Opinion
21-CV-11175 (AT) (BCM)
02-14-2023
L.M., individually and on behalf of her child R.R., a minor, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
REPORT AND RECOMMENDATION TO THE HON. ANALISA TORRES
BARBARA MOSES, United States Magistrate Judge.
Plaintiff L.M., acting on behalf of her minor child R.R., prevailed in an administrative hearing against the New York City Department of Education (DOE) conducted pursuant to the Individuals with Disabilities Education Act (IDEA). Invoking IDEA's fee shifting provision, 20 U.S.C. § 1415(i)(3), plaintiff then filed this action, seeking an award of her attorneys' fees and related costs incurred in the administrative proceeding and in this action.
Now before me for report and recommendation is plaintiff's motion (Dkt. 29) for an award in the aggregate amount of $83,613.83, including $70,189.33 incurred in the underlying administrative proceeding and $13,424,59 in "fees-on-fees" incurred in this action. See Pl. Mem. (Dkt. 32) at 1; Cuddy Decl. (Dkt. 30) ¶ 53. DOE - which offered a maximum of $40,001 in settlement on June 3, 2022 - opposes the motion, accusing counsel of trying to "soak [its] opponent" through "inflated hourly rates and overstated time entries." See Def. Mem. (Dkt. 37) at 1, 3. DOE urges the Court to award no more than $29,985 for work performed on the administrative proceeding and $4,470 for work in this Court, totaling $34,455. Id. at 3.
For the reasons that follow, I recommend that plaintiff's motion be granted in part. Plaintiff should be awarded the sum of $52,933.34, consisting of $44,891.50 for fees incurred in the underlying administrative proceeding, $7,388.01 for fees incurred in this action, and $653.83 in costs.
I. BACKGROUND
L.M. and her son R.R. reside in Richmond County, New York. Def. 56.1 Stmt. (Dkt. 19) ¶ 1.The DOE's Committee on Special Education classified R.R. as a student with a hearing impairment. Id. ¶ 5. On June 25, 2019, L.M. filed a due process complaint (DPC) alleging that defendants failed to provide R.R. with a free appropriate public education (FAPE), as required by the IDEA, and requesting that DOE fund 800 hours of compensatory academic instruction, compensatory hearing education services, compensatory counseling services, compensatory speech-language therapy services, and compensatory postsecondary instruction. Id. ¶¶ 6-9.
Where a fact is undisputed, this Report and Recommendation cites only the opposing party's Local Civil Rule 56.1 statement, showing the concession or non-opposition.
An impartial hearing officer (IHO) conducted a due process hearing over the course of five non-consecutive days: November 5, 2019; May 22, 2020; August 7, 2020; October 7, 2020; and January 7, 2021. Def. 56.1 Stmt. ¶¶ 10-11. Each party presented direct testimony from three witnesses, submitted numerous documentary exhibits into the record, and filed closing briefs. Id. ¶ 12-14. On April 21, 2021, the IHO issued his Findings of Fact and Decision (FOFD), concluding that defendant failed to provide R.R. with a FAPE, and further finding that DOE's conduct constituted a "gross violation of the IDEA." Id. ¶ 15. The IHO awarded plaintiff 800 hours of compensatory academic instruction, 40 hours of compensatory counseling, 234 hours of compensatory speech-language therapy, 40 hours of compensatory hearing education services, and 240 hours of compensatory post-secondary instruction, all to be funded by DOE. Id. ¶ 16.
On October 26, 2021, plaintiff's counsel, the Cuddy Law Firm (CLF), submitted a demand for attorneys' fees to DOE. Def. 56.1 Stmt. ¶ 18. DOE acknowledged the demand on November 2, 2021, but did not provide any further response. Cuddy Decl. ¶¶ 31-33. This action followed on December 30, 2021. Six months later, on June 3, 2022, DOE made a settlement offer of $40,001, which was rejected. Cullen Decl. (Dkt. 36) ¶ 9.
On July 25, 2022, the Hon. Analisa Torres, United States District Judge, referred dispositive motions to me for report and recommendation. (Dkt. 25.) Plaintiff filed the instant motion, styled as a summary judgment motion, on August 5, 2022, supported by her brief, two declarations, and four exhibits. (Dkts. 29-32.) DOE filed its opposition brief, supported by four declarations, on August 26, 2022. (Dkts. 33-27.) Plaintiff filed her reply brief (Pl. Reply Mem.) (Dkt. 38) on September 9, 2022.
II. ANALYSIS
A. Standards
Under the IDEA, "the court, in its discretion, may 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). In addition, the court may award fees "for work on the fee application itself." O.R. v. N.Y.C. Dep't of Educ., 340 F.Supp.3d 357, 370-71 (S.D.N.Y. 2018) (citation omitted). In this case, the parties agree that plaintiff was the prevailing party. See Def. Mem. at 1. Therefore, the Court must determine whether, and to what extent, plaintiff should be awarded attorneys' fees and costs incurred in the underlying administrative proceeding and in this civil action. See M.D. v. N.Y.C. Dep't of Educ., 2018 WL 4386086, at *2 (S.D.N.Y. September 14, 2018) (absent any dispute that plaintiffs qualified as prevailing parties, "the sole question" was "whether and to what extent Plaintiffs should be awarded fees and costs"). Neither party suggests that no fees should be awarded. I therefore turn to the question of what fees are "reasonable" under § 1415(i)(3)(B).
