# J W v. Metropolitan School District of Warren County

> District Court, N.D. Indiana · September 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10161542

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** September 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE

J.W., individually and as parent and next )
Friend of K.W., a minor, et al., )
Plaintiffs, )
)
v. ) CAUSE NO.: 4:19-CV-44-JVB-JPK
)
METROPOLITAN SCHOOL DISTRICT )
OF WARREN COUNTY, et al., )
Defendants. )

OPINION AND ORDER
This matter is before the Court on Defendants’ Motion for Summary Judgment [DE 50]
filed on October 5, 2020, and on Plaintiffs’ Motion for Attorneys’ Fees and Costs [DE 52] also
filed on October 5, 2020. The parties filed responses and replies to both motions, which are fully
briefed and ready for the Court’s review.
Based on the following, the Court awards attorney fees and costs to Plaintiffs in the amount
of $191,877.42.
FACTUAL BACKGROUND
Plaintiffs J.W. and C.W. (proceeding both individually and as parents and next friends of
K.W., a minor) filed the present lawsuit against Defendants Metropolitan School District of
Warren County and Wabash River Special Services Cooperative for attorneys’ fees and costs
pursuant to the Individuals with Disabilities Education Act (IDEA).
A. Plaintiff K.W. as a Student
K.W. was an elementary school student enrolled in the Defendant School District. (Due
Process Hr’g Decision 16, ECF No. 54-1). He had a history of behavioral issues for which he saw
health care providers and he received special education services shortly after entering kindergarten
in 2015. Id. at 16-18. In the second grade, K.W. “displayed numerous significant violent,
aggressive behavioral outburst including throwing objects, biting, kicking, punching, and spitting
at adults.” Id. at 20. In 2017 and 2018, some of K.W.’s behavioral outbursts caused property
damage. Id. at 22-23, 25. At some point in the fall of 2018, the school filed a civil small claims

suit against parents for the cost of the property damage. Id. at 26-27. On August 3, 2019, the
school’s case conference committee informed Plaintiffs that the school would charge Plaintiffs for
any damages over $50. Id. at 26.
B. The Due Process Complaint Proceeding
On November 27, 2018, Plaintiffs filed a Complaint and Due Process Hearing Request
with the Indiana Department of Education, asserting claims under Indiana special education law
and the IDEA. (Due Process Compl., ECF No. 54-2). Plaintiffs alleged, in part, that the School
had failed to provide K.W. with a free appropriate public education (FAPE) by failing to develop
an appropriate individual education plan (IEP), functional behavior assessment (FBA), and
behavior intervention plan (BIP), failing to provide appropriate services and appropriate

