Opinion
21-CV-6495 (PGG) (KHP)
09-29-2022
V.W., individually, and V.W, on behalf of A.H., a child with a disability, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants. ADMINISTRATIVE COMPONENT Case No. 175432 FEDERAL ACTION ADMINISTRATIVE COMPONENT Case No. 175432 FEDERAL ACTION AS OF FEBRUARY 24, 2022 COSTS
THE HONORABLE PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON MOTION FOR ATTORNEYS' FEES
KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff V.W., individually and on behalf of her daughter, A.H., a child with a disability, filed this lawsuit against the New York City Department of Education (the “DOE”) seeking attorneys' fees under the fee-shifting provision of the Individuals with Disabilities Education Act (the “IDEA”) 20 U.S.C. § 1415(i)(3), after a successful outcome in the underlying administrative proceeding brought to enforce A.H.'s right to a free and appropriate public education (“FAPE”). Plaintiffs filed this summary judgment motion requesting $59,438.31 in fees and costs for both the administrative proceeding and this federal action. For the reasons set forth below, I respectfully recommend Plaintiffs' motion be granted subject to the modifications outlined below.
BACKGROUND
Plaintiffs' attorneys are from the Auburn, New York office of Cuddy Law Firm (“CLF”), which is “one of the largest private special education law firms in the country[.]” (Cuddy Decl., ¶ 11.) On December 17, 2018, Justin Coretti (“Coretti”), Plaintiffs' counsel, initiated the underlying administrative proceeding-Case Number 180562-on Plaintiffs' behalf by filing a four-page due process complaint (“DPC”) with the DOE. (Pls. 56.1 Stmt. ¶ 5; Coretti Decl., ¶¶ 3, 20-22; Coretti Decl., Ex. A.) The DPC alleged that the DOE had denied A.H. a FAPE during the 2018-2019 and 2019-2020 school years. (Coretti Decl. ¶¶ 22-23.) Plaintiffs sought relief in the form of reconvening the Committee on Special Education to develop a new individualized education program(“IEP”) for A.H. that included an approved nonpublic school and Applied Behavior Analysis (“ABA”) therapy, and additional relief considered appropriate and necessary to make up for the Defendant's denial of FAPE to A.H. (Id.)
The case was assigned to Impartial Hearing Officer (“IHO”) Israel Wahrman. (Id. ¶ 26.) Impartial due process hearings for V.W. and A.H. were held on February 20, 2019; April 13, 2019; May 30, 2019; August 13, 2019; and September 12, 2019. (Id. ¶ 27.) On May 30, 2019, the Defendant entered six exhibits into evidence and called Frances Tucci, a school psychologist, to testify. (Coretti Decl., Ex. C.) The Plaintiff entered five exhibits into evidence. (Id.) On September 12, 2019, the Plaintiffs entered one additional document into evidence. (Id. ¶ 9.) The Defendant called Aurora Noriega, a classroom teacher, to testify on its behalf. (Id.) The Plaintiffs called Dr. Emily Levy, an academic evaluator; Dr. Jeanne Dietrich, a clinical psychologist; and V.W. to testify on their behalf. (Id.) Both parties submitted closing briefs. (Coretti Decl., ¶¶ 5-6.)
On May 11, 2020, IHO Wahrman issued a Findings of Fact and Decision in Plaintiffs' favor finding that Defendant failed to develop an appropriate educational program for A.H. and ordering the Defendant to fund tuition for a full year in a nonpublic school program for students with Autism that utilizes ABA; to fund 250 hours of academic tutoring at the rate of $125.00 per hour; and fund ten hours per week of in-home ABA. (Id. ¶ 34; Coretti Decl., Ex. D, pgs. 10-11.) On June 22, 2020, the Defendant submitted a Request for Review to the State Review Office (“SRO”), appealing IHO Wahrman's findings. (Coretti Decl., Ex. E.) On July 10, 2020, Plaintiffs responded to the appeal. (Coretti Decl., Ex. F.) On August 10, 2020, the SRO issued a decision upholding IHO Wahrman's order for 250 hours of compensatory academic services, but did not uphold the order for the changes to A.H.'s IEP. (Coretti Decl. Ex. G, pgs. 21-22.) CLF also asserts that it oversaw the implementation of the relief awarded because the extent of Defendant's compliance required careful monitoring, as well as having to communicate with Plaintiffs, service providers, and other entities. (Coretti Decl., ¶ 41.)
On December 1, 2020, Plaintiffs, through their counsel, submitted a demand for attorneys' fees. (Cuddy Decl., ¶ 34.). Although the Defendant acknowledged receipt of the demand and assigned Armelle Hillman to settle the claim, it did not respond. (Id. ¶¶ 36-37.) Plaintiffs commenced this action to resolve their claim for attorneys' fees and costs. (Id. ¶ 38.)
PROCEDURAL HISTORY
Plaintiffs filed this action on July 30, 2021, pursuant to the fee shifting provisions of the IDEA, alleging that Defendant had not made a reasonable offer of attorneys' fees for the underlying administrative hearings. (ECF No. 1.) On November 16, 2021, the Honorable Paul G. Gardephe referred the case to the undersigned for general pretrial supervision. After an unsuccessful settlement conference on January 28, 2022, I ordered the parties proceed with briefing the instant motion. On February 24, 2022, Defendant offered to settle the matter for $27,500, which the Plaintiffs rejected. (Def. Mot. for Summary Judgment, pg. 3.) On June 20, 2022, the parties submitted their summary judgment briefing for a resolution on the merits. (ECF Nos. 23-41.) On June 27, 2022, Judge Gardephe amended his referral to include a report and recommendation on the motion. (ECF No. 40.)
CLF now seeks a total of $59,438.31 in fees and costs-consisting of $40,041.31 for the administrative action and $19,397.00 for the instant federal action. (Cuddy Decl., ¶ 59; Cuddy Rep. Decl., ¶¶ 3-4.) CLF also seeks post-judgment interest. Specifically, Plaintiffs' request for fees is broken down according to the following chart:
ADMINISTRATIVE COMPONENT Case No. 175432
Hourly Rate
Number of Hours
Total
Andrew Cuddy (attorney)
$550.00
2.60
$1,430.00
Justin Coretti (attorney)
$425.00
76.50
$32,512.50
Justin Coretti (travel)
$212.50
7.50
$1,593.75
Kevin Mendillo (attorney)
$450.00
0.20
$90.00
Benjamin Kopp (attorney)
$400.00
0.60
$240.00
Allyson Green (paralegal)
$225.00
0.70
$157.50
Amanda Pinchak (paralegal)
$225.00
3.0
$675.00
Sarah Woodard (paralegal)
$225.00
0.30
$67.50
John Slaski (paralegal)
$225.00
5.10
$1,147.50
Cailin O'Donnell (paralegal)
$225.00
2.20
$495.00
Khrista Smith (paralegal)
$225.00
0.20
$45.00
Shobna Cuddy (paralegal)
$225.00
2.90
$652.50
FEDERAL ACTION
Andrew K. Cuddy (attorney)
$550.00
5.60
$3,080.00
Justin M. Coretti (attorney)
$425.00
34.80
$14,790.00
Kevin Mendillo (attorney)
$450.00
0.80
$360.00
Cailin O'Donnell (paralegal)
$225.00
1.00
$225.00
Shobna Cuddy (senior paralegal)
$225.00
2.40
$540.00
FEE SUBTOTAL
$58,101.25
According to Plaintiffs, the total costs associated with this matter amount to $1,337.06 as outlined below.
Printing
$296.00
Lodging
$264.04
Postage
$0.47
Meal
$64.05
Mileage
$217.50
Parking
$70.00
Tolls
$23.00
Federal Filing Fee
$402.00
COST SUBTOTAL
$1337.06
LEGAL STANDARD
“The IDEA grants district courts the discretion to award reasonable attorneys' fees and costs to a ‘prevailing party.'” R.G. v. New York City Dep't of Educ., 2019 WL 4735050, at *1 (S.D.N.Y. Sept. 26, 2019) (quoting 20 U.S.C. § 1415(i)(3)(B)(i)). A plaintiff “prevails when actual relief on the merits of [her] claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.” K.L. v. Warwick Valley Cent. Sch. Dist., 584 Fed.Appx. 17, 18 (2d Cir. 2014).
“Reasonable attorneys' fees under the IDEA are calculated using the lodestar method, whereby an attorney fee award is derived by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.” Streck v. Bd. of Educ., 408 Fed.Appx. 411, 415-16 (2d Cir. 2010) (internal quotation marks and citation omitted). In determining whether an hourly rate is reasonable, courts primarily consider the prevailing market rates in the community for comparable legal services. See 20 U.S.C. § 1415(i)(3)(C) (providing that attorneys' fees “shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished”). The prevailing market rate has been characterized as “the rate a paying client would be willing to pay . . . bearing in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Ortiz v. City of New York, 843 Fed.Appx. 355, 359 (2d Cir. 2021). Courts also consider the twelve factors discussed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974):
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.Lilly v. City of New York, 934 F.3d 222, 228 (2d Cir. 2019). Because “the determination of fees should not result in a second major litigation,” Fox v. Vice, 563 U.S. 826, 838 (2011) (citation omitted), courts may consider the Johnson factors holistically, rather than applying each factor individually to the facts of the case. See Green v. City of New York, 2010 WL 148128, at *10 (E.D.N.Y. Jan. 14, 2010) (citation omitted). The trial court's goal should be “to do rough justice, not to achieve auditing perfection.” Fox, 563 U.S. at 838. “The fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
Courts also have discretion to reduce attorneys' fees awards under the IDEA if:
(i) the parents or attorney protracted the resolution, (ii) the amount exceeds the hourly rate prevailing in the community where the action arose for similar services by a [comparable] attorney, (iii) the time spent is excessive for the nature of the action, or
(iv) parents' attorney did not provide proper notice in the complaint.T.A. v. New York City Dep't of Educ., 2022 WL 3577885, at *3 (S.D.N.Y. Aug. 19, 2022) (citing 20 U.S.C. § 1415 (i)(3)(F)). In addition, “[a] district court should reduce the number of hours included in the fee calculation if the claimed time is ‘excessive, redundant, or otherwise unnecessary.'” Luessenhop v. Clinton Cnty., 324 Fed.Appx. 125, 126-27 (2d Cir. 2009) (quoting Hensley, 461 U.S. at 434).