To determine the reasonable attorneys' fees to which a prevailing party is entitled, "a court must calculate each attorney's 'presumptively reasonable fee,' sometimes referred to as the 'lodestar.'" R.G. v. New York City Dep't of Educ., 2019 WL 4735050, at *2 (S.D.N.Y. September 26, 2019) (collecting cases). This method requires the court to calculate the "number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." C.B. v. New York City Dep't of Educ., 2019 WL 3162177, at *4 (S.D.N.Y. July 2, 2019) (citation omitted). To perform this calculation, the court should step "into the shoes of the reasonable paying client, who wishes to pay the least amount necessary to litigate the case effectively." O.R., 340 F.Supp.3d at 364 (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany & Albany Cty. Bd. of Elections, 522 F.3d 182, 184 (2d Cir. 2008)). However, "trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees . . . is to do rough justice, not achieve auditing perfection." C.B., 2019 WL 3162177, at *5 (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)). Accordingly, "a district court may exercise its discretion and use a percentage deduction as a practical means of trimming fat from a fee application." M.D., 2018 WL 4386086, at *4 (quoting McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Tr. Fund, 450 F.3d 91, 96 (2d. Cir. 2006)).
Under the IDEA, no fees may be awarded (or costs reimbursed) for services performed after the defendant has made a written offer of settlement to a parent, unless the relief finally obtained by the parent is more favorable to the parent than the offer of settlement. 20 U.S.C. § 1415(i)(3)(D)(i). In other words, DOE can cut off a parent's right to fees-on-fees by making a settlement offer equal to or greater than the reasonable fees and expenses to which the parent is entitled on the date that the offer is made. See, e.g., T.A. v. New York City Dep't of Educ., 2022 WL 3577885, at *7 (S.D.N.Y. Aug. 19, 2022) (CLF could not seek fees incurred after February 8, 2022, because on that date DOE "offered Plaintiff $20,256.90 to settle the matter," and the court later determined that plaintiff's reasonable fees, when the offer was made, "were only $19,079.50.").
B. Protraction of Final Resolution
Plaintiff argues that CLF's requested fees should not be "reduced" (that is, that the Court should award every dollar requested) because DOE "unreasonably protracted" the final resolution of the case. See Pl. Mem. at 7-8. In particular, plaintiff complains that DOE failed to issue a "due process response," after plaintiff filed her DPC, which would have allowed plaintiff to narrow the issues involved in the case, and that DOE requested two last-minute adjournments of hearing dates, causing plaintiff to incur legal fees and expenses that could have been avoided. Id. In response, DOE argues that if anything, it was plaintiff who protracted a resolution in this matter, as she "did not commence this [fee] action until December 30, 2021, more than 8 months after the hearing officer's decision." Def. Mem. at 19 (internal citation omitted).
The IDEA requires the court to reduce the fee award if (as relevant here) the hourly rate sought "unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience," the time spent was "excessive considering the nature of the action or proceeding," or the prevailing parent or her attorney "unreasonably protracted the final resolution of the controversy[.]" 20 U.S.C. § 1415(i)(3)(F). However, "[t]he provisions of subparagraph (F) shall not apply in any action or proceeding if the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding[.]" Id. § 1415(i)(3)(G).
DOE's conduct in this matter was not "unreasonable." While plaintiff claims in her brief that DOE's failure to provide a response to the due process complaint in advance of the hearing prevented it from narrowing the issues in the case, she provides no further detail as to how, or to what degree, the absence of a DOE response protracted the administrative proceeding. Nor is this issue addressed in the attorney declaration describing the administrative proceedings. See Mendillo Decl. (Dkt. 31) ¶ 15 (noting the absence of a due process response but providing no further details as the impact of its absence on the proceedings). Plaintiff's conclusory assertions regarding the due process response are insufficient to support a claim that DOE acted unreasonably. Further, as plaintiff admits, DOE's two adjournment requests were due to witness unavailability and were granted by the IHO. See Pl. Mem. at 8; Mendillo Decl. ¶¶ 18, 20. Plaintiff makes no showing that these requests were unwarranted, much less that they were made in bad faith Accordingly, DOE's conduct does not bar or limit the "reduction" of CLF's claimed fees. See L.L. v. New York City Dep't of Educ., 2022 WL 392912, at *2 (S.D.N.Y. Feb. 9, 2022) (rejecting CLF's argument that DOE unreasonably protracted the case). "In any event, even a finding of unreasonable protraction would not permit this Court to jettison the 'presumptively reasonable fee' analysis outlined above." D.P. v. New York City Dep't of Educ., 2022 WL 103536, at *12 (S.D.N.Y. Jan. 10, 2022).
C. Reasonable Hourly Rates
The statute says that fees awarded in IDEA-related actions are to be "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). The "community" to which the statutory provision refers has generally been understood to mean "'the district in which the court sits' when an IDEA-related action is brought into federal court." C.B., 2019 WL 3162177, at *4 (citation omitted). In evaluating the reasonableness of the hourly rates requested, the court may also take into account the case-specific factors set out in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) and adopted by the Second Circuit in Arbor Hill, 522 F.3d at 190. The Johnson factors 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 717-19). There is no need for the court to "recite and make separate findings as to all twelve Johnson factors," C.B., 2019 WL 3162177, at *5 (quoting E.F. ex rel. N.R. v. New York City Dept. of Educ., 2014 WL 1092847, at *3 (S.D.N.Y. March 17, 2014)), "as long as they are each considered," id., as they have been in this case.
Before determining the reasonable hourly rates for the individual CLF professionals who worked on this matter, I address a number of preliminary rate-setting issues.
1. Preliminary Issues
a. Northern District Rates
Although the underlying administrative proceeding, like this civil action, was litigated in the Southern District of New York, DOE argues - as it has in many recent fee cases involving CLF - that for purposes of setting counsel's reasonable hourly rates the Court should look to the rates prevailing in the Northern District of New York, because CLF maintains its office in Auburn, New York, where its "'overhead' is one sixth of firms located in New York City." Def. Mem. at 5-6. Plaintiff disagrees, arguing that the relevant "community" is New York City, where this case was litigated. See Pl. Reply Mem. at 1-2.
