Opinion
EP-04-CV-433-KC.
May 1, 2006
ORDER
On this day, the Court considered the parties' cross-motions for summary judgment. For the reasons set forth below, Plaintiff's Motion for Summary Judgment on Attorney's Fees ("Pl.'s Mot.") is GRANTED and Defendant's Motion for Summary Judgment ("Def.'s Mot.") is DENIED.
I. BACKGROUND
This case involves a dispute as to the amount of attorneys' fees Plaintiff's counsel should recover for bringing an action under the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. §§ 1400-1491.
On January 9, 2004, Patricia M., as mother of a special education student named Alfonso R., filed a complaint against the El Paso Independent School District ("EPISD") pursuant to 20 U.S.C. § 1415(b)(6). Mem. of Law in Support of Mot. for Summ. J. on Attorney's Fees ¶ 1 ("Pl.'s Mem."); Pl.'s Mem. Ex. 1. The complaint alleged that EPISD failed to provide a full individual evaluation and a free and appropriate public education for Alfonso R. Pl.'s Mem. ¶ 1; Pl.'s Mem. Ex. 1. In its answer to the complaint, filed on January 21, 2004, EPISD admitted all allegations in the complaint. Pl.'s Mem. ¶ 2; Pl.'s Mem. Ex. 2.
On February 4, 2004, EPISD filed a Motion to Enter Order, requesting that the Hearing Officer enter a final decision based on its admission of all allegations. Def.'s Mot. Ex. 7; Pl.'s Mem. ¶ 3; Pl.'s Mem. Ex. 3. Plaintiff objected to the Motion, contending that: 1) the proposed conclusions of law were insufficient, 2) the findings and conclusions should not be entered without Plaintiff's consent, and 3) absent an agreement between the parties, a Due Process hearing should proceed. Def.'s Mot. Ex. 7; Pl.'s Mem. ¶ 4. After taking the issues under advisement and holding a second telephone conference, the Hearing Officer concluded that EPISD had deprived Alfonso R. of a free and appropriate public education and further granted all relief requested by Petitioner on February 26, 2004. Def.'s Mot. Ex. 7; Pl.'s Mem. ¶ 5; Pl.'s Mem. Ex. 4.
Defendant agrees that Plaintiff is a "prevailing party" in the underlying proceeding, thus entitling Plaintiff to some amount of attorneys' fees. Def.'s Mot. ¶ 1. The dispute in this case concerns the specific amount of attorneys' fees this Court should award. Defendant contends that Plaintiff unreasonably protracted the proceedings in this case, as defined by 20 U.S.C.S. § 1415, by opposing the entry of the Hearing Officer's order. Def.'s Mot. 4; 20 U.S.C.S. § 1415(i)(3)(F)(i) (2006) ("Except as provided in subparagraph (G), whenever the court finds that (i) the parent, or the parent's attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy, the court shall reduce, accordingly, the amount of the attorneys' fees awarded under this section."). As proof, Defendant submitted the following letter into evidence, written by Rose K. George on behalf of EPISD on March 4, 2004:
In response to your March 3, 2004 letter regarding attorneys' fees, I want to reiterate that the District is willing to review and consider all reasonable and necessary attorneys' fees in this case. On January 21, 2004, the Respondent submitted its Original Answer admitting to the Petitioner's allegations. Further, this Answer requested that the Hearing Officer issue an Order for the relief requested and Petitioner's request for Due Process. The District is willing to consider all reasonable and necessary attorneys' fees incurred by the Petitioner considering the Respondent's pleadings.
The El Paso Independent School District is willing to review a narrative description of the attorneys' fees incurred by the Petitioner. This narrative should include not only a description of the activity of the attorney, but also the rate of the activity and the amount of time the activity involved. If you have any questions, please feel free to contact me.
Pls.' Mot. Ex. 8.
