UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
JOHN DOE, BY AND THROUGH HIS PARENT, JANE DOE, Plaintiff, v. Civil No. 3:11-CV-00291 EAST LYME BOARD OF EDUCATION, January 5, 2023 Defendant, KOTIN, CRABTREE, & STRONG LLP, Intervenor.
ORDER DENYING PLAINTIFF’S MOTIONS TO APPORTION THE FEE AWARD, NULLIFY OR REDUCE THE ATTORNEY’S CHARGING LIEN, AWARD PRO SE FEES AND COSTS, AND SUPPLEMENT THE RECORD This case is brought by Plaintiff John Doe, by and through his parent Plaintiff Jane Doe,
against Defendant East Lyme Board of Education for violations of the Individuals with
Disabilities Education Act (“IDEA”). The Court found that Defendant had failed to provide
John Doe with required services during the pendency of the case and awarded Ms. Doe her
out-of-pocket expense for those services, a prospective compensatory education award, and
attorneys’ fees and costs. Plaintiff Ms. Doe has filed several motions seeking to revisit the
attorneys’ fee award and prospective award. Plaintiff has moved [Doc. # 309] to “nullify and
to void” the attorneys’ charging lien her former counsel, Intervenor Kotin, Crabtree, & Strong
LLP (“KCS”), has against the Court’s fee award. She has also moved [Doc. # 311] to “articulate
a division of any fee and cost award and to articulate a reasonable fee” in light of IDEA’s fee-
shifting provision and moved1 [Doc. # 347] for the “division of the attorneys’ fee and cost
1 KCS has moved [Doc. # 378] to disregard the portions of Plaintiff’s reply to its opposition
to this motion relating to the reasonableness of KCS’s fees as unrelated to the original motion. 1
award and for pro se costs.” Separately, Plaintiff moves [Doc. # 369] for Defendant to pay her
pro se costs for her second and third appeals. Finally, Plaintiff moves [Doc. # 381] to
supplement the record regarding the prospective award.
For the reasons articulated below, Plaintiff’s motions are DENIED and KSC’s motion
to disregard portions of Plaintiff’s reply is GRANTED.
I. Background
The Court assumes the parties’ familiarity with the underlying facts and history of
this case. The pertinent details are as follows. The Court found that Defendant had violated
IDEA by failing to offer John Doe an individualized education plan (“IEP”), but Plaintiffs were
not entitled to relief for this violation because the school that Ms. Doe placed John at was not
an appropriate placement under IDEA. Doe v. E. Lyme Bd. of Ed., No. 3:11cv291, 2020 WL
7078727, *2 (D. Conn. Dec. 3, 2020). The Court also found that Defendant violated Plaintiff’s
“stay-put” rights under IDEA, which require that “during the pendency of any proceedings
conducted pursuant to this section . . . the child shall remain in the then-current educational
placement of the child.” Id. Following a partial remand from the Second Circuit, the Court
ordered Defendant to reimburse Ms. Doe’s out-of-pocket expenses for services that should
have been provided by the Board during the pendency of proceedings and “place
$203,478.101 for compensatory education into an escrow account for John Doe, to remain
open for six years or until John graduates college, whichever occurs first” (“the prospective
award”). Id. at *1.
KCS represented Plaintiff before this Court throughout this case. (KCS’ Opp’n to
Plaintiff’s Mots. Doc. # 304, 309, and 311 (“KCS’ Consolidated Opp’n”)[Doc. # 329].) The total
amount charged by KCS to Plaintiff is $758,133.92, of which $274,465.12 has already been
paid. (Id. at 5.) Attorney Lawrence Joseph, who is not affiliated with KCS and represented
Plaintiff in her first appeal, Doe v. E. Lyme Bd. of Ed., 962 F.3d 649 658 (“Doe I”), charged
Plaintiff $60,000, all of which has been paid. (Pl.’s Mot. for Pro Se Costs (“Pl.’s Mot. 369”)
2
[Doc. # 369] at 2 n.5.) Plaintiff has also incurred $4,780 in costs in her second and third
appeals, Doe v. E. Lyme Board of Education, 747 F. App'x 30 (2d Cir. 2019) (“Doe II”) and Doe
v. East Lyme Board of Education, 962 F.3d 649 (2d Cir. 2020) (“Doe III”). (Id. at 2.) On March
17, 2020, the Court awarded [Doc. # 301] Plaintiff $537,728.82 for attorneys’ fees and costs.
II. Attorney’s Fees and Costs
A. Amount and Apportionment of the Fee Award
Plaintiff has moved “to articulate how any fee award is to be divided and what is the
effective ceiling on a reasonable fee award” (Pl.’s Mot. to Articulate Fee and Cost Award (“Pl.’s
Mot. 311”) [Doc. # 311] at 1) 2 and to divide the fee award between Plaintiff and KCS (Pl.’s
Mot. for Division of Fees and Costs Award and for Pro Se Costs (“Pl.’s Mot. 347”) [Doc. # 347]
at 1). The Court construes Plaintiff’s motions, which ask the Court to alter the substance of
its judgment, to be Rule 59(e) motions to alter or amend judgment. which may be done “to
correct a clear error of law or prevent manifest injustice.”3 Munafo v. Metro. Transp. Auth.,
381 F.3d 99, 105 (2d Cir. 2004). There are “classically four grounds” upon which a motion to
amend may be granted: “to correct manifest errors of law or fact upon which the judgment
is based,” “so that the moving party may present newly discovered evidence or previously
unavailable evidence,” “to prevent manifest injustice,” and “an intervening change in
controlling law.” Schwartz v. Twin City Fire Ins. Co., 492 F. Supp. 2d 308, 325 (S.D.N.Y. 2007).
Furthermore, Rule 59(e) “ may not be used to relitigate old matters, or to raise arguments or
present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping
Co. v. Baker, 554 U.S. 471, 486 n.5 (2008).
2 Plaintiff made additional arguments regarding the amount and division of the fee award in
her earlier motion to stay or modify the fee award [Doc. # 304], but stated that this motion [Doc # 311] replaces the earlier one. 3 Unless otherwise indicated, this opinion omits internal quotation marks, alterations,
citations, and footnotes in text quoted from court decisions. 3
Plaintiff first argues that the Court’s reduction of KCS’ requested fees was
impermissible under IDEA. (Pl.’s Mot. 311 at 2.) Plaintiff bases her argument on 20 U.S.C. §
1415(i)(3)(G), which states that the reductions in attorney’s fees outlined in § 1415(i)(3)(F)
are not permitted “if the court finds that . . . there was a violation of [section 1415].” (Pl.’s
Mot. 311 at 2-3.) As Defendant violated Plaintiff’s stay-put rights, Doe v. East Lyme Board of
Education, