The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CATHERINE GRESKO, et al.,
Plaintiffs, No. 1:19-cv-00638 (NLH)(KMW)
v. OPINION
PEMBERTON TOWNSHIP BOARD OF
EDUCATION,
Defendant.
APPEARANCES:
ROBERT CRAIG THURSTON
THURSTON LAW OFFICES LLC
100 SPRINGDALE ROAD A3
PMB 287
CHERRY HILL, NJ 08003
Attorney for Plaintiffs.
VICTORIA SIMOES BECK
WILLIAM CLAWGES MORLOK
PARK MCCAY P.A.
9000 MIDLANTIC DRIVE
SUITE 300
MOUNT LAUREL, NJ 08054
Attorneys for Defendant.
HILLMAN, District Judge
This matter arises from an administrative due process
proceeding regarding special education services under the
Individuals with Disabilities Education Act, 20 U.S.C. §§1400 et
seq. (“IDEA”). The parties reached a settlement in the
underlying case and Plaintiffs Catherine and Joseph Gresko now
seek attorney’s fees and costs from Defendant Pemberton Township
Board of Education. Before the Court is Plaintiffs’ motion for
summary judgment (ECF No. 31) and motion to strike (ECF No. 35),
both of which Defendant has opposed, (ECF No. 34 and 39), as
well as their request for redactions (ECF No. 38).
For the reasons expressed below, Plaintiffs’ motion to
strike will be denied, and their motion for summary judgment
will be granted in part, with Defendant ordered to reimburse
Plaintiffs’ counsel a reduced amount of the fees requested. The
Court further reserves decision on the redaction request until
Plaintiff has filed a proper motion.
Background
The Court takes the relevant facts below from the parties’
statements of material fact submitted pursuant to Local Civil
Rule 56.1(a) and notes disputes where appropriate. Plaintiffs
are the parents of J.G., a child with a disability eligible for
special education and related services under the IDEA. J.G.,
who was approximately three years old at the time this dispute
began, attended the Pemberton Early Childhood Education Center
starting in January 2018. On January 3, 2018, J.G.’s mother,
Catherine, attended a meeting held to create an Individualized
Education Program (“IEP”), a program laying out the in-school
services J.G. would receive to address his disability. The
initial IEP offered for J.G. involved the following: (1) 28
group sessions of speech language therapy for 15 minutes per
session over the course of the year, for a total of 420 minutes
per year; and (2) 16 group sessions of occupational therapy for
30 minutes per session over the course of the year, for a total
of 480 minutes per. J.G.’s father, Joseph, signed off on the
implementation of this initial IEP on January 17, 2018, and J.G.
began receiving services shortly after.
Over the following weeks, Catherine came to believe that
J.G. was not progressing, and requested that the school increase
his services to multiple times per week and switch his speech
therapy sessions to “one-on-one.” With no change having yet
been made by late March of 2018, Plaintiffs, without an
attorney, prepared and filed a Parental Request for Mediation
Only with the New Jersey Office of Special Education Programs.
In the mediation request, Plaintiffs requested J.G.’s services
be increased “to 15 minutes x 4 days a week 1:1 not group.”
(ECF No. 31-2 at ¶ 14).
On April 16, 2018, another IEP meeting was held. At that
meeting, Defendant put forth a proposed new IEP that would
provide for “individual speech and language services 4x per week
for 15 minutes (60 minutes per week, total) and individual
occupational therapy services for 30 minutes per week.” (Defs.
SOMF at ¶ 4).1 Following that meeting, Catherine emailed
Christina Hale, Defendant’s Assistant Director of Special
Services, discussing potential dates for a mediation session if
necessary and stating “me and school had a iep meeting today to
discuss a agreeable iep. There is a few things I’m waiting to
get clarification on and if it’s agreeable then mediation would
not be necessary.” Id. at 5. The parties did not reach a final
agreement on the proposed IEP that week, and on April 23, 2018,
a mediation session was held; no final settlement was reached
during the mediation session either, and the mediation was
converted into a due process hearing to be held before an
Administrative Law Judge.
Following a subsequent round of communications and
negotiation between the parties, Plaintiffs decided to engage
1 Plaintiffs’ statement of material facts excludes mention of
this meeting or the proposed IEP, and Plaintiffs did not
properly dispute Defendant’s statements of fact regarding the
meeting or the proposed IEP, as they failed to file a response
laying out objections or contradictory evidence as required by
the local rules. Local Rule 56.1 (“The movant shall respond to
any such supplemental statement of disputed material facts” by
“addressing each paragraph of the movant's statement,
indicating agreement or disagreement and, if not agreed, stating
each material fact in dispute and citing to the affidavits and
other documents submitted in connection with the motion; any
material fact not disputed shall be deemed undisputed for
purposes of the summary judgment motion.”). Given this failure,
and the fact that Plaintiffs have not disputed the authenticity
of the evidence submitted by Defendant in support of these
statements of fact, the Court will accept these facts regarding
the proposed IEP as true and undisputed for purposes of this
motion.
legal counsel, and hired Robert C. Thurston of Thurston Law
Offices LLC to represent them on behalf of J.G. on May 8, 2018.
Thurston filed his appearance in the due process proceeding, and
then began drafting an amended due process complaint and sent a
request to Defendant for all of J.G.’s records.
On May 17, 2018, Plaintiffs filed their amended due process
complaint, alleging violations of the IDEA, the New Jersey Law
Against Discrimination, New Jersey’s Special Education Law, the
Americans with Disabilities Act, the Rehabilitation Act, and 42
U.S.C. § 1983. The complaint sought compensatory education for
J.G. and a school-funded AAC device, as well as $150,000 in
compensatory damages and $500,000 in punitive damages. (ECF No.
10-3 Ex. D). On May 23, Defendant filed its Answer, in which it
raised several affirmative defenses. After a pre-hearing
conference, the matter was transferred to Administrative Law
Judge Crowley.
