Opinion
22-CV-3282 (JGK) (KHP)
07-10-2023
H.W., AND B.W. INDIVIDUALLY, AND ON BEHALF OF D.W., CHILD WITH DISABILITIES, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
THE HONORABLE JOHN G. KOELTL, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON MOTION FOR ATTORNEYS' FEES
KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Plaintiffs H.W. and B.W., individually and on behalf of their child D.W., filed this lawsuit against the New York City Department of Education (the “DOE”) seeking attorneys' fees under the fee-shifting provision of the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C. § 1415(i)(3), after a successful outcome in the underlying administrative proceeding brought to enforce D.W.'s right to a free and appropriate public education (“FAPE”). Plaintiffs filed this summary judgment motion requesting $58,806.20 in fees and costs for the administrative proceeding of D.W. and $8,185.00 for this federal action for a total of $66,991.20. For the reasons set forth below, I respectfully recommend Plaintiffs' motion be granted subject to the modifications outlined below.
BACKGROUND
Plaintiffs' attorneys for the administrative proceeding are from the firm Spencer Walsh Law (“SWL”). (Pls' Br. 4.) D.W. has above average or superior cognitive ability but has behavioral issues, including trouble following routines and moving from one activity to another, and he engages in rough or dangerous behavior to other students or in the classroom. (Pls' Br. 1.) D.W. attended a private school, the Ramaz School (“Ramaz”), in the 2018-2019 school year for preschool where he was given 10 hours a week of Special Education Itinerant Teacher services (“SEIT”). At the end of the school year, Ramaz told Plaintiffs that D.W. was required to have 20 hours of SEIT services, or he would not be allowed to return to the private school. (Id.) Plaintiffs considered enrolling D.W. in public school and requested the DOE recommend a plan that included SEIT services, but the DOE refused Plaintiffs' request to increase D.W.'s SEIT services. Instead, the DOE recommended an integrated co-teaching class; occupational therapy (“OT”) of 30 minute sessions twice a week, one of which would be individual and the other in a group; physical therapy (“PT”) of 30 minute sessions twice a week, one individually and the other in a group; and paraprofessional services. (Id.) Plaintiffs rejected the DOE's proposal and instead informed the DOE that they would enroll D.W. in his private school and provide supplemental services and therapy. (Id.)
On September 3, 2019, Plaintiffs' counsel initiated the underlying administrative proceeding on Plaintiffs' behalf by filing a due process complaint (“DPC”) with the DOE. (IHO Decision 2, ECF No. 25-1; Hillman Decl. ¶ 3.) The DPC alleged that the DOE denied D.W. a FAPE during the 2019-2020 school year. (Hillman Decl. ¶ 3.) Plaintiffs sought relief in the form of orders from the Impartial Hearing Officer (“IHO”) for Defendant to reimburse Plaintiffs for private school tuition and costs; two 45-minute individual occupational therapy sessions a week; two 45-minute individual physical therapy sessions a week; up to 30 hours of SEIT instruction a week; compensatory education services for services that should have been given in the previous two years; and bus transportation to and from school. (IHO Decision 2; Hillman Decl. ¶ 3.) The request for compensatory education for the years before the 2019-2020 school year was withdrawn at a hearing. (Id.)
The case was assigned to Impartial Hearing Officer (“IHO”) Dora M. Lassinger on September 7, 2019. (Hillman Decl. ¶ 4.) On September 26, 2019, after a pendency hearing, IHO Lassinger issued an order requiring the DOE to fund ten hours of SEIT a week in a group of two students; two 45-minute weekly individual OT sessions; and two 45-minute individual weekly PT sessions while the administrative proceeding was ongoing. (Id. at ¶ 5.) IHO Lassinger held merits hearings on June 2, June 26, September 15, and September 16, 2020. (IHO Decision 3.) Plaintiffs introduced 47 exhibits and five witnesses, and Defendant introduced five exhibits and called one witness. (Pls' Br. 2.)
On November 11, 2020, IHO Lassinger found that the DOE denied D.W. a FAPE and that the DOE must reimburse Plaintiffs for expenses in securing an additional five hours of SEIT a week from September 1, 2019 to March 13, 2020, when the school closed because of COVID-19, for a total up to 130 hours at the rate of $150 an hour; the DOE must provide the student 140 hours of compensatory SEIT services, to be used within two years of the order; and the DOE must provide 45 minute OT and PT sessions twice a week for 14 weeks if they were not provided during the school closure and to be used within two years of the order. (IHO Decision 24-25.) However, she denied the parents' request for reimbursement for tuition at D.W.'s private school and the request for reimbursement of transportation expenses. (Id.)