The Second Circuit has observed that “recycling rates awarded in prior cases without considering whether they continue to prevail may create disparity between compensation available under [the applicable statute] and compensation available in the marketplace,” which would “undermine [the statute's] central purpose of attracting competent counsel to public interest litigation.” Farbotko v. Clinton County, 433 F.3d 204, 209 (2d Cir. 2005). Accordingly, while a court may consider rates awarded in prior similar cases and its “own familiarity with the rates prevailing in the district,” it should also evaluate the “evidence proffered by the parties.” Id.
DISCUSSION
Here, Plaintiffs were the prevailing party in the underlying administrative action as A.H. was awarded partial relief requested in the DPC following the SRO appeal. Therefore, Plaintiffs are entitled to fees and costs. However, upon review of Plaintiffs' submissions, there are certain aspects of the hourly rates sought, the hours submitted, and the costs requested that are not reasonable. Each are discussed in turn.
The Defendant contends that a large portion of the award granted by the IHO was reversed upon appeal to the SRO. However, upon review of the SRO's decision, the Court agrees with Plaintiffs that the portion of the award not provided to A.H. was because the IEP in question was no longer in effect at the time of the appeal, rendering the argument moot.
A. Protracted Litigation
Plaintiffs assert that the Defendant “unreasonably protracted the administrative proceedings” and CLF's fees should not be reduced because Defendant failed to (1) file a due process response; (2) hold the statutorily mandated resolution meeting that begins upon the submission of the Plaintiff's due process complaint; and (3) respond to the fee claim upon confirmation of their prevailing party status. (Pls. Mot. for Summary Judgment, pg. 4.)
Plaintiffs' argument is not persuasive. 20 U.S.C. § 1415(i)(3)(G) provides that Courts should not reduce fees where “the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section.” The law is not that the Court therefore must grant all of the Plaintiff's requested fees. The plain language of the IDEA mandates that the Court grant-in its discretion-only those fees that are reasonable. 20 U.S.C. § 1415(i)(3)(B)(i). The IDEA commands that the Court base fees “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). Thus, while certain enumerated sections of the IDEA warrant mandatory reduction, and 1415(i)(3)(G) would except those reductions, the Court must nonetheless determine what a reasonable fee would be in the first instance before making any mandatory reductions. This reading comports with that of other courts that have squarely addressed the issue, including opinions in this District that have rejected the argument the CLF renews here. Somberg v. Utica Cmty. Schs., 908 F.3d 162, 180-82 (6th Cir. 2018); Williams v. Fulton Cty. Sch. Dist., 717 Fed.Appx. 913, 916-17 (11th Cir. 2017); D.P. v. New York City Dep't of Educ., 2022 WL 103536, at *11-12 (S.D.N.Y. Jan. 10, 2022); M.H. v. New York City Dep't of Educ., 2021 WL 4804031, at *25 (S.D.N.Y. Oct. 13, 2021) (collecting cases); T.A., 2022 WL 3577885, at *8; C.B. v. New York City Dep't of Educ., 2022 WL 3577837, at *10 (S.D.N.Y. Aug. 19, 2022).
B. Hourly Rates
Plaintiffs request the Court award $425.00 as the hourly rate for lead counsel Justin Coretti. Coretti has been a member of the bar for over nine years, since 2013, including over six years as an attorney with CLF. (Coretti Decl., ¶¶ 12-13.) Plaintiffs request the Court award $550.00 as the hourly rate for Andrew Cuddy (“Cuddy”). Cuddy has over 20 years experience and has “personally litigated hundreds of special education due process hearings throughout New York and three other States, has been invited to speak on the special education legal field by several organizations, and provides daily supervision to five offices with approximately 20 attorneys and support staff.” (Cuddy Decl., ¶¶ 10-12.) Plaintiffs request that attorneys Kevin Mendillo (“Mendillo”) and Benjamin Kopp (“Kopp”) be awarded $450.00 and $400.00 per hour respectively. Plaintiffs also request the Court award $225.00 as the hourly rate for paralegals. Of note, the CLF attorneys state these are their normal hourly rates, and their clients pay such rates. (See Cuddy Decl., ¶¶ 54-55; Arkontaky Decl., ¶ 18.)
Defendant contends that the administrative hearing did not raise novel or difficult questions, weighing in favor of lower hourly rates. (Def. Mot. for Summary Judgment, pg. 3.) Further, Defendant asserts the issues presented were straightforward and ultimately involved only a request for compensatory services and attendance records, and the majority of the relief ordered in the final hearing decision was reversed by the SRO decision. (Id.) Accordingly, Defendants argue that the attorneys' fees should be reduced by 80%.
CLF is no stranger to litigating similar cases in this District. As Judge Ramos recently stated:
The determination of appropriate rates for [CLF] attorneys is well trodden ground in this District. Indeed, [CLF] has brought no less than twenty federal fees cases in this district since 2018, litigating the rates that they assert they are entitled to charge. Ten of those cases have been brought in 2022 alone. Describing a ‘current stalemate' between the Firm and the DOE, Judge Liman notes that both parties have adopted a ‘Manichean' view of the IDEA administrative process that has led [CLF] to repeatedly request aspirational hourly rates that no court has awarded, while the DOE, in turn, has elected to play ‘hardball' and refuse settlement. Under these circumstances, the rates awarded to [CLF] have varied depending on the facts of each case; for A. Cuddy, the hourly rate determined to be reasonable has ranged from $350 an hour to $550 an hour at the high end. [CLF] has been awarded its requested rate of $550 an hour for A. Cuddy in only one case, however. . . . For other individuals within [CLF], past decisions contain a range of reasonable rates for midlevel and junior associates, from $400 for an attorney with approximately four years of experience, to $300 or $280 in other cases, to $200 at the low end. Paralegals, depending on their particular attributes, have generally received an hourly rate between $100 and $125.M.M. v. New York City Dep't of Educ., 2022 WL 3043218, at *6 (S.D.N.Y. Aug. 2, 2022) (internal quotation marks and citations omitted).
As to the Johnson factors favoring a higher award, CLF, on behalf of Plaintiffs, was able to secure the Defendant's compliance with the IHO's order and the SRO's decision, and ensure implementation of the awarded relief. As noted above, the portion of the SRO's decision that reversed the IHO was based on timeliness and the practical effect of the remedy suggested, rather than the arguments raised therein. Thus, Defendant's argument for an 80% reduction of fees is without merit. This case was not overwhelmingly complex, but also not as straightforward as the Defendant suggests insofar as, (1) the Defendant contested the remedies sought; (2) the parties presented a total of five witnesses and almost a dozen exhibits to the IHO; and (3) the Defendant appealed to the SRO which required additional briefing and a resolution on the merits. See S.P. v. New York City Dep't of Educ., 2022 WL 109266, at *5 (S.D.N.Y. Jan. 11, 2022) (noting where the DOE's own conduct required more skill and labor by plaintiff's attorneys, the award of a lower rate is not appropriate).
Additionally, the Court notes the importance of adequately incentivizing attorneys to enter this area of law and represent individuals and families with disabilities, who are often the most vulnerable in our society. See D.P., 2022 WL 103536, at *8 (“The Court also takes seriously the arguments of Plaintiff's counsel concerning the size of the IDEA bar and the attendant stresses on that bar occasioned by fee-shifting litigation.”). CLF specialize in IDEA cases, handling hundreds of cases, and is one of the largest firms handling such matters in the country. (Cuddy Decl., ¶¶ 11, 48; Arkontaky Decl., ¶ 14; Coretti Decl., ¶ 13.)
Nonetheless, the Court has evaluated the evidence proffered by the parties, and has determined the documents submitted by Plaintiffs have failed to substantiate the reasonableness of CLF's requested fees under the Johnson factors. First, there is no evidence that taking this case prevented CLF from accepting other cases. Second, the issues litigated were not especially novel or difficult. Third, awards in similar cases are significantly lower than the rates requested by CLF. See M.M., 2022 WL 3043218, at *6 (collecting cases). The documents Plaintiffs provided do not contradict this finding. For example, they submitted several years of statistics indicating at what hourly rates the DOE has settled past attorneys' fees cases. (Kopp Decl., Exs. A-L.) For each entry, the list states the firm or attorney's name, their claimed fees, the start and end dates of the case, and the settlement amount. The list includes approximately several thousand entries of matters, ranging from 2009 to 2018. It includes dozens of different firms, ranging from solo practitioners to large firms like Kirkland and Ellis, and details whether the case settled or had an IHO hearing, the name of the firm, the hourly rate sought and hours claimed, and the total amount in fees that the firm was given. In sum, the rates predictably vary, however, many do fall within the range of $350 to $500. Therefore, they are consistent with the rates typically awarded in similar cases in this district.
