.00
$187.50
Benjamin Kopp
1.9
1.9
$180.00
$342.00
Cailin O'Donnell
2.6
2.6
$100.00
$260.00
ChinaAnn Reeve
0.5
0.5
$100.00
$50.00
TOTAL
5.5
5.5
n/a
$839.50
After deducting the 5.5 hours spent on implementation from E.W.'s overall federal action billing, we are left with the following request:
Pre-Offer Hours Minus Implementation
Time Keeper
Hours Billed
Kopp
17.2
Kopp (Paralegal)
18.48
M. Cuddy
2.4
A. Cuddy
2.9
S. Cuddy
2
Reeve
0
O'Donnell
0.5
TOTAL
43.48
As to these hours, DOE argues that CLF billed excessively for the fee application in this case and that the hours billed in the federal action “should be drastically reduced, if not denied entirely.” Opp. Mem. at 17. DOE asserts that CLF engaged in “substantial recycling and overbilling for copy-and-paste material,” id. at 17-18; billed far more hours than most IDEA practitioners for its fee applications, id. at 18; has overbilled for the “superfluous and unnecessary task[]” of compiling charts for past fee awards, id. at 19; and has overbilled for memoranda that included “arguments that have been rejected by many recent [District] judges” and declarations that recited “nothing more than uncontroversial procedural history.” Id. DOE requests either that the court grant no fees or impose an 80% reduction in hours billed for the federal action. Id. at 20. In her reply memorandum, plaintiff does not specifically respond to these arguments.
We will not dwell on each of DOE's arguments, instead relying on the principle that fee applications “should not result in a second major litigation,” Fox, 563 U.S. at 838, and our power to examine the reasonableness of the overall number of hours spent.
Our examination of the time records shows that an inordinate amount of time - 18.48 hours - was spent on a series of charts prepared by plaintiff as to fees awarded in employment, sanctions, civil rights, commercial litigation, and IP cases over the last two decades by numerous district judges. See Kopp Reply Decl. ¶ 23 (preparation of the charts “is the only time [billed] at [Kopp's] paralegal rate”); Exhibit A (noting Kopp's paralegal hours); see also Kopp Reply Decl. ¶¶ 24-26 (describing the charts and related case history); Fee Charts, annexed as Exhibits D-H to Kopp Reply Decl. (Docket ## 36-4 to 36-8). These documents were not only of minimal relevance, they were not actually presented in the initial application filed on October 14, 2022, even though the hours were billed before October 7, 2022. Instead, the documents were included with the reply submission. Thus, we will eliminate all hours associated with the preparation of the charts.
We also address DOE's argument that some of the hours requested by E.W. were spent not on the fee application, but rather on the administrative claim that was ultimately withdrawn. DOE provides a chart summarizing E.W.'s hours in this case that attributes 17.3 hours billed by Kopp, Andrew Cuddy, and Michael Cuddy to claims withdrawn by the parties prior to this fee application. See Lindeman Supp. Let. at 2 (13 hours for Kopp, 1.7 hours for M. Cuddy, 2.6 hours for A. Cuddy). DOE also points to specific entries that it argues are or are likely related to the withdrawn claims. Id. at 2-4. E.W. addresses each entry identified by DOE. See Kopp Supp. Let. at 3-5.
DOE identifies the following time entries as relating to withdrawn claims. First, DOE challenges two entries that explicitly identify work relating to “Case No. 218482,” the administrative action for which claims were withdrawn: 1.5 hours for Kopp on December 18, 2021, and 0.5 hours for Kopp on October 6, 2022. Lindeman Supp. Let. at 2; see Numbered Federal Timesheet at Nos. 7, 96 (entry No. 96 claims 0.5 hours for Kopp, but is cited as 0.4 hours in DOE's filing). DOE then identifies “further time” it alleges was “likely” related to the withdrawn claims, see Lindeman Supp. Let. at 2-3, including entries for: 0.1 hours for Kopp on January 25, 2022, Numbered Federal Timesheet at No. 22; 0.2 hours for Kopp and 0.2 hours for M. Cuddy on March 29, 2022, id. at Nos. 48-49; 0.4 hours for M. Cuddy and 2.3 hours for Kopp on May 6, 2022, Id. at Nos. 56-57; and 0.3 hours for Kopp on May 10, 2022, id. at No. 58. These entries, including those explicitly mentioning the withdrawn claims, amount to 4.9 hours for Kopp and 0.6 hours for Cuddy.
Finally, DOE attributes a substantial portion of the hours billed for preparing the Complaint in this action to the withdrawn claims. Lindeman Supp. Let. at 1-2. DOE asserts that 16.5 hours on the time records are attributable to the Complaint in total, including 12.8 hours by Kopp, 2.6 hours by A. Cuddy, and 0.6 hours by M. Cuddy. Id. at 1. DOE states that “14 of the Complaint's 56 pages relate solely to the procedural history of . . . Case No. 218482 . . . and 6 of [E.W.'s] 11 causes of action relate to the same matter or other withdrawn claims.” Id. at 1. Rather than attempting to calculate what portion of the fee request this represents, DOE proposes that only 0.7 hours of Kopp's time was necessary to create the Complaint and that the remaining 15.8 hours of CLF time spent on the Complaint can be allotted to the withdrawn claims. Id. at 12. Under this analysis, DOE apparently attributes 12.1 hours to Kopp, 2.6 hours to A. Cuddy, and 0.6 hours to M. Cuddy for time spent on the withdrawn-claims portions of the Complaint.
Thus, adding the hours DOE asserts are related to or likely related to withdrawn claims to the hours DOE attributes to the withdrawn-claims portions of the Complaint, we arrive at a total of 17 hours of Kopp's time (12.1 plus 4.9), 1.2 hours for M. Cuddy (0.6 plus 0.6), and 2.6 hours for A. Cuddy's time (entirely for time attributed to the Complaint). We note that, of these totals, only the total for A. Cuddy's time matches the total shown in DOE's summary chart. See Id. at 2.
DOE asserts that an unspecified number of additional entries of Kopp's time “are vague in their failure to distinguish between work done in service of [the administrative actions] . . . and work done in service of the withdrawn causes of action.” Id. at 3-4. DOE's chart attributes a total of 2.6 hours of Kopp's time to “vague” entries. Id. at 2.
DOE also identifies a 0.2-hour entry for Kopp on August 2, 2022, see Numbered Federal Timesheet at No. 69, that “likely relates to the withdrawn complaints,” but states that this entry was “allocated to the ‘vague' column” on DOE's chart, rather than to withdrawn claims. Lindeman Supp. Let. at 3.
In response, E.W. first addresses the two entries that explicitly reference the withdrawn case, Case No. 218482. Kopp Supp. Let. at 3. E.W. states that the December 18, 2021, entry “was a clerical error” and that the entry has been removed from E.W.'s updated fee request. Id. at 3; see id. at 10 (removing 1.5 hours for “Entr[y] 7”). Thus, this entry is not reflected in the totals used by the Court. As to the second entry, for October 6, 2022, E.W. responds that the entry “is clearly to remove time ‘as stipulated' by the parties in this action - that is, in compliance with the Stipulation and Order.” Id. at 3. Thus, E.W. argues that this entry is compensable.