On January 26, 2021, SWL submitted a demand to the DOE for attorneys' fees and expenses of $58,806.20. (Hillman Decl. ¶ 9.) The Defendant assigned Armelle Hillman to review the demand for attorneys' fees. (Id. at ¶ 10.)
PROCEDURAL HISTORY
Because the DOE did not comply with the IHO's order, Plaintiffs commenced the present federal case. Plaintiffs were represented by the law firm Briglia Hundley, PC (“Briglia”) during the enforcement action. (Pls' Br. 4.) Plaintiffs requested reimbursement for SEIT services according to the IHO's order several times. (Id. at 3.) However, the DOE did not provide timely reimbursement in accordance with the order. On April 22, 2022, Plaintiffs filed this action to seek enforcement of the IHO's order and to seek attorneys' fees under the fee shifting provisions of the IDEA. (ECF No. 1.) On June 22, 2022, the DOE issued payment to Plaintiff of $21,075 as reimbursement for SEIT services. (Hillman Decl. ¶ 13.) On November 9, 2022, the DOE offered to pay SWL and Briglia $31,200 in satisfaction of all attorneys' fees, costs, and expenses pursuant to Federal Rule of Civil Procedure 68. (Lindeman Decl. Ex. F, ECF No. 29-6.) Plaintiffs' counsel denied the offer of settlement.
On February 10, 2023, Plaintiffs' counsel filed the instant motion for summary judgment requesting attorneys' fees under the IDEA. (ECF No. 24.) On April 12, 2023, the Honorable John G. Koeltl referred the case to the undersigned for a report and recommendation on the instant motion. (ECF No. 36.)
Plaintiffs' counsel now seeks a total of $66,991.20 in fees and costs-consisting of $58,806.20 requested by SWL for the administrative action and $8,185.00 requested by Briglia for the instant federal action. (Pls' Br. 4.) Specifically, Plaintiffs' request for fees is broken down according to the following chart:
ADMINISTRATIVE COMPONENT
Hourly Rate
Number of Hours
Total
Lauren Druyan (attorney)
$495.00
0.50
$247.50
Anna Belle Hoots (attorney)
$300.00
26.88
$8,064.00
Anna Belle Hoots (attorney)
$175.00
5.25
$918.75
Anna Belle Hoots (attorney)
$125.00
2.12
$265.00
Tracey Walsh
$695.00
45.86
$31,872.70
Tracey Walsh
$595.00
16.05
$9,549.75
Wendy Ahlstrand
$200.00
16.96
$3,392.00
Caitriona Carey
$150.00
21.87
$3,280.50
Sonali Sanyal
$190.00
6.40
$1,126.00
FEE SUBTOTAL
141.89
$58,806.20
FEDERAL ACTION
William DeVinney (attorney)
$450.00
17.30
$7,785.00
FEE SUBTOTAL
17.30
$7,785.00
According to Plaintiffs, the total costs associated with this matter amount to $400 for the federal filing fee.
LEGAL STANDARD
“The IDEA grants district courts the discretion to award reasonable attorneys' fees and costs to a ‘prevailing party.'” R.G. v. New York City Dep't of Educ., 2019 WL 4735050, at *1 (S.D.N.Y. Sept. 26, 2019) (quoting 20 U.S.C. § 1415(i)(3)(B)(i)). A plaintiff “prevails when actual relief on the merits of [her] claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.” K.L. v. Warwick Valley Cent. Sch. Dist., 584 Fed.Appx. 17, 18 (2d Cir. 2014). The prevailing party standard has been “interpreted generously by the Supreme Court and the Second Circuit.” B.W. ex rel. K.S. v. New York City Dep't of Educ., 716 F.Supp.2d 336, 345 (S.D.N.Y. 2010) (internal quotations omitted). The party “must succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.” Id. (quoting Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989)).
“Reasonable attorneys' fees under the IDEA are calculated using the lodestar method, whereby an attorney fee award is derived by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.” Streck v. Bd. of Educ., 408 Fed.Appx. 411, 415-16 (2d Cir. 2010) (internal quotation marks and citation omitted). In determining whether an hourly rate is reasonable, courts primarily consider the prevailing market rates in the community for comparable legal services. See 20 U.S.C. § 1415(i)(3)(C) (providing that attorneys' fees “shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished”). The prevailing market rate has been characterized as “the rate a paying client would be willing to pay . . . bearing in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Ortiz v. City of New York, 843 Fed.Appx. 355, 359 (2d Cir. 2021). Courts also consider the twelve factors discussed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974):
(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.Lilly v. City of New York, 934 F.3d 222, 228 (2d Cir. 2019). Because “the determination of fees should not result in a second major litigation,” Fox v. Vice, 563 U.S. 826, 838 (2011) (citation omitted), courts may consider the Johnson factors holistically, rather than applying each factor individually to the facts of the case. See Green v. City of New York, 2010 WL 148128, at *10 (E.D.N.Y. Jan. 14, 2010) (citation omitted). The trial court's goal should be “to do rough justice, not to achieve auditing perfection.” Fox, 563 U.S. at 838. “The fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
Courts also have discretion to reduce attorneys' fees awards under the IDEA if:
(i) the parent, or the parent's attorney unreasonably protracted the resolution, (ii) the amount exceeds the hourly rate prevailing in the community where the action arose for similar services by a [comparable] attorney, (iii) the time spent is excessive for the nature of the action, or (iv) parents' attorney did not provide proper notice in the complaint.20 U.S.C. § 1415 (i)(3)(F)). In addition, “[a] district court should reduce the number of hours included in the fee calculation if the claimed time is ‘excessive, redundant, or otherwise unnecessary.'” Luessenhop v. Clinton Cnty., 324 Fed.Appx. 125, 126-27 (2d Cir. 2009) (quoting Hensley, 461 U.S. at 434).
The Second Circuit has observed that “recycling rates awarded in prior cases without considering whether they continue to prevail may create disparity between compensation available under [the applicable statute] and compensation available in the marketplace,” which would “undermine [the statute's] central purpose of attracting competent counsel to public interest litigation.” Farbotko v. Clinton County, 433 F.3d 204, 209 (2d Cir. 2005). Accordingly, while a court may consider rates awarded in prior similar cases and its “own familiarity with the rates prevailing in the district,” it should also evaluate the “evidence proffered by the parties.” Id.
DISCUSSION
Here, Plaintiffs are the prevailing party because they obtained the relief requested in the DPC following the administrative hearing, and Defendant does not dispute that Plaintiffs are the prevailing party. However, upon review of Plaintiffs' submissions, there are aspects of the hourly rates sought, the hours submitted, and the costs requested that are not reasonable. Each are discussed in turn.
A. Hourly Rates
Plaintiffs request the Court award $595 as the hourly rate for lead counsel Tracey Walsh for work billed before January 1, 2021 and $695 as the hourly rate for work billed after. Walsh graduated from Fordham Law School in 1994 and has over 20 years of legal experience, including representing children and adolescents with special needs since at least 2008. (Pl's Br. Ex. D, ECF No. 25-1.) In 2018, Walsh founded SWL, which specializes in representing special needs children. (Id.) Plaintiffs request the Court award $495 per hour for Lauren Druyan. Druyan has been a member of the bar since 2009 and has been practicing special education law since 2012. (Pl's Br. Ex. E, ECF No. 25-1.) Plaintiffs request that attorney Anna Belle Hoots be awarded $300 per hour for her work as an associate and law clerk at the firm from May 2019 to November 2021. For her work on the administrative case before earning her J.D., Plaintiffs request she be awarded $125 an hour and $175 an hour. Hoots graduated from law school in May 2020 and was not admitted to the bar until 2021. (Pl's Br. Ex. F, ECF No. 25-1.) Plaintiffs also request the Court award $125 to $200 as the hourly rate for paralegals.
Plaintiffs request that the attorney for the federal enforcement action, William DeVinney be awarded a rate of $450 an hour. DeVinney has been admitted to the bar since 1999 and has practiced since graduating from law school in 1998. (Pl's Br. Ex. J, ECF No. 25-1.)