Plaintiffs also assert that the Defendant often attempts to “low-ball” the rates that should be awarded to counsel under the IDEA. (Pl. Mot. for Summary Judgment, pg. 11.) Plaintiffs submitted an agreement between the New York City Law Department (“Law Department”) and Hoguet, Newman, Regal & Kenny, LLP (“Hoguet”), in which Hoguet would litigate IDEA fee dispute claims on the Law Department's behalf. (Id.; Cuddy Decl., Ex. C.) In the agreement, the Law Department agreed to pay Hoguet $400 per hour for partners, $300 per hour for associates, and $100 per hour for paralegals. (Cuddy Decl. Ex. C.) However, “[t]hese figures do not substantiate the reasonableness of the Firm's requested fees; instead, the fees paid by the Law Department to Hoguet are substantially similar to the typical fees awarded to plaintiff's attorneys by courts in this district.” M.M., 2022 WL 3043218, at *7.
Next, Plaintiffs submitted over a dozen retainer agreements with other clients of CLF, which allegedly demonstrate that reasonable clients are willing to pay the requested hourly rates. (See Arkontaky Decl., Exs. B-N.) Plaintiffs' proposition fails. The retainer agreements do not establish the novelty and difficulty of the questions raised, the level of skill required, any relevant time limitations imposed by the client, or the results obtained in those cases. Moreover, many of the retainer agreements “explicitly did not cover IDEA-related due process hearings unless the clients signed a separate retainer agreement.” C.B. v. New York City Dep't of Educ., 2019 WL 3162177, at *7 (S.D.N.Y. July 2, 2019)(rejecting the probative value of the retainer agreements submitted by CLF, in part because many of the agreements did not involve representation at due process hearings). Furthermore, none of the billing statements submitted along with the agreements show that CLF was compensated for work similar to that performed here.
For similar reasons, Exhibit D to the Cuddy Declaration, which contains a “table displaying IDEA fee awards amounts in the Southern District of New York since 1998,” Cuddy Decl. ¶ 6 and Ex. D, is of limited value in that it does not attempt to relate the cited cases to the one currently before the Court. Both items also express an improper legal conclusion on the ultimate legal issue of whether the Plaintiffs' requested fees are reasonable. See K.O. v. New York City Dep't of Educ., 2022 WL 1689760, at *11 (S.D.N.Y., May 26, 2022) (expert report on fees was “of limited weight” because it “offers advice on an ultimate issue before the Court and thus is not admissible.”). Thus, neither the retainer agreements nor the table adequately demonstrate that similarly situated reasonable clients are willing to pay the rates CLF has requested in this action.
Defendant also contends that the Court should apply rates applicable in the Northern District of New York as CLF does not have offices within this district and has much lower overhead costs than New York City-based firms. This argument is without merit as “an out-of-district attorney may be entitled to receive a higher rate when practicing in this district than the rate the (sic) he or she ordinarily receives in the community in which he or she usually practices.” K.F. v. New York City Dep't of Educ., 2011 WL 3586142, at *2 (S.D.N.Y. Aug. 10, 2011), adhered to as amended, 2011 WL 4684361 (S.D.N.Y. Oct. 5, 2011).; see also C.D. v. Minisink Valley Cent. Sch. Dist., 2018 WL 3769972, at *6 (S.D.N.Y. Aug. 9, 2018) (same). Here, CLF is practicing in the Southern District of New York, and the Defendant's argument is unavailing as it provides insufficient justification to award lower rates. See K.F., 2011 WL 3586142 at *2 (applying the rates common in the Southern District of New York); C.D., 2018 WL 3769972, at *6 n.8 (same).
As to attorneys Mendillo and Kopp, Plaintiffs do not provide sufficient information about their experience and background to justify their requested rate. Plaintiffs only provide that Mendillo joined CLF in 2018 and currently manages CLF's Cleveland office (Cuddy Decl., ¶¶ 12, 29), and Kopp joined CLF in 2018 and currently has six years' experience. (Cuddy Decl., ¶12; Cuddy Decl., Ex. D). This is not sufficient information to justify awarding a rate that is generally higher than what is awarded in similar cases.
Finally, Plaintiffs' request that paralegals be compensated at $225.00 per hour is excessive. Plaintiffs have not articulated sufficient rationale to award such an exorbitant rate in light of the prevailing rates in this district of $100 to $125 per hour for paralegal work in similar cases.
Accordingly, in light of the above, I recommend that the hourly rate for Cuddy be set at $425, Coretti and Mendillo at $325, Kopp at $225, and paralegals at $125. These rates are the same or slightly higher than the those awarded in most recent cases involving CLF.
