Opinion
21-CV-11215 (LGS)(SN)
01-20-2023
N.L., et al., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
HONORABLE LORNA G. SCHOFIELD JUDGE
REPORT AND RECOMMENDATION
SARAH NETBURN UNITED STATES MAGISTRATE JUDGE
On behalf of her daughter, M.C., N.L. 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 a consolidated administrative due process hearing, N.L. alleged that the New York City Department of Education (“DOE”) failed to provide M.C. with a Free Appropriate Public Education (“FAPE”). In 2021, the Impartial Healing Officer (“IHO”) ordered N.L.'s requested relief, including unilateral placement tuition, making her the prevailing party under the IDEA and entitling her to reasonable attorney's fees. The DOE does not contest that N.L. is the prevailing party but argues that the rates and horns sought by N.L.'s counsel are unreasonable.
I recommend that the Court grant N.L.'s motion for attorney's fees and costs in part but reduce the awarded attorneys' fees and costs from $62,313.98 to $45,035.87.
BACKGROUND
M.C. is a student with multiple disabilities who has attended the Cooke Center for Learning and Development since 2016. ECF No. 27, Plaintiff's Rule 56.1 Statement (“Pl.'s Rule 56.1 Stmt.”) ¶ 2. The underlying administrative proceedings of N.L.'s fee claims are consolidated cases from M.C.'s third (2019-2020) and fourth grade (2020-2021) school years at Cooke.
I. Administrative Proceedings
On February 7, 2020, Cuddy Law Firm (“CLF”) attorney Benjamin Kopp, filed Plaintiff's seven-page due process complaint for the 2019-2020 school year with the Department of Education (“DOE”) and requested an impartial due process 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. Pl.'s Rule 56.1 Stmt. at ¶ 10. The complaint alleged that DOE failed to provide M.C. with a free appropriate public education (“FAPE”) for the 2019-2020 school year. The following year, Kopp filed an eight-page due process complaint alleging that DOE failed to provide M.C. with a FAPE for the 2020-2021 school year.
About six months later, the DOE appointed Marc Weiner as the IHO, and he ordered a consolidation of the cases. Pl.'s Rule 56.1 Stmt. ¶ 19. In both cases, Plaintiff sought a pendency order ensuring that M.C.'s previous placement and services would continue at Cooke uninterrupted, directing DOE to conduct various evaluations and fund an independent neuropsychological evaluation, directing DOE to reconvene a Committee on Special Education to develop an appropriate individualized education program, and directing DOE to reimburse or directly fund tuition and related costs for M.C.'s third and fourth grade years. Because N.L. sought reimbursement for a unilateral placement, she had the burden of demonstrating the “appropriateness of that placement.” J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F.Supp.2d 606, 641 (S.D.N.Y. 2011); see also N.Y. Educ. Law § 4404 (1)(c).
The IHO conducted six conferences and administrative hearings on August 14, 2020, September 2, 2020, October 1, 2020, November 6, 2020, December 4, 2020, and January 15, 2021. Pl.'s Rule 56.1 Stmt. at ¶¶ 20-27. The August 14, 2020 conference only lasted seven minutes and outlined procedures for future hearings. On September 2, 2020, the IHO held a 25-minute pendency hearing, directing the parties to mail hardcopies for all exhibits. The impartial hearing on the merits took place over the subsequent four dates, at which time the parties presented their cases over a total of eight hours and 25 minutes. ECF No. 33, Declaration of Michael Lawrence (“Lawrence Decl.”) at ¶ 20. DOE presented seven exhibits and two witnesses. Id. CLF presented 35 exhibits and five witnesses. Id.
On January 25, 2021, the IHO issued a final decision on the merits of the case, finding that Defendant denied M.C. a FAPE for the 2019-2020 and 2020-2021 school years and ordered the DOE to (1) pay Cooke Center tuition for the 2019-2020 and 2020-2021 school years; (2) pay/reimburse N.L. for the neuropsychological evaluation at a cost not to exceed $5,000; and (3) conduct a speech and language, an occupational therapy, and a physical therapy evaluation within 45 days. Id. at ¶ 18.