Defendant contends that the requested hourly rates for SWL attorneys are unreasonable and that none of the Johnson factors support the proposed hourly rates. In particular, Defendant argues that the administrative hearings did not raise complex or unique issues, did not preclude other employment, that the customary hourly rates in this District are lower than SWL's rates, that the hours expended were unreasonable, and that the Plaintiffs failed to obtain the bulk of the relief requested. (Def.'s Opp. Br. 10-11.) The requested rates are higher than rate typically awarded in similar cases. See D.P v. New York City Dep't of Educ., 2022 WL 103536, at *9 (S.D.N.Y. Jan. 10, 2022) (collecting cases and finding a top rate for senior attorneys around $400, junior attorneys at $250-280, and paralegals at $100-125 an hour in similar cases).
Several of the Johnson factors favor a higher hourly rate than awarded in the average case in this District. To start, the administrative case was heavily contested and included a pendency hearing and four days of hearings on the merits during which Plaintiffs presented 47 exhibits and five witnesses. This shows that there was a significant amount of time and labor required on this matter. In a similar case, M.H. v. New York City Dep't of Educ., the court found that an administrative case that involved four separate days of hearings during which the plaintiff entered 59 exhibits into evidence and presented five witnesses weighed in favor of a higher rate under the “time and labor required”, “novelty and difficulty of the questions involved” and “level of skill required” Johnson factors. 2021 WL 4804031, at *13 (S.D.N.Y. Oct. 13, 2021), aff'd sub nom. H.C. v. New York City Dep't of Educ., 2023 WL 4094873 (2d Cir. June 21, 2023). Similar to the case in M.H., this case was heavily contested, weighing in favor of awarding a higher hourly rate than typical under the “time and labor required”, “novelty and difficulty of the questions involved” and “level of skill required” Johnson factors. See Id. (collecting cases).
Further, SWL and Briglia obtained significant relief, a finding from an IHO that the DOE did not provide a FAPE and the Defendant's compliance with the IHO's order, which is the most critical of the Johnson factors. S.J. v. New York City Dep't of Educ., 2021 WL 100501, at *4 (S.D.N.Y. Jan. 12, 2021), aff'd, 2022 WL 1409578 (2d Cir. May 4, 2022). While SWL did not obtain Plaintiffs' requested relief for tuition and transportation fees, it obtained all of the other requested relief, including a finding that the DOE did not provide a FAPE and an order to reimburse Plaintiffs for five hours of SEIT instruction a week during the 2019-2020 school year ($21,075 worth of instruction); providing D.W. with 140 hours of compensatory SEIT services over the two years following the order; and providing D.W. with OT and PT services in the two years following the order.
However, several of the Johnson factors weigh against an award of a higher hourly rate than what is typical in this district. First, SWL and Briglia were able to accept other cases while litigating this one. Second, rates typically awarded in similar cases are significantly lower than the rates requested by SWL and Briglia. See D.P., 2022 WL 103536, at *10 (collecting cases). Notably, even in M.H., the court only awarded $420 an hour for the senior attorneys, $280 for senior associates and $200 for a junior associate. 2021 WL 4804031, at *13. Third, there were no unusual time limitations imposed on the case, and there is no indication that the experience, reputation, and ability of the attorneys are so unique as to warrant a higher hourly rate.
Turning first to the rate requested for Walsh, Plaintiffs argue that the rate is reasonable because she is “one of the best-known experts in special education law” and the founder of SWL, one of the most respected special educations law firms in the country.” (Pl's Br. 7.) Plaintiffs argue that other courts have acknowledged this and awarded her a higher hourly rate than other attorneys in her area of practice. However, of the cases that Plaintiffs cite, none award Walsh a fee near the fee requested in this case. See A.B. v. New York City Dep't of Educ., 2021 WL 951928, at *4 (S.D.N.Y. Mar. 13, 2021) (awarding Walsh an hourly rate of $400); C.A. v. New York City Dep't of Educ., 2022 WL 673762, at *5 (E.D.N.Y. Feb. 16, 2022), report and recommendation adopted, 2022 WL 673272 (E.D.N.Y. Mar. 7, 2022) (awarding Walsh an hourly rate of $425). Plaintiffs argue that the rates they propose of $595 to $695 an hour are justified because they are below market rates, citing the billing rates of AmLaw 100 firms to support their point. (Pl.'s Br. 9-10.) But, the AmLaw 100 firms are not the appropriate market rate to measure the rate for special education attorneys. Instead, the rates awarded to Walsh in A.B. and C.A. are more in line with what the prevailing rates are for special education attorneys in this District. See D.P., 2022 WL 103536, at *10 (collecting cases finding a top rate for seniors attorneys from $360 to $400 in IDEA cases); M.H., 2021 WL 4804031, at *13; see also V.W. v. New York City Dep't of Educ., 2022 WL 37052, at *4 (S.D.N.Y. Jan. 4, 2022), aff'd sub nom. H.C. v. New York City Dep't of Educ., 2023 WL 4094873 (2d Cir. June 21, 2023) (discussing a range of $350 to $475 as the prevailing market rate).
However, the last case to consider Walsh's rate was over a year ago, and inflation justifies an increase in rate. Additionally, several of the Johnson factors favor awarding a higher rate than is typical in this District. Thus, $500 is an hour is an appropriate rate for Walsh.
Similar to Walsh, DeVinney has over 20 years of experience, though he has less experience with special education law than Walsh. However, unlike Walsh, DeVinney's role in this matter was limited to bringing a simple attorneys' fee and enforcement action. Accordingly, the proposed rate of $450 is inappropriate. Considering the prevailing hourly rates in this District, DeVinney's experience, and the less complicated nature of his work in the case, $400 an hour is a more appropriate hourly rate.
Next, Druyan has been practicing special education law since 2012 and billed at a rate of $495 for half an hour of work. Plaintiffs do not provide sufficient information to justify this requested rate. Based on her work and the resume that Plaintiffs attached, Druyan had been practicing special education law for less than ten years when working on the administrative case. Further, a previous court in this District awarded Druyan an hourly rate of $280. A.B., 2021 WL 951928, at *5-6. Therefore, an hourly rate of $300 is more appropriate for Druyan's work on this case.
Hoots, together with Walsh, did the most work on this case. Hoots graduated from law school in May 2020 and was a law clerk at SWL until being admitted to the bar in 2021. Plaintiffs request that Hoots be awarded $300 per hour for her work as an associate and law clerk at the firm from May 2019 to November 2021. For her work on the administrative case before earning her J.D., Plaintiffs request she be awarded $125 an hour and $175 an hour. Some of the proposed rates are higher than appropriate. The following hourly rates are more consistent with Hoots experience and rates awarded for her work in this District: $125 for all of her work prior to earning her J.D., $150 for her hourly rate as a law clerk, and $175 for her work after admission to the bar. See A.B., 2021 WL 951928, at *4-5 (awarding Hoots the same rates for work performed during the same time period).
Finally, Plaintiffs request rates for paralegals Wendy Ahlstrand at $200 an hour, Caitriona Carey at $150 an hour, and Sonali Sanyal at $190 an hour. Plaintiffs have not given any reason for why paralegals in this case should be awarded these rates given that prevailing rates in this District are from $100 to $125 per hour for paralegals. See Restivo v. Hessemann, 846 F.3d 547, 591 (2d Cir. 2017), cert. denied, 138 S.Ct. 644 (2018) (approving paralegal fees of $125 per hour as a “Southern District rate”); Decastro v. City of New York, 2017 WL 4386372, at *6 (S.D.N.Y. Sept. 30, 2017) (approving $125 per hour rate for paralegals and collecting cases). Therefore, a $125 per hour rate for all paralegals is appropriate as it is consistent with rates awarded in this District and no basis has been provided for exceeding this rate.
In sum, I recommend the following hourly rates: $500/hour for Walsh, $400/hour for DeVinney, $300/hour for Druyan, $125/hour for Hoots for all of her work prior to earning her J.D., $150/hour for Hoots as a law clerk, and $175/hour for Hoots for work after admission to the bar, and $125/hour for paralegals.
B. Hours Expended
i. Administrative Action
SWL represented Plaintiffs in the administrative case for D.W. For the administrative hearing, Plaintiffs' counsel was required to prepare affidavits and other exhibits to present at the hearing. After the hearing, counsel monitored the DOE's compliance obligations as ordered by the IHO. After review of the time records, certain reductions to the hours expended are appropriate based on the Johnson factors. See H.C. v. New York City Dep't of Educ., 2023 WL 4094873, at *3 (2d Cir. June 21, 2023) (finding it was permissible for court to modify both the reasonable hours and reasonable rates based on the Johnson factors). However, not all the reductions urged by Defendant are warranted.
