Opinion
21-CV-05503 (VEC)(SN)
06-15-2022
M.R., et al., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
REPORT AND RECOMMENDATION
SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE VALERIE E. CAPRONI
On behalf of her daughter J.R., M.R. seeks reasonable fees as a prevailing party under the fee-shifting provisions of the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973. In an administrative due process hearing, M.R. alleged that the New York City Department of Education (“DOE”) failed to provide J.R. with a Free Appropriate Public Education (“FAPE”). In 2019, the impartial hearing officer (“IHO”) ordered M.R.'s requested relief, making her the prevailing party under the IDEA and entitling her to reasonable attorneys' fees. The DOE does not contest that M.R. is the prevailing party but argues that the rates and hours sought by M.R.'s counsel are unreasonable.
I recommend that the Court grant M.R.'s motion for attorneys' fees and costs in part but reduce the awarded attorneys' fees and costs from $84,884.87 to $47,167.82.
BACKGROUND
At the time of the underlying administrative proceedings, J.R. was a 13-year-old student with multiple disabilities. ECF No. 19, Ex. 1 at 1. J.R. lived in Brooklyn but attended Cerebral Palsy of Westchester, a private school, pursuant to her 2017-2018 Individualized Education Plan (“IEP”). Id.
I. Administrative Proceedings
On July 20, 2018, Cuddy Law Firm (“CLF”) attorney Nina Aasen requested an impartial hearing pursuant to the IDEA, 20 U.S.C. § 1415(f)(1), and Part 200 of the Regulations of the Commissioner of Education of the State of New York. Plaintiff sought a pendency order ensuring that J.R.'s previous placement and services would continue uninterrupted, including physical therapy, at-home Applied Behavior Analysis (“ABA”) services, a full-time behavioral aide supervised by a board-certified behavioral analyst, and a full-time transportation paraprofessional. ECF No. 19, Andrew Cuddy Declaration (“Cuddy Decl.”) ¶¶ 41, 43; ECF No. 19, Ex. 1 at 1, 4. Additionally, the complaint requested that the IHO find that the DOE had denied J.R. a FAPE and order appropriate relief, including re-evaluations, the creation of a new IEP including ABA services, compensatory services, and an increase in parent counseling. Cuddy Decl. ¶ 43; ECF No. 19, Ex. 1 at 4-5. On August 8, 2018, the parties entered into a partial resolution agreement, with the DOE agreeing to conduct physical therapy, occupational therapy, speech, and psychoeducational evaluations, hold a new IEP meeting, and develop a behavior intervention plan. ECF No. 30, Declaration of Jeffrey M. Cassuto (“Cassuto Decl.”) ¶ 6; ECF No. 19, Ex. 11 at 2.
The DOE appointed an IHO, who conducted administrative hearings on August 23, 2018, January 14, 2019, May 24, 2019, and June 26, 2019. Cuddy Decl. ¶¶ 44-54. At the pendency hearing on August 23, 2018, Aasen introduced three documents into evidence. Id. at ¶ 48; ECF No. 19, Ex. 3. On August 31, 2018, the IHO issued a pendency order requiring that the DOE fund or provide the services in the 2017-2018 IEP. Cuddy Decl. ¶ 49. On October 23, 2018, Aasen filed an amended due process complaint asking that the DOE be ordered to fund an independent physical therapy evaluation. Id. at 50. At the subsequent three hearings, Aasen introduced 30 documents and one affidavit into evidence, and called two witnesses to testify on J.R.'s behalf. Id. at ¶¶ 51-54. Defendant introduced 11 documents into evidence and called one witness, who was cross-examined by Aasen. Id. The four hearings lasted a combined total of roughly two hours and 40 minutes. Cassuto Decl. ¶¶ 8, 12, 14, 15. Following the January hearing, the IHO issued an interim order requiring the DOE to fund three independent evaluations to be conducted by an evaluator of the Plaintiff's choice, Cuddy Decl. ¶ 52; ECF No. 19, Ex. 4, and the parties entered into a second partial resolution agreement to increase the parent counseling provided in the IEP to two monthly 60-minute sessions, ECF No. 19, Ex. 12 at 2. After the final hearing, Aasen submitted a 12-page closing brief to the IHO. Cuddy Decl. ¶ 55; ECF No. 19, Ex. 6. On September 10, 2019, the IHO issued a decision on the merits of the case, finding that Defendant denied J.R. a FAPE and awarding the requested relief. Cuddy Decl. ¶ 5657; ECF No. 19, Ex. 5. Plaintiff avers that implementation efforts were ongoing from September 10, 2019, through December 2020. Cuddy Decl. ¶ 58.
II. This Action
Pursuant to the fee-shifting provisions of the IDEA and Rehabilitation Act, CLF submitted a fee demand to the DOE on June 30, 2020. Cuddy Decl. ¶ 61. The DOE responded with a settlement offer on December 22, 2020, which Plaintiff rejected. Id. at ¶ 64. CLF attorney Justin Coretti prepared the complaint and filed this action on June 23, 2021. ECF No. 21, Declaration of Justin M. Coretti (“Coretti Decl.”) ¶ 19; see also ECF No. 1, Complaint. On October 5, 2021, the DOE made a formal settlement offer, pursuant to 20 U.S.C. § 1415(i)(3)(D), to settle the action for $28,000, which Plaintiff declined. ECF No. 38, Declaration of Martha Nimmer (“Nimmer Decl.”) ¶ 20; Cuddy Decl. ¶¶ 87-90. M.R. then moved for summary judgment for attorney's fees and costs, seeking a total of $72,515 in fees and $3,037.37 in costs. ECF No. 17; Cuddy Decl. ¶ 86.
DISCUSSION
I. Calculation of Fees under IDEA
The DOE concedes that Plaintiff “is a substantially prevailing party in the administrative proceeding and [is] thus entitled to reasonable fees and costs” under the IDEA and Rehabilitation Act. A.R. ex rel. R.V. v. N.Y.C Dep't of Educ., 407 F.3d 65, 75 (2d Cir. 2005); see 20 U.S.C. § 1415(i)(3)(B); 29 U.S.C. § 794a(b). The fees that the Court awards must be “reasonable” and “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)(B)-(C). After determining a reasonable hourly rate, the Court multiplies that rate by “the number of hours reasonably expended on the litigation,” i.e. the “lodestar method.” A.R., 407 F.3d at 79 (quoting G.M. v. New Britain Bd. of Educ., 173 F.3d 77, 84 (2d Cir. 1999)). “[T]here is . . . a strong presumption that the lodestar figure represents a reasonable fee.” Id. (alteration in original) (quoting G.M., 173 F.3d at 84).
The fee applicant bears the burden of establishing the hours expended and hourly rates. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The applicant must present “satisfactory evidence [of the hourly rates]-in addition to the attorney's own affidavits.” Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1059 (2d Cir. 1989) (internal quotation omitted).
A. Reasonable Hourly Rate
M.R. asks the Court to set a $550 hourly rate for Andrew Cuddy, Jason Sterne, and Nina Aasen, a $450 hourly rate for attorney Kevin Mendillo, a $425 hourly rate for attorney Justin Coretti, and a $400 hourly rate for attorney Benjamin Kopp. Cuddy Decl. ¶ 86. In addition, Plaintiff seeks an hourly rate of $225 for all paralegals who performed work on the case. Id. The DOE argues that the Court should award the hourly rates assigned in the Northern District of New York, where CLF's office is located, and claims the Johnson factors merit a reduction of the requested rates. See ECF No. 34, Defendants' Memorandum of Law in Opposition (“Def. Mem.”) 6-9. The DOE also argues that the Court should not consider the additional evidence submitted by Plaintiff, including the hourly rates paid to attorneys at Hoguet Newman Regal & Kenney to represent Defendant in IDEA fees litigation, in determining whether counsel's requested fees are reasonable. Id. at 9-15.