Defendant faults Plaintiff for not providing an invoice containing hours and narrative descriptions until January 27, 2005 — two months after Plaintiff filed the instant action. Def.'s Mot. ¶ 10. Defendant also notes that it offered to settle the matter for a total of $3,200.00, but that the offer was never accepted. Id. By letter dated February 24, 2005, Defendant made the following settlement offer:
On January 21, 2004, Respondent submitted it's [sic] Original Answer which admitted to all of the Petitioners allegations. Further, this Answer requested that the hearing officer issue an order for all of the relief requested in Petitioner's Request for Due Process.
Please be advised that Respondent will oppose the accrual of any attorneys fees from the date of filing of Respondent's Original Answer. Since Respondent agreed to all of the relief requested by the Petitioner, any fees accrued after the date of the answer are unnecessary and unreasonable.
Pl.'s Mem. Ex. 7.
Defendant based its offer on a rate of $180.00/hour. Steven L. Hughes Aff. in Support of Def.'s Mot. For Summ. J. ¶ 5. Defendant submitted one affidavit in support of this figure, signed by defense counsel, which states that "[b]ased on my experience in these cases, a reasonable hourly rate is $180/hour, not $220/hour as requested by Plaintiff. . . . For instance, although I have been licensed to practice law for over 20 years and have practiced special education law for most of those years, my maximum hourly rate for school district clients is $150/hour." Id. Defendant further argues that the number of hours this Court should consider in awarding attorneys' fees should be either 6.8 hours, those prior to EPISD's answer, or alternatively 14.6 hours, those prior to Plaintiff's receipt of EPISD's Motion to Enter Order. Steven L. Hughes Aff. in Support of Def.'s Mot. For Summ. J. ¶ 8.
Plaintiff, by contrast, has requested a total of $13,508.00 in attorneys' fees. Plaintiff based this figure on a rate of $220.00/hour for 25.8 hours spent on the preparation and trial of the administrative matters and 35.6 hours on the preparation and trial of the instant case. Mark Berry Aff. in Support of Mot. for Attorneys' Fees ¶ 6. Plaintiff has submitted affidavits from three attorneys (including Plaintiff's counsel) attesting that a reasonably hourly rate in this case would include $220.00/hour. Mark Berry Aff. in Support of Mot. for Attorneys' Fees ¶ 6 ($220.00/hour); Colbert N. Coldwell Aff. in Support of Mot. for Attorneys' Fees ¶ 7 ($210.00-$250.00/hour); Michael Timothy Milligan Aff. in Support of Mot. for Attorneys' Fees ¶ 6 ($210.00-$250.00/hour).
II. DISCUSSION
A. Standard
A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the nonmoving party's claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant's claim or defense. Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990). Once the movant carries the initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
Summary judgment is required if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp., 477 U.S. at 322. In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986).
B. Attorneys' Fees
In an action or proceeding brought pursuant to the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. §§ 1400-1491, the court may award reasonable attorneys' fees to the parents or guardian of a child with a disability as long as that child is a prevailing party. Jason D.W by Douglas v. Houston Ind. Sch. Dist., 158 F.3d 205, 208 (5th Cir. 1998) (citing 20 U.S.C. § 1415(e)(4)(B)). For purposes of attorneys' fees, a prevailing party is generally one who succeeds on any significant issue that achieves some benefit for the plaintiff. Id. at 209. In the context of the IDEA specifically, the Fifth Circuit has held that a prevailing party is one that attains a remedy that both (1) alters the legal relationship between the school district and the child and (2) fosters the purposes of the IDEA. Id.
In the instant case, both parties agree that Patricia M. is a prevailing party as contemplated under the IDEA. However, a finding that a party is a prevailing party does not automatically entitle him to recover the full amount he has spent on legal representation. Id. Rather, such a finding makes him eligible to recover attorneys' fees. Id. The actual award lies within the sound discretion of the trial court. Id. The issue in this case then, is whether or not the attorneys' fees requested are reasonable.