To start, Defendant objects to Plaintiffs' request for attorneys' fees for tasks related to Plaintiffs' claim for tuition and transportation reimbursements. However, Defendant makes no attempt to point to case law that supports this contention, and its argument that the Court should not award attorneys' fees for these tasks is not persuasive. A reduction “may be appropriate where a plaintiff is deemed prevailing even though he succeeded on only some of his claims for relief and the claims on which plaintiff failed were unrelated to the claims on which he succeeded.” B.W. ex rel. K.S. v. New York City Dep't of Educ., 716 F.Supp.2d 336, 353 (S.D.N.Y. 2010) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)) (internal quotations omitted). In contrast, plaintiffs are appropriately awarded the full fees requested when the claims “involve a common core of facts or are based on related legal theories.” Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999) (internal quotations omitted). Here, Plaintiffs' case was based on the circumstances surrounding Plaintiffs' claim that D.W. was denied a FAPE - a claim on which they prevailed. This claim was “inextricably intertwined” with the request for reimbursement for D.W.'s private school tuition and transportation costs. See B.W., 716 F.Supp.2d at 353 (finding that reduction of attorneys' fees was inappropriate where plaintiff prevailed on finding that the defendant did not provide a FAPE though plaintiff did not receive the same relief requested).
Nonetheless, there are other areas where Defendant's concerns about SWL's billing entries are justified, and certain hours spent on some tasks are not warranted. Defendant claims that Plaintiffs overbilled for a 15-page closing brief that was drafted for the administrative proceeding. For the closing brief, Hoots billed 20.51 hours at $300 an hour and Walsh spent another 2.5 hours editing the brief. (Def.'s Br. 16-17.) This means SWL spent 23.01 hours on the 15-page closing brief. Defendant states that a 15-page brief was long for a relatively simple document that simply rehashes what was discussed at the administrative hearing. While the length of the brief itself was not excessive, particularly in light of the fact that Defendant's own brief was nearly as long, the time spent drafting was excessive because the brief mostly summarized the administrative proceeding. A reduction is warranted, though not by as much as Defendant seeks. This is unlike the case in A.D., which Defendant relies on for the proposition that the Court should reduce the time spent on the closing brief in half, because this case involved a more extensive administrative hearing than what was at issue in A.D. See A.D. v. New York City Dep't of Educ., 2019 WL 1292432 (S.D.N.Y. Mar. 21, 2019). However, 23.01 hours is an excessive amount of time billed for a brief that is largely a summary of the administrative proceedings and thus a reduction in Hoots time by 8.01 hours to 15 hours total and in Walsh's time by 1 hour is appropriate.
Defendant's objection to Hoots' October 14, 2020 time entry for 0.75 hours drafting a due process complaint is valid. (Def.'s Br. 17.) Hoots entered this time while working on post-hearing briefing a full year after the due process complaint in this case was filed. Thus, this entry was clearly mistakenly entered and should be reduced to 0.
Defendant also objects to what Defendant claims is Plaintiffs' counsel's excessive billing for client communications. Defendant claims SWL billed at least 8.41 hours for client communications alone. This includes a 0.34 hour telephone call between Walsh and the client on May 31, 2019 and an hour that Walsh billed reviewing the file prior to the telephone call; a 0.25 hour discussion between Walsh and the client following the pendency hearing on September 26, 2019 and 0.12 hour spent reviewing the pendency hearing transcript on the same day; a 0.17 hour call with the client regarding a fax confirmation page; a 0.25 hour call with the client and witnesses regarding a new hearing date; an hour long conversation between Walsh and the client to answer the client's questions; a 0.19 hour communication with the client labeled simply “paralegal and witnesses after hearing”; a 0.25 hour communication with the client to answer a question on June 18, 2020; another 0.25 hour to answer a question four days later; another 0.25 hour spent communicating with the client that involved an email and phone call about the hearing transcript prior to a hearing; and a 0.34 hour communication with the client regarding emails with a duplicate 0.34 hour communication with the client 3 days later and a 0.09 hour communication with the client to answer questions later the same day. The above is just a sampling of the time entries, and there are multiple instances where the time entry descriptions and the amount of time appear to be duplicative and even copy and pasted. While attorneys should certainly update their clients regarding the status of a case and should gather information about the case, there are some duplicative entries in this case which were inappropriate. See A.D. v. N.Y.C. Dep't of Educ., 2019 WL 1292432 (S.D.N.Y. Mar. 21, 2019) (reducing hours for communication with client roughly from 8.1 hours to 4 hours). Therefore, I recommend reducing Walsh's time by 2 hours and reducing paralegal time by 1 hour.
Defendant also objects to billing for administrative tasks. Specifically, Defendant points to instances where paralegals billed 0.17 hours for printing out opposing counsel's evidence and 0.50 hours for uploading documents to the Copy Center portal. The records also include time that paralegal Sonali Sanyal billed on May 17, 2019 for 0.1 hour receiving a document from the client and 0.15 hour that Hoots spent updating client status for the file. Secretarial tasks are not reimbursable as part of an award for costs and fees and are, instead, considered part of a firm's overhead. O.R. v. New York City Dep't of Educ., 340 F.Supp.3d 357, 368 (S.D.N.Y. 2018). The types of tasks that are considered clerical are downloading, scanning, copying documents, or organizing files. Id. (quoting Siegel v. Bloomberg L.P., 2016 WL 1211849, at *7 (S.D.N.Y. Mar. 22, 2016)). These time entries should not be included in an award of costs and attorneys' fees.
Defendant also claims that Plaintiff overbilled for simple tasks like sending emails or preparing files and for intra-office meetings. There are multiple instances where paralegals billed multiple small entries for “communication” with others, like Carey's 0.34 hour entry for resending disclosure to the DOE and putting evidence in one file, a 0.08 hour entry for communicating with Dr. Taglierini regarding scheduling testimony, and another 0.25 hour entry a few days later also for communication with Dr. Taglierini. Further, there are instances where emails are sent or intra-office meetings are held between Walsh and paralegals that are then double billed, including a communication on September 4, 2019 where Walsh and Sanyal emailed each other about a determination letter and each billed 0.08 hours; communication on October 17, 2019 regarding “RSAs” that Walsh and Carey each billed 0.25 hours for; another communication on December 16, 2019 where Walsh billed 0.08 hours for an email to a paralegal; a conference on June 1, 2020 between Walsh and Sanyal for hearing prep where both billed 0.38 hours; a conference on June 18, 2020 between Walsh and Carey where each billed 0.25 hours; a conference on July 1, 2020 where Sanyal, Walsh, and Ahlstrand all billed 0.17 to 0.18 hours; a conference on September 9, 2020 between Walsh and Ahlstrand where both billed 0.34 hours each; a conference on September 16, 2020 between Walsh and Ahlstrand where both billed 0.34 hours; and a conference on November 11, 2020 between Walsh and Ahlstrand where both billed 0.30 hours. This demonstrates that there are some inappropriate billing practices and warrants another 1-hour reduction in paralegal hours and 1 hour reduction in Walsh's hours. Also, while the practice of law is a collaborative process, these entries show that some intra-office meetings between attorneys are not appropriately billed or awarded. For example, attorneys Walsh and Druyan met in a case conference to discuss the 10-day notice and each billed 0.25 hour, but Hoots was the attorney who drafted the 10-day notice. This is questionable considering Druyan only billed 0.5 hours in this case altogether, one of which was for the conference with Walsh about the 10-day notice and the other was a 0.25 hour conference with Carey to discuss next steps. At no point does she appear in any other entries, raising a question of why she was involved in these meetings. I recommend reducing Druyan's hours to 0.
In light of the above, I recommend a reduction as follows:
• 8.76 hours of Hoots' time, • 4 hours of Walsh's time, • 2.92 hours of paralegal time, • 0.5 hours of Druyan's time.
ii. Federal Action
This case is no different from the many IDEA fee dispute cases that come before this Court. To litigate this fee dispute in federal court, DeVinney drafted, filed, and served the summons and a 10-page complaint. (Pls' Br. 14-15.) For his work on the complaint, DeVinney billed approximately 4.1 hours to review the case and write the complaint. For Plaintiffs' motion for summary judgment, DeVinney billed 10.7 hours, which included drafting a 15-page memorandum of law and a 9-page reply memorandum with DeVinney's declaration. In all, DeVinney billed a total of 17.50 hours to the instant federal action. This is a reasonable amount of time to spend on a simple fee application. See Colbert v. Furumoto Realty, 144 F.Supp.2d 251, 261-62 (S.D.N.Y. 2001); (reducing 20.5 hours billed for a fee application to 15.5 hours); Rosasa v. Hudson River Club Rest., 1998 WL 106141, at *4 (S.D.N.Y. Mar. 9, 1998) (reducing 48.9 hours billed for a fee application to 15 hours); City of Almaty, Kazakhstan v. Ablyazov, 2020 WL 2488179 (S.D.N.Y. May 14, 2020) (finding a cap of 11 hours of fees in connection with the fee application for a total of $5,640.75 reasonable).