II. The Federal Action
This action was filed on December 30, 2021, and an Amended Complaint was filed on January 25, 2022. Before commencing this action, and pursuant to the fee-shifting provisions of the IDEA and Rehabilitation Act, CLF submitted a fee demand of $40,651.07 to the DOE on June 22, 2021. Pl.'s Rule 56.1 Stmt. at ¶ 34. On June 15, 2022, the DOE made a formal settlement offer pursuant to 20 U.S.C. § 1415(i)(3) of $36,500 for attorney's fees, costs, and expenses incurred in the consolidate IHO cases and the federal action (the “Settlement Offer”). Decl. of Darian Alexander, at Ex. A (ECF No. 34-1). Plaintiff rejected the Settlement Offer and moves for summary judgment for attorney's fees and costs. Plaintiff seeks a total award of $68,035.83, composed of (1) $39,915 in fees and $138.578 in costs for the administrative hearing, plus $1,458.66 in prejudgment interest to August 5, 2022; and (2) $26,120.00 in fees and $403.60 in costs for the federal action. See Declaration of Andrew K. Cuddy, dated Aug. 5, 2022, at ¶ 5 (ECF No. 39) (“Cuddy Second Decl.”).
DISCUSSION
I. Calculation of Fees under IDEA
The DOE concedes that Plaintiff is a prevailing party in the administrative proceeding and is 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 applies the “lodestar method” and multiplies that rate by “the number of hours reasonably expended on the litigation.” 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
Plaintiff asks the Court to set a $550 hourly rate for attorneys Andrew Cuddy and Jason Sterne, a $450 hourly rate for attorney Keven Mendillo, and a $400 hourly rate for attorney Benjamin Kopp. Plaintiff seeks an hourly rate of $225 for paralegals. The DOE argues that caselaw in the Court of Appeals and this Court establish that CLF is entitled to lower rates than they demand and that the Johnson factors merit a reduction of the requested rates. The DOE also argues that the Court should consider the lower rates adopted in complex, non-IDEA litigation and reject the higher rates requested by CLF.
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, 895 n.11 (1984)). “‘[T]he 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, the Court 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.'” A.G. v. N.Y.C. Dep't of 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)).
Over 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) (internal quotation omitted). 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. of N.Y., 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 and the Court of Appeals have consistently awarded CLF hourly rates significantly below those requested here. See, e.g., R.G. v. New York City Dep't of Educ., No. 18-cv-6851 (VEC), 2019 WL 4735050, at *2 (S.D.N.Y. Sept. 26, 2019) (finding, in a case determining CLF fees, that the “the prevailing market rate for experienced, special education attorneys in the New York area circa 2018 is between $350 and $475 per hour”). 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 case-specific 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.” Farbotko, 433 F.3d at 209.
1. Attorney Rate
Accounting for the prevailing market rates in the Southern District of New York and the relevant Johnson factors, I recommend that the Court award Cuddy and Sterne $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. Declaration of Andrew K. Cuddy, dated May 19, 2022, at ¶¶ 25, 28 (ECF No. 24) (“Cuddy First Decl”). 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 ¶¶ 30, 31. Similarly, Sterne was admitted to the bar in 1998. Id. at ¶ 22. Before joining CLF in 2005, Sterne maintained a solo practice in civil and criminal litigation for seven years and worked as a senior attorney at another law firm for three years where he specialized in IDEA hearings. In total, he has over 20 years of litigation experience. Id., Ex. 7 at 2; 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).
In addition to their experience, however, the Court has reviewed the work performed (without consideration at this stage for whether the hours were reasonably spent). Cuddy seeks compensation for 7.4 hours of work performed in the administrative proceedings and 7.7 hours for work performed in the federal proceeding. ECF No. 39. A cursory review of this time reveals that at least approximately 7.0 hours were spent reviewing Benjamin Kopp's work, 4.0 hours were spent conferring with Kopp, and 1.5 hours were spent reviewing billing invoices. A reasonable client would not pay any fees to have her lawyer review billing invoices; and given that the balance of the work appears supervisory, a rate of $550/hour seems high. Sterne seeks payment for 1.5 hours of work. The invoice reflects that he spent .5 hours reviewing file materials and drafting a ten-day letter on June 11, 2019, and one hour reviewing records produced in response to a records request on August 8, 2019. Although this work appears to be independent (and not supervisory), $550/hour is also high for work more reasonably performed by a junior lawyer.