placement, failing to provide accurate progress reports and monitoring, failing to appropriately
train staff, failing to allow K.W.’s parents to meaningfully participate in case conferences, failing
to re-evaluate K.W., and failing to properly notify K.W.’s parents about change in placement. Id.
at ¶ 87.
Plaintiffs asked the Independent Hearing Officer (IHO) to find that Defendants denied
FAPE to K.W. and to order a new IEP, compensatory services, assessments, training and
consultation for school staff, and a new FBA and BIP. Id. at 51-54. Regarding the new IEP,
Plaintiffs requested:
1. No provisions requiring the parents to pay for damages resulting from K.W.’s
behaviors caused by his disability;
2. A one on one aide, or dedicated classroom para-professional, to ensure K.W.
has access consistently to breaks, one-on-one assistance in reading, instructions,
and social skills, learning appropriate toileting skills/consistent bathroom
breaks;
3. Accurate present levels in the areas of behavior, reading comprehension,
reading fluency, decoding, writing, math, social skills, functional skills, and
other areas of need;
4. Measurable annual goals with objectives in the areas of behavior, reading
comprehension, reading fluency, decoding, writing, math, social skills,
toileting, functional skills, life skills, and behavior as well as other necessary
areas of need;
5. Quarterly progress reports based on objective measures and provided quarterly
to parents;
6. Accommodations including: extrinsic rewards, e.g., free time, for completion
of assignments, frequent movement/fidget breaks, visual supports for oral
instruction, one-step directions presented in a verbal and written manner,
assistance with breaking larger projects into smaller manageable parts,
extended time on exams, quizzes, and assignments, copies of teacher’s notes to
follow along when information is presented orally, use of fidgets, reminders to
stay on task and inquiries regarding if he is following along successfully,
organizational support due to his diagnoses and difficulties with executive
functioning, modification of homework assignments, and positive
reinforcement to assist K.W. with increasing his abilities in academic areas;
7. Social work services;
8. Counseling and psychological services;
9. Medical and nursing services;
10. Direct OT services following an independent OT evaluation; and
11. Extended schoolyear services for summer 2019 to prevent further behavioral
and academic regression.
Id. at 51-52.
A hearing was held over eight days in February and March 2019. (Due Process Hr’g
Decision at 12-15, ECF No. 54-1). Over the course of the proceeding, Plaintiffs were represented
by three attorneys whose hourly rates were billed at $295 or higher. (Aff. Catherine Michael, ECF
No. 1-4; Aff. Thomas Blessing, ECF No. 1-6; Decl. Sonja D. Kerr, ECF No. 1-8).
C. The Administrative Decision
The IHO found that
The totality of the errors the School made clearly shows the School failed to provide
this Student a free appropriate public education. Moreover, the School’s aggressive
attempt to force the Student’s parents to pay for property damage is nothing less
than astonishing. It is incomprehensible the School failed to acknowledge or
recognize that the destruction of property the Student caused during his many
aggressive outbursts was so clearly a manifestation of his disability and rips at one
of the fundamental cornerstones of providing students with disabilities a free
appropriate public education.
(Due Process Hr’g Decision at 38, ECF No. 54-1). As a result, the IHO ordered:
1. The School shall arrange and pay for the Student’s ANP and the school nurse
to participate in person at the Student’s Case Conference Committee to convene
no later than 30 days from the date of this Decision.
2. The School shall add the school nurse consultation as a related service to the
Student’s IEP. The school nurse shall attend all the Student’s Case Conference
Committee Meetings.
3. The school nurse shall have direct communication either in person or by
telephone with the ANP after each of the Student’s appointments with her. The
school nurse shall be responsible for apprising the ANP of behavioral issues
and successes the Student has demonstrated as well as conveying any concerns
about potential side effects the Student may display.
4. Within the 30 days from the date of this Decision, the School shall arrange for
an inservice training to be provided by a skilled, experienced behavioral
consultant for all school personnel involved with the Student. The inservice
shall provide instruction on conducting a proper comprehensive functional
behavior assessment, devising a BIP with clear, well-defined behaviors,
implementing a BIP, and objectively monitoring the efficacy of the BIP.
5. Within 45 days of the date of this Decision, the School shall arrange for an
inservice training on writing objective behavioral goals, devising objective,
effective means of establishing baselines for the goals, collecting and compiling
data that can show progress or lack of progress, and incorporating the data into
the IEP. The inservice shall have mandatory attendance for all school personnel,
including administrators, who work with or are involved with special education
students.
6. On January 25, 2019, the School contracted a behavioral consultant to conduct
an FBA and devise a BIP. The School shall arrange for that behavioral
consultant or another similarly qualified behavioral specialist to work with
School personnel in implementing the BIP he developed from the FBA. The
School shall also work with the consultant or similarly qualified behavioral
specialist to develop an objective means of collecting objective data reflecting
the student’s response to the BIP. The School shall compile those data and
integrate the information in the Student’s IEP.
7. Within 30 days of this Decision, the School shall write new behavioral goals
that reflect the findings of the January 25, 2019 FBA and BIP.
8. Within 30 days of this Decision, the School shall contract with a skilled,
experienced, independent behavior specialist to review the Student’s records
and this Decision and participate in the Student’s Case Conference Committee
to assist in determining the appropriate placement for this student, including,
but not limited to, the amount of direct instruction the Student receives from a
special education teacher on academic and behavioral skills.
Id. at 38-40. The IHO did not order Defendants to provide compensatory education, a 1:1 aide,
extended school year services, social work, counseling and psychological services, occupational
therapy, reimbursement, or evaluation for ASD.
D. Settlement Attempts
During the administrative proceedings, the parties attempted to settle this matter. On
January 15, 2019, Plaintiffs proposed two options: either a private placement option or a public
school placement. Either option would include the dismissal of the small claims action brought
against the parents, an independent educational evaluation, a new BIP, compensatory counseling
and educational services, staff training, extended school year, and reimbursement of attorney fees.
(Jan. 15, 2019 Offer, ECF No. 54-6).
On January 25, 2019, Defendants responded. They were willing to make changes to K.W.’s
IEP regarding goals and accommodations, to work with wrap around services, to provide
compensatory education services (including during summer 2019), to provide a social skills group,
weekly skills training with a psychologist, twice weekly counseling, 1:1 instruction for 30 minutes
per day, to use an outside consultant to conduct a new FBA, to engage an outside consultant to
develop a new BIP, train staff, and monitor its implementation for one year, an occupational
therapy evaluation to assess writing and sensory needs, assistive technology evaluation,
reimbursement for the parents’ choice of independent educational evaluator, secure the services of
an outside consultant to monitor K.W.’s IEP services, provide training to staff, and participate in
case conferences. Defendants directed Plaintiffs to other counsel regarding the small claims court

matter, stating that present counsel was not working on that matter. Defendants agreed to pay a
reasonable attorney’s fee. Defendants wanted, as part of any settlement agreement, the parents to
agree to refrain from all appeals for the term of the settlement agreement, leaving the only method
of redress regarding the provision of FAPE through the IEP to be enforcement of the terms of the
agreement. Further, the parents would waive all actions against the school’s entities, agents, and
employees up to the date the agreement is signed. (Jan. 25, 2019 Letter, ECF No. 54-7).
On January 28, 2019, Plaintiffs replied. They wished to see a draft of the IEP proposed by
Defendants, including specific terms instead of the school’s statements that it will consider items.
They also wanted specific numbers of compensatory services offered, clarification on whether
services would be provided to address K.W.’s academic, social, behavioral and social skills, and