In light of the above, I recommend finding that the hours billed for the federal action are reasonable.
C. Costs
Plaintiffs are entitled to an award of all reasonable costs associated with this matter under 20 U.S.C. § 1415(i)(3)(B) and Fed.R.Civ.P. 54(d)(2). Supreme Court precedent indicates the term “costs” in 20 U.S.C. § 1415(i)(3)(B) refers to the list, including reasonable filing fees, provided under 28 U.S.C. § 1920, the general statute governing taxation of costs in federal court. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297-98 (2006); C.D., 2018 WL 3769972, at *4. Plaintiffs' counsel requests reimbursement only for the $400 filing fee for the instant federal action. This is the exact type of cost that is statutorily contemplated as a reimbursable cost and is reasonable.
D. Offer of Judgment
Defendant formally offered to settle the underlying matter on November 21, 2022 pursuant to 20 U.S.C. 1415(i)(3)(D) in the amount of $31,200, inclusive of fees, costs, and expenses accrued in the administrative proceeding and in this action through November 21, 2022. (Lindeman Decl. Ex. F, ECF No. 29-6.) Plaintiffs did not accept the offer. An offer of settlement prohibits recovery if “the relief finally obtained . . . is not more favorable . . . than the offer of settlement.” 20 U.S.C. § 1415(i)(3)(D); O.R. v. New York City Dep't of Educ., 340 F.Supp.3d 357, 371 (S.D.N.Y. 2018) (denying plaintiff's request for fees subsequent to the offer of settlement because plaintiff was entitled to less than the settlement offer). However, based on the above recommended reductions, Plaintiffs are not barred from recovering for the work performed after Defendant's offer of settlement because as of November 21, 2022, they were entitled to receive more than $31,200 for work done on both the administrative hearing and the federal action even when considering the recommended fee reductions. Accordingly, Plaintiffs' award should include compensation for work performed after November 21, 2022.
Lastly, under 28 U.S.C. § 1961, “[t]he award of post-judgment interest is mandatory on awards in civil cases as of the date judgment is entered.” True-Art Sign Co. v. Local 137 Sheet Metal Workers Int'l Ass'n, 852 F.3d 217, 223 (2d Cir. 2017) (alteration in original); accord S.J. v. New York City Dep't of Educ., 2021 WL 100501, at *5 (S.D.N.Y. Jan. 12, 2021). Accordingly, I recommend an award of post-judgment interest from the date the judgment is entered.
CONCLUSION
In summary, I respectfully recommend that Plaintiffs be awarded $44,934.25 in attorneys' fees and $400 in costs, for a total amount of $45,334.25. Additionally, I recommend Plaintiffs be awarded post-judgment interest from the date of judgment. The following charts show the breakdown of the fees and costs I recommend be awarded.
ADMINISTRATIVE COMPONENT
Hourly Rate
Number of Hours
Total
Lauren Druyan (attorney)
$300.00
0
$0
Anna Belle Hoots (attorney) (after 2021)
$175.00
0
$0
Anna Belle Hoots (attorney) (prior to 2021)
$150.00
23.37 (32.13-8.76)
$3,505.50
Anna Belle Hoots (attorney) (prior to May 2020)
$125.00
2.12
$265.00
Tracey Walsh
$500.00
57.91 (61.91-4.00)
$28,955.00
Paralegals
$125.00
42.31 (45.23-2.92)
$5,288.75
FEE SUBTOTAL
$38,014.25
FEDERAL ACTION
William DeVinney (attorney)
$400.00
17.30
$6,920.00
FEE SUBTOTAL
$6,920.00
FEDERAL ACTION
Federal Filing Fee
$400.00
COST SUBTOTAL
$400.00
NOTICE
The parties shall have fourteen days, from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2).
The parties shall have fourteen days to serve and file any response. Any objections and any responses to such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable John G. Koeltl at the United States Courthouse, 40 Foley Square, New York, New York 10007, and served on the other parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Koeltl. The failure to file timely objections shall result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).