Opinion
02 Civ. 4288 (SHS)
March 6, 2003
OPINION AND ORDER
Plaintiff brings this action against the Board of Education of the City of New York (the "Board") for attorney's fees incurred in connection with an administrative proceeding brought to enforce the rights of an autistic child to an "appropriate public education." This Court grants plaintiffs fee application, but reduces the requested amount due to a limited number of vague time records and unrecoverable fees.
I. Background
In 1998, plaintiff, on behalf of M.P., brought an administrative action against defendant Board pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., alleging violations of her child's constitutional due process rights. Specifically, plaintiff claimed that the Board failed to provide free and appropriate public education as tailored to M.P.'s specific disabilities, and sought relief through a five-day evidentiary hearing before an impartial hearing officer.
Following that hearing, the hearing officer issued an order directing (1) the Board to reimburse plaintiff for the cost of special education and therapy services she had incurred, and (2) the Committee of Preschool Special Education to amend its program to provide M.P. with special education, physical therapy, speech and language services at the child's nursery school. (See Mayerson Aff., Ex. 2). The Board did not appeal the order, which thereby became final.
Plaintiff, represented by Gary Mayerson, Esq., now moves for attorney's fees and costs of $9,117.00 for the underlying administrative proceeding and $5,181.00 for the fee application. See 20 U.S.C. § 1415(i)(3)(B). The Board opposes that application on the grounds that (1) the total award requested is excessive, because the rates requested by plaintiff diverge from prevailing rates for the kind of services provided and experience level of plaintiffs attorney, and (2) Mayerson's timekeeping records include vague and unrecoverable fees.
II. Discussion
In any action or proceeding brought pursuant to IDEA, "the court, in its discretion, may award reasonable attorney's fees as part of the costs to the parent of the child with a disability who is the prevailing party." 20 U.S.C. § 1415(i)(3)(B). It is "well-settled that attorney's fees may be awarded for representation in connection with an impartial hearing." M.S. v. New York City Bd. of Educ., No. 01 Civ. 4015, 2002 WL 31556385, at *2 (S.D.N.Y. Nov. 18, 2002). See G.M. v. New Britain Bd. of Educ., 173 F.3d 77 (2d Cir. 1999). The Board does not contest plaintiffs assertions that (1) the IDEA applies to this matter and (2) she is the prevailing party for the purposes of section 1415. (See Mayerson Memo at 4-5, 7; see also Def. Memo at 1). Therefore, the only remaining issue is the amount of reasonable attorney's fees to be awarded.
The U.S. Court of Appeals for the Second Circuit permits application of the lodestar method to determine a reasonable fee-a calculation of the product of the number of hours reasonably expended by counsel times a reasonable hourly rate. See Quaratino v. Tiffany Co., 166 F.3d 422, 424-25 (2d Cir. 1999); Lawson v. City of New York, No. 99 Civ.10393, 2000 WL 1617014, at *1 (S.D.N.Y. Oct. 27, 2000). In calculating the lodestar figure, the district court should exclude "excessive, redundant or otherwise unnecessary hours, as well as hours dedicated to severable unsuccessful claims." Quaratino, 166 F.3d at 425; see also Hensley v. Eckerhart, 461 U.S. 424, 433-35, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d (1983) (a district court should "exclude from this initial fee calculation any hours that were not `reasonably expended'").
Ultimately, "[w]hat constitutes a reasonable fee is properly committed to the sound discretion of the district court." Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 47 (2d Cir. 2000). The district court is considered to have "the best vantage point from which to assess the skill of the attorneys and the amount of time reasonably needed to litigate a case." Chambless v. Masters, Mates, Pilots Pension Plan, 885 F.2d 1053, 1058-59 (2d Cir. 1989). However, a "request for attorney's fees should not result in a second major litigation." Hensley, 461 U.S. at 437, 103 S.Ct. at 1942.
A. Reasonable Hourly Rate
"A reasonable hourly rate is one `in line with those prevailing in the community for similar services by lawyers of reasonable comparable skill, experience, and reputation.'" Knoeffler v. Town of Mamakating, 126 F. Supp.2d 305, 310 (S.D.N.Y. 2000) (quoting Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1547 n. 11, 79 L.Ed.2d (1984)). The "`prevailing community' a district court should consider to determine the `lodestar figure' is `the district in which the court sits.'" Cruz v. Local Union No. 3 of the Intern. Broth. of Elec. Workers, 34 F.3d 1148, 1159 (2d Cir. 1994) (quoting Polk v. New York State Dep't of Correctional Servs., 722 F.2d 23, 25 (2d Cir. 1983)). To "inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence-in addition to the attorney's own affidavits-that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill, experience, and reputation." Blum, 465 U.S. at 886, 104 S.Ct. at 1547.