As to the entries that DOE identifies as “likely” to be attributable to withdrawn claims, see Lindeman Supp. Let. at 2-3, E.W. addresses each in turn. See Kopp Supp. Let. at 3-4. E.W. notes that she has removed the January 25, 2022, and March 29, 2022, entries from her current fee request. Id. at 3-4. Thus, these are not reflected in the totals used by this Court. E.W. states that the May 6, 2022, entries were “primarily about implementation and the overall action,” for use in a May 6, 2022, status report ordered by the court and filed as Docket # 13. Id. at 4. E.W. notes that the “pendency and implementation claims” that these entries relate to “were not withdrawn.” Id. As to the May 10, 2022, entry, E.W. states that the entry is “plainly about this action's case management, overall ability for settlement, and then-potential briefing.” Id. E.W. appears to acknowledge that the entry includes a “tangential” reference to Case No. 218482, but argues that this “does not convert the entry into one specific to any or all of the withdrawn claims.” Id.
As to the Complaint, E.W. responds that only 7.8 hours of Kopp's time is attributable to drafting the Complaint, with an additional 1.3 hours attributable to Kopp's “[i]ssue/[f]act investigation.” Id. at 2. E.W. identifies 1.1 hours of M. Cuddy's time, 1.8 hours of A. Cuddy's time, and 0.5 hours of O'Donnell's time as relating to the Complaint. Id. E.W.'s responsive letter removes certain hours it concedes were spent on the withdrawn-claims portion of the Complaint. Id.; see id. at 10 (removing time for Numbered Federal Timesheet entries numbered 7 and 13-15).
Finally, E.W. responds that the sole entry identified by DOE as “vague,” the August 2, 2022 entry for Kopp, “is clear on its face that [counsel] . . . were discussing pendency payments, as well as settlement .... [and] such discussion [was] still primarily focused on [this] action's case management and resolution, not the substantive resolution of the case being decided in another forum.” Id. at 4.
We reject DOE's argument that E.W.'s fee request includes 17.3 non-compensable hours spent on withdrawn claims. We find that for the most part the challenged entries, to the extent that they have not already been removed from E.W.'s current fee request, do not represent an attempt to recover for work on the withdrawn claims. However, we do agree that some time necessarily included work addressing the claims, such as the May 10, 2022, entry that E.W. admits included a “tangential” reference to withdrawn claims, and some portion of the work on the Complaint, even following E.W.'s removal of certain entries. Additionally, the October 6, 2022, entry requesting compensation for time spent removing time entries relating to the withdrawn claims should not be compensable because it is not an effort to seek fees for a live claim. As to DOE's objection regarding “vague” entries, this objection is itself vague and does not allow the Court to assess the entries in question.
Once we deduct the 18.48 hours of Kopp's time spent on the charts and the 0.5 hours spent removing time entries relating to withdrawn claims, as outlined above, we are left with 24.5 hours of federal action billing. Our determination that some portion of this work necessarily addressed withdrawn claims warrants a reduction in the overall amount awarded for these remaining hours. Additionally, we note that some entries in the billing records show excessive expenditures of time, such as the roughly ten hours of attorney time to draft and edit the federal Complaint. See Numbered Federal Timesheet at *1-3. Finally, the 24.5 hours billed before the offer of settlement in this federal action (including paralegal hours) represent 22% of the total amount of time billed on the administrative proceedings and implementation, 108.2 hours, see A. Cuddy Reply Decl. ¶ 30; Case No. 183551 Billing Statement; Case No. 194451 Billing Statement; Exhibit A (102.7 hours on administrative proceedings and 5.5 hours on implementation), which is a large number in proportion to the rest of the case. When accounting for the deduction of travel time and the five percent reduction in hours for the administrative hours (which results in 92.34 hours for the administrative proceedings and a total of 97.84 hours once combined with the 5.5 hours spent on implementation), the requested hours for the federal action would amount to about 25% of the hours awarded for the two administrative actions. See id. And this 25% does not even represent the full total of hours attributable to the fee application since the brief in support of the instant motion was not filed until after October 6, 2022. Given the large percentage of hours attributable to the fee application (which includes settlement discussions about the fee application) and the excessive hours attributable to certain tasks as just described, we conclude that the hours claimed as to the federal action (not including the implementation hours) should be reduced by 35% (after eliminating the hours spent on the chart and Kopp's removal of withdrawn-claims billing entries).