Defendant primarily relies on K.L. v. Warwick Valley Cent. Sch. Dist., 2013 WL 4766339 (S.D.N.Y. Sept. 5, 2013), aff'd, 584 Fed.Appx. 17 (2d Cir. 2014), in which Judge Cote applied Northern District rates to the CLF attorneys whose work was at issue, because the Northern District was their "home market." 2013 WL 4766339, at *9. Alternatively, the district judge explained, she would have reached the same result (awarding $250 per hour for attorney work and $90 for paralegal work) based on "the essentially uncomplicated nature of this action." Id. In affirming that decision, the Second Circuit expressly declined either to endorse the application of out-offorum rates: "Our Circuit has adopted a 'forum rule,' instructing district courts to generally use the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee. Because we affirm on the basis of the district court's alternative rationale for the reasonable hourly rate, we need not decide under what circumstances a district court may downwardly deviate from the forum rule presumption." 584 Fed.Appx. at 19 n.3.
Mindful of that "forum rule," which is undergirded, in IDEA cases, by the language of the statute itself, I decline DOE's invitation to "downwardly deviate," on a wholesale basis, from the fees prevailing in the Southern District of New York for "the kind and quality of services furnished." 20 U.S.C. § 1415(i)(3)(C). Thus, for example, when considering "awards in other cases," which is one of the Johnson factors, I will look to other cases in this District, not the Northern District. As plaintiff admits, however, a law firm's "size and overhead" are "relevant factors" to consider when determining the reasonableness of its billing rates. Pl. Mem. at 17 (quoting D.B. v. N.Y.C. Dep't of Educ., 2019 WL 6831506, at *5 (S.D.N.Y. Apr. 22, 2019)).
b. Variable Rates
In this action, plaintiff seeks fees incurred in two different legal proceedings: the underlying special education proceeding, within DOE, which concerned the educational needs of R.R., and this action, in federal court, which solely concerns attorneys' fees. "IDEA litigation is undoubtedly a specialized field in which attorneys seek to vindicate vitally important interests of children in need of special education," H.A. v. New York City Dep't of Educ., 2022 WL 580772, at *5 (S.D.N.Y. Feb. 25, 2022). The administrative work entails "greater risk" and requires "more skill" than the "more quotidian" tasks associated with "negotiating with [DOE] over attorneys' fees and presenting Plaintiff's argument with respect to attorney's fees." M.H., 2021 WL 4804031, at *14. Moreover, CLF's expertise (discussed in more detail below) lies in the field of special education law, not the law of attorneys' fees.
Plaintiff is therefore correct that, when determining the reasonable hourly rates for CLF attorneys, "a higher rate should be awarded for work performed at the IDEA administrative level" than for the same firm's later work in connection with its fee application. Pl. Mem. at 15; see Arbor Hill, 522 F.3d at 186 n.3 (quoting Johnson, 418 F.2d at 717) (in setting reasonable hourly rates, court should consider, inter alia, "the level of skill required to perform the legal service properly"); Report and Recommendation, C.M. v. New York City Dep't of Educ., No. 21-CV-05799 (VSB) (BCM), slip. op. at 16-19 (S.D.N.Y. August 29, 2022) (Moses, M.J.) (recommending a 10% discount to each CLF timekeeper's hourly rate for work performed on the federal fee application as opposed to the underlying IDEA proceeding); M.H., 2021 WL 4804031, at *14 (awarding $280 per hour to attorney who worked on the administrative proceeding, but only $200 to attorney who worked on the federal fee application, which "did not involve the same skills" as those required of the attorneys working on "the administrative stage"); C.B., 2019 WL 3162177, at *6, 12 (awarding senior CLF attorneys $400 per hour for their administrative work, in a case involving multiple live hearings, but only $200 per hour for their time spent on the federal fee litigation after DOE made a serious settlement offer). Distinguishing between work on the underlying IDEA matter and work on the fee litigation - and awarding lower hourly rates for the latter - may also reduce the temptation to over-litigate fee issues, and thus help prevent fee disputes from becoming "second major litigation[s]," Fox, 563 U.S. at 838, which Congress never intended.
I now consider the appropriate hourly rates for each individual attorney and paralegal for whose time fees are sought.
2. Attorney Andrew Cuddy
Andrew Cuddy, who recorded 5 hours working at the administrative level in this case and 1.9 hours working on the fee proceeding, seeks fees at the rate of $550 per hour. Cuddy Decl. ¶¶ 48, 53. At the administrative stage, Mr. Cuddy performed supervisory tasks, including reviewing draft filings, conferring with more junior attorneys on the case, and reviewing billing statements. Id. Ex. A (Dkt. 30-1) at 3-34. Once this action was filed, Mr. Cuddy performed almost identical work, reviewing draft filings, conferring with more junior attorneys, and reviewing billing statements. Id. Ex. B (Dkt. 30-2) at 1-7. In her brief, plaintiff states that Mr. Cuddy's work "contributed significantly to the oversight of the case, billing, negotiations, and the federal component of the case." Pl. Mem. at 19. DOE argues that "CLF senior attorneys," presumably including Cuddy, should be assigned a rate of $275 per hour, based on Northern District rates, or $360 per hour "[i]f the Court applies S.D.N.Y. rates[.]" Def. Mem. at 6.
Mr. Cuddy graduated from law school in 1996 and was admitted to practice in New York the same year. Cuddy Decl. ¶¶ 39-40. He is an experienced special education attorney, having litigated "hundreds of special education due process hearings" since 2001. Id. ¶ 43. Mr. Cuddy is also an accomplished speaker and author in this area. Id. ¶¶ 44-45.
Plaintiff cites a single recent case in which Mr. Cuddy was awarded the $550 rate that he seeks in this action. In Y.G. v. New York City Dep't of Educ., 2022 WL 1046465 (S.D.N.Y. Apr. 7, 2022), appeal docketed, No. 22-1187 (2d Cir. May 27, 2022), Judge Hellerstein found that "the Cuddy Law Firm's rates," including $550 per hour for Mr. Cuddy, were "reasonable" where, among other things, "the administrative hearing was heavily contested and required the skill of an experienced IDEA litigator to prevail, as there were multiple days of hearings and five hearings on the merits." Id. at *2.