details regarding the provision of services. They requested weekly progress reports. Plaintiffs also
desired an admission that Defendants denied FAPE to K.W. Plaintiffs insisted that any settlement
would require to Defendants coordinate with their counsel in the small claims court matter. (Jan.
28, 2019 Offer, ECF No. 54-8).
On January 31, 2019, Defendants responded, asking for clarity regarding what would be
needed in an IEP to reach settlement. Defendants did not believe a 1:1 aide was needed but were
willing to provide 300 hours of special education services through an extended school day and an
extended school year. They agreed to weekly progress reports on behavior and quarterly updates
on goals and academic progress. Defendants maintained their position that the small claims court
matter needed to be negotiated with different counsel but offered to carve out any issues regarding
the small claims suit in the settlement agreement. Due to the upcoming hearing date, Defendants
needed an itemized fee statement by February 1, 2019. (Jan. 31, 2019 Letter, ECF No. 54-9).
On February 7, 2019, Plaintiffs countered. They stated that the January 30 proposal was

too vague and recounted Defendants’ oral statement of no interest in a settlement conference.
Many terms were accepted. There was still disagreement about the provision or coordination of
wraparound services and uncertainty regarding compensatory services and types of training
provided to K.W. Plaintiffs also wanted assurance that the small claims matter (which had been
dismissed without prejudice) was resolved, noting concern that the school would put in the IEP
that it can pursue a claim for damages against the parents. (Feb. 7, 2019 Offer, ECF No. 54-10).
On February 14, 2019, Defendants indicated willingness to hold a case conference or to
provide a “more updated initial draft of an IEP.” Defendants stated that previous offers were
rescinded because those offers had been made to avoid the hearing, which had begun. Defendants
were willing to address behavior, sensory processing, compliance with structure/demands, and

mood/coping/emotional regulation in K.W.’s IEP. They would provide accommodations for
standardized testing and general education, a sensory schedule, services as recommended by Dr.
Van Acker, including up to 30 minutes twice per week of direct social skills training and an
embedded skill instruction program. Defendants wanted the parents’ consent for Defendants to
speak with K.W.’s physicians and to have the physicians explain any medication changes to
Defendants. Defendants reiterated that they would require an appeal and claim waiver from
Plaintiffs. (Feb. 14, 2019 Letter, ECF No. 54-11).
On February 17, 2019, Plaintiffs responded. They agreed to K.W.’s physicians sharing
information with Defendants, provided that Defendants paid any associated costs and that one of
the parents would be included on any phone calls. Plaintiffs indicated that a copy of the embedded
skill instruction program and the associated training needed to be included as part of the settlement.
Plaintiffs were unwilling to waive future rights to sue regardless of Defendants’ provision of
FAPE. Plaintiffs also mandated that Defendants must agree to dismiss the small claims case with

prejudice and agree that K.W.’s school attendance would not be conditioned on the parents’ ability
to pay costs of property damage in order for Plaintiffs to agree to a full release of all claims.
Plaintiffs also requested reinstatement of terms that had previously been accepted, including 300
hours of special education services. (Feb. 17, 2019 Letter, ECF No. 54-12).
In a February 20, 2019 letter, Defendants asked whether Plaintiffs could agree to a draft
IEP given to them and, if not, what alterations would be necessary for agreement. (Feb. 20, 2019
Letter, ECF No. 54-13).
On February 22, 2019, Plaintiffs submitted “a final effort to make it clear to you that we
are most desirous of settlement”: an offer of judgment that accepted Defendants’ draft IEP and
“the draft settlement offer we sent” (presumably referring to the February 17, 2019 letter). (Feb.

22, 2019 Letter, ECF No. 54-14).
The parties did not reach a settlement agreement, and the IHO’s decision, discussed above,
followed.
E. Attorney Fee Discussions
After the IHO’s decision was issued, the parties communicated regarding Plaintiffs’
attorney fees. On April 12, 2019, Plaintiffs offered a 5% discount on the “approximately $195,000”
in attorney fees accrued in the case if Defendants agreed to resolve the case without further
litigation by April 19, 2019. (April 12, 2019 Offer, ECF No. 54-15). On April 17, 2019, Defendants
requested an updated statement of fees and an extension of time to accept the offer. (April 17, 2019
E-Mail, ECF No. 54-16). On April 22, 2019, Plaintiffs provided the requested invoices and agreed
to extend the deadline to respond to April 24, 2019. (April 22, 2019 Letter, ECF No. 54-17). On
April 24, 2019, Defendants responded with an offer of $110,000, indicating concerns with the
hourly rates, overstaffing, travel time, and degree of success; Defendants’ offer was open until

April 30, 2019. (April 24, 2019 Letter, ECF No. 54-18). Plaintiffs filed suit on April 26, 2019.
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “[S]ummary judgment is appropriate – in fact, is mandated – where there are no
disputed issues of material fact and the movant must prevail as a matter of law. In other words, the
record must reveal that no reasonable jury could find” for the non-movant. Dempsey v. Atchison,
Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations omitted). In viewing the
facts presented, a court must construe all facts in a light most favorable to the non-moving party
and draw all legitimate inferences in favor of that party. Liberty Lobby, 477 U.S. at 255; Srail v.

Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009).
ANALYSIS
The IDEA has the purpose “to ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes special education and related services
designed to meet their unique needs and prepare them for further education, employment, and
independent living.” 20 U.S.C. § 1400(d)(1)(A). The Court has the discretion to “award reasonable
attorneys’ fees as part of the costs . . . to a prevailing party who is the parent of a child with a
disability.” Id. at § 1415(i)(3)(B)(i). The starting point for the calculation of a reasonable attorneys’
fee award is the lodestar amount (the reasonable number of hours worked multiplied by a
reasonable hourly fee), after which other factors can be considered. Thorncreek Apartments III,
LLC v. Mick, 886 F.3d 626, 638 (7th Cir. 2018).
The parties agree that Plaintiffs are prevailing parties and that an award of attorney fees is
appropriate, but they disagree on the amount of that award. Plaintiffs request $293,621.74, which

represents 817.18 hours of attorney work at rates ranging from $300 to $430 per hour, 29.87 hours
of paralegal work at $95 to $110 per hour, and $10,779.64 in costs. Defendants counter that
$32,609.25 is the highest appropriate award.
A. Reasonable Number of Hours
Plaintiffs, as the parties seeking an award of fees, bear the burden of showing the
reasonableness of the number of hours claimed. Bratton v. Thomas Law Firm, PC, 943 F. Supp.
2d 897, 902 (N.D. Ind. 2013) (citing Spegon v. Catholic Bishop of Chi., 175 F.3d 544, 550 (7th
Cir. 1999)). “Counsel for the prevailing party should make a good faith effort to exclude from a
fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in
private practice ethically is obligated to exclude such hours from [the lawyer’s] fee submission.”

Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). “Hours that are not properly billed to one’s client
also are not properly billed to one’s adversary pursuant to statutory authority.” Id. (quoting
Copeland v. Marshall, 641 F.2d 880, 891 (1980) (en banc)).
Defendant objects to the number of hours claimed as compensable by Plaintiffs, arguing
that certain time entries should be disallowed as clerical work, unreasonable travel time,
overstaffed hours, vague billing entries, or irrelevant. The Court will first look at the hours
expended on the underlying proceeding and then turn to the hours billed at the federal level.
1. Due Process Complaint Proceeding
Plaintiffs request payment for 616.92 hours worked in relation to the underlying Due
Process Complaint proceeding. Defendants contend that at least 309.62 hours should be
disallowed. The Court finds the following hours reasonable: Ms. Michael – 303.5 hours, Ms. Kerr

– 81.46 hours, Mr. Blessing – 47.5 hours, Ms. Goehler (a paralegal) – 3.7 hours. Connell Michael
Kerr’s (CMK) costs (which, as billed, include paralegal time) are reduced to $3,716.5.
Massillamany Jeter & Carson’s (MJC) costs are denied, as insufficient supporting information was
supplied.
a. Clerical Work
Billing for paralegal time is reasonable when doing so is the practice in the relevant market.
Missouri v. Jenkins, 491 U.S. 274 286-87 (1989). Such paralegal time, however, should never be
billed for “purely clerical or secretarial tasks” such as distributing mail or answering a general
phone line. Jenkins, 491 U.S. at 288 n. 10; Monk v. Colvin, No. 2:15-CV-233, 2016 WL 4445659,
at *4 (N.D. Ind. Aug 23, 2016).

Defendants challenge the following paralegal billing entries claimed by MJC as unbillable
clerical time:
12/11/2018 – Finalized drafts of Mot to conduct discovery & e-filed with proposed order
– 0.2 hours
12/20/2018 – Filed Motion to strike answer – 0.2 hours
1/4/2019 – Download/print school discovery, binder, prep for PHC – 1.5 hours
1/14/2019 – Finalized & filed response & mot to compel w exhibit a – 0.2 hours
1/16/2019 – Filed mot to quash – 0.1 hours
1/25/2019 – Finalized FAPE brief, organized/labeled exhibits for brief, emails to CM and
TB to review. Downloaded OC discovery – 2.0 hours
1/28/2019 – Finalized & emailed settlement to OC. Finalized exhibit book, witness list,
Bates #. Printed exhibit book for OC at kinkos – 6.0 hours
3/22/2019 – Proofread & format post hearing brief – 0.5 hours
Plaintiffs respond that the work performed in the challenged entries is substantive and typical of
work performed by paralegals.
Photocopying and filing documents are clerical activities. See Pace v. Pottawattomie
Country Club Inc., No. 3:07-CV-347, 2009 WL 4843403, at *13 (N.D. Ind. Dec. 11, 2009); Moore
v. Midland Credit Mgmt., Inc., No. 3:12-CV-166, 2012 WL 6217597, at *12 (N.D. Ind. Dec. 12,
2012). The Court also considers downloading, printing, and labeling documents to be clerical. The
entry for proofreading and formatting a brief is likewise on the clerical side of the scale. Out of
the items listed, the Court finds that preparing for the pre-hearing conference and finalizing

documents is substantive, non-clerical work. Sending email messages is a closer call, but in
context, the entries above regarding email messages appear to be substantive, so the Court will
allow them. Accordingly, the Court will allow 0.1 hours of the 12/11/2018 entry, 0.5 hours of the
1/4/2019 entry, 0.1 hours of the 1/14/2019 entry, 1.0 hours of the 1/25/2019 entry, and 4.0 hours
of the 1/28/2019 entry. Confusingly, Plaintiffs state that they only seek fees for 3.7 hours of MJC
paralegal time for this time period, which is less time than the Court has found to be appropriate
above. Accordingly, there will be no deduction.
Defendants also object to the February 28, 2019 entry for 7.2 hours of “scanning and
identifying documents, review of exhibit lists and entered exhibits, typing of notes and other
materials in preparation for week two of hearing.” (Pls.’ Ex. 4, App’x C, p. 121, ECF No. 53-1).

This work is clerical and will be disallowed.

1 This citation is to the page number of the appendix; in ECF numbering, it is page 129 of ECF No. 53-1.
Defendants also challenge an entry, dated April 16, 2021, for Ms. Kerr’s time spent on
“Final proofread and review before sending to CM, TB, and SC and filing in ICHAMP.” Id. at 11.
Defendants assert that part of this time was spent “filing in ICHAMP,” (Defs.’ Br. 12, ECF No.
51). The text is ambiguous; either it could mean that this time was spent performing the proofread

and review (and the remaining text provides context but does not describe work performed), or it
could mean that this time was spent (1) performing the final proofread and review, and then (2)
sending to CM, TB, and SC, and (3) filing in ICHAMP. Plaintiffs bear the burden of showing that
the time spent was reasonable, and they do not respond to this argument, so the Court finds that
Plaintiffs have not shown that this contested 0.1 hour of time is reasonable, so it will be deducted.2
b. Travel Time
In the Seventh Judicial Circuit, the presumption is that reasonable travel time is billed at
the attorney’s normal billing rate. Henry v. Webermeier, 738 F.2d 188, 194 (7th Cir. 1984).
Without challenging the presumption, Defendants object to 1.5 hours spent on travel on both
January 7, 2019, and February 2, 2019, by Ms. Michael. Ms. Michael’s office address provided to

the Court is located in a northern suburb of Indianapolis. Defendants assert that Ms. Michael is not
“local counsel” and that Plaintiffs should have attempted to retain local counsel instead. Judges in
the Northern District of Indiana have rejected this argument. D.D.M., 2020 WL 6826490, at *7;
E.U. ex rel. Uhrina v. Valparaiso Cmty. Sch., No. 2:07-cv-238, 2008 WL 2626786, at *7 (N.D.
Ind. June 27, 2008). A total of three hours spent over two days traveling between Indianapolis and
northwest Indiana is reasonable travel time.

2 Defendants challenge other CMK entries in their motion, but while those entries appeared on an earlier invoice sent
to Defendants, those entries are not in Plaintiffs’ billing records as submitted to the Court in their request for an award
of fees.
Regarding Ms. Kerr’s travel, however, Defendants have a stronger argument, and one to
which Plaintiffs did not respond. Ms. Kerr is based in Texas. Per Texas tradition, she billed for
half of the ten hours she spent traveling on March 2, 2019. The Court finds that billing even a
reduced five hours for an attorney to travel from Texas to Indiana to attend a hearing is

unreasonable. The Court reduces the hours from 5.0 to 1.5.
c. Overstaffing
Defendants argue that Plaintiffs’ use of three partner-level attorneys in this case was
unwarranted. Defense counsel Monica J. Conrad submitted an affidavit in which she states that, in
her and her partner’s experience, the majority of administrative hearings held before IHOs are
staffed by one attorney for each party. (Aff. Monica J. Conrad ¶¶ 2, 4, ECF No. 74-1). Ms. Conrad
further states that her co-counsel, Stephanie Slone, was present at the hearing for training purposes
and Ms. Slone’s training time was not billed to the client. Id. at ¶¶ 5-6. Ms. Conrad also avers that
this case “was not unusually complex and did not involve an unusual amount of witnesses or
evidence.” Id. at ¶ 7.

In contrast, special education attorney Pamela Cleary stated in her declaration that “the
time expended in the instant matter was particularly reasonable and necessary for a vigorous and
capable representation of the student in pursuit of a Free Appropriate Public Education.” (Decl.
Benjamin Hinerfeld Ex. 5 ¶ 13, ECF No. 53-1).
Defendants first submit that Ms. Kerr’s and Mr. Blessing’s billed hours should be
disallowed in their entirety. To be sure, it is sometimes appropriate to disallow “time spent by two
partners simultaneously doing the same thing,” particularly in a straightforward case. Montanez v.
Simon, 755 F.3d 547, 555 (7th Cir. 2014). However, “[u]se of more than one lawyer is common in
legal practice. Consultation among lawyers ensures that they do not overlook significant facts or
inquiries.” Bohen v. City of E. Chi., 666 F. Supp. 154, 157 (N.D. Ind. 1987). If Ms. Kerr and Mr.
Blessing had not performed any work on this case at all, Ms. Michael would surely have performed
at least some of their work. A blanket disapproval of Ms. Kerr’s and Mr. Blessing’s time is
inappropriate.