On May 29, Plaintiffs submitted a proposed settlement
agreement to Defendant. The proposal called for 5 speech
therapy sessions a week for 20 minutes per session, 1 hour of
occupational therapy a week, $5,000 in compensatory tutoring
services, and that Defendant pay for a variety of other services
and Plaintiffs’ attorney’s fees. This proposal was not accepted
by Defendant. On June 6, 2018, Plaintiffs then filed a motion
to strike Defendant’s affirmative defenses; Judge Crowley
ultimately dismissed the motion without prejudice to allow for
discovery on those arguments, but noted that the defenses
“appear to be inapplicable to this matter,” and ordered
Defendant to file a motion regarding affirmative defenses after
discovery was completed. (ECF No. 10-3 Ex. K at 2). Defendant
failed to do so, and the defenses were later barred.
Over the following months, the parties engaged in
negotiations regarding a new IEP, and began the discovery
process. Finally, Judge Crowley converted the previously
scheduling hearing, scheduled for September 17, 2018, into a
settlement conference. At the conference, the parties finally
reached an agreeable settlement; however, attorney’s fees and
costs were explicitly not included, because Judge Crowley stated
that she did not have the authority to grant them.
Judge Crowley requested that the parties place the
agreement into writing for her to enter as a final Order, which
Thurston agreed to do. That same day, Thurston drafted a
proposed settlement based on the agreement reached in the
conference, which he sent to Judge Crowley without giving
Defendant’s counsel an opportunity to review or provide
comments. Judge Crowley then entered an Order approving the
settlement, following which Defendant’s counsel contacted her
and informed her that they had not been able to review the draft
prior to its submission and had concerns about certain language.
The Order was rescinded, and after over two weeks of further
negotiation to reach agreeable language, a final agreement was
submitted on October 3, 2018. The final Settlement Agreement
provided for “20 minutes of speech-language therapy four times
(4x) per week” and “30 minutes of occupational therapy in a one-
to-one (1:1) setting per week.” (Pl. SOMF at ¶ 76).
Judge Crowley entered a final Order approving the
settlement on November 23, 2018. Plaintiffs then filed the
present action seeking attorney’s fees on January 17, 2019, (ECF
No. 1). Over the following months, the parties engaged in
disputes regarding discovery requests made by Defendant;
ultimately, Defendant filed a Motion to Compel Discovery. (ECF
No. 16). After briefing on the motion was completed, Magistrate
Judge Karen Williams entered a Discovery Order, largely siding
with Defendant and ordering Plaintiffs to produce certain
documents and respond to interrogatories. (ECF No. 20).
Following further discovery, Plaintiffs filed their present
motion for summary judgment on March 24, 2020. (ECF No. 31).
Defendant filed its objection to the motion on May 22, 2020,
(ECF No. 34). Following this objection, Plaintiffs not only
filed their reply brief in support of the motion, (ECF No. 36),
but also filed a motion to strike numerous paragraphs from
Defendant’s opposition brief and exhibits attached to it. (ECF
No. 35). Defendant opposed this motion to strike. (ECF No.
39). Finally, on June 1, 2020, Plaintiffs filed a document
requesting redactions to certain exhibits they had filed in
support of their motion. (ECF No. 38).
Discussion
A. Subject-Matter Jurisdiction
As an action seeking attorney’s fees under 20 U.S.C. §
1415, the Court has jurisdiction pursuant to 20 U.S.C. §
1415(i)(3)(A), which grants district courts jurisdiction over
any “action brought under this section.” J.O. ex rel. C.O. v.
Orange Tp. Bd. of Educ., 287 F.3d 267, 271 (3d Cir. 2002).
B. Plaintiffs’ Request for Redactions
The Court first addresses Plaintiffs’ filing requesting
redactions to certain exhibits they filed in support of their
motion for summary judgment. (ECF No. 38). In this District,
Local Civil Rule 5.3 governs motions to seal or otherwise
restrict public access to materials filed with the Court and
judicial proceedings themselves. To redact a docket entry, the
Rule requires that the party file a motion to redact, which must
be publicly filed and “shall describe (a) the nature of the
materials or proceedings at issue, (b) the legitimate private or
public interests which warrant the relief sought, (c) the
clearly defined and serious injury that would result if the
relief sought is not granted, and (d) why a less restrictive
alternative to the relief sought is not available.” L. Civ. R.
5.3(c)(2). The moving party must submit a proposed order that
contains proposed findings of fact and conclusions of law.
L. Civ. R. 5.3(c)(3).
Here, Plaintiffs have submitted nothing other than a list
of previously filed documents they now wish to have replaced
with redacted versions, and redacted versions of those
documents. With no further information or related motion, the
Court will not grant the request. Plaintiffs will be permitted
to file a motion which follows the requirements of Local Rule
5.3, at which point the Court will address their request.
C. Motion to Strike
The Court turns next to Plaintiffs’ motion to strike
certain arguments and exhibits advanced by Defendant in their
briefing. Plaintiff requests that the Court strike 11 arguments
from Defendant’s brief in opposition to summary judgment, as
well as 13 exhibits Defendant filed in support of that brief.
Defendant argues that Plaintiffs’ motion to strike is
procedurally improper.
The Court agrees with Defendant, and will deny Plaintiffs
motion. Rule 12(f), which Plaintiffs cite as the basis for
their motion, provides that a party may move the court to
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed.
R. Civ. P. 12(f) (emphasis added). While Plaintiffs point to
dictionary definitions to argue that briefs and related exhibits
count as “pleadings,” they entirely disregard that the Federal
Rules of Civil Procedure themselves include a list of permitted
“pleadings,” which does not include motions, briefs supporting
motions, or attached exhibits, and addresses motions under a
separate subsection. See Fed. R. Civ. P. 7.
Numerous other courts in this district have similarly
reached the conclusion that a motion to strike another party’s
motion, supporting brief, or exhibits attached to a motion is
procedurally improper. See, e.g., Kaplan v. Saint Peter's
Healthcare System, No. 13-2941 (MAS) (TJB), 2019 WL 1923606, at
*6 (D.N.J. Apr. 30, 2019) (“[B]riefs are, by their nature,
argumentative and sometimes contentious filings, [thus], it is
generally held that a brief—as opposed to other forms of
pleadings—typically will not be considered a ‘pleading’ which is
properly the subject of a motion to strike.”); In re Amarin
Corp. PLC., 13-CV-6663 FLW TJB, 2015 WL 3954190, at *3 (D.N.J.