DOE argues that plaintiff's reliance on Y.G. is "misplaced," as subsequent decisions have described the rates awarded in that case as "the extreme high end." Def. Mem. at 10 (quoting K.O. v. New York City Dep't of Educ., 2022 WL 1689760, at *9 (S.D.N.Y. May 26, 2022). The Court agrees. In every other recent fee decision in this District, Mr. Cuddy has been awarded an hourly rate ranging from $375 to $425, including where, as here, the administrative proceeding was contested and required multiple hearings.
See, e.g., N.A. v. New York City Dep't of Educ., 2022 WL 17581774, at *8 (S.D.N.Y. Dec. 12, 2022) (Gardephe, J.) (assigning a rate of $375 per hour for Mr. Cuddy, for 0.9 hours of supervisory work); T.H. v. New York City Dep't of Educ., 2022 WL 16945703, at *7 (S.D.N.Y. Nov. 15, 2022) (Cott, M.J.) ($400 per hour for Mr. Cuddy), report and recommendation adopted, 2022 WL 17991623 (S.D.N.Y. Dec. 29, 2022) (Furman, J.); M.R. v. New York City Dep't of Educ., 2022 WL 16575767, at *3 (S.D.N.Y. Oct. 31, 2022) (Caproni, J.) ($367.50 per hour for Mr. Cuddy); K.E. v. New York City Dep't of Educ., 2022 WL 4448655, at *15 (S.D.N.Y. Sept. 23, 2022) (Failla, J.) ($400 per hour for Mr. Cuddy); Y.S. v. New York City Dep't of Educ., 2022 WL 4096071, at *6 (S.D.N.Y. Sept. 6, 2022) (Abrams, J.) (awarding Mr. Cuddy $400 per hour); T.A., 2022 WL 3577885, at *5 (Woods, J.) (awarding Mr. Cuddy $375 per hour, which "reflects what the Court finds a reasonable paying client would be willing to pay"); Y.S. v. New York City Dep't of Education, 2022 WL 3572935, at *6 (S.D.N.Y. Aug. 19, 2022) (Vyskocil, J.) (awarding $425 per hour for Mr. Cuddy after contentious federal litigation in which plaintiff obtained a preliminary injunction and sanctions against DOE); C.B., 2022 WL 3577837, at *6-7 (Vyskocil, J.) (awarding $400 per hour for Mr. Cuddy where the administrative proceeding was "straightforward and minimally contested by the Defendant"); F.N. v. New York City Dep't of Educ., 2022 WL 3544128, at *4 (S.D.N.Y. Aug. 18, 2022) (Oetken, J.) ($375 per hour for Mr. Cuddy where "the single hearing lasted 41 minutes, DOE did not mount a defense, and the records reflect that the work performed by Cuddy and [another senior lawyer] consisted primarily of review and supervision"); B.C. v. New York City Dep't of Educ., 2022 WL 3214374, at *1-2, 7 (S.D.N.Y. Aug. 9, 2022) (Ramos, J.) ($420 per hour for Mr. Cuddy"); M.M. v. New York City Dep't of Educ., 2022 WL 3043218, at *1, 8 (S.D.N.Y. Aug. 2, 2022) (Ramos, J.) (same); K.O., 2022 WL 1689760, at *9 (Liman, J.) (noting that determining reasonable fees for CLF's lawyers "is well trodden ground in this district," and concluding that $420 was the appropriate rate for Mr. Cuddy in a case where plaintiff conducted a live hearing but "the questions presented were not particularly novel or complex"); R.P. v. New York City Dep't of Educ., 2022 WL 1239860, at *4 (S.D.N.Y. Apr. 27, 2022) (Furman, J.) ($375 per hour for Mr. Cuddy); Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 2022 WL 831831, at *3 (S.D.N.Y. Mar. 21, 2022) (Bricetti, J.) ($425 per hour for Mr. Cuddy where the action "presented novel and difficult issues, involved substantial and contested proceedings at the administrative, district court, and circuit court levels, and most significantly, CLF procured a favorable result for the Parents"); N.G.B. v. New York City Dep't of Educ., 2022 WL 800855, at *3 (S.D.N.Y. Mar. 16, 2022) (Koeltl, J.) (awarding $400 per hour to Mr. Cuddy); H.W. v. New York City Dep't of Educ., 2022 WL 541347, at *1, 6 (S.D.N.Y. Feb. 23, 2022) (Abrams, J.) (awarding $400 per hour for Mr. Cuddy's time after a 3-day administrative proceeding with live witnesses); S.H. v. New York City Dep't of Educ., 2022 WL 254070, at *5 (S.D.N.Y. Jan. 26, 2022) (Liman, J.) ($420 per hour for Mr. Cuddy, taking into account the Johnson factors and the "time value of money"); D.P., 2022 WL 103536, at *9-10 (Failla, J.) (awarding Mr. Cuddy $400 per hour after a "lightly contested hearing"); V.W. v. New York City Dep't of Educ., 2022 WL 37052, at *5 (S.D.N.Y. Jan. 4, 2022) (Abrams, J.) (awarding $400 per hour for Mr. Cuddy and other senior lawyers after "[b]alancing these attorneys' significant experience, the passage of time since previous awarded rates, and the relative lack of complexity in this case").
DOE further argues that the second and third Johnson factors weigh in favor of lower hourly rates here, as "there is nothing unique about this administrative proceeding that would warrant rates higher than those assigned in recent CLF fees decisions" and "the issues involved were not complex." Def. Mem. at 6-7. However, the administrative proceeding here was both contested and drawn out, taking place on five separate dates over a span of more than one year. See Def. 56.1 Stmt. ¶ 10-11. During the proceeding, each party called live witnesses, submitted multiple documentary exhibits into the record, and filed briefs. Id. ¶ 12-13. The resulting FOFD was 26 pages long, Mendillo Decl. Ex. B, finding, among other things, that DOE's conduct with regard to L.M. constituted a "gross" violation of the IDEA, FOFD at 20, entitling L.M. to compensatory services even though he was 22 years old at the time of the FOFD.