Defendants also argue that even if some of Ms. Kerr’s and Mr. Blessing’s billed hours are
allowed there are certain billing entries that should be disallowed as unnecessarily duplicative.
They challenge 1.58 hours spent reviewing filings, 10.94 hours spent reviewing each other’s work,
4.74 hours spent communicating with each other, and 81.82 hours spent in court hearings and
conferences. As noted above, having two attorneys on a case is not abnormal. Communication
between attorneys and the collegial review of each other’s work is a natural result of working with
co-counsel. The Court does not find this time to be duplicative, with the exception of all three
attorneys being present at the hearing on February 26, 2019. Two attorneys would have been
sufficient. The Court disallows Ms. Kerr’s 8.0 hours billed for attending the hearing on that date.
d. Vague Entries

Billing entries should identify the general subject matter of how the time was spent.
Greenfield Mills, Inc. v. Carter, 569 F. Supp. 2d 737, 745 (N.D. Ind. 2008) (quoting Hensley, 461
U.S. at 437 n.12 (1983)). Defendants object to four billing entries in February 2019 for 10.0 hours
each of paralegal services that provide no detail as to the work performed. This objection is well-
taken, and the Court disallows 40.0 hours of billing entries.
e. Irrelevant Entries
Defendants also object to 2.93 hours of billing entries related to (1) communications by
Plaintiffs’ counsel to a partner at defense counsels’ firm (who had not appeared in this matter), (2)
research on Indiana Small Claims Court rules, and (3) case research into a possible ADA claim.

As detailed above, the small claims court matter is intertwined with K.W.’s suit in search
of FAPE. Further, the fact that no ADA claim arose does not mean that attorney time was not well
spent researching the issue. Sometimes, research leads to the conclusion that a particular claim is
not appropriate, but that does not mean that the attorney was ill-advised to research the claim. The
Court will allow those billing entries. The Court agrees, however, that communication with the
partner at defense counsels’ firm should be disallowed. The partner had not entered an appearance
in this matter, and Plaintiffs’ do not defend these entries. The Court will disallow 2.0 hours.
f. Printing Costs
Defendants challenge Plaintiffs’ request for the printing and binding of materials for the
hearing. Plaintiffs counter that costs of trial exhibits and binders are reimbursable, citing 20 U.S.C.

§1415(i)(3)(B)(i)(I) and Baxter Int'l v. McGaw, Inc. in support. No. 95 C 2723, 1998 WL 102668,
at *3 (N.D. Ill. Mar. 3, 1998) (“Courts have long permitted taxation as costs those sums expended
for exemplification and copies of papers necessarily obtained for use in the case so long as the per
copy charge is reasonable.”). Plaintiffs have not provided the Court with the per copy charge or
any way to determine the reasonability of the cost. The Court will not award these costs.
2. Federal Litigation
Defendants argue that Plaintiffs should receive no attorney fees and costs related to the
federal litigation, noting that Defendants made an offer of settlement of the fees before this federal

3 Defendants also objected to an entry for 0.1 hours, but Plaintiffs have removed that entry from their billing invoice.
litigation was initiated. This argument is better suited for the Court’s analysis on degree of success,
below. Defendants argue in the alternative that there are improper billing entries for clerical work,
travel, overstaffing, and excessive or duplicative time.
a. Clerical Work

Defendants identify many entries regarding clerical matters, such as scheduling a
deposition and associated travel, Bates-stamping documents, and making court filings. The Court
will allow 0.5 hours of paralegal time spent finalizing documents, but will disallow the remaining
8.41 hours of paralegal time and 1.2 hours of Ms. Kerr’s time.
b. Travel Time and Expenses
Defendants take issue with Ms. Kerr traveling from Texas to attend a deposition in this
matter, which was also attended by Ms. Michael. Though the Court, above, found no issue in
general with having two attorneys on a case, in this instance, flying in a second partner-level
attorney from Texas was excessive. The Court disallows 7.34 hours and $782.89 in expenses.
c. Overstaffing

At the federal level, Plaintiffs added a fourth partner-level attorney. The 0.1 hour spent
discussing the addition of yet another attorney to this case will be disallowed, as the existing
attorneys should have either been able to handle the case themselves or not pass this cost on to
their client. Defendants challenge 7.13 hours spent reviewing co-counsel’s work and 5.23 hours
spent either on calls with each other or appearing with multiple attorneys before the Court. The
Court does not find any of this time to be excessive and in need of trimming.
Plaintiffs do not respond to Defendants’ contention that Mr. Blessing spent 40.75 hours
drafting a motion for summary judgment that was never filed. It appears that this work was

4 The Court adds in here the 2.0 hours spent attending the deposition, which Defendants challenged in a separate
section of their response to Plaintiffs’ motion.
duplicative of Mr. Hinerfeld’s drafting of Plaintiffs’ motion for fees. Accordingly, the associated
40.75 hours of billing entries are disallowed.
d. Excessive or Duplicative Time
Defendants believe that the two identical entries for 0.4 hours spent by Ms. Michael

emailing Plaintiffs with a cases status update are duplicative. With no response by Plaintiffs, the
Court agrees and will disallow one of the entries as duplicative.
Regarding a notice of deposition, both Ms. Kerr and a paralegal billed for drafting it and
sending email regarding it. Ms. Kerr billed 1.0 hour, and the paralegal billed 0.4 hours. Ms. Kerr
billed another 0.3 hours for revising the notice. The Court reduces Ms. Kerr’s time by 0.5 hours,
as the time billed appears excessive. Similarly, time was billed regarding a notice of intent to file
a motion for summary judgment by Ms. Kerr and a paralegal. Given the simplicity of the
document, the Court reduces Ms. Kerr’s time to 0.2 and the paralegal’s time to 0.3.
e. Motion to Compel
In their reply, Plaintiffs include a request for attorney fees incurred since October 4, 2020.