This is especially true because Kopp also billed for his communications with Cuddy, meaning Plaintiff effectively is seeking $950/hour for a senior lawyer and a junior lawyer to confer about strategy.
The Defendant argues that counsel's fees should be reduced because the underlying hearing was neither novel nor complex and urges the court to grant CLF fees according to the lower fee structure adopted in S.J. and M.D., two cases involving uncontested proceedings. See S.J. v. New York City Dep't of Educ., No. 20-cv-01922 (LGS) (SDA), 2020 WL 6151112, at *4 (S.D.N.Y. Oct. 20, 2020) (granting senior CLF attorneys an hourly rate of $360 in a case where DOE did not appear or offer evidence at the case's sole hour-long hearing); M.D. v. New York Dep't of Educ., No. 20-cv-6060 (LGS), 2021 WL 3030053, at *2 (S.D.N.Y. July 16, 2021) (“The hourly rate applied in [uncontested] cases. . . in which Defendant conceded failure to provide a FAPE at the first hearing and presented no witnesses. . . is generally in the $350 to $400 range for experienced attorneys like Andrew and Michael Cuddy”).
The DOE's argument that this case is not novel or complex is unhelpful. Indeed, it is the rare IDEA hearing that raises novel claims. Moreover, the DOE contested Plaintiff's claims and mounted a defense, and Plaintiff sought unilateral placement, meaning she had a heightened burden to establish the appropriateness of her placement at Cooke Center. Additionally, the hearings occurred over multiple days spanning 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). As the DOE acknowledges, Plaintiff 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 awarded in 2019 to senior CLF attorneys in R.G., 2019 WL 4735050, at *3-4, or to attorneys involved in more complex, non-IDEA litigation, they are within the $350 to $475 range that represents the prevailing market rate for experienced, special-education attorneys in New York. 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).
For his de minimus work assisting with the administrative proceedings (.2 hours), I recommend that the Court award Kevin Mendillo $325 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. Cuddy First Decl., at Ex. 7 (ECF No. 24-7). This rate is consistent with the rates he has been awarded in the past, his 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).
The most material dispute between the parties is with respect to Benjamin Kopp's hourly rate. Plaintiff seeks $400/hour, and the DOE proposes $225/hour. Kopp graduated from Syracuse University College of Law in 2015, making him an “eighth-year associate.” He has specialized in education law and worked at CLF since April 2018. Before that, he was a civil litigation associate at a small law firm in Auburn, NY, for two years. ECF No. 20-7. Kopp was the lead lawyer in these related proceedings, spending 76.30 hours in the administrative proceeding and 52.8 hours in the federal case. ECF No. 39. He unquestionably is responsible for Plaintiff's success obtaining unilateral placement at Cooke Center.
Reviewing cases over the last few years, Kopp has transitioned from primarily handling the less-specialized fee litigation in federal court, to acting as lead lawyer in agency administrative proceedings. This professional development has resulted in courts increasing his hourly rate from $225-$250, to more recent awards of $300/hour. In awarding him $300/hour, one court recently recognized that “he has, far and away, committed the most significant time, energy, and effort to this case” and that he “performed work in this case well above that expected for an attorney of his experience level, and his efforts [] have been instrumental in yielding a significant benefit to Plaintiff.” Y.S. v. New York City Dep't of Ed., No. 21-cv-711 (MKV), 2022 WL 3572935, at * 6 (S.D.N.Y. Aug. 19, 2022). See also B.C. v. New York City Dep't of Ed., No. 21-cv-2840 (ER), 2022 WL 3214374, at * 7 (S.D.N.Y. Aug. 9, 2022) (awarding Kopp $300/hour).