Balancing all of the Johnson factors - including "the degree of success obtained by plaintiffs' counsel," which is the "most critical factor in determining the reasonableness of a fee award," C.D., 2018 WL 3769972, at *11 - I recommend an hourly rate of $400 for Mr. Cuddy's (minimal) supervisory work in the on the underlying administrative proceeding. For his fees-on- fees work in this Court, I recommend a 10% discount, bringing his hourly rate for that portion of the case to $360. See Report and Recommendation, C.M., slip. op. at 16.
$400 per hour happens to be the rate that the City of New York agreed to pay Hoguet, Newman, Regal & Kenny, LLP ("Hoguet") for the time of its partners in late 2020, when the City contracted with Hoguet to represent the DOE in certain IDEA cases. See Cuddy Decl. ¶¶ 35-38 ($400 per hour for partners, $300 per hour for associates, and $100 per hour for paralegals). Prevailing rates for defense work may be quite different, in the legal marketplace, from prevailing rates for plaintiffs' work in the same field. Nonetheless, as Judge Ramos noted in B.C., "[t]hese figures do not substantiate the reasonableness of [CLF's] requested fees; instead, the fees paid by the DOE to Hoguet are substantially similar to the typical fees awarded to plaintiff's attorneys by courts in this district." 2022 WL 3214374, at *6.
3. Attorney Michael Cuddy
Plaintiff also seeks a rate of $550 per hour for the time of Michael Cuddy, who is Andrew Cuddy's brother and law partner. Pl. Mem. at 19; Cuddy Decl. ¶¶ 48, 53. Mr. M. Cuddy has master's degrees in History and Educational Administration, in addition to his law degree. Cuddy Decl. ¶ 12. He has practiced special education law since joining CLF in 2009, where he is now an equity partner. Id. However, his work at the administrative level was limited to conferring with attorney Kevin Mendillo and legal assistant Raul Velez on the status of the case three times, for a total of 24 minutes. Id. ¶ 53 & Ex. A at 3-4. He performed no work at the federal level.
Balancing all of the Johnson factors, including the spot nature of the work performed, I recommend an hourly rate of $400 for Mr. M. Cuddy's work in the on the administrative proceeding. See V.W., 2022 WL 37052, at *5 (awarding a $400 per hour rate for M. Cuddy); H.W., 2022 WL 541347, at *6 (same).
4. Attorney Mendillo
Plaintiff asks for an award of $450 per hour for the time of Mr. Mendillo, who served as lead counsel in both the administrative proceeding and in this Court, with a lower $225 per hour rate for his travel time. Cuddy Decl. ¶¶ 11, 48, 53. DOE advocates for $275 per hour, based on Northern District rates, or $300 per hour (using "S.D.N.Y. rates"), with no fees awarded for his travel time. Def. Mem. at 6, 15-16.
Mr. Mendillo graduated from law school in 2010 and was admitted to practice in New York in 2011, giving him eight years of experience at the time of the first hearing date. Mendillo Decl. ¶ 3. Mr. Mendillo worked as an associate attorney practicing general civil litigation prior to joining CLF in January 2014. Id. ¶ 4. Since then, he has appeared in over 100 due process hearings and initiated over 30 IDEA fee cases against DOE. Id. Mr. Mendillo's time records show that he performed the vast majority of the attorney work at the administrative level in this case, recording 84.40 hours between June 2019 and September 2021. See Cuddy Decl. Ex. A at 1-38. He also seeks fees, at a reduced rate, for 4 hours of travel time. Cuddy Decl. ¶ 53. In the federal action, he recorded 25.3 of the 27.4 total attorney hours CLF accumulated from December 2021 to August 2022. See id. Ex. B at 1-8.
The Court notes that the requested $450 per hour rate for Mr. Mendillo is higher than any judge in this District has ever awarded for his work - including in Y.G., 2022 WL 1046465, at *2, which set his rate at $425 per hour for a "heavily contested" administrative hearing. DOE's proposed Northern District rate, on the other hand, is below a spate of recent awards for Mr. Mendillo at the rate of $300 per hour. See T.H., 2022 WL 16945703, at *4; K.E., 2022 WL 4448655, at *13; H.W., 2022 WL 541347, at *3, 6; V.W., 2022 WL 37052, at *5.
After balancing all of the Johnson factors, including Mr. Mendillo's role as lead counsel at the due process hearing and his success in that proceeding, I recommend an hourly rate of $320 for his administrative work and $288 for his work in this Court, where he has no special expertise. For his travel time during the administrative proceeding, Mr. Mendillo's rate will be $160 per hour. See H.W., 2022 WL 541347, at *6 (awarding $300 per hour for Mr. Mendillo in the administrative proceeding and half of that, or $150 per hour, for his travel time); V.W., 2022 WL 37052, at *7 (same); H.C. v. New York City Dep't of Educ., 2021 WL 2471195, at *5 (S.D.N.Y. June 17, 2021) (Cott, M.J.) (same).
5. Attorney Moore
Aaron Moore graduated from law school in June 2018 and was admitted to practice in New York in January 2019. Cuddy Decl. ¶ 13. He joined CLF as a law clerk in December 2017, and he continued in that role until he was admitted to the bar, when he became an associate attorney at the firm. Id. He billed only 0.9 hours to the administrative proceeding, and plaintiff seeks an award for only 0.3 of those hours. Id. ¶ 53 & Ex, A, summary sheet. During those 0.3 hours, Mr. Moore called the client, on March 19 and 25, 2019, regarding plaintiff's "record request." Id. Ex. A at 1. Since plaintiff does not explain why a newly-admitted attorney should be awarded $375 per hour for what appears to be 18 minutes of paralegal work (Mr. Moore is not even mentioned in plaintiff's brief), I recommend that no fees be awarded for Mr. Moore's work in this matter.