C. Hours Expended
i. Administrative Action
Plaintiffs' counsel represented Plaintiffs in the administrative case and the Defendant's appeal to the SRO. To adequately represent Plaintiffs, counsel was required to investigate the claims asserted, prepare exhibits and testimony, and present the same at the hearings. Counsel also spent time monitoring the DOE's compliance obligations as ordered by the IHO and SRO. Counsel filed a four-page due process and an eleven-page closing brief (including cover and table of contents pages). CLF billed 6.5 hours to draft and file the 4-page DPC and approximately 14 hours to draft the closing brief. (Cuddy Decl., Ex. A.) The amount of time drafting the latter is excessive considering that the brief largely summarizes the impartial hearing transcript and cites to the same evidence contained in the DPC, namely the conclusions of Dr. Jeanne Dietrich (“Dietrich”) and Lisa La Fata (“La Fata”). At the SRO level, Plaintiffs submitted a seven and a half-page brief, one page of which admitted or denied Defendant's statement of the facts. Here, Mendillo, Kopp and Coretti collectively billed approximately 21 hours drafting the response to the Defendant's appeal including several hours of legal research, which is extremely excessive, given that Plaintiffs' response consisted of largely recycled arguments made in their closing brief (such as the findings of Dr. Dietrich and La Fata) and only sparingly cites to case law.
CLF also spent an excessive amount of time preparing for the administrative hearings. The IHO held administrative hearings on February 20, 2019; April 3, 2019; May 30, 2019; August 13, 2019; and September 12, 2019. (Coretti Decl., ¶ 27.) During the pre-hearing conference on February 20, 2019, the Defendant requested additional time to investigate the possibility of settlement. (Coretti Decl., ¶ 28.) To prepare for this 3-minute telephone conference, CLF billed 6.1 hours. (Cuddy Decl., Ex. A). In connection with the August 13, 2019 impartial hearing, which also lasted just 3 minutes, Coretti billed 2.5 hours to review disclosures and prepare questions for Dr. Levy. Additionally, throughout the billing statements, it appears Coretti spent an excessive amount of time on the phone with V.W. to provide status updates or discuss simple tasks such as notarizing documents.
Plaintiffs do not provide the length of the hearings, but nonetheless they do not dispute the length asserted by the Defendant on reply.
I note that CLF has already removed time it considered duplicative or otherwise not compensable (Cuddy Decl., ¶¶ 7-9), however in light of the above and to achieve “rough justice,” Fox, 563 U.S. at 838, I recommend a further 15 percent across the board reduction for the time CLF spent on the administrative action.
ii. Federal Action
This Court takes note that CLF has litigated almost a dozen IDEA fee dispute cases in this district in 2022 alone. This case is no different in the general facts asserted by Plaintiffs and the relief they seek. Here, CLF has recycled arguments and exhibits to support its claim, and for such “volume work,” there should be an economy of scale that leads to less hours being expended in light of CLF's experience.
To litigate this fee dispute, Coretti drafted, filed, and served the summons and complaint. (Coretti Decl., ¶¶ 43-44.) CLF billed 4.1 hours to draft the 5.5-page complaint, but it contains approximately 2 pages of boiler-plate language, and an additional page providing the same background information it provided in its brief to the IHO and SRO. See ECF No. 1. For Plaintiffs' motion for summary judgment, which included a 25-page memorandum of law, four declarations with several exhibits each, CLF expended at least ten hours of attorney time. Of note, these too are substantially similar to those raised in CLF's other cases and should have taken less time. See M.R. v. New York City Dep't of Educ., 21-cv-5503 (VEC) (ECF Nos. 17-22, 25); M.D. v. New York City Dep't of Educ., 21-cv-9180 (LGS) (ECF Nos. 12-17); M.Z. v. New York City Dep't of Educ., 21-cv-9451 (AT) (ECF Nos. 18-24, 26); L.C. v. New York City Dep't of Educ., 21-cv-1250 (VSB) (ECF Nos. 20-27). Furthermore, to prepare Plaintiffs' 9-page reply, Coretti billed 5.3 hours, which is excessive, as this document is substantially similar to at least four other fees motions CLF has litigated and contains the same arguments including that Southern District rates should apply, the relevance of Hoguet's rates, and Defendant's offer of settlement does not preclude the fees sought. See M.R. v. New York City Dep't of Educ., 21-cv-5503 (VEC) (ECF No. 39); M.D. v. New York City Dep't of Educ., 21-cv-9180 (LGS) (ECF No. 27); M.Z. v. New York City Dep't of Educ., 21-cv-9451 (AT) (ECF No. 34); L.C. v. New York City Dep't of Educ., 21-cv-1250 (VSB) (ECF No. 40).
CLF also billed approximately 4.6 hours to review, remove duplicative time, and finalize its billing statements. However, as at least one court has noted, the “DOE should not have to compensate [CLF] for administrative clean-up of their own entries.” R.G., 2019 WL 4735050, at *4 (reducing 2.8 hours to review billing statement for accuracy to 1.5 hours).