1. Litigation Experience
For legal services performed over the past five years, plaintiff seeks an hourly rate of $350 to $375 per hour for lead attorney Gary Mayerson and supports that with an affidavit of an attorney in the same field who charges $350 per hour.
Defendant contends that the prevailing rate for legal services in connection with IDEA proceedings is substantially lower; specifically, between $125 to $190 per hour in New York City. In support, the Board presents a chart of approximately twelve attorneys who have represented a substantial number of student autism cases. (See Hughes Aff., Ex. C). However, defendant's chart reflects hourly rates based on negotiated settlement amounts, rather than hourly rates that the attorneys actually charged their clients.
Several courts in the Southern District of New York have found that attorney's fees ranging from $350 to $375 per hour for lead attorneys with substantial litigation experience are reasonable. See Mr. X. v. New York State Educ. Dep't, 20 F. Supp.2d 561 (S.D.N.Y. 1998) (awarding $350 to $375 per hour to litigator with forty-five years of experience) (IDEA); Marisol A. v. Giuliani, 111 F. Supp.2d 381 (S.D.N.Y. 2000) (awarding $350 per hour for attorneys with more than fifteen years of experience) ( 42 U.S.C. § 1988); see also Gonzalez v. Bratton, 147 F. Supp.2d 180, 211-12 (S.D.N.Y. 2001) (finding $250 to $390 per hour for senior attorneys "fall within the range of reason") (Title VII).
By 1998, Mayerson had accumulated eighteen years of experience in general litigation, starting in 1980 in commercial trial practice. As a member of the firm of Graubard Mollen Miller, Mayerson served as lead counsel in several sophisticated commercial cases tried before juries in federal court. (See Mayerson Aft, Ex. A). Therefore, Mayerson's requested rate of $350 to $375 per hour is reasonable given his substantial litigation experience.
The Board asserts that Mayerson's hourly rate should be reduced because of what it claims is his lack of experience with IDEA proceedings. See Beard v. Teska, 31 F.3d 942, 957 (10th Cir. 1994) (denying the plaintiffs counsel's customary rate even though he was a civil rights attorney "with a deservedly high civil rights reputation" because he had never handled an IDEA case). Mayerson had handled only two IDEA-related cases prior to 1998, when the administrative proceeding commenced, although since that time he has concentrated in IDEA litigation. (See Mayerson Reply Aff. ¶ 4).
Courts in the Southern District of New York have maintained that experience in general litigation, rather than experience in specific matters, is the determinative factor in assessing the reasonableness of attorney's fees. See Mr. X., 20 F. Supp.2d at 564 (awarding full hourly rates of $350 to $375 per hour despite the attorney's lack of specialization in IDEA law since "his extensive background and experience in a variety of litigation allowed him to learn about IDEA quickly and effectively"); see also B.D. v. DeBuono, 177 F. Supp.2d 201, 210 (S.D.N.Y. 2001). Accordingly, Mayerson's hourly rates will not be reduced due to his then limited experience in IDEA cases.
2. Administrative Hearing
The Board further asserts that Mayerson's hourly fee should be reduced since the legal proceedings occurred at the administrative level and, according to the Board, require less skill, preparation, and time in comparison to those required in complex federal litigation. However, "[t]he 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." Mr. X, 20 F. Supp.2d at 564; see M.S., 2002 WL 31556385, at *5 n. 5 (granting rates of $350 per hour to attorneys providing legal services in connection with impartial administrative hearings under IDEA).
Furthermore, the discretion of the district court is not limited to the "hourly data submitted into evidence" and may include "the judge's own knowledge of private firm hourly rates in the community." Miele v. New York State Teamsters Conference Pension Retirement, 831 F.2d 407, 409 (2d Cir. 1987).
Accordingly, the Court determines that Mayerson's requested fee of $350 to $375 per hour is reasonable. However, the Second Circuit's approach to different requested rates for litigation spanning several years is to "divide the litigation into just two phases and use one rate for the early phase and a current rate for the later phase." New York State Ass'n for Retarded Children Inc. v. Carey, 711 F.2d 1136, 1152 (2d Cir. 1983). Therefore, the Court will award $350 per hour for legal services provided from 1998-1999, and $375 for legal services provided in later time periods.
The court also finds that the rate of $225 per hour for the two associates who assisted Mayerson in preparing the fee application is reasonable.
B. Vague and Unrecoverable Fees
In evaluating time sheets and expense records, the court looks to "its own experience generally as well as to the evidentiary submissions and arguments of the parties." Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992). Moreover, the Second Circuit has stated that the district court is not required to "set forth item-by-item findings concerning what may be countless objections to individual billing items." Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994) (per curiam).
Nevertheless, time records submitted by plaintiff should "enable the court to determine the nature of the tasks performed and the amount of time reasonably required to perform those tasks." Mr. X., 20 F. Supp. at 564. While plaintiffs counsel "is not required to record in great detail how each minute of his time was expended," counsel should "identify the general subject matter of his time expenditures." Hensley, 461 U.S. at 437 n. 12, 103 S.Ct. at 1941 n. 12. Indeed, time records should be "sufficiently detailed to enable the district court to identify distinct claims and to eliminate hours that were excessive, redundant, or otherwise unnecessarily spent." Chambless v. Masters. Mates Pnots Pension Plan, No. 80 Civ. No. 4258, 1986 WL 7262, at *16 (S.D.N.Y. June 24, 1986), aff'd in relevant part, 885 F.2d 1053 (2d Cir. 1989). Otherwise, "vague or incomplete time entries justify a reduction in the amount of attorney's fees awarded." M.S., 2002 WL 31556385, at *6 (quoting Mr. X, 20 F. Supp.2d at 564).
1. Adequacy of Time Records
A review of the billing statements and time records maintained by plaintiffs counsel and submitted as part of the moving papers reveals that a few entries are overly vague. For example, plaintiffs counsel's entries include descriptions such as "Legal Research." Based on this language alone, the court is unable to determine whether the time expended is reasonable. See Chambless, 1986 WL 7262, at *16 (determining that time entries describing counsel's work as "Review," "Report," "Further research in library" and "Letter" were inadequate); Dailey v. Society General, 915 F. Supp. 1315, 1328 (S.D.N.Y. 1996) ("entries listed simply as `telephone call,' `consultation,' and `review of documents' are not sufficiently specific"), aff'd in relevant part, 108 F.3d 41 (1997); see also Amato v. City of Saratoga Springs, 991 F. Supp. 62, 65-67 (N.D.N.Y. 1998).
Additionally, the Board contends that the time entries related to the IDEA hearings reflect too much time expended. For example, plaintiff claims 1.50 hours for "100 Livingston appearance" on January 4, 1999, (see Mayerson Aff., Ex. 3 ¶ 9), even though the transcript of this appearance only records one minute expended to adjourn the hearing. (See Bowe Decl., Ex. 1). See Burka v. New York City Transit Auth., No. 85 Civ. 5751, 1993 WL 158438, at *1 (S.D.N.Y. May 7, 1993). See also Rotella v. Bd. of Educ. of the City of New York, No. 01 Civ. 0434, 2002 WL 59106, at *4 (E.D.N.Y. Jan.17, 2002).
Even if these records reflect the inclusion of travel time, they must be accordingly reduced. When determining attorney's fees, courts in the Second Circuit "regularly reduce attorney's fees by 50% for travel time." Gonzalez, 147 F. Supp.2d at 213 n. 6.
To account for entries such as these, the Court will reduce the total award by ten percent. See Carey, 711 F.2d at 1146 (noting that courts have "endorsed percentage cuts as a practical means of trimming fat from a fee application"); Mr. X, 20 F. Supp.2d at 563; 727 F. Supp. 823, 827 (S.D.N.Y. 1989); see also Marisol A., 111 F. Supp.2d at 400 (instating "across-the-board reduction of fifteen percent" to cut out excessive hours).
2. Unrecoverable Fees
The Board also maintains that certain costs incurred by plaintiff in connection with the instant action for attorneys' fees are unrecoverable. Specifically, it claims that plaintiff has failed to present adequate records. This Court finds plaintiffs submissions — billing slips that document the attorney, date, hours expended and specific work performed — constitute sufficiently contemporaneous time records. See Carey, 711 F.2d at 1148.
This Court will exclude plaintiffs requested costs associated with its initial failure to serve defendant with process properly. Plaintiff erroneously initially served the local school district, rather than the Board itself. (See Bowe Decl. at 2). When the Board failed to respond, plaintiff incurred research costs for a possible default motion, which it later withdrew. These fees and expenses should be excluded from the total award; accordingly, the total award will be reduced by $1,185.
Finally, plaintiffs time records include entries labeled "delete" and "out." (See Mayerson Aff., Ex. 3). Plaintiff concedes that these entries should be subtracted from the amount requested. (Mayerson Reply Aff. ¶ 4). Accordingly, this Court will also exclude these entries from the total award.
III. Conclusion
Due to certain vague and excessive time entries, as well as certain unrecoverable fees, as set forth, above this Court awards plaintiff reasonable attorney's fees and costs of $7338.84 for the administrative action plus $3,003.10 for this fee application.
Attorney's fees for the administrative proceeding: 815.43
Attorney's fees for the fee application: Attorney Hourly Rate Hours Expended Total $1867.50 333.68 1. Lodestar figure * = Mayerson $375.00 4.80 = $1800.00 Associates $225.00 8.30 = $3667.50 3667.50 2. Other recoverable fees (paralegal fees, photocopying, telephone costs): +1514.28 3. Fees associated with improper service of process: -1845.00 4. Ten percent reduction for vague and excessive entries and unrecoverable fees: — 5. Total fees + costs for fee application: $3003.10