6. Attorney Murray
Erin Murray, an associate attorney at CLF, graduated from law school in 2019 and was admitted to practice in New York in 2020. Cuddy Decl. ¶ 14. In November of that year, Ms. Murray was delegated the task of preparing the closing brief in the administrative proceeding, to "further promote cost effective litigation." Pl. Mem. at 5, 19. Plaintiff asks the Court to award $375 as Ms. Murray's rate for the 62 hours she spent in the administrative proceeding and the 0.2 hours she spent working on this federal action. Id. at 20; Cuddy Decl. ¶¶ 45, 53. DOE argues that Mr. Moore's hourly rate should be $225, calling the requested $375 per hour rate "grossly excessive given her relative lack of experience." Def. Mem. at 5, 9.
DOE's suggested hourly rate is consistent with Ms. Murray's prior treatment in this district for work performed during her first year as an attorney. See S.H., 2022 WL 254070, at *6 (awarding $225 per hour for Ms. Murray's time). Accordingly, the hourly rate for her work on the administrative proceeding will be set at $225. I recommend awarding no fees for the 12 minutes that Ms. Murray spent doing what appears to be paralegal work on the federal fee action. See Cuddy Decl. Ex. B at 4 (showing that Ms. Murray's work consisted of reviewing exhibits to "calculate the number of documents/pages necessary for Plaintiff's motion for summary judgment and reply papers"); see also Y.S. 2022 WL 3572935, at *7 ("Because the work performed by Ms. Murray and Mr. Coretti is de minimis, the Court in its discretion declines to award fees for the work, and accordingly does not calculate a reasonable rate for Ms. Murray or Mr. Coretti.").
7. Paralegals Pinchak, Meghezzi, O'Donnell, S. Cuddy, Velez, Woodard, and Reeve
Plaintiff requests a rate of $225 per hour for its paralegal staff: Amanda Pinchak, Burhan Meghezzi, Cailin O'Donnell, Shobna Cuddy, Raul Velez, Sarah Woodard, and ChinaAnn Reeve. See Cuddy Decl. ¶ 53; Pl. Mem. at 20. DOE argues that paralegal time should be compensated at $100 per hour. Def. Mem. at 10. Ms. Pinchak obtained a paralegal certificate from a community college. Cuddy Decl. ¶ 17. Ms. O'Donnell has a bachelor's degree. Id. ¶ 21. Ms. Reeve has an associate's degree. Id. ¶ 22. Ms. Woodard has experience has a paralegal dating back to 1995. Id. ¶ 16. Mr. Velez was a "legal assistant" (apparently akin to a paralegal) before becoming an attorney at CLF. Id. ¶ 18. Ms. S. Cuddy is the CLF office administrator, in charge of training the paralegal staff, in addition to being a paralegal herself. Id. ¶¶ 10, 15.
Courts in this District typically award $100-125 for paralegal work. Based on their respective educational backgrounds and experience, and consistent with the approach in this District, I recommend an hourly rate $125 for Ms. Cuddy and Ms. Woodard, as senior paralegals with more significant experience, and $100 for all other paralegal staff. See K.E., 2022 WL 4448655, at *13 (awarding $125 for Ms. Cuddy and Ms. Woodard, and $100 for Ms. Pinchak, Ms. O'Donnell, Mr. Velez, and all other junior paralegals); H.A., 2022 WL 580772, at *8 (awarding $125 per hour for Ms. Woodard's work and $100 per hour for Ms. Cuddy, Ms. O'Donnell, Ms. Pinchak, and all other junior paralegals); H.W., 2022 WL 541347, at *3 (awarding a rate of $ 125 per hour for senior paralegal Ms. Cuddy and a rate of $100 per hour for Ms. Pinchak, Ms. O'Donnell, Ms. Woodard, and all other junior paralegals). For any hours billed to the federal fee litigation, those rates should be discounted to $112.50 and $90, respectively. Though Mr. Meghezzi appears in CLF's billing records, see Cuddy Decl. Ex. A, plaintiff offers no details on his background and does not mention him in her brief. According, no fees will be awarded for his time.
D. Reasonable Hours and Costs
I now turn to the question whether the hours expended were reasonable. In appraising the reasonableness of attorney hours expended at the administrative level, "courts consider . . . whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures." O.R., 340 F.Supp.3d at 366-67 (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)). Such an inquiry is to be guided by the unique facts of each case, and a court may, in its discretion, deny compensation for hours that are excessive, redundant, or otherwise unnecessary. Id. at 367 (citation omitted). In doing so, the court "may attempt to identify the specific hours that should be eliminated, or it may simply reduce the award by a reasonable percentage." R.G., 2019 WL 4735050, at *3 (quoting Hensley v. Eckerhart, 461 U.S. 424, 436-37 (1983), and collecting cases). I begin by considering the hours spent by plaintiff's counsel on the underlying administrative proceeding.
1. The Administrative Proceeding
Plaintiff seeks a fee award for 84.40 hours of legal work by Mr. Mendillo, 4 hours of Mr. Mendillo's travel time, 62 hours of work by Ms. Murray, 5 hours of work by attorney A. Cuddy, 0.4 hours of work by attorney M. Cuddy, 6.1 hours of work by Ms. Pinchak, 6.3 hours of work by Ms. O'Donnell, 3.9 hours of work by paralegal S. Cuddy, 1.5 hours of work by Mr. Velez, and 0. 6 hours of work by Ms. Woodard during the underlying administrative proceeding. See Cuddy Decl. ¶ 53. Plaintiff also seeks to recover $251.83 in costs accrued during that period. See id.
DOE argues in opposition that CLF billed excessively for its hearing preparation, Def. Mem. at 14-15, travel time, id. at 15-16, preparation of closing briefs, id. at 16-17, and administrative tasks. Id. at 17. For the most part, the Court disagrees. The time Mr. Mendillo spent working on the administrative proceeding, including preparation for the five hearing dates (in addition to the hearings cancelled at the last minute, for which he was also required to prepare) was reasonable, and the 84.40 hours for which he seeks fees (not counting travel time) is within the range of hours other courts have found reasonable in this context. See, e.g., R.G., 2019 WL 4735050, at *5 (reducing total hours billed during an administrative proceeding from 92.3 to 79.35 where the hearing occurred over three sessions totaling four hours); D.B., 2019 WL 6831506, at *5 (rejecting defendant's argument that "preparation hours should not exceed 3x the length of the hearing," even where defendant did not contest plaintiff's requested relief in that hearing).