The calculation of reasonable attorneys' fees involves a two-step process. Id. at 208-09. First, the court multiplies the reasonable number of hours expended on the case by a reasonable hourly rate to come up with a "lodestar" fee. Id. at 209. Next, the court considers whether the lodestar should be adjusted by reference to the following twelve factors:
(1) the time and labor required for the litigation;
(2) the novelty and difficulty of the questions presented;
(3) the skill required to perform the legal services properly;
(4) the preclusion of other employment by the attorney due to acceptance of the case;
(5) the customary fee;
(6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the circumstances;
(8) the amount involved and the result 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.Id. (citing Johnson v. Georgia Highway Express, Inc. 488 F.2d 714, 717-19 (5th Cir. 1974).
Many of these factors are often subsumed within the initial lodestar calculation. Id. For those that are not subsumed, the court may weigh some factors more heavily than others in adjusting the lodestar. Id. For example, the United States Supreme Court has held that the most critical factor in determining the reasonableness of a fee award is the degree of success obtained in the case, especially when a plaintiff has prevailed on only a portion of his claims. Id.
In the instant case, the parties dispute only the first and fifth Johnson factors, both of which factor into the initial lodestar calculation. As to the fifth Johnson factor, the parties dispute whether $180.00/hour or $220.00/hour is a reasonable fee for the type of work in this case. Plaintiff provided an affidavit signed by Plaintiff's counsel, along with two affidavits from other attorneys in the area. Defendant, on the other hand, provided only an affidavit from Defendant's counsel. In light of these affidavits, and prevailing rates within the El Paso community, this Court finds that $220.00/hour is a reasonable fee for bringing an action under the IDEA.
Although Defendant references all twelve Johnson factors, it raises issue with only two of them. As such, Defendant has waived any objections under the remaining ten factors and this Court is left to resolve only those issues presented.
As to the first Johnson factor, the parties dispute the amount of hours for which Plaintiff should be allowed to recover attorneys' fees. As stated above, Defendant argues that Plaintiff unreasonably protracted the litigation by 1) continuing to litigate the case after Defendant answered the complaint on January 21, 2004 admitting all allegations, 2) continuing to litigate the case after Defendant filed its Motion to Enter Order on February 4, 2004, and 3) by failing to settle the case for $3,200.00 as offered in a letter dated February 24, 2005. These arguments lack merit.
The fact that Plaintiff continued to litigate the case after Defendant answered the complaint admitting all allegations is in no way dispositive of the instant matter. After Defendant admitted its liability, there were still several issues that Plaintiff's counsel had to attend to, not least of which included securing a judgement awarding Plaintiff all relief requested in terms acceptable to Plaintiff. Likewise, the fact that Plaintiff continued to litigate the case after Defendant filed its Motion to Enter Order is similarly not dispositive of the instant matter. The record reveals that Plaintiff's counsel raised objections to the Motion to Enter Order. Though the exact nature of these objections is unclear from the record, what is clear is that the objections were sufficient enough to warrant the Hearing Officer taking them under advisement and holding a second telephonic conference. Accordingly, the Court finds that neither of these two activities unreasonably protracted the litigation in this case, and further rejects any argument that attorneys' fees should be limited to the amount of time Plaintiff's counsel worked prior to either Defendant's answer or Defendant's filing of the Motion to Enter Order.
Defendant next argues that Plaintiff unreasonably protracted the litigation in this case by failing to accept the District's settlement offer of $3,200.00, which was made on February 24, 2005. According to the record before this Court, as of February 24, 2005, Plaintiff had expended at least 32.6 hours on the case. Mark Berry Aff. in Support of Mot. For Attorneys' Fees App. A. This figure includes the 25.8 hours spent on the administrative matter up through March 4, 2004 and 6.8 hours spent on the matter currently pending before this Court up through February 9, 2005. A fee for working 32.6 hours on this matter would be at least $5,868.00 using Defendant's hourly rate and at most $7,172 using Plaintiff's hourly rate. In either case, the sum of $3,200.00 does not approach the minimum amount of attorneys' fees Plaintiff was entitled to, even using Defendant's own hourly rate. Thus, it was not unreasonable for Plaintiff to reject this offer, and the Court cannot find that Plaintiff unreasonably protracted the litigation in this case by failing to settle.