Accordingly, the award through October 6, 2022, should be as follows:
Time Keeper
Hours Claimed
Percentage Reduction
Hours Awarded
Hourly Rate
Total
Michael Cuddy
2.9
0.5
35%
1.56
$375.00
$585.00
Andrew Cuddy
2.9
0
35%
1.885
$375.00
$706.88
Benjamin Kopp (Attorney)
19.1
2.4
35%
10.855
$180.00
$1,953.90
Benjamin Kopp (Paralegal)
18.48
18.48
35%
0
$100.00
$0.00
Shobna Cuddy
2
0
35%
1.3
$100.00
$130.00
Cailin O'Donnell
3.1
2.6
35%
0.325
$100.00
$32.50
ChinaAnn Reeve
0.5
0.5
35%
0
$100.00
$0.00
TOTAL
48.98
24.48
n/a
15.925
n/a
$3,408.28
Michael Cuddy's hours are reduced by the 0.5 hours already awarded for work on implementation. Kopp's hours are reduced by the 1.9 hours already awarded for work on implementation and 0.5 hours that will not be awarded for Kopp's removal of entries relating to withdrawn claims. Kopp's paralegal hours are removed entirely per the Court's decision regarding time spent on the charts. O'Donnell's hours are reduced by the 2.6 hours already awarded for work on implementation, and Reeve's hours are reduced by the 0.5 hours already awarded for work on implementation.
Thus, the fees up until the time of the offer are $32,537.50 for the administrative action, $839.50 for work on the implementation of underlying IHO awards (that is, the 5.5 hours), and $3408.28 for the federal action, totaling $36,785.28.
C. Costs
CLF seeks $1409.10 in costs. See A. Cuddy Reply Decl. ¶ 30. For the administrative proceedings, CLF seeks the following: $420.00 in printing, $14.80 in postage, $307.64 in lodging, $68.66 in meals, $145.00 in mileage, $50.00 in parking, and $1.00 for tolls. Id. ¶ 30. For the federal proceeding, CLF seeks the $402.00 federal filing fee. Id. DOE disputes the printing and travel expenses. Opp. Mem. at 23-24.
DOE argues that CLF's printing rate should be reduced from $0.50 per page to $0.10 per page, per the “going rate.” Id. at 23. We agree. Courts in this District generally award no more than $0.10 per page in copying expenses. See Y.S., 2022 WL 4096071, at *6; H.A., 2022 WL 580772, at *11; R.G., 2019 WL 4735050, at *6.
DOE also argues that CLF's travel expenses should be denied, because a paying client would not retain an attorney who incurred high travel costs. Opp. Mem. at 23-24. We agree for the same reasons already stated with respect to the hours billed for travel. See R.G., 2019 WL 4735050, at *6 (“A reasonable client . . . would not agree to pay in-district attorney rates while also paying for extensive lodging expenses necessitated by out-of-district attorneys' travel.”) (quoting C.D., 2018 WL 3769972, at *13); accord Y.S., 2022 WL 4096071, at *5. Thus, no award should be made for lodging, meals, mileage, parking, or tolls.
In sum, the court should award the following costs:
Cost
Requested
Awarded
Administrative Proceedings
Printing
$420.00
$84.00
Postage
$14.80
$14.80
Lodging
$307.64
$ -
Meals
$68.66
$ -
Mileage
$145.00
$ -
Parking
$50.00
$ -
Tolls
$1.00
$ -
Federal Proceeding
Filing Fee
$402.00
$402.00
TOTAL
$1,409.10
$500.80
Thus, the total of (1) fees for the administrative action; (2) fees for the federal action through October 6, 2022; and (3) fees and costs up until the date October 6, 2022, is $37,286.08.