DOE also argues that no fees should be awarded for Mr. Mendillo's time traveling to and from hearings. Def. Mem. at 15-16. But attorneys are routinely compensated for travel time at a lower hourly rate - typically one-half of their regular rate - and courts in this District have followed suit in IDEA cases, after eliminating any excess travel hours resulting from a law firm's decision (as in this case) to staff a New York City proceeding out of a distant office. See, e.g., H.W., 2022 WL 541347, at *5 (limiting Mr. Mendillo's compensable travel time to one hour each way for travel between Auburn and Brooklyn, where the administrative hearing took place); V.W., 2022 WL 37052, at *7 (same); H.C., 2021 WL 2471195, at *9 (reducing Mr. Mendillo's compensable travel hours from 15 to 10). Here, CLF has already reduced the number of Mr. Mendillo's travel hours for which it is seeking reimbursement from 20 to 4. Compare Cuddy Decl. ¶ 53 with id. Ex. A, summary sheet. I therefore do not recommend any further discount to Mr. Mendillo's requested hours for work or travel time during the administrative phase of this case.
The same is true of Ms. Murray's work on the administrative proceeding. The 62 hours she billed to the administrative proceeding were reasonable, given her responsibility for preparing the entirety of plaintiff's 25-page closing brief. DOE argues that her hours are excessive, due in part to her need to review the record in the case before beginning work on the brief. See Def. Mem. at 16. In my view, however, plaintiff should not be penalized for assigning this task to a more junior attorney - at a lower hourly rate - even where some additional review is necessary. See O.R., 340 F.Supp.3d at 371-72 (commending plaintiff's counsel for assigning a task to a junior attorney, adding that "we fully understand why it might have taken him some time to review the administrative record in this case to get a firm grasp of [the issues]"). Thus, I do not recommend any discount to Ms. Murray's requested hours for work during the administrative phase of this case.
However, Andrew Cuddy's time records do warrant reduction. Andrew Cuddy billed five hours to the administrative proceeding, 1.7 of which were dedicated to reviewing billing statements. See Cuddy Decl. Ex. A at 34. Preparing and reviewing litigation documents is an appropriate task for which a lawyer should expect client payment; preparing and reviewing bills is not. Consequently, the 1.7 hours that Mr. Cuddy spent reviewing his firm's time records will not be included in the attorney fee award calculation. See R.G., 2019 WL 4735050, at * 4 ("DOE should not have to compensate Plaintiff's counsel for administrative clean-up of their own entries."); D.P., 2022 WL 103536, at *12 (undertaking "specific reductions" at the court's discretion rather than imposing a percentage reduction across all time entries).
The cumulative paralegal hours - 13.9 for those billing $100 per hour and 4.5 for those billing $125 per hour, as set forth above - must also be reduced. A portion of the hours billed by the paralegals consists of clerical or secretarial tasks that are not compensable in IDEA fee shifting litigation. See O.R., 340 F.Supp.3d at 368 (finding that purely clerical or secretarial tasks, such as downloading or copying documents, organizing files, informing individuals about hearing dates, and other ministerial communications are not to be included as part of an award of fees and costs). Here, although the paralegals mostly performed non-clerical tasks, a number of clerical tasks are included in the time records. See Cuddy Decl. Ex. A at 1-19 (listing, among other time entries, "correspond with Edward R. Murrow High School via fax re: request for educational records, categorize and save to electronic case file for use in disclosure; forward to CR and AB via email for review"; "telephone call to client re: need to switch video conference software for upcoming hearing, email software information to client, notify KMM, notes to file"; "[r]eceive instructions from KMM, draft email to client re: final follow up, forward to KMM for review, notes to file"). Accordingly, I recommend that the paralegal hours be reduced by 10% - bringing the total paralegal hours to 12.51 for those billing $100 per hour and 4.05 for those billing $125 per hour. See M.L. ex rel. M.P. v. Bd. of Educ. of City of New York, 2003 WL 1057476, at *5 (S.D.N.Y. Mar. 10, 2003) (reducing total award by 10%); L.V. v. New York City Dep't of Educ., 700 F.Supp.2d 510, 526 (S.D.N.Y. 2010) ("These deficiencies justify an across-the-board cut of 12 percent in [a law firm's] hours"); M.D., 2021 WL 3030053, at *6 ("In light of the parties' submissions, the record in this case and the governing legal standard for reasonable hours expended, a reduction of twenty percent in CLF's hours billed in the administrative proceeding is appropriate.").
Finally, plaintiff requests reimbursement of $58.50 in printing costs, $2.00 in postage, and $191.33 in travel expenses the administrative level, for a total of $251.83. Pl. Mem. at 23; Cuddy Decl. ¶ 53. DOE does not address plaintiff's requested expenses in its brief, and these sums are not unreasonable. Consequently, I recommend that $251.83 in expenses incurred at the administrative level be awarded.
Applying the hourly rates determined above to the reasonable number of hours incurred in connection with the underlying administrative proceeding, I recommend that plaintiff be awarded a total of $45,143.33, consisting of $44,891.50 in legal fees and $251.83 in expenses, incurred during that proceeding.
2. Federal Fees Litigation
Typically, the next step in the Court's analysis would be to determine the reasonable number of hours, and hence the total fees, to be awarded for the period between the start of the federal fee litigation and the date of DOE's final settlement offer - in this case, June 3, 2022. Next, if the reasonable fees attributable to (i) the administrative proceeding and (ii) the pre-offer portion of the action were greater, in the aggregate, than the settlement offer, the Court would proceed to determine the reasonable number of hours and total fee to be awarded for the remainder of the fee litigation. Here, however, since I have already determined that CLF reasonably earned more than $40,001 (DOE's best offer) before the federal litigation was filed on December 30, 2021, it is a foregone conclusion that the firm reasonably earned more than $40,001 before DOE offered that sum on June 3, 2022. Hence, plaintiff is not foreclosed from seeking an award fees and costs incurred throughout the litigation. See 20 U.S.C. § 1415(i)(3)(D)(i).