It appears that 5.7 hours were spent regarding a motion to compel, which was filed by Defendants
and resolved by the parties without Court order. Because Federal Rule of Civil Procedure 37(a)(5)
provides for fee-shifting regarding motions to compel and because the parties resolved this matter
on their own, the Court finds it unreasonable to shift the costs on time spent on this motion.
The Court does not find the other challenged entries to be excessive.
B. Reasonable Hourly Rates
Plaintiffs, as the parties seeking an award of fees, bear the burden of showing the
reasonableness of the hourly rates claimed. Bratton, 943 F. Supp. 2d at 902 (citing Spegon, 175
F.3d at 550). But, “[o]nce an attorney provides evidence of [his or her] billing rate, the burden is
upon the defendant to present evidence establishing ‘a good reason why a lower rate is essential.’”
People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1313 (7th Cir. 1996)
(citing Gusman v. Unisys Corp., 986 F.2d 1146, 1151 (7th Cir. 1993)). Courts presume that
attorneys’ actual billing rates are appropriate to use as market rate. See Pickett v. Sheridan Health

Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011).
Plaintiffs ask for the following rates: $325 per hour for Attorney Catherine Michael’s time,
$300 per hour (non-hearing time) and $325 per hour (hearing time) for Attorney Thomas
Blessing’s time, $430 per hour for Attorney Sonja Kerr’s time, $375 per hour for attorney
Benjamin Hinerfeld’s time, $95 per hour for paralegals Sarah Chapman’s and Lori Elmlinger’s
time, and $110 per hour for paralegal Jacqueline Goehler’s time.
Plaintiffs’ November 14, 2018 contract for Ms. Michael’s legal services provides that
“[A]ttorney time will be billed at $285 per hour for prehearing work and $295 per hour for the due
process hearing.” (Defs.’ Ex. 24 ¶ 3, ECF No. 68-1). The contract dictated that Ms. Michael could
bring in co-counsel “upon the same terms as set out herein” and that paralegal fees would be billed

at $90 per hour. Id. at ¶ 8. Plaintiffs agreed to pay a $100 retainer and to monthly pay $100 toward
the balance. Id. at ¶ 2.
By affidavit, Ms. Michael has shown that her current rate is $325 per hour and Ms. Kerr’s
rate is $430 per hour. (Decl. Benjamin Hinerfeld Ex. 4 ¶ 7, ECF No. 53-1; Decl. Benjamin
Hinerfeld Ex. 4 App’x B ¶ 3, ECF No. 53-1). She further states that school districts and their
insurance carriers routinely pay her hourly rate of $325 and that she is familiar with rates charged
by Indiana special education attorneys and her rate is reasonable, customary, and within the range
of prevailing rates in the area. (Decl. Benjamin Hinerfeld Ex. 4 ¶¶ 9, 11, ECF No. 53-1). Appendix
B to Ms. Michael’s affidavit shows that the 2020 hourly rate for paralegal assistance was $90.
(Decl. Benjamin Hinerfeld Ex. 4 App’x B ¶ 8, ECF No. 53-1).
Attorney Hinerfeld’s declaration provides that, though he normally charges $425 for
Philadelphia-area clients, he has billed his time at $375 in this case to reflect Indiana’s legal

market. (Decl. Benjamin Hinerfeld, ¶¶ 11, 22, ECF No. 53-1).
In a 2019 affidavit, special education attorney Pamela Cleary stated that she charged $300
in Indiana, which was consistent with or lower than the prevailing rate; she affirmed the
reasonability of $295, $300, and $400 as hourly rates for Ms. Michael, Mr. Blessing, and Ms. Kerr,
respectively. (Decl. Benjamin Hinerfeld Ex. 5 ¶¶ 25, 28, ECF No. 53-1)
The best evidence of attorney rates are what the attorneys actually charge. Here, there is
direct evidence that Ms. Michael entered a contract at the end of 2018 to provide her services at
$285 per hour for prehearing time and $295 for hearing time and to provide paralegal services at
$90 per hour. The contract further provided that other attorneys might be brought on the case on
the same terms. Though there is evidence that the higher rates requested by the attorneys are

reasonable, the Court cannot ignore this evidence that the lower rates are also reasonable and
agreed to by Plaintiffs and Ms. Michael.
Plaintiffs identify that their payment plan was a modest monthly payment of $100 and
argue that the contract is essentially a contingency fee arrangement. It is undeniable that it would
take more than a lifetime to pay the nearly $300,000 in attorney bills as invoiced in this case at the
agreed monthly rate. However, if Plaintiffs’ counsel viewed this as a contingency fee contract, for
what purpose were the hourly rates included if not to indicate how much the attorney’s time was
worth? The Court denies the request for higher fees and finds that, for this case, the reasonable
rate for attorneys Michael, Kerr, and Hinerfeld is $285 per hour, except that the rate for time billed
for the due process hearing is $295. The reasonable hourly rate for paralegal time billed by this
firm is $90.
Regarding Mr. Blessing, there is a separate, undated, agreement with Plaintiffs for his legal
services, which provides for $300 and $325 hourly rates for non-hearing and hearing time,
respectively. (Pls.’s Ex. 12, App’x A, p. 25, ECF No. 53-1). This agreement states that it does not

apply to any action in federal court. Id. at 1. The agreement did not cover a rate for paralegal
services. As with the other attorneys, this agreement provides excellent evidence of the market rate
for Mr. Blessing’s legal services, and the Court will award this rate. Although paralegal services
are not addressed in this agreement, the Court finds the billed hourly rate of $110 to be reasonable.
Thus, the lodestar calculation for the Due Process Complaint proceeding is as follows:
˗ Ms. Michael: 226.3 hours at $285 per hour $64,495.50
˗ Ms. Michael (hearing time): 77.2 hours at $295 per hour $22,774.00
˗ Ms. Kerr: 55.65 hours at $285 per hour $15,860.25
˗ Ms. Kerr (hearing time): 25.81 hours at $295 per hour $7,613.95
˗ Mr. Blessing: 158.35 hours at $300 per hour $47,505.00
˗ Mr. Blessing (hearing time): 47.5 hours at $325 per hour $15,437.50
˗ CMK Paralegal time: 39.5 hours at $90 per hour6 $3,555.00
˗ MJC Paralegal time: 3.7 hours at $110 per hour $407.00
SUBTOTAL $177,648.20
Additionally, the lodestar calculation for the federal litigation is:
˗ Ms. Michael: 14.8 hours at $285 per hour $4,218.00
˗ Ms. Kerr: 39.98 hours at $285 per hour $11,394.30
˗ Mr. Blessing: 18.45 hours at $300 per hour $5,535.00
˗ Mr. Hinerfeld: 83.49 hours at $285 per hour $23,794.65
˗ CMK Costs: $1,329.59
˗ MJC Paralegal time: 11.9 hours at $90 per hour $1,309.00
SUBTOTAL $48,089.94
Thus, the total lodestar amount is $225,738.14.

5 This citation is to the page number of the appendix; in ECF numbering, it is page 187 of ECF No. 53-1.
6 CMK listed this time under expenses.
C. Degree of Success
The Court may make a downward adjustment of the lodestar amount upon consideration
of the prevailing party’s degree of success. See Ryan M. v. Bd. of Educ. of City of Chicago, Dist.
299, 731 F. Supp. 2d 776, 795 (N.D. Ill. 2010). Defendants posit that a 25% reduction would be

appropriate and identify that Plaintiffs did not receive their requested relief of compensatory
education, 1:1 aide, extended school year services, social work, counseling and psychological
services, occupational therapy, reimbursement, and evaluation for ASD. Plaintiffs, instead of
focusing on the relief granted, look at the issues decided, noting that they prevailed in whole or in
part on all nine of the issues and arguing that no reduction should be made.
A middle course between the parties’ positions is appropriate. Plaintiffs did obtain a
favorable result and prevailed on the issues (in whole or in part), but they did not receive some of
the significant remedies that they had requested. “Fifteen percent is a common reduction when a
plaintiff has achieved substantial, but not complete relief.” Ryan M., 731 F. Supp. 2d at 795. The
Court orders a 15% reduction of the lodestar amount, yielding $191,877.42 ($151,000.97 at the

agency level and $40,876.45 at the federal level).
Defendants also argue that Plaintiffs’ degree of success should be measured against
rejected settlement offers. Defendants concede that their settlement offer was one day late to be
made within the time limit set by the IDEA at 20 U.S.C. § 1415(i)(3)(D). If such an offer had been
made, fees incurred after the date of the offer would be precluded from any award if the end result
were less favorable than the offer made. Defendants’ offer was ten days before trial, and the statute
requires “more than ten days.”
Defendants also contend that Plaintiffs protracted this litigation. Both parties failed to come
to a settlement before the IHO rendered a decision. Defendants identify that Plaintiffs held out for
a 1:1 aide, which they did not receive, but Defendants also refused admit to the denial of FAPE
and to agree to definitively drop the matter of pursuing property damages fees from Plaintiffs. It
is regrettable that the parties could not resolve this matter without judicial intervention, but the
lack of resolution rests evenly on the shoulders of all parties. The Court will not lower the fee

award on the basis of the rejected settlement offers.
CONCLUSION
Based on the analysis above, the Court GRANTS in part and DENIES in part both
Defendants’ Motion for Summary Judgment [DE 50] and Plaintiffs’ Motion for Attorneys’ Fees
and Costs [DE 52]. The Court AWARDS $191,877.42 in attorneys’ fees and costs for the due
process hearing and this federal litigation. The Court directs the Clerk of Court to enter judgment
in the above amount in favor of Plaintiffs and close this case.
SO ORDERED on September 30, 2021.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN, JUDGE
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10161542. Public record. Not legal advice.