D. Fee Cutoff
In IDEA cases, “[a]ttorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under this section for services performed subsequent to the time of a written offer of settlement to a parent if . . . the court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.” 20 U.S.C. § 1415(i)(3)(D)(i). Thus, “where the amount of fees and costs incurred through the offer of settlement date is less than the offered settlement amount, courts will not award fees for fees and costs incurred after that date.” T.A., 2022 WL 3577885, at *7 (collecting cases). Here, the amount we recommend for the underlying actions and fee applications totals $37,286.08. This is less than DOE's $38,000.01 offer of settlement. See Opp. Mem. at 3-4; Offer ¶ 2. As a result, the statute provides that no fees should be awarded for work after October 7, 2022.
The statue provides an exception to this rule, however, by permitting an award of attorney's fees and costs if the plaintiff was “substantially justified in rejecting the settlement offer.” 20 U.S.C. § 1415(i)(3)(E). Plaintiff argues that she justifiably rejected the offer because it required her to waive any interest on that sum, and that given the City's alleged “history of failing to issue payments resulting from settlement agreements,” plaintiff needed to have “the remedy of interest available to hold the Defendant's feet to the fire.” Reply at 8. We do not believe, however, that the mere possibility that the City will unreasonably delay payment justifies litigating a fee application after receiving a settlement offer. See M.Z. v. New York City Dep't of Educ., 2023 WL 2499964, at *6-7 (S.D.N.Y. Mar. 14, 2023) (applying fee cutoff where plaintiff argued that the inclusion of an interest waiver substantially justified rejection of a settlement offer); V.W. v. New York City Dep't of Educ., 2023 WL 2609358, at *14-15 (S.D.N.Y. Mar. 23, 2023) (same).
Accordingly, plaintiff is entitled to fees only through October 6, 2022.
E. Interest
E.W. requests an award of post-judgment interest. E.W. Mem. at 15; Reply at 1. DOE does not oppose this request, see Opp. Mem., and in any event, “[p]ursuant 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.'” Tru-Art Sign Co. v. Loc. 137 Sheet Metal Workers Int'l Ass'n, 852 F.3d 217, 223 (2d Cir. 2017) (punctuation omitted); accord M.H. v. New York City Dep't of Educ., 2021 WL 4804031, at *31 (S.D.N.Y. Oct. 13, 2021). Accordingly, this request should be granted.
Although E.W.'s Reply states that “E.W. has moved the Court for summary judgment awarding . . . pre[-]judgment and post[-]judgment interest[,]” Reply at 1, only a request for postjudgment interest appears in the initial briefing, see E.W. Mem. at 2, 15, and E.W. makes no argument as to why pre-judgment interest could be awarded.
III. CONCLUSION