In light of the above, I recommend a further 30 percent reduction in the time spent on the federal action to achieve “rough justice.” Fox, 563 U.S. at 838; see also D.B. on behalf of S.B. v. New York City Dep't of Educ., 2019 WL 6831506, at *6 (S.D.N.Y. Apr. 22, 2019), report and recommendation adopted, 2019 WL 4565128 (S.D.N.Y. Sept. 20, 2019) (reducing the fees sought in connection with the instant motion by 75%) (collecting cases), L.L. v. New York City Dep't of Educ., 2022 WL 392912, at *5 (S.D.N.Y. Feb. 9, 2022) (reducing the Firm's hours spent on a similar summary judgment motion by roughly half); J.R. v. New York City Dep't of Educ., 2021 WL 3406370, at *6 (S.D.N.Y. Aug. 4, 2021) (reducing the Firm's time by 25% for its straightforward motion for attorney's fees); M.D. v. New York City Dep't of Educ., 2021 WL 3030053, at *6 (S.D.N.Y. July 16, 2021) (reducing the Firm's 76.2 hours spent on federal litigation by 50% due to achieve rough justice in light of the “low degree of complexity”); R.G., 2019 WL 4735050, at *5 (reducing the Firm's hours spent litigating attorney's fees by approximately 26%, because the brief “discusse[d] no novel questions and contain[ed] approximately five pages [out of 30] of boilerplate language”).
D. Costs
Plaintiffs are entitled to an award of all reasonable costs associated with this matter under 20 U.S.C. § 1415(i)(3)(B) and Fed.R.Civ.P. 54(d)(2). Supreme Court precedent indicates the term “costs” in 20 U.S.C. § 1415(i)(3)(B) refers to the list, including reasonable filing fees, provided under 28 U.S.C. § 1920, the general statute governing taxation of costs in federal court. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297-98 (2006); C.D., 2018 WL 3769972, at *4.
Defendant asserts that CLF's claim for printing ($296.00) should be reduced to the “going rate” of $0.10 per page (for a total of $59.20), not $0.50 per page, as charged. Here, $0.15 per page is reasonable. See C.B., 2022 WL 3577837, at *9 (reducing the per page printing rate from $0.50 per page to the “reasonable rate” of $0.15 per page). Thus, Plaintiffs' printing costs should be reduced to $88.80. The parties do not dispute the federal filing fee, and such cost is reasonable. Accordingly, Plaintiffs should be awarded $402.00 in costs for filing this action.
For his time spent traveling, Coretti should only be permitted to charge $162.50 per hour (half of the recommended hourly rate) and limited to billing for one hour of travel time each way for his trips. See J.R., 2021 WL 3406370, at *6 (allowing Coretti to bill for no more than one hour of travel time each way for trips to New York City); Y.S. v. New York City Dep't of Educ., 2022 WL 4096071, at *5 (S.D.N.Y. Sept. 6, 2022) (“the Court takes the approach that several other judges from this district have taken, which is to approve one hour of reimbursable travel time in each direction [which] gives due deference to a parent's desire to hire expert IDEA counsel and to the inevitability of some travel time to the site of the hearing”) (internal quotation marks and citation omitted); see also M.M, 2022 WL 3043218, at *11.
As for Coretti's travel related expenses (food, mileage, tolls, parking, and lodging), they should be capped at $120 in total ($60 per trip). See F.N. v. New York City Dep't of Educ., 2022 WL 3544128, at *7 (S.D.N.Y. Aug. 18, 2022) (deducting lodging, parking, and meal costs related counsel's trip to Brooklyn for the hearing and reducing Mendillo's mileage and toll fees to $60) (internal citations omitted); see also Y.S., 2022 WL 4096071, at *5 (“The Court declines to award costs for all other travel-related expenses-lodging, mileage, transportation, parking, and meals.”); B.C. v. New York City Dep't of Educ., 2022 WL 3214374, at *10 (S.D.N.Y. Aug. 9, 2022) (“an award of lodging expenses is not warranted. The costs associated with meals will be reduced by 50%. Mileage costs will also be reduced by 50%.”) (internal citations and quotation marks omitted).
E. Offer of Judgment
Defendant offered to settle the underlying matter on February 24, 2022 pursuant to 20 U.S.C. 1415(i)(3)(D) in the amount of $27,500, inclusive of fees, costs, and expenses accrued in the administrative proceeding and in this action through February 24, 2022. (Def. Mot. for Summary Judgment, pgs. 3-4.) Plaintiffs did not accept this offer. An offer of settlement prohibits recovery if “the relief finally obtained . . . is not more favorable . . . than the offer of settlement.” 20 U.S.C. § 1415(i)(3)(D); O.R. v. New York City Dep't of Educ., 340 F.Supp.3d 357, 371 (S.D.N.Y. 2018) (denying plaintiff's request for fees subsequent to the offer of settlement because plaintiff was entitled to less than the settlement offer); see also C.G. v. Ithaca City Sch.Dist., 2012 WL 4363738, at *2-3 (N.D.N.Y. Sept. 24, 2012), aff'd, 531 Fed.Appx. 86 (2d Cir. 2013) (“[IDEA] prohibits recovery of fees and costs which accrue subsequent to the time of a written offer of settlement.”) (internal quotation marks omitted). Based on the above recommended reductions, Plaintiffs are barred from recovering for the work CLF performed after Defendant's offer of settlement because as of February 24, 2022, they were only entitled to receive $27,340.47 for work done on the administrative and federal actions (including costs). Accordingly, Plaintiffs' award should not include any compensation for any work performed after February 24, 2022.