The Court declines to consider the declaration of purported attorney's fees expert Steven A. Tasher, who did not serve as counsel to Plaintiff and does not make a showing of “scientific, technical, or other specialized knowledge” related to IDEA fees litigation. See ECF No. 23; see also K.O. v. New York City Dep't of Educ., No. 20-cv-10277 (LJL), 2022 WL 1689760, at *11 (S.D.N.Y., May 26, 2022) (finding Tasher's expert report “of limited weight” because it “offers advice on an ultimate issue before the Court and thus is not admissible”).
In determining a reasonable fee, the Court “must ascertain whether ‘the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.'” Chambless, 885 F.2d at 1058-59 (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)). “The reasonable hourly rate is the rate a paying client would be willing to pay . . . bear[ing] 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) (quoting Lilly v. City of New York, 934 F.3d 222, 231 (2d Cir. 2019)). To determine what rates the market bears, I consider the declarations filed by attorneys specializing in special education law submitted in support of motions for fees under the IDEA. ECF No. 25, Plaintiff's Memorandum of Law in Support (“Pl. Mem.”) 13. Sworn statements from attorneys who practice in the relevant area in this District of the actual rates they charge is one factor for the Court to consider in determining a reasonable rate. The Court also considers the Johnson factors:
(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, 934 F.3d at 228. “A district court need not recite and make separate findings as to all twelve Johnson factors, provided that it takes each into account in setting the attorneys' fee award.” AGjvNYC.Dptof Educ. No. 20-cv-7577 (LJL), 2021 WL 4896227, at *4 (S.D.N.Y. Oct. 19, 2021) (quoting C.D. v. Minisink Valley Cent. Sch. Dist., No. 17-cv-7632 (PAE), 2018 WL 3769972, at *4 (S.D.N.Y. Aug. 9, 2018)).
Almost a decade ago, District Judge Karas cautioned that while “the rates awarded in []IDEA cases . . . are low compared to the rates awarded to attorneys in other civil rights cases . . . the law does not support the contention that attorneys handling IDEA cases should be compensated at a lower rate than that which they normally command in other cases.” G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 894 F.Supp.2d 415, 430-31 (S.D.N.Y. 2012) (quoting Mr. X v. N.Y. State Educ. Dep't, 20 F.Supp.2d 561, 564 (S.D.N.Y. 1998)). Fees “should be based on prevailing market rates, and current rates, rather than historical rates.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir. 1998) (cleaned up). This is especially true where fee-shifting statutes like the IDEA are concerned because “[r]ecycling rates awarded in prior cases without considering whether they continue to prevail may create disparity between compensation available under [a fee shifting statute] and compensation available in the marketplace . . . [which] undermines [the statute's] central purpose of attracting competent counsel to public interest litigation.” Farbotko v. Clinton Cnty., 433 F.3d 204, 209 (2d Cir. 2005); see also G.B., 894 F.Supp.2d at 430-33 (collecting cases on prevailing market rates over time for IDEA cases in this District).
Defendant argues that other courts in this District have consistently awarded CLF hourly rates significantly below those requested here. Def. Mem. 2; see, e.g., R.P. v. New York City Dep't of Educ., No. 21-cv-4504 (JMF), 22 WL 1239860, at *4 (S.D.N.Y. Apr. 27, 2022) (awarding senior lawyers, mid-level, and junior associates hourly rates of $375, $300, and $150, respectively). While the Court may “take judicial notice of the rates awarded in prior cases,” Farbotko, 433 F.3d at 210-11, the reasonable hourly rate is “not ordinarily ascertained simply by reference to rates awarded in prior cases,” id. at 208; see also M.H. v. New York City Dep't of Educ., No. 20-cv-1923 (LJL), 2021 WL 4804031, at *12 (S.D.N.Y. Oct. 13, 2021) (reasoning that “[u]nthinking application of fee rates simply because they were approved in the past also runs the risk of freezing fee awards in place”). Instead, the Court is required to perform “a casespecific inquiry into the prevailing market rates for counsel of similar experience and skill to the fee applicant's counsel” evaluating the “evidence proffered by the parties.” Fartboko, 433 F.3d at 209.