As noted above, plaintiff seeks $13,424.50 in attorneys' fees and costs for 39.25 hours of work, by three attorneys and three paralegals, in this Court. See Cuddy Decl. ¶ 53. Although that sum is significantly lower than the amount of the fee award sought by plaintiff (or recommended by me) for the administrative portion, it is still, in my view, somewhat excessive for what amounts to a fee motion - particularly since plaintiff's brief and supporting papers in this action are clearly built upon models that CLF has used in many other recent cases. This is not criticism; there is no reason for counsel to reinvent the wheel in every case. Nor, however, should counsel be compensated for more than the time it should reasonably take to repurpose and customize prior work. Moreover, "[t]he latitude extended to Plaintiff's counsel in claiming fees for the administrative component of the case cannot be extended to the litigation component," id., because to do so would be to encourage precisely the kind of "second major litigation" that the Supreme Court warned against in Fox, 563 U.S. at 838.
The Second Circuit has provided district courts "great leeway" in deciding the scope of the award in cases seeking fees-on-fees pursuant to the IDEA. K.L., 584 Fed.Appx. 17, 20 (2d Cir. 2014) (quoting Gagne v. Maher, 594 F.2d 336, 344 (2d Cir. 1979)). Many courts in this District limit awards in such cases to a fraction - often a small fraction - of the time spent on the underlying administrative proceeding. See, e.g., G.T., 2020 WL 1516403, at *10-11 (collecting cases and reducing compensable hours incurred in federal court by 80%). Others consider how many hours a "competent attorney" would need to litigate a simple fee motion, and disallow any time beyond that. For example, in B.B. v. New York City Dep't of Educ., 2018 WL 1229732, at *3 (S.D.N.Y. Mar. 8, 2018), Judge Caproni ruled that "a competent attorney should not have needed more than 40 hours to litigate this fee petition," and slashed the fee award accordingly, to $19,116.13 for both the administrative proceeding and the federal litigation. See also L.L., 2022 WL 392912, at *5 (agreeing that "Plaintiff's billing for the instant federal action is excessive" and applying a 50% haircut, reducing compensable time from 60.9 hours to 30 hours); M.D., 2021 WL 3030053, at *6 (reducing CLF's 76.2 hours spent on the fee litigation by 50% because the issue was "simple and straightforward"); S.J. v. New York City Dep't of Educ., 2020 WL 6151112, at *6 (S.D.N.Y. Oct. 20, 2020) (Aaron, M.J.) (finding CLF's 112 hours spent on the fee litigation "excessive" and reducing the hours by 50% to achieve "rough justice"), report and recommendation adopted as modified, 2021 WL 100501 (S.D.N.Y. Jan. 12, 2021), modified, 2021 WL 536080 (S.D.N.Y. Jan. 25, 2021), aff'd, 2022 WL 1409578 (2d Cir. May 4, 2022), and aff'd, 2022 WL 1409578 (2d Cir. May 4, 2022).
"[T]he fee-shifting feature of the IDEA - including the authority to award reasonable fees for the fee application itself - plays an important role in 'attracting] competent counsel' to a field where many plaintiffs with meritorious cases could not afford to pay such counsel themselves." G.T., 2020 WL 1516403, at *10 (quoting Simmons v. New York City Transit Auth., 575 F.3d 170, 176 (2d Cir. 2009)); see also Y.G., 2022 WL 1046465, at *1 ("In evaluating the reasonableness of the fee, the court, among all other factors, should be sensitive to an adequate incentivization of counsel to take these cases."). No public policy is served, however, by rewarding plaintiff's counsel for repeatedly over-litigating what Judge Failla aptly characterized as CLF's "continued adherence" to "aspirational hourly rates," which "will lead only to further opinions significantly discounting those rates." D.P. 2022 WL 103536, at *6. Consequently, having carefully reviewed the entire file in this action, I recommend applying a reduction of 10% to the number of hours billed by CLF for its work in this forum. I also recommend awarding the firm $402 in costs, as requested, see Cuddy Decl. ¶ 53, to reimburse it for the filing fee in this action. See Y.G., 2022 WL 1046465, at *4 (awarding $402 for a federal filing fee).
E. Summary
To summarize, I recommend an award of $52,279.51 in attorneys' fees, calculated as set forth below, plus $653.83 in costs, for a total of $52,933.34:
Administrative Proceedings
Biller
Hourly Rate
Hours
Award
Andrew Cuddy
$400
3.30
$1,320
Michael Cuddy
$400
0.40
$160
Mendillo
$320
84.40
$27,008
Mendillo (Travel)
$160
4
$640
Murray
$225
62
$13,950
Junior Paralegals
$100
12.51
$1,251
Senior Paralegals
$125
4.05
$562.50
Expenses
$251.83
Total:
$45,143.33
Federal Fees Litigation
Biller
Hourly Rate
Hours
Award
Andrew Cuddy
$360.00
1.71
$615.60
Mendillo
$288.00
22.77
$6,557.76
Junior Paralegals
$90.00
0.81
$72.9
Senior Paralegals
$112.50
1.26
$141.75
Expenses
$402
Total:
$7,790.01
Grand Total:
$52,933.34
III. CONCLUSION
For the reasons set forth above, I respectfully recommend that plaintiff's motion for summary judgment (Dkt. 29) be GRANTED IN PART, and that judgment be awarded to plaintiff in the amount of $52,933.34, consisting of $44,891.50 for legal fees incurred in the underlying administrative proceeding, $7,388.01 for fees incurred in this civil action, and $653.83 in expenses.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Analisa Torres at 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Torres. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).