For the foregoing reasons, plaintiff's motion (Docket # 21) should be granted, and plaintiff should be awarded $37,286.08 in attorney's fees, expenses and costs, plus postjudgment interest at the statutory rate provided in 28 U.S.C. § 1961.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Caproni. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
Exhibit A
Entry Number (Docket # 43-2) Time Keeper Hours Requested Hours Removed/ Reduced Citation for Reduction Revised Hours Requested 1 Kopp 0.5 0.5 2 M. Cuddy 0.3 0.3 3 Kopp 0 0 4 A. Cuddy 0 0 5 Kopp 1.5 1.5 6 Kopp 1 1 7 Kopp 2.7 -1.5 Kopp Supp. Let. at XI ("Remove for Entr[y] 7 [1.5]") 1.2 8 M. Cuddy 0.3 0.3 9 O'Donnell 0.4 0.4 10 Kopp 2.7 2.7 11 M. Cuddy 0.5 0.5 12 O'Donnell 0.1 0.1 13 Kopp 3.3 -1.2, -0.3 Kopp Supp. Let. at XI ("Remove for Entr[y] . . . 13 [1.2, 0.3]") 1.8 14 Kopp 0.9 -0.3 Kopp Supp. Let. at XI ("Remove for Entr[y] . . . 14 [0.3]) 0.6 15 A. Cuddy 2.6 -0.8 Kopp Supp. Let. at XI ("Remove 0.8 for Entry 15") 1.8 16 Kopp 0.2 0.2 17 Kopp 0.4 0.4 18 Kopp 0.1 0.1 19 Kopp 0.1 0.1 20 O'Donnell 0.1 0.1 21 O'Donnell 0 0 22 Kopp 0.2 0.2 23 Kopp 0.2 0.2 33 24 O'Donnell 0.2 0.2 25 O'Donnell 0.3 0.3 26 O'Donnell 0.2 0.2 27 O'Donnell 0.2 0.2 28 Kopp 0.1 0.1 29 Kopp 0.1 0.1 30 Kopp 0.3 0.3 31 Reeve 0.2 0.2 32 O'Donnell 0 0 33 Kopp 0.7 0.7 34 M. Cuddy 0 0 35 Reeve 0 0 36 O'Donnell 0 0 37 Reeve 0.2 0.2 38 Reeve 0.1 0.1 39 Kopp 0.2 0.2 40 O'Donnell 0.2 0.2 41 O'Donnell 0.2 0.2 42 O'Donnell 0 0 43 O'Donnell 0.2 0.2 44 O'Donnell 0.1 0.1 45 Kopp 0.5 0.5 46 O'Donnell 0.1 0.1 47 O'Donnell 0.1 -0.1 Kopp Supp. Let. at XI ("Remove 0.1 for Entry 47") 0 48 Kopp 0.2 -0.2 Kopp Supp. Let. at XI ("Remove for Entr[y] . . . 48 [0.2]") 0 49 M. Cuddy 0.2 -0.2 Kopp Supp. Let. at XI ("Remove 0.2 for Entry 49") 0 50 M. Cuddy 0.1 0.1 51 Kopp 0.4 0.4 52 O'Donnell 0.2 0.2 53 O'Donnell 0 0 54 M. Cuddy 0 0 55 O'Donnell 0.4 0.4 34 56 M. Cuddy 0.4 0.4 57 Kopp 2.3 2.3 58 Kopp 0.3 0.3 59 M. Cuddy 0 0 60 Kopp 0 0 61 M. Cuddy 0 0 62 O'Donnell 0 0 63 Reeve 0 0 64 O'Donnell 0 0 65 Kopp 0.2 0.2 66 A. Cuddy 0.2 0.2 67 Kopp 0.1 0.1 68 Kopp 0.2 0.2 69 Kopp 0.4 0.4 70 O'Donnell 0.2 0.2 71 Kopp 0.3 0.3 72 S. Cuddy 0.5 0.5 73 A. Cuddy 0.5 0.5 74 S. Cuddy 0.5 0.5 76* Kopp 0 0 77 Kopp 0 0 78 Kopp (P)** 1.6 1.6 79 Kopp (P) 3.1 3.1 80 Kopp 0 0 81 A. Cuddy 0.4 0.4 82 Kopp (P) 1.53 1.53 83 Kopp (P) 1.56 1.56 84 Kopp (P) 1.73 1.73 85 Kopp 0.5 0.5 86 Kopp (P) 0.73 0.73 87 Kopp (P) 1.73 1.73 88 Kopp (P) 2.6 2.6 89 Kopp 0.2 0.2 90 Kopp (P) 1.2 1.2 91 M. Cuddy 1.3 1.3 92 Kopp 0.2 0.2 93 Kopp (P) 1.2 1.2 94 Kopp 1.1 1.1 35 95 Kopp (P) 1.5 1.5 96 Kopp 0.5 0.5 97 S. Cuddy 0.5 0.5 98 S. Cuddy 0.5 0.5 99 Kopp 0 0 * No. 75 is omitted as it reflects an expense and does not include a new billing entry ** “Kopp (P)” denotes hours billed by Kopp at his paralegal rate