Defendant also argues that the Northern District of New York is the appropriate community of reference for the determination of the prevailing market rate. “The ‘community' to which the IDEA's fee calculation provision refers is typically measured by the geographic area in which ‘the action was commenced and litigated.'” A.R., 407 F.3d at 79 (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 369 F.3d 91, 94 (2d Cir. 2004) (per curiam)). Where the legal dispute has been pursued through an action in federal court, “[n]ormally a district court, awarding attorney's fees under [a fee-shifting statute], will consider the prevailing rates in the district in which the court sits.” Id. (quoting Polk v. N.Y. State Dep't of Corr. Servs., 722 F.2d 23, 25 (2d Cir. 1983)) (alterations in A.R.). As such, the Court looks to the prevailing rates for special education attorneys in this District. See C.B. v. New York City Dep't of Educ., No. 18-cv-7337 (CM), 2019 WL 3162177, at *6 (S.D.N.Y. July 2, 2019) (concluding that prevailing rates in the Southern District were relevant, despite the fact that Plaintiff resided in Brooklyn, because the DOE oversees education in all boroughs).
Taking into account the prevailing market rates in the Southern District of New York and the relevant Johnson factors, I recommend that the Court award Cuddy and Aasen $420 an hour. Both attorneys have extensive experience representing students in litigation under the IDEA. Cuddy was admitted to the bar in 1996 and has more than 20 years of experience litigating special education due process hearings in New York, Ohio, Texas, and North Carolina. Cuddy Decl. ¶¶ 72, 75. He is the author of the book The Special Education Battlefield: A Parent's Guide to the Impartial Due Process Hearing and is regularly invited to speak at professional and community organizations about special education law. Id. at ¶¶ 76-77. Similarly, Aasen was admitted to the bar in 1994. Id. at 22. In addition to her 13 years as an elementary school teacher, Aasen managed her own law firm, whose practice included education law, from 1994 to 2014 before joining CLF as a senior attorney in 2014. Id.; see also D.B. v. New York City Dep't of Educ., No. 18-cv-7898 (AT) (KHP), 2019 WL 6831506, at *4 (Apr. 22, 2019), report & rec. adopted 2019 WL 4565128 (S.D.N.Y. Sept. 20, 2019) (awarding attorney with 19 years of litigation experience, including work with students with disabilities, an hourly rate of $395).
M.R. also seeks attorney's fees for Jason Sterne, former counsel at CLF. However, Sterne only billed .2 hours for reviewing the IHO's decision. Cuddy Decl. ¶ 86; ECF No. 19, Ex. 7 at 21. Because this task was duplicative of Aasen's review of the opinion, I do not recommend that the Court award fees for Sterne's work.
The Defendant argues that counsel's fees should be reduced because the administrative hearing was “uncontested,” but this is a mischaracterization. Def. Mem. at 8. While it is true that this hearing was neither as long or involved as other cases previously litigated by CLF, the DOE did not concede that it had failed to provide a FAPE and instead presented a defense at the hearings, which took place over multiple days across a span of many months. Compare Y.G. v. New York City Dep't of Educ., No. 21-cv-641 (AKH), 2022 WL 1046465, at *2 (S.D.N.Y. Apr. 7, 2022) (awarding CLF's requested hourly rates where the administrative hearing was “heavily contested” with five separate hearings on the merits); and C.D., 2018 WL 3769972, at *2 (hearing took place over 11 days, involving “hundreds of pages of exhibits and multiple interviews of witnesses”); with R.P. v. New York City Dep't of Educ., No. 21-cv-4054 (JMF), 2022 WL 1239860, at *1 (S.D.N.Y. Apr. 27, 2022) (the DOE conceded that plaintiff denied a FAPE and agreed to the relief sought after a 15 minute hearing); and H.C. v. New York City Dep't of Educ., No. 20-cv-844 (JLC), 2021 WL 2471195, at *1 (S.D.N.Y. June 17, 2021) (hearing lasted eight minutes and DOE did not offer any evidence). The Defendant's claim that the “majority of the Parent's requests for relief were resolved via the August 31, 2018 pendency order” is also inaccurate. Def. Mem. 8. The DOE only agreed to conduct new evaluations, and Plaintiff later filed an amended due process complaint seeking independent evaluations. See ECF No. 19, Exs. 2 & 11. As the DOE acknowledges, M.R. was the prevailing party in the litigation, winning almost all of the relief sought in the initial due process complaint, which is the “most critical factor in determining the reasonableness of a fee award.” M.D. v. New York City Dep't of Educ., No. 17-cv-2417 (JMF), 2018 WL 4386086, at *5 (S.D.N.Y. Sept. 14, 2018) (citation omitted).