June 29, 2015) (“[T]he Court denies Plaintiff's motion [to
strike], because Plaintiff does not move to strike any
statements from a pleading; rather, Plaintiff seeks to strike
statements made in a reply brief.”); In re Schering-Plough
Corp./Enhance Sec. Litig., No. 08–CV–397 (DMC), 2009 WL 1410961,
at *2 (D.N.J. May 19, 2009) (“Rule 12(f) speaks only in terms of
striking matters from ‘a pleading,’ and makes no provision for
materials attached to, for example, motions to dismiss or to
strike. Accordingly, because Plaintiffs attempt to strike
declaration exhibits attached to Defendants' motions, rather
than to parts of a pleading, Plaintiffs' motion to strike is
procedurally incorrect and should be denied.”). Accordingly,
Plaintiffs’ motion to strike will be denied.
However, the Court must still assess whether the evidence
relied upon by the parties can be considered on a motion for
summary judgment. After reviewing the parties’ briefs, the
focal issues seem to center on a series of documents relating to
negotiations between the parties prior to the initial April 23,
2018 IEP meeting, and an email sent by Thurston to his clients.
Plaintiffs present two arguments for why Defendant’s
evidence related to the parties’ settlement negotiations before
Thurston was hired is inadmissible and should not be considered
by the Court. First, they argue that the Court may not consider
such evidence under Federal Rule of Evidence 408, which governs
whether evidence related to compromise negotiations is
admissible. However, the Third Circuit has been clear in
holding that evidence of settlement negotiations is relevant and
admissible for assessing counsel’s effectiveness for purposes of
a fee petition:
“While evidence of settlement negotiations is inadmissible
to prove the merit or lack of merit of a claim, the use of
such evidence as bearing on the issue of what relief was
sought by a plaintiff does not offend the clear terms of
Rule 408. Such evidence can be relevant when comparing what
a plaintiff ‘requested’ to what the plaintiff was
ultimately ‘awarded’ . . . While evidence of settlement
negotiations is only one indicator of the measure of
success, it is a permissible indicator that is not
precluded by Rule 408.” Lohman v. Duryea Borough, 574 F.3d
163, 167–68 (3d Cir. 2009).
Plaintiffs’ argument that Lohman does not apply here,
because it was a fee dispute in a civil rights case rather than
under the IDEA, is without merit; the Lohman court’s analysis
focused on admissibility under Rule 408, and was not limited to
specific fee-shifting provisions or specific statutes.
Second, Plaintiffs argue that evidence related to
settlement discussions cannot be considered because New Jersey’s
administrative code provides that in the context of special
education disputes, “[d]iscussions that occur during the
mediation process shall be confidential and shall not be used as
evidence in any subsequent . . . civil proceedings.” N.J.A.C.
§ 6A:14-2.6(d)(7). Similarly, they argue that the parties
signed a confidentiality pledge as part of the Settlement
Agreement, as provided for in § 6A:14-2.6(d)(8). The Court
first notes that Plaintiffs themselves have referenced specific
stances taken by Defendant during the mediation in their own
statement of facts, (see ECF No. 31-2 at ¶ 16), dramatically
undercutting their own arguments.
However, the Court will address the confidentiality
argument. These New Jersey provisions are identical to, and
presumably taken from, parallel provisions of the IDEA itself,
20 U.S.C. §§ 1415(e)(2)(G) and (e)(2)(F). At least two other
courts have discussed the impact of those provisions on what
evidence may be considered in similar contexts.
In J.D. ex rel. Davis v. Kanawha Cty. Bd. of Ed., 571 F.3d
381 (4th Cir. 2009), a school board appealed a district court’s
award of attorney’s fees following an IDEA due process hearing,
arguing that “the relief finally obtained by the parents [was]
not more favorable” than the board’s earlier settlement offer.
Id. at 386. In granting attorney’s fees, the district court had
refused to consider evidence of the board's settlement offer,
which offered to settle “on the terms and conditions set forth
in the settlement agreement reached but not signed at the
mediation session,” citing § 1415(e)(2)(G). Id. at 385. The
Fourth Circuit agreed, stating that the confidentiality
provisions demonstrated congressional intent to strongly
encourage mediation under the IDEA. Id. at 386.
The district court in I.W. by and through Karen K. v.
Hardin-Jefferson Independent Sch. District, No. 1:15-CV-332,
2017 WL 5644386 (E.D. Tex. Jan 4, 2017) reached a different
conclusion under slightly different facts. There, the
plaintiffs argued that a settlement offer was inadmissible,
citing to Kanawha. Id. at *7. The court disagreed, finding
that the facts were distinguishable and holding that the
information could be considered. Id. Most importantly, the
Court noted that the settlement offer in question was negotiated
and drafted entirely after the mediation had taken place, and
did not incorporate any discussions from the mediation or any
terms negotiated during it. Id.
The Court finds that the present facts are more similar to
those found in the latter case. None of the documents in
question reference or rely on any discussion that took place at
the April 23, 2018 mediation — in fact, all three exhibits pre-
date the mediation session. Defendant’s Exhibit A is an email
conversation that took place on March 28 and 29, a month earlier
than the mediation. (ECF No. 34-5 Ex. A). Exhibits B and C are
both dated April 16, a week prior to the mediation; in fact,
Exhibit C involves Plaintiff Catherine Gresko stating that the
parties had just discussed a potential IEP, represented in
Exhibit B, and that “if it’s agreeable then mediation would not
be necessary.” (Id. at Ex. B and C). Simply mentioning that
mediation might, or might not, occur in the future is
insufficient to restrict the Court from considering a document.
Plaintiffs also argue that an email exhibit cannot be
considered because they violate the attorney-client privilege.
This argument can be dismissed quickly, as the email they claim
is privileged discusses only an increase in Thurston’s billed
fee and the parties’ current billing arrangement, (ECF No 34-5
Ex. N), and “[t]he attorney-client privilege does not shield fee
arrangements.” Montgomery Cty. v. Micro Vote Corp., 175 F.3d
296, 304 (3d Cir. 1999).