Given Kopp's experience and significant contributions to this case, I recommend that Kopp's hourly rate be set at $300, a rate that is consistent with the awards in Y.S. and B.C. and appropriate for his competence and seniority. As discussed below, this rate is appropriate for 2023, that is, Kopp's “current rate,” rather than awarding his historical rate plus prejudgment interest to compensate for the time-value of money.
2. Paralegal Rate
Plaintiff also seeks a $225/hourly rate for paralegals Amanda Pinchak, Allyson Green, Caitlin O'Donnell, Burhan Meghezzi, Khrista Smith, and Shobna Cuddy, and for .4 hours of paralegal work performed by attorney Benjamin Kopp. Cuddy First Decl. at ¶ 42; Cuddy Second Decl., at ¶ 4(b). “Paralegals with evidence of specialized qualifications typically receive $120- or $125-per-hour.” C.B. v. New York City Dep't of Educ., No. 18-cv-7337 (CM), 2019 WL 3162177, at *9 (S.D.N.Y. July 2, 2019). 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. Paralegal Pinchak obtained a paralegal certificate in 2017, ECF 24-7 at 12, and Defendant concedes that Paralegal Cuddy's experience warrants a higher rate, Def. Mem. at 12. These paralegals are therefore entitled to an hourly rate of $125. Yet, Plaintiff has not made a similar showing for Green, O'Donnell, Meghezzi, or Smith, who are therefore entitled to an hourly rate of $100. See R.P., 2022 WL 1239860, at *4 (awarding Pinchak an hourly rate of $125, and O'Donnell an hourly rate of $100). While Kopp does not have formal paralegal training, he does have a law degree and license. Accordingly, for the work he billed as a paralegal, he is also entitled to an hourly rate of $125.
B. Hours Expended
N.L. seeks fees for 85.4 hours of attorney time and 19.6 hours of paralegal work in the underlying administrative action, and 60.5 hours of attorney time and 3.4 hours of paralegal work in the federal action. Cuddy Second Decl. at ¶ 5. Defendant argues 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, reported an unreasonable number of hours for hearing preparation, and had attorneys perform work that could have been performed by a paralegal or administrative staff. Defendant proposes a 15% across-the-board reduction for all reported hours. Def. Mem. at 12. In her reply, Plaintiff offered certain compromise positions to address Defendant's concerns. Cuddy Affirm. at ¶ 4.
“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, 461 U.S. at 437, 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. Fox v. Vice, 563 U.S. 826, 838 (2011). “The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection.” Id.
CLF's practice of billing in 0.10 hour increments is standard. See C.D., 2018 WL 3769972, at *8 (“The practice of billing a tenth of an hour for a discrete task is not inherently problematic”). These entries become excessive “when an attorney on a single day bills multiple 0.10 hour entries for discreet tasks, where the tasks individually appear likely to have occupied less than 0.10 hours and in total [appear] likely to have occupied less than the sum total of the 0.10 hour increments.” Id. There is no indication that CLF inflated the number of hours billed by entering multiple 0.10 hour entries for discrete tasks on the same day. In any event, about three-quarters of the 76 0.10 hour entries identified by Defendant are marked as “no charge” and were not calculated into the billing. In an effort of good faith, Plaintiff agreed to strike an additional 0.10 hour entry, reduce three of these entries to a paralegal rate, and consolidate three of these entries to a single paralegal rate. These reductions are adopted.