While these hourly rates are slightly higher than those the Court awarded in 2019 to senior CLF attorneys in R.G. v. New York City Department of Education, they are still firmly within the $350 to $475 range that represents the prevailing market rate for experienced, specialeducation attorneys in New York. No. 18-cv-6851 (VEC), 2019 WL 4735050, at *3-4 (S.D.N.Y. Sept. 26, 2019); see also J.R. v. New York City Dep't of Educ., No. 19-cv-11783 (RA), 2021 WL 3406370, at *3 (S.D.N.Y. Aug. 4, 2021) (collecting cases). Furthermore, they are in line with the $400 hourly rate that the DOE pays outside counsel to defend against motions for attorney's fees, which the Court considers a reasonable cross check. ECF No. 19, Ex. 9 at 2; see also A.G., 2021 WL 4896227, at *6. Ultimately, “‘a reasonable fee' must still be ‘sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case.'” C.B., 2019 WL 3162177, at *4 (quoting Perdue v. Kenny A., 559 U.S. 542, 552 (2010)).
I further recommend that the Court award Mendillo, who assisted with the administrative proceedings, $325 an hour, and Coretti, who served as lead counsel in the federal fees action, $300 an hour. Mendillo was admitted to the bar in 2011 and has worked at CLF since January 2014, where he currently serves as supervising attorney. ECF No. 24, Declaration of Kevin Mendillo (“Mendillo Decl.”) ¶¶ 4-6. Coretti graduated from law school in 2012 and has worked at CLF since 2015. Coretti Decl. ¶¶ 4-6. Although Mendillo and Coretti have similar levels of experience and would both be considered mid-level associates, Mendillo is slightly more senior than Coretti. M.H., 2021 WL 480403, at *14. These rates are consistent with the rates they have been awarded in the past, their results in this case, and the $300 hourly fee for associates contemplated by the DOE's retainer agreement with outside counsel. See A.G., 2021 WL 4896227, at *7; see also R.G., 2019 WL 4735050 at *3 (awarding CLF attorney who had specialized in IDEA cases for roughly seven years a $300 fee).
In contrast, Kopp, who was admitted to the bar in 2016, has significantly less experience than Mendillo and Coretti. Cuddy Decl. ¶ 42. Kopp's primary contribution to the case was drafting the original due process complaint, a six-page document describing J.R.'s educational history, arguing that the DOE's proposed IEP for 2018-2019 would deny her of a FAPE, and requesting specific relief. Id.; see also ECF No. 19, Ex. 1. The level of skill required to prepare such a document is not comparable to that required to cross-examine a witness at a hearing or prepare a brief in federal court. Given Kopp's lack of experience and limited contributions to this case, I recommend that Kopp's hourly fee be reduced to $200, a rate that is consistent with the fee awarded by other courts in this District. See, e.g., S.J. v. New York City Dep't of Educ., No. 20-cv-1922 (LGS), 2021 WL 100501, at *4 (S.D.N.Y. Jan. 1, 2021) (awarding $200 hourly fee to Kopp).
M.R. also seeks fees for paralegals Allison Bunnell, Amanda Pinchak, Sarah Woodard, John Slaski, Caitlin O'Donnell, Burhan Meghezzi, ChinaAnn Reeve, and Shobna Cuddy. Cuddy Decl. ¶ 86. “Paralegals with evidence of specialized qualifications typically receive $120- or $125-per-hour.” C.B., 2019 WL 3162177, at *9. Unless plaintiffs provide evidence of formal paralegal training, licenses, degrees or certifications, or longer paralegal experience, courts in this District have consistently held that hourly rates of $100 are appropriate. Id.; see also R.P., 2022 WL 1239860, at *9; H.C., 2021 WL 2471195, at *7. Here, Plaintiff avers that Woodard, Pinchak, and Slaski have such special qualifications, and therefore are entitled to an hourly rate of $125, but has not made a similar showing for Bunnell, O'Donnell, Meghezzi, or Cuddy, who are therefore entitled to an hourly rate of $100. See R.P., 2022 WL 1239860, at *4 (awarding Slaski, Pinchak and Woodard an hourly rate of $125 and Bunnell, Cuddy, and O'Donnell an hourly rate of $100).
B. Hours Expended
M.R. seeks fees for 102.8 hours of attorney time and 37.7 hours of paralegal work in the underlying administrative action, and 39.5 hours of attorney time and 3.5 hours of paralegal work in the federal action. Cuddy Decl. ¶ 86. Along with her reply brief, Plaintiff submitted updated billing records showing an additional 25 hours of work on the federal action in January and February 2022. ECF No. 40, Ex. 1. Defendant argues vociferously that CLF's billing is excessive, alleging that the firm makes improper use of 0.1 time entries, overbilled for preparing the documents involved in the federal action and the due process complaint, and reported an unreasonable number of hours for hearing preparation. Defendant proposes an 80%, across-the-board reduction for the reported hours in the federal action. In her reply, Plaintiff concedes that Defendant identified two errors in the billing statement and reduced those entries accordingly. ECF No. 40 ¶¶ 6-8.
“In determining the number of hours reasonably expended for purposes of calculating the lodestar, the district court should exclude excessive, redundant or otherwise unnecessary hours.” Quarantino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999). However, “[a] request for attorney's fees should not result in a second major litigation,” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983), in part because extensive litigation on fees “increase[s] the costs to plaintiffs of vindicating their rights,” id. at 442 (Brennan, J., concurring in part and dissenting in part). Accordingly, “trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011).
As a threshold matter, Plaintiff correctly argues that its practice of billing in 0.10 hour increments is standard. See CD., 2018 WL 3769972, at *8 (“The practice of billing a tenth of an hour for a discrete task is not inherently problematic”). Nor is there any indication that CLF inflated the number of hours billed by entering multiple 0.10 hour entries for discrete tasks on the same day. Id.
Keeping in mind the Supreme Court's admonition that the goal of the fee-shifting statute is to do “rough justice,” I find that the Plaintiff's hours for the administrative action were, with a few exceptions, reasonable. Although the Defendant takes issue with the 14.5 hours billed for the hearing request, Kopp, a junior attorney, was tasked with the drafting, and so it is unsurprising that the drafting was somewhat protracted and required extensive supervision by Aasen. While CLF appropriately assigned a more junior attorney to complete a less-complex task, 14.5 hours for a straightforward statement of Plaintiff's claims is excessive. As a result, I recommend that the Court reduce Kopp's billed hours by 50%. Additionally, Aasen billed more than four hours of travel each way for the three in-person merits hearings. ECF No. 19, Ex. 7 at 15-20. Courts in this District have routinely reduced or refused to award fees for travel time for CLF attorneys, reasoning that “it is doubtful that a reasonable client would retain an Auburn or Ithaca attorney over a New York City attorney if it meant paying New York City rates and an additional five hours in billable time for each trip.” M.D., 2021 WL 3030053, at *5 (quoting K.F. New York City Dep't of Educ., No. 10-cv-5465 (PKC), 2011 WL 3586142, at *5 (S.D.N.Y. Aug. 10, 2011)). As such, I recommend that the Court reduce Aasen's travel time to one compensable hour per trip, reducing her total hours of travel from 28.1 to 3. M.D., 2018 WL 4386086, at *6. In total, I recommend that the Court award Plaintiff $32,004.50 in fees for the administrative proceedings.
Defendant misleadingly alleges that CLF billed 66.8 hours for hearing prep. Def Mem. 25-26. In fact, the pages cited by Defendant encompass all work on the case from July 2018 to July 2019, including drafting the due process complaint and the amended complaint, the pendency hearing, the merits hearing, and implementation work. See ECF No. 19, Ex. 7 at 3-19. It appears that Aasen billed 4.4 hours of prep time for the hearing on January 14 (1.2 hours of which consisted of waiting at the Impartial Hearing Office for a hearing room to become available), 2.8 hours of prep time for the May 23 hearing, and 1.4 hours of prep time for the June 26 hearing for a total of 8.6 hours, a ratio of roughly one to three and well within the range of that courts in this District have found to be reasonable. Id. at 16, 19-20; see also J.S. v. Carmel Central Sch Dist., No. 7:10-cv-8021 (VB), 2011 WL 3251801, at *6 (S.D.N.Y. July 26, 2011) (reducing compensable time to ensure 3:1 preparation-to-hearing time).
Table 1: Calculation of Fees for Administrative Proceedings
| Attorneys | |||
| Name | Hourly Rate | Hours | Total |
| Andrew Cuddy | $420 | 4.9 | $2,058.00 |
| Nina Aasen | $420 | 48.70 | $20,454.00 |
| Nina Aasen, Travel | $210 | 3 | $630.00 |
| Justin Coretti | $300 | 12.90 | $3,870.00 |
| Kevin Mendillo | $325 | .2 | $65.00 |
| Benjamin Kopp | $200 | 3.9 | $780.00 |
| TOTAL ATTORNEY’S FEES | $27,857.00 | ||
| Paralegals | |||
| Name | Hourly Rate | Hours | Total |
| Shobna Cuddy | $100 | 1.8 | $180.00 |
| Burhan Meghezzi | $100 | .70 | $70.00 |
| Sara Woodard | $125 | .90 | $112.50 |
| Allison Bunnell | $100 | 12.30 | $1230.00 |
| Amanda Pinchak | $125 | 10.80 | $1350.00 |
| John Slaski | $125 | 3.4 | $425.00 |
| Caitlin O’Donnell | $100 | 7.8 | $780.00 |
| TOTAL PARALEGAL FEES | $4,147.50 | ||
| TOTAL FEES | $32,004.50 |
Defendant identifies some unreasonable entries for Mendillo and Coretti's work on the fees motion - for example, two hours to draft the two-page Rule 56.1 statement and a total of almost ten hours on Cuddy's declaration - overall I find that the 43 hours billed for the federal action is reasonable. B.B. v. New York City Dep't of Educ., No. 17-cv-4255 (VEC)(SDA), 2018 WL 1229732, at *3 (S.D.N.Y. Mar. 8, 2018) (“[A] competent attorney should not have needed more than 40 hours to litigate this fee petition.”). In order to “trim[] the fat from [the] fee application,” I recommend that the Court reduce the Plaintiff's compensable hours for work on the federal action by 25%. M.D., 2018 WL 4386086, at *4-5. In total, I recommend that the Court award Plaintiff $14,402.75 in fees for the federal action.
Table 2: Calculation of Fees for Federal Action
| Attorneys | |||
| Name | Hourly Rate | Hours | Total |
| Andrew Cuddy | $420 | 3.45 | $1449.00 |
| Justin Coretti | $300 | 33.825 | $10,147.50 |
| Kevin Mendillo | $325 | 5.55 | $1,803.75 |
| Benjamin Kopp | $200 | 3.40 | $680.00 |
| TOTAL ATTORNEY’S FEES | $14,080.25 | ||
| Paralegals | |||
| Name | Hourly Rate | Hours | Total |
| Shobna Cuddy | $100 | 1.95 | $195.00 |
| ChinaAnn Reeve | $100 | .9 | $90.00 |
| Caitlin O’Donnell | $100 | .375 | $37.50 |
| TOTAL PARALEGAL FEES | $322.50 | ||
| TOTAL FEES | $14,402.75 |
C. Costs
“A district court may award reasonable costs to the prevailing party in IDEA cases.” C.D., 2018 WL 3769972, at *12 (citing 20 U.S.C. § 1415(i)(3)(B)(i)(1)). Other courts in this District have declined to award CLF costs for lodging and meals, and have reduced transportation costs as local counsel “would likely take public transit or some form of commuter rail or a short car ride.” R.G., 2019 WL 4735050, at *6 (deducting costs of lodging, meals, and parking, and awarding $30 each way for transportation costs). Similarly, I recommend that the Court deduct $653.09 in lodging expenses, $90.69 for meals, $135 in parking, and $38.50 for tolls, and reduce mileage to $180 in total for transportation. See Cuddy Decl. ¶ 86.
In addition, courts have routinely found that fax costs are non-reimbursable, and reduced printing costs to 10 cents per page. See, e.g., J.R., 2021 WL 3406370, at *6. As such, I recommend that the court deduct $168 in faxing expenses and award 10 cents per page for a total of $144.50 in printing costs. ECF No. 19, Ex. 7 at 1.
In total, I recommend that the Court award Plaintiff $760.57 in costs, including $144.50 for printing, $34.07 for postage, $180 for transportation, and the $402 filing fee.
II. Offer of Judgment
Defendant offered to settle the matter on October 5, 2021, for $28,000 to Plaintiff. Plaintiff did not accept. “An offer of settlement prohibits recovery if ‘the relief finally obtained . . . is not more favorable than the offer of settlement.'” D.B., 2019 WL 6831506, at *7 (quoting 20 U.S.C. § 1415(i)(3)(D). Because I recommend that the Court award fees and costs in a sum greater than the settlement offer, this rule is inapplicable in this case.
III. Post-Judgment Interest
I further recommend that the Court grant Plaintiff's request for post-judgment interest. Cuddy Decl. ¶ 95. “Pursuant to 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.'” Tru-Art Sign Co. v. Loc. 137 Sheet Metal Workers Int'l Ass'n, 852 F.3d 217, 223 (2d Cir. 2017) (quoting Lewis v. Whelan, 99 F.3d 542, 545 (2d Cir. 1996)).
IV. Final Thoughts
I feel compelled to add my voice to those judges who have urged these particular parties to adopt a more cooperative approach to fee disputes. See, e.g., D.P. v. New York City Dep't of Educ., No. 21-CV-27 (KPF), 2022 WL 103536, at *6 (S.D.N.Y. Jan. 10, 2022) (admonishing CLF for its “continued adherence . . . to aspirational hourly rates that no court has awarded,” and DOE for “playing hardball” by refusing to settle attorneys fee demands from counsel in IDEA cases). The motion papers for this dispute are more than six inches thick and include personal attacks on counsel, picayune critiques, and over-the-top submissions from both sides. Neither party comes out of this motion looking good. Given the substantial amount of time this Court expends addressing these fee disputes, the parties are strongly urged to negotiate a presumptive agreement that would reduce the need for costly motion practice. As Judge Failla noted, cooperation by way of a more modest fee request and good faith negotiation would likely lead to the same (or better) results than what is now achieved through scorched-earth litigation and would restore the parties' reputation to a better light.
CONCLUSION
I recommend that M.R.'s motion for attorney's fees and costs be granted in part and that M.R. be awarded $46,407.25 in fees and $760.57 in costs.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the 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. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Valerie E. Caproni at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing 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 Caproni. The failure to file these timely objections will 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, 144-45 (1985).