With these questions decided, the Court now turns to
Plaintiffs’ motion for summary judgment.
D. Legal Standard for Motions for Summary Judgment
Summary judgment is appropriate where the Court is
satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
interrogatory answers, demonstrate that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A fact is “material” if, under the governing
substantive law, a dispute about the fact might affect the
outcome of the suit. Id. In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has
met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is a
genuine issue for trial. Id. Thus, to withstand a properly
supported motion for summary judgment, the nonmoving party must
identify specific facts and affirmative evidence that contradict
those offered by the moving party. Anderson, 477 U.S. at 256-
57. A party opposing summary judgment must do more than just
rest upon mere allegations, general denials, or vague
statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001).
E. Plaintiffs’ Fee Petition
Plaintiff’s brought their fee petition pursuant to 20
U.S.C. § 1415(i)(3)(B)(i)(I), which provides that “[i]n any
action or proceeding brought under [§ 1415], the court, in its
discretion, may award reasonable attorneys’ fees as part of the
costs . . . to a prevailing party who is the parent of a child
with a disability.” Accordingly, there are two questions
presented to the Court: whether Plaintiffs’ are “prevailing
parties,” and whether the fees and costs requested are
“reasonable.” These are both questions of law that are
appropriately determined on a motion for summary judgment. K.N.
v. Passaic City Bd. of Ed., No. 11–399 (JLL), 2011 WL 5157280,
at *5 (D.N.J. Oct. 29, 2011) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251–52 (1986)).
1. Plaintiffs qualify as “prevailing parties” and are
entitled to reimbursement of their reasonable attorney’s
fees and costs.
In assessing a fee petition, the Court must first assess
whether Plaintiffs qualify as “prevailing parties.” To
“prevail” under the IDEA, “a party must obtain a ‘material
alteration of the legal relationship of the parties’ that is
‘judicially sanctioned.’” M.R. v. Ridley School District, 868
F.3d 218, 224 (3d Cir. 2017) (quoting Raab v. City of Ocean
City, 833 F.3d 286, 292 (3d Cir. 2016)). A party is considered
a prevailing party “if they succeed on any significant issue in
litigation which achieves some of the benefit the parties sought
in bringing suit.” S.P. v. Penn. Dept. of Ed., 731 F. App’x.
113, 115 (3d Cir. 2018) (quoting J.O. v. Orange Twp. Bd. of Ed.,
287 F.3d 267, 271 (3d Cir. 2002)).
Defendant raises three arguments for why Plaintiffs do not
qualify as prevailing parties and are not eligible for
attorney’s fees: (1) they “only achieve[d] modest success,” and
therefore there was no material alteration of the legal
relationship of the parties; (2) the Administrative Law Judge
did not make a finding that they were a prevailing party; and
(3) Plaintiffs are ineligible under 20 U.S.C. § 1415(i)(3)(D)(i)
because they rejected an earlier offer and their final relief
was not more favorable than that initial settlement offer. The
Court disagrees on all fronts, and finds that Plaintiffs qualify
as prevailing parties.
First, Defendant argues that because Plaintiffs only
achieved “modest success,” they cannot be prevailing parties.
To support this argument Defendants refers the Court to Farrar
v. Hobby, 506 U.S. 103, 118 (1992), which it cites for the
proposition that “De minimus awards are not entitled to fees.”
(ECF No. 34 at 3). However, as the Third Circuit has noted,
Farrar instead “clarified the distinction that exists between
the issue of plaintiff's eligibility for an attorney's fee award
and the amount of the attorney's fee that should be awarded.”
P.N. v. Clementon Bd. Of Educ., 442 F.3d 848, 855 (3d Cir.
2006). A party’s limited success is properly addressed in
determining the amount of fees awarded; “[r]egardless of how
substantial their success, if plaintiffs succeeded on a
significant issue they are entitled to prevailing party status.”
Id. at 856. Here, Defendant does not appear to truly argue that
Plaintiffs did not achieve such success. Under any
interpretation of the facts, Plaintiffs achieved 20 extra
minutes of speech therapy a week — an increase in the most
essential aspect of the relief Plaintiffs sought.
Defendant next argues that because the ALJ in the
underlying due process hearing did not make a finding that
Plaintiffs were prevailing parties, they do not qualify as such.
Defendant does not provide any support for this argument, and
this is not a requirement for qualifying as a prevailing party.
Instead, a stipulated settlement is “judicially sanctioned” and
sufficient to provide prevailing party status “where it: 1)
contains mandatory language; 2) is entitled ‘Order,’ 3) bears
the signature of the [] judge, not the parties' counsel; and 4)
provides for judicial enforcement.” P.N., 442 F.3d at 853
(citing John T. ex rel. Paul T. v. Delaware County Intermediate
Unit, 318 F.3d 545, 556 (3d Cir. 2003)). Here, Judge Crowley
incorporated the Settlement Agreement into a final Order, which
bears her signature, contains mandatory language, and provides
for judicial enforcement. (ECF No. 10-4 Ex. AB). Accordingly,
it is sufficient to confer prevailing party status.
Finally, Defendant also argues that Plaintiffs are not
entitled to attorney’s fees under 20 U.S.C. § 1415(i)(3)(D)(i).
That provision provides that a parent may not receive attorney's
fees “for services performed subsequent to the time of a written
offer of settlement to a parent” if: “(I) the offer is made . .
. more than ten days before the proceeding begins; (II) the
offer is not accepted within ten days; and (III) the court or
administrative hearing officer finds that the relief finally
obtained by the parents is not more favorable to the parents
than the offer of settlement.” However, Defendant has conceded
that, at the very least, Plaintiffs achieved 20 extra minutes of
speech therapy a week than was provided for in their offer —
relief that is, on its face, more favorable. For these reasons,
the Court finds that Plaintiffs are prevailing parties under the
IDEA and are entitled to reasonable attorney’s fees.
2. Plaintiffs’ attorney’s fees for the due process
proceeding will be reduced.