The Court also notes Plaintiffs erroneously argue that there is no bar here because they had “substantial justification” for rejecting Defendant's offer of settlement. (Pls. Rep. Mot. for Summary Judgment, pgs. 8-9.) First, Plaintiffs assert that they were entitled to a significantly higher fee given the prevailing market rates in the community, and second, CLF objected to Defendant's inclusion of a waiver of their right to claim interest on the settlement amount. (Id.) First, as noted above, the evidence Plaintiffs offer to support its requested rates do not lead to such a conclusion, as a fair reading of the recent IDEA attorneys' fees cases decided in this District shows the prevailing market rates in the New York area within the relevant time frames are much lower than those requested. See M.M., 2022 WL 3043218, at *6 (collecting cases). Second, were the Defendant to delay payment past the ninety-day statutory period for a municipality to pay all sums to a settling plaintiff, see N.Y. C.P.L.R. § 5003-a, by law Plaintiffs could bring a separate action seeking an award of interest on the settlement amounts. Indeed, CLF is well aware of this option as it has previously pursued and obtained post-judgment interest on fee awards. See, e.g., D.M. v. New York City Dep't of Educ., 2021 WL 4441508, at *2 (S.D.N.Y. Sept. 28, 2021) (granting CLF the settlement amount of $28,000 plus 9 percent interest because DOE failed to tender payment within ninety days of the settlement); C.S. v. New York City Dep't of Educ., 2021 WL 1851366, at *3-4 (S.D.N.Y. Apr. 8, 2021) (awarding CLF 9 percent interest on a settlement that DOE failed to pay within the required ninety-day period). Thus, Plaintiffs' argument is without merit.
Lastly, under 28 U.S.C. § 1961, “[t]he award of post-judgment interest is mandatory on awards in civil cases as of the date judgment is entered.” True-Art Sign Co. v. Local 137 Sheet Metal Workers Int'l Ass'n, 852 F.3d 217, 223 (2d Cir. 2017) (alteration in original); accord S.J. v. New York City Dep't of Educ., 2021 WL 100501, at *5 (S.D.N.Y. Jan. 12, 2021). Accordingly, I recommend Plaintiffs' request for an award of post-judgment interest from the date of judgment be granted.
CONCLUSION
In summary, I respectfully recommend that Plaintiffs be awarded $26,729.67 in attorneys' fees and $610.80 in costs, for a total amount of $27,340.47. Additionally, I recommend Plaintiffs be awarded post-judgment interest from the date of judgment. The following charts highlights the breakdown of the fees and costs to be awarded.
ADMINISTRATIVE COMPONENT Case No. 175432
Hourly Rate
Number of Hours
Total
Andrew Cuddy (attorney)
$425.00
2.21
$939.25
Justin Coretti (attorney)
$325.00
58.65
$19,061.25
Justin Coretti (travel)
$162.50
4
$650.00
Kevin Mendillo (attorney)
$325.00
0.17
$55.25
Benjamin Kopp (attorney)
$225.00
0.51
$122.40
Allyson Green (paralegal)
$125.00
$74.38
Amanda Pinchak (paralegal)
$125.00
2.55
$318.75
Sarah Woodard (paralegal)
$125.00
0.255
$31.88
John Slaski (paralegal)
$125.00
4.335
$541.88
Cailin O'Donnell (paralegal)
$125.00
1.87
$233.75
Khrista Smith (paralegal)
$125.00
0.17
$21.25
Shobna Cuddy (paralegal)
$125.00
2.465
$308.13
ADMINISTRATIVE ACTION TOTAL
$22,358.17
FEDERAL ACTION AS OF FEBRUARY 24, 2022
Andrew K. Cuddy (attorney)
$425.00
1.89
$803.25
Justin M. Coretti (attorney)
$325.00
10.43
$3,389.75
Kevin Mendillo (attorney)
$325.00
0.28
$91.00
Shobna Cuddy (senior paralegal)
$125.00
0.7
$87.5
FEDERAL ACTION TOTAL
$4,371.50
FEE SUBTOTAL
$26,729.67
COSTS
Printing
$88.80
Travel
$120.00
Federal Filing Fee
$402.00
COST SUBTOTAL
$610.80
The Court subtracts the 0.2 hours spent cleaning and organizing as Plaintiffs concede this is not compensable time. (See Cuddy Rep. Decl., ¶ 5.)
NOTICE
The parties shall have fourteen days, from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2).
The parties shall have fourteen days to serve and file any response. Any objections and any responses to such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe at the United States Courthouse, 40 Foley Square, New York, New York 10007, and served on the other parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe. The failure to file timely objections shall result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).