Defendant relies upon Jason D.W by Douglas v. Houston Ind. Sch. Dist., 158 F.3d 205 (5th Cir. 1998) in support of its position. In Jason D.W., the Fifth Circuit upheld the district court's decision to limit attorneys' fees. Jason D.W., 158 F.3d at 211-12. Plaintiff's counsel succeeded on a claim brought under the IDEA, and thereafter demanded attorneys' fees in the amount of $32,0943.97. Id. at 207. The District offered to settle the case for $7,500.00, and then $10,000.00, but the plaintiff rejected both offers and instead brought suit in federal court seeking recovery of all attorneys' fees. Id. Shortly thereafter, the District made an offer under Federal Rule of Civil Procedure 68, in the amount of $24,429.00, which the plaintiff again rejected. Id. at 208. After a bench trial, the district court found that plaintiff had only succeeded on three of the nineteen issues he had brought before the hearing officer. Id. In light of these findings, the district court found that Jason D.W. had only been entitled to fees, costs, and expenses in the amount of $8,340.49 at the time the District offered $10,000.00 in settlement. Id. Accordingly, the district court found that by refusing to settle, the plaintiff had unreasonably protracted the controversy, and thereafter declined to award the plaintiff any fees or costs beyond the $8,340.49 sum. Id. On appeal to the Fifth Circuit, the plaintiff argued that the District's $10,000.00 settlement offer was not a firm offer that could trigger § 1415(i)(3)(F)(i), but the Fifth Circuit rejected this argument because plaintiff had failed to brief the issue or present any evidence to support his position. Id. at 212.
While Jason D.W. controls the outcome of this case, it supports Plaintiff's position rather than Defendant's. As an initial matter, there is no evidence that Plaintiff succeeded on only a fraction of his claims. In fact, Defendant admitted all of the allegations in Plaintiff's complaint. Therefore, this Court has no reason to decrease Plaintiff's award of attorneys fees — an element that was important in the Jason D.W. timeline when the court compared the amount of fees it felt Plaintiff was entitled to with the settlement offer. In this case, Defendant did not make a first "offer" including a fee amount, etc. until February 24, 2005 — after Plaintiff's counsel had already expended 32.6 hours on the case. As discussed above, at this point a reasonable fee would have ranged between $5,868.00 and $7,172.00, not the mere $3,200.00 that Defendant offered. Therefore, this Court does not agree that Plaintiff unreasonably protracted the litigation in this case by refusing to settle for less than that to which he was entitled.
Defendant argues that it offered to settle as early as March 4, 2004. However, this Court cannot find that Defendant's March 4, 2004 letter constituted a binding offer to settle. Black's Law Dictionary defines an offer as "[t]he act or an instance of presenting something for acceptance." BLACK'S LAW DICTIONARY, 8th ed (2004). The March 4, 2004 letter did not present any terms to Plaintiff for acceptance. Rather, the letter made a demand on Plaintiff's counsel for examination of Plaintiff's counsel's books and a detailed exactly the information Plaintiff's counsel would need to provide to EPISD before EPISD made an offer to settle. Def.'s Mot. Ex. 8 ("I want to reiterate that the District is willing to review and consider all reasonable and necessary attorneys' fees in this case. . . . The El Paso Independent School District is willing to review a narrative description of the attorneys' fees incurred by the Petitioner. This narrative should include not only a description of the activity of the attorney, but also the rate of the activity and the amount of time the activity involved. If you have any questions, please feel free to contact me.") Such writing can in no way be construed as an offer to settle, and thus Defendant's argument lacks merit.
Having found that Plaintiff did not unreasonably protract the litigation in this case, and that $220.00/hour is a reasonable rate, this Court holds that Plaintiff is entitled to $13,508.00 in attorneys' fees.
III. CONCLUSION
In light of the foregoing, Plaintiff' Motion (Doc. No. 23) is GRANTED. Defendant's Motion (Doc. No. 28) is DENIED. Defendant is ORDERED to remit $13,508.00 in attorneys' fees to Plaintiff.
SO ORDERED.