The next question is whether the actual fees requested by
the prevailing parties are reasonable, or require any reductions
by the Court. For the underlying due process proceeding,
Plaintiffs seek fees totaling $28,740.07. Defendant,
unsurprisingly, disputes this amount. For the reasons expressed
below, the Court will make reductions to this amount.
“The starting point for determining the amount of a
reasonable fee is the lodestar approach.” McKenna v. City of
Philadelphia, 582 F.3d 447, 455 (3d Cir. 2009) (quoting Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983)). Under the lodestar
approach, “court[s] determine[] an attorney's lodestar award by
multiplying the number of hours he or she reasonably worked on a
client's case by a reasonable hourly billing rate for such
services given the geographical area, the nature of the services
provided, and the experience of the lawyer.” S.S. Body Armor
I., Inc. v. Carter Ledyard & Milburn LLP, 927 F.3d 763, 773 (3d
Cir. 2019) (quoting Gunter v. Ridgewood Energy Corp., 223 F.3d
190, 195 n.1 (3d Cir. 2000)). “The prevailing party bears the
burden of establishing by way of satisfactory evidence, in
addition to [the] attorney's own affidavits ... that the
requested hourly rates meet this standard.” School District of
Philadelphia v. Kirsch, 722 F. App’x. 215, 229 (3d Cir. 2018)
(quoting Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir.
2001)).
“[O]nce the fee petitioner ‘submit[s] evidence supporting
the hours worked and rates claimed,’ the party opposing the fee
application has the burden to challenge the reasonableness of
the requested fee.” J.L. v. Harrison Township Bd. of Educ., No.
14-2666 (RMB/JS), 2017 WL 1954535, at *2 (D.N.J. May 11, 2017)
(quoting McKenna, 582 F.3d at 459). If sufficiently specific
objections to the requested fees are raised, “a district court
‘has a great deal of discretion to adjust the fee award in light
of those objections.’” Id. (quoting Taylor v. USF-Red Star
Exp., Inc., 212 F. App’x. 101, 111 (3d Cir. 2006)).
a. Reasonableness of counsel’s hourly rate.
The Court must first assess the hourly rate put forth for
Plaintiffs’ counsel. Fees awarded under § 1415 “shall be 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)(C).
Plaintiffs here have put forth hourly rates of $375 per
hour for work done through June 30, 2018, and $400 per hour
starting on August 1, 2018. In support of this hourly rate,
Plaintiffs first point to the experience of their counsel,
Robert Thurston. Thurston has practiced law for over thirty
years, focusing on special education law for the past ten years,
and has served as counsel in numerous other special education
cases in both state and federal courts. (ECF No. 1-1).
More importantly, Plaintiffs submit declarations from four
attorneys specializing in special education cases, Dorene J.
Philpot, John Rue, Catherine Merino Reisman, and Denise
Lanchantin Dwyer. (ECF No. 10-7, 10-8, 10-9, and 10-10). While
Philpot practices in Texas and therefore her declaration is of
less relevance here, the other three attorneys all practice
within this circuit’s geographical area. Their declarations all
support Thurston’s hourly rates, stating that they are standard
and reasonable for an attorney of his experience practicing in
the sphere of special education cases, which they state are
“complex, requiring specialized skills in litigation,
administrative law, and knowledge of an intricate regulatory
scheme.” (See ECF No. 10-9 at ¶ 22; ECF No. 10-11 at ¶ 10).
Two of the attorneys, John Rue and Denise Lanchantin Dwyer,
practice special education law within this state and district,
and declare that based on their knowledge of the relevant
market, the District of New Jersey, as well as the complexity
and specialization involved in special education cases, they
view Thurston’s $400 rate as being “on the low end.” (ECF No.
10-8 at ¶ 14; ECF No. 10-11 at ¶ 12). A third, Catherine Merino
Reisman, supports Thurston’s $400 hourly rate by noting that she
has previously had a rate of $475 approved by the District Court
for the Eastern District of Pennsylvania in a 2017 IDEA case.
(ECF No. 10-9 at ¶ 17 (citing Sch. District of Phila. v. Kirsch,
No. 14-4910, 2017 WL 131808 (E.D. Pa. Jan. 11, 2017)).
Defendant, for its part, actually “concedes that the Court
would likely find the rate of $250 to $400 an hour from a solo
practitioner litigating a straight forward matter in the Office
of Administrative Law is reasonable.” (ECF No 34 at 8-9).
Instead, Defendant only argues that Plaintiff’s counsel’s fee is
a “fiction,” because Plaintiffs themselves were not paying this
rate as part of a fee agreement between them and their counsel
and counsel does not put forth evidence that other clients are
paying this rate. Id. at 12-13.
However, Defendant’s argument is misplaced, as the Court’s
focus at this stage is on the “community market rate” rather
than the actual fees paid by the clients: “public-interest law
firms that typically charge clients below-market fees, or no
fees at all, are nonetheless entitled to compensation based on
prevailing market rates in the relevant community.” Interfaith
Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d 694, 703 (3rd Cir.
2005) (citing Student Pub. Interest Research Group v. AT & T
Bell Labs., 842 F.2d 1436, 1448 (3rd Cir. 1988)). The Court
finds that, given the evidence put forth by Plaintiffs and the
fact that Defendant has conceded that $400 is within a
reasonable range, Thurston’s hourly rates are reasonable for an
experienced attorney practicing in this specialized area of law
in the Philadelphia and southern New Jersey region.
b. Reasonableness of hours billed to the underlying due
process proceeding.
The next question for the Court is whether counsel’s billed
hours are reasonable. Plaintiffs have submitted full billing
records for each proceeding, which include time entries
accounting for the entire requested amount. Defendants have put
forth numerous arguments for reductions.
Defendant argues that the hours billed by Plaintiffs’
counsel for the underlying proceeding are not reasonable because
“Plaintiffs spent tens of thousands of dollars” (1) litigating
dubious discovery disputes, (2) filing motions to strike, (3)
preparing experts’ curriculum vitaes, (4) remedying inadvertent
productions, and (5) doing administrative tasks. (ECF No. 34 at
14). They further argue that “Plaintiff’s counsel caused great
expense and delay when he submitted a Consent Order for
settlement without the consent of Defendant.” Id.