Keeping in mind 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 of reasonable. Defendant challenges the 11.5 hours of preparation billed for the 2.7-hour October 1, 2020 session (a 4.25:1 ratio of preparation to hearing time) and the 8.9 prep hours billed for the 0.9 hour January 15, 2021 hearing (a 9.8:1 ratio), arguing that the parent, student's history, school and some of the witnesses should have already been familiar to CLF. At both hearings, Kopp represented Plaintiff and prepared witnesses, statements, and anticipated cross-examinations. Defendant points to CB., a case where the court reduced CLF's 8.75-to-1 ratio of hearing preparation to proceeding time. C.B., 2019 WL 3162177, at *10. Yet, the Court in C.B. reduced CLF's billed hours because of duplicate entries-and not because the entries failed to align with the 3-to-1 ratio that has been found to be presumptively reasonable in uncontested cases. Id. No duplicate entries exist for the October 1, 2020 session or for the January 15, 2021 hearing. Further, Plaintiff's billing also reflects Defendant's last-minute choice to litigate with its own witnesses at the October 2020 hearing. Subsequently, DOE's presentation took over two-and-a-half hours, leaving no time for Plaintiff to present her witnesses at the October hearing and necessitating the November hearing. Accordingly, CLF's assignment of the hearings to Kopp, Kopp's subsequent preparation, and CLF's overall billing were reasonable. Thus, I find that CLF's hours, as modified by Plaintiff, are reasonable and should be awarded in full.
In total, I recommend that the Court award Plaintiff $28,853.00 in fees for the administrative proceeding.
Table 1: Calculation of Fees for Administrative Proceedings
Attorneys
Name
Hourly
Hours
Total
Andrew Cuddy
$420
7.40
$3,108.00
Jason Sterne
$420
1.50
$630.00
Kevin Mendillo
$325
.20
$65.00
Benjamin Kopp
$300
76.30
$22,890.00
TOTAL ATTORNEY'S FEES
$26,693.00
Paralegals
Name
Hourly
Hours
Total
Shobna Cuddy
$125
3.20
$400.00
Burhan Meghezzi
$100
4.30
$430.00
Khrista Smith
$100
.80
$80.00
Allyson Green
$100
3.00
$300.00
Amanda Pinchak
$125
3.70
$462.50
Benjamin Kopp (paralegal time)
$125
1.10
$137.50
Caitlin O'Donnell
$100
3.50
$350. 00
TOTAL PARALEGAL FEES
$2,160.00
TOTAL FEES
$28,853.00
Plaintiff seeks 60.5 hours of attorney time and 3.4 paralegal hours for work performed on the federal case. Cuddy Second Decl., at ¶ 5. Defendant challenges the reasonableness of this time broadly and specifically identifies certain entries it deems unreasonable. First, Defendant challenges the scope of Plaintiff's brief, arguing that the extensive discussion of the “Legal and Political Landscape,” Plf. Br. at 5, was unnecessary. Plaintiff responds that the Court “presumably” seeks “to obtain a sense of the case” and, therefore, the lengthy background discussion and a policy primer is necessary to render justice in this case. Kopp billed approximately 30 hours to draft the initial motion papers, with Cuddy billing approximately 5 hours. Thirty-five attorney hours is unreasonable for a brief that CLF has filed dozens of times.
Defendant also challenges 4.5 hours of time that Kopp billed for legal research related to the fee's motion more than 21 months before the federal complaint was filed. Plaintiff responds that this early preparation resulted from DOE's failure to appoint an IHO in a timely manner ahead of the 2019-2020 school year. The Court is not troubled by the early research.
Overall, however, I find that the 60.5 attorney hours billed for the federal action is unreasonable. 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.”). CLF is not new to fee litigation and should not require 60 hours to assemble its submissions. In order to “trim[] the fat from [the] fee application,” I recommend that the Court reduce the Plaintiff's compensable attorney hours for work on the federal action by 20%. M.D., 2018 WL 4386086, at *4-5.
Table 2: Calculation of Fees for Federal Action
Attorneys
Name
Hourly Rate
Hours
Total
Andrew Cuddy
$420
6.16
$2,587.20
Benjamin Kopp
$300
42.24
$12,672
TOTAL ATTORNEY'S FEES
$15,259.20
Paralegals
Name
Hourly Rate
Hours
Total
Shobna Cuddy
$125
1.9
$237.50
Caitlin O'Donnell
$100
1.5
$150
TOTAL PARALEGAL FEES
$387.50
TOTAL FEES
$15,646.70
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)). Plaintiff seeks costs related only to copying, postage, and filing fees. Courts have routinely 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 award 10 cents per page for a total of $1.50 in printing costs. Cuddy Second Decl., at ¶ 5.
In total, I recommend that the Court award Plaintiff $536.17 in costs including $1.50 for printing, $132.67 for postage, and $402 for filing fees.
II. Offer of Settlement
Defendant issued its Offer of Settlement for $36,500 on June 15, 2022, which Plaintiff rejected. “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 presumptively inapplicable in this case, and Plaintiff can recover attorneys' fees and related costs incurred after June 15, 2022.
As a matter of fairness, the Court has also considered whether it was reasonable for CLF to reject the DOE offer on June 15, 2022, in light of the fees incurred at that time. The DOE's offer was in response to CLF's June 22, 2021 fee demand of $40,651.07, which was made before the federal action was commenced. That demand reflected a $550 hourly rate for Cuddy and a $400 hourly rate for Kopp, rates, to the Court's knowledge, that had never been approved at that time (and since have been approved by only one judge in this District, see Y.G. v. New York City Dep't of Ed., No. 21-cv-641 (AKH), 2022 WL 1046465, at *2 (S.D.N.Y. Apr. 7, 2022)). The DOE's June 15, 2022 offer was issued after the federal action had been commenced and N.L. had filed her initial motion papers. Based on the calculations recommend above, the reasonable costs and fees for the work CLF performed as of June 15, 2022, was $41,899.47. “Because this amount is more than the [$36,500] the DOE offered on [June 15, 2022], fees and costs incurred after that date should be awarded” on this basis as well. T.H. v. New York City Dep't of Educ., No. 21-cv-10962, (JMF)(JLC), 2022 WL 16945703, at *8 (Nov. 15, 2022) report and recommendation adopted, 2022 WL 17991623 (S.D.N.Y. Dec. 29, 2022). See also O.R. v. New York City Dep't of Educ., 340 F.Supp.3d 357, 371 (S.D.N.Y. 2018) (declining to award fees and costs incurred after the Offer of Settlement date because, after applying reductions to the attorneys' hourly rates and hours expended, the fees and costs plaintiff was entitled to through the Offer of Settlement date were less than the offered settlement amount).
III. Pre- and Post-Judgment Interest
Plaintiff seeks prejudgment interest on the fee award for the administrative proceeding, citing one case where the court awarded CLF prejudgment interest without discussion. See J.R. v. New York City Dep't of Educ., No. 19-CV-11783 (RA), 2021 WL 3406370, at *6 (S.D.N.Y. Aug. 4, 2021). While “the law is unsettled in the Second Circuit on whether a court may add prejudgment interest to an attorneys' fee awards,” courts exercise broad discretion in this area. M.H., 2021 WL 4804031, at *29. Still, “the IDEA fee-shifting provision must be interpreted in pari materia with other fee-shifting statues.” Id. The Court of Appeals directs that, to account for the delay between when services were rendered and judgment is entered, hourly rates awarded to attorneys should “be current rather than historic.” Lochren v. Cnty. of Suffolk, 344 Fed.Appx. 706, 709 (2d Cir. 2009) (quoting Reiter v. MTA N.Y. City Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006)). See also M.H., 2021 WL 4804031, at *29-31 (extensive discussion by Judge Liman considering prejudgment interest in an IDEA fee case and declining to exercise his discretion to award it). For the same reasons described by Judge Liman, and adopted by Judges Failla and Koeltl, the request for prejudgment interest is denied. See D.P. v. New York City Dep't of Ed., No. 21-cv-27 (KPF), 2022 WL 103536, at *16 (S.D.N.Y. Jan. 10, 2022); N.G.B. v. New York City Dep't of Ed., No., 20-cv-6571 (JGK), 2022 WL 800855, at *6 (S.D.N.Y. Mar. 16, 2022).
Finally, I recommend that the Court grant Plaintiff's request for post-judgment interest. “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)).
CONCLUSION
I recommend that N.L.'s motion for attorney's fees and costs be granted in part and that N.L. be awarded $44,499.70 in fees and $536.17 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 Lorna G. Schofield 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 Schofield. 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 (1985).