Defendant’s brief does not specify which of its arguments
were directed at Plaintiffs’ requested fees for the underlying
due process proceeding and which were directed at the fees
requested for the present fee petition. However, the Court’s
review of the record and Defendant’s counter statement of
material facts makes clear that the only arguments applicable to
the present analysis are those regarding time spent on
Plaintiff’s motion to strike in the due process hearing, entries
for administrative tasks, and the great expense and delay
allegedly caused by Plaintiff’s counsel.
Defendant does not explain why it believes that the time
spent by Plaintiffs’ counsel preparing the motion to strike
affirmative defenses in the underlying action was unreasonable.
Plaintiffs’ motion was ultimately denied without prejudice, as
Judge Crowley determined that discovery would be needed to fully
assess the motion and the relevance of the affirmative defenses
Plaintiffs’ sought to have stricken. (ECF 10-3 Ex. K at 2).
However, the record shows that Judge Crowley also found that the
affirmative defenses “appear to be inapplicable to this matter,”
ordered Defendants to file a motion regarding their desired
affirmative defenses after discovery was completed, and
ultimately barred Defendant from raising the affirmative
defenses after it filed no such motion. Given these facts, the
Court will not find time spent on this motion unreasonable.
The Court does agree, however, that Plaintiffs are not
entitled to fees for time billed by Thurston on administrative
tasks. “[A]dministrative tasks, which are not the type normally
billed to a paying client, may not be recovered by a party
through a fee petition.” Bilazzo v. Portfolio Recovery Assocs.,
LLC, 876 F. Supp. 2d 452 (D.N.J. June 25, 2012) (citing Levy v.
Glob. Credit & Collection Corp., No. 10-cv-4229, 2011 WL
5117855, at *6 (D.N.J. Oct. 27, 2011)). “Administrative tasks
generally include, but are not limited to, opening a file in a
database, entering case updates in a management system, mailing
letters, copying documents, calendaring deadlines, confirming
contact information, and talking with a process server or court
clerk.” Id. (citing Levy, 2011 WL 5117855, at *6). Defendant
specifically disputes the following entries as including
administrative tasks:
•
5/8/2018 – “Receive and review email from client
forwarding casefile and prehearing notice from OAL; legal
analysis re same; email to client re same; docket
prehearing date”
o Time - 0.7
o Amount - 262.50
•
6/2/2018 – “Lengthy email to client summarizing status
conf call with judge and trial dates; docket same”
o Time - 0.2
o Amount - 75.00
•
6/20/2018 – “Receive and review Notice of Hearing for
6/28 via email; docket same”
o Time - 0.2
o Amount - 75.00
•
7/18/2018 – “Email to OAL acknowledging change in
schedule for 8/15 status conference; docket same”
o Time - 0.1
o Amount - 37.50
ECF No. 34-2 at ¶ 31 (citing ECF No. 1-1 Ex. B, PageIDs 36, 39,
41, 43).
The Court agrees that the time billed to “docketing” dates
constitute administrative tasks. The entries from 6/2 and 6/20
both involve two separate tasks and 0.2 hours of billed time –
the Court will accordingly deduct 0.1 hours from each entry.
The 7/18 entry is only billed to 0.1 hours, so the Court will
deduct it entirely. Finally, the 5/8 entry involves 4 related
tasks totaling 0.7 hours. As the Court deducted 0.1 hours for
“docketing” from the other three entries disputed by Plaintiffs,
it will do the same here. Accordingly, the Court will deduct
0.4 hours from Plaintiffs’ fees. As these entries are all dated
during the period at which Thurston’s hourly rate was $375, the
Court will reduce Plaintiffs’ fee award by $150.
Defendant next argues that Plaintiffs’ fees should be
reduced because Thurston “caused great expense and delay when he
submitted a Consent Order for settlement without the consent of
Defendant.” (ECF No. 34 at 14). Plaintiffs do not appear to
dispute that Thurston did in fact submit the proposal without
first providing Defendant’s counsel the opportunity to review.
While the fact that further negotiation was needed to reach
language more agreeable to all parties demonstrates that some
amount of additional time would have necessarily been billed to
resolving these disagreements regardless, it is clear that
Thurston’s actions did result in additional delay and expense.
Accordingly, the Court will make a 50% reduction in the
associated fees. The Court’s review of Thurston’s submitted
entries from September 17, 2018 through October 3, 2018, the
dates between submission of the initial proposed agreement and
submission of the final agreement, reveal that he billed 3.9
hours to this issue at $400 per hour, totaling to fees of
$1,560. (ECF 1-1 Ex. B, PageID 47-49). The Court will
therefore reduce Plaintiff’s fees by an additional $780.
c. Plaintiffs’ fee award will be reduced due to limited
success in the underlying due process proceeding.
Finally, Defendant argues at length that the fee award
should be drastically reduced due to Plaintiffs’ “limited
success” in the underlying due process proceeding. (ECF No. 34
at 8-11). Plaintiffs counter that this is not a proper basis
for reducing attorney’s fees, arguing that under the IDEA, a
court may only reduce a fee award under the specific conditions
listed in 20 U.S.C. § 1415(i)(3)(F).
Plaintiffs are mistaken. As the Third Circuit has made
clear, a court assessing a fee petition for an IDEA case “may
adjust a requested legal fee downward based upon the results
obtained by counsel for the prevailing party, particularly
‘where a plaintiff is deemed “prevailing” even though he
succeeded on only some of his claims for relief.’” Sch. Dist.
Of Phila., 722 F. App’x. at 230 (quoting Hensley v. Eckerhart,
461 U.S. 424, 434 (1983)). “Indeed, ‘the most critical factor’
in determining the reasonableness of a fee award ‘is the degree
of success obtained.’” D.O., on Behalf of M.O. v. Jackson Twp.
Bd. of Ed., No. 17-1581 (TJB), 2019 WL 1923388, at *2 (D.N.J.
April 30, 2019) (quoting Farrar, 506 U.S. at 114). Importantly,
“[d]istrict courts have wide discretion to determine whether,
and by how much, fees should be reduced for lack of success.”
D’Orazio v. Washington Tp, 501 F.App’x. 185, 188 (3d Cir. 2012).
Defendant’s argument, at its core, is that after the hiring
of Thurston as counsel, Plaintiffs achieved only five extra
minutes of speech therapy per session than Defendant had offered
to Plaintiffs when they were unrepresented. They also note that
Plaintiffs’ initial petition brought claims under not only the
IDEA, but also the New Jersey Law Against Discrimination, the
Americans with Disabilities Act, and § 1983, and sought $150,000
in compensatory damages and $500,000 in punitive damages. (See
ECF No. 10-3).
Defendant’s second argument can be rejected briefly. The
number of statutes under which Plaintiffs filed their petition
is not relevant here, where the bases of each claims were the
same facts and the central goal, to ensure J.G. received
increased special education services, was the same under each.
See Hensley, 461 U.S. at 434–35. Similarly, when plaintiffs
achieve success in the form of an order ensuring they receive a
desired service, their failure to ultimately receive damages as
well does not demand a reduction in fees awarded if substantial
relief was still obtained. See id. at 435 n.11 (“[A] plaintiff
who failed to recover damages but obtained injunctive relief, or
vice versa, may recover a fee award based on all hours
reasonably expended if the relief obtained justified that
expenditure of attorney time.”).
However, the Court still finds that a downward reduction to
Plaintiffs’ fees is appropriate here. First, the Court must
address Plaintiffs arguments that the IEP proposed by Defendant
prior to the hiring of counsel should not be considered as part
of this analysis. Put simply, the Court entirely disagrees.
The central question at this stage is the amount of success
achieved by Plaintiffs after the hiring of counsel; the details
regarding what offers were on the table for Plaintiffs prior to
their engagement of Thurston, and the ultimate differences
between those offers and the final agreement, are clearly
relevant to the question of whether Thurston “obtained excellent
results” for his clients. Hensley, 461 U.S. at 435.
Here, the undisputed evidence shows that on April 16, 2018,
Defendant proposed a new IEP that would provide for 4 sessions
of speech therapy per week for 15 minutes, and one 30-minute
session of occupational therapy per week — an IEP identical to,
if not better than, the services requested in Plaintiffs’
initial mediation request. The final agreement reached with the
help of counsel provided for 4 sessions of speech therapy per
week for 20 minutes, one 30-minute session of occupational
therapy per week, and the use of an AAC device. To be sure, an
increase of 5 minutes per session and the guaranteed usage of an
AAC device is certainly not “de minimus” and in no way warrants
a full reduction; the additional 5 minutes per session is an
increase of 33% and the equivalent of 1.33 extra sessions each
week for the entire school year, totaling an extra 640 minutes
of speech therapy a year by Defendant’s own calculations. (ECF
No. 34 at 12).
However, the record shows that prior to hiring counsel
Plaintiffs had already achieved significant success, obtaining
an offer that met their initial demands filed in their mediation
request. The Court finds that this fact, considered together
with Thurston’s inability to obtain the larger demands made in
the amended due process petition and his initial settlement
offers, demonstrates that Thurston’s success was somewhat
limited and a reduction is appropriate. Despite Defendant’s
demands for drastic reductions, the Court finds that a smaller
reduction of 20 percent is sufficient to account for the level
of success achieved by Plaintiffs’ counsel.
Therefore, based on Plaintiffs’ request for $28,740.07 in
fees and costs, the initial deductions of $150 and $780
described above, and the final reduction of 20 percent for
limited success, the Court will order Defendants to pay
$22,248.06 in fees and costs from the due process proceeding.
3. Plaintiffs’ fee award for the fee petition litigation
will also be reduced.
Finally, Plaintiffs also seek attorney’s fees and costs
associated with this fee petition litigation. Defendants
concede that such “fees on fees” are granted in IDEA cases, and
instead argue again that the Court should exercise its
discretion and “drastically reduce” any fee award related to
this litigation. (ECF No. 34 at 15). For the fee petition,
Plaintiffs request an additional $52,713.40, “plus any
additional fees incurred from this date forward for the fee
petition case.” (ECF No. 37 at 2; ECF No. 36 at 14).
Plaintiff’s opposition brief makes five arguments for
specific reductions related to the fee petition litigation: that
Plaintiffs’ counsel ran up costs 1) litigating dubious discovery
disputes, (2) filing motions to strike, (3) preparing experts’
curriculum vitaes, (4) remedying inadvertent productions, and
(5) doing administrative tasks. (ECF No. 34 at 14). The Court
agrees with arguments (1), (3), (4), and (5), and will make
corresponding reductions to Plaintiffs’ “fees on fees.”
First, Defendant argues that Plaintiffs spent
“approximately $11,843” on dubious and unfounded discovery
disputes, and that these fees should be reduced. Their argument
is based in large part on the opinion of Magistrate Judge
Williams, who, faced with Defendant’s Motion to Compel
Discovery, largely ruled against Plaintiffs and ordered them to
produce a number of documents and respond to certain
interrogatories. In reaching this conclusion, Judge Williams
noted Plaintiffs’ “flawed logic,” (ECF No. 20 at 14),
“reject[ed] Mr. Thurston’s evasive objections to produce the
requested documents in their native file format,” (id. at 15),
and finally stated that Thurston had entirely “fail[ed] to
articulate” why an email was protected by attorney-client
privilege, a short-coming also found in Plaintiffs’ present
motion to strike. Id. at 15 n.3.
However, the Court also ruled in Plaintiffs’ favor on at
least one point, and otherwise appeared to have accepted
Plaintiffs’ arguments as worthwhile objections, even if
insufficient to avoid being compelled. Similarly, it is clear
from the record that both parties contributed to the extension
of the discovery process, as Defendants similarly were forced to
refile their motion to compel and filed a reply brief they were
not granted permission to file. Id. at 12 n.2. Accordingly,
while the Court views a reduction in Plaintiffs’ fees associated
with this discovery dispute as necessary, it will not deduct the
full $11,843. As the Supreme Court has noted, “[t]he essential
goal in shifting fees ... is to do rough justice, not to achieve
auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011).
Here, the Court views a 30% reduction to these fees as
sufficient to account for Plaintiffs’ dubious discovery
objections, and will accordingly make a reduction of $3,552.90.
Second, Defendant argues that the Court should make
reductions for time spent by Plaintiffs’ counsel on the motion
to strike numerous of Defendant’s arguments and exhibits in
their opposition to the motion for summary judgment.2 As the
Court found above, Plaintiffs’ present motion to strike was
2 Plaintiffs argue that Defendant’s opposition brief to that
motion constitutes an improper sur-reply, because it requests
that the Court not grant Plaintiffs attorney’s fees for work
done in drafting that motion. (ECF No. 41 at 1-2). The Court
disagrees. Plaintiffs filed an improper motion to strike after
Defendant’s last opportunity to address the fee petition, and
now request that the Court order Defendant to reimburse them for
the time spent drafting that improper motion. While the Court
will not fully incorporate Defendant’s opposition to the motion
to strike into its opposition to summary judgment, it will
assess the reasonableness of Thurston’s fees related to the
motion to strike.
procedurally improper, and introduced an entirely separate round
of unnecessary briefing into this litigation. Accordingly, the
time spent working on that motion was not reasonable and will be
deducted from Plaintiffs’ fees. The Court has reviewed
Thurston’s submitted bills and determined that $3,640 was billed
for the present motion to strike; Plaintiffs’ fee award will
therefore be reduced by that amount. (ECF No. 37 Ex. A).
Defendants next argue for a reduction based on “inordinate
amounts of time preparing their own expert’s Curriculum Vitaes
and declarations.” (ECF No. 34-4 at ¶ 20). From the Court’s
review of Plaintiffs’ submitted hours, Thurston appears to have
billed between 3.3 to 6.3 hours on drafting declarations for the
expert witnesses Plaintiffs put forth to support this fee
request. (ECF No. 10-5 Ex. B, PageID 285–86). However,
Defendant provides no explanation or caselaw to support its
argument that this range of time is an “inordinate” amount of
time to spend on evidence regarding the reasonableness of
Plaintiffs’ counsel’s hourly rate, which Plaintiffs are required
to submit in support of their petition. Accordingly, the Court
will make no reduction related to these fees.
Defendant additionally argues that the fees should be
reduced to exclude time related to Thurston’s inadvertent
production of materials in discovery, an argument which
Plaintiffs do not appear to dispute. The Court will not allow
counsel to profit from his errors. After review of Plaintiffs’
billing entries, the 2.9 hours billed on May 5, 2019 to related
research will not be reimbursed. (ECF No. 10-5 Ex. B, PageID
288). Accordingly, the fee award will be reduced by the $1,160
in fees associated with this time.
Finally, Defendant again requests Plaintiffs’ fees be
reduced due to time spent on administrative tasks. Plaintiffs
object specifically to only one entry related to the current fee
petition litigation:
•
4/8/2019 - Receive and review via ECF Scheduling Order
from Judge Williams; docket all dates including 6/28
Status Conference;
o Time – 0.3
o Amount - 120.00
(ECF No. 10-5 Ex. B, PageID 285).
The Court agrees, and will accordingly deduct 0.2 hours, or $80,
from Plaintiffs’ award.
With those decisions made, the Court must again consider
whether any further reductions are necessary based on the
actions and success of Plaintiffs in litigating the fee
petition. “[T]he reduction analysis for the fees generated from
litigating the fee petition is independent from the reduction
analysis applied to the underlying litigation.” United States
ex rel. Palmer v. C&D Technologies, Inc., 897 F.3d 128, 142 (3d
Cir. 2018). Specifically, the Third Circuit has approved of
courts reducing fees awarded related to a fee petition due to
limited success in the fee petition litigation when the court
had issued multiple reductions of the fees requested. See
Scanno v. F.H. Cann & Associates, Inc., 794 F. App’x. 220, 223
(3d Cir. 2019) (citing Institutionalized Juveniles v. Sec'y of
Pub. Welfare, 758 F.2d 897, 924 (3d Cir. 1985)).
The Court will make a similar reduction here, as
Plaintiffs’ have achieved limited success on their fee petition.
As outlined above, the Court made a 20 percent reduction to
Plaintiffs’ fees for the underlying proceeding due to limited
success, has made additional reductions to their requested fees
for this petition for four separate reasons, and has found that
Plaintiffs improperly extended the fee petition litigation.
Those reductions have totaled approximately 18 percent of the
$81,453.47 in fees and costs requested in this petition.
Accordingly, the Court will reduce Plaintiffs’ request for the
fees associated with this petition by an additional 18 percent.
Based on Plaintiffs’ request of $52,713.40 in additional fees,
the specific reductions outlined above, and this final reduction
of 18 percent, the Court will grant Plaintiffs $36,310.01 in
fees related to this fee litigation.
Finally, Plaintiffs’ counsel also requests permission to
file an additional certification outlining further costs for
work done past its last declaration. However, Plaintiffs’ most
recent declaration already covered all work done for the present
motion for summary judgment, with their only other documents
filed after that being Plaintiffs’ reply brief in support of
their improper motion to strike and Plaintiffs’ request for
redactions. As stated above, the motion to strike was improper,
and Plaintiffs did not follow the local rules in making their
redaction request. Given these errors on Plaintiffs’ part, the
Court will not grant Plaintiffs’ counsel leave to file another
certification at this time. If this litigation extends beyond
the Court’s Order on the fee petition and Plaintiffs’ submission
of a proper motion to redact, Plaintiffs may make their request
to file an updated Certification again at that point.
Conclusion
For the reasons expressed above, Plaintiffs’ motion to
strike (ECF No. 35) is denied, and their motion for summary
judgment (ECF No. 31) is granted in part. The Court has
determined that certain reductions to the attorney’s fee are
necessary, and will accordingly order Defendant to reimburse
Plaintiffs’ attorney for $22,248.06 in fees and costs associated
with the underlying due process proceeding and $36,310.01 in
fees and costs associated with the present litigation, for a
total reimbursement of $58,558.07.
An appropriate Order will be entered.
Date: October 13, 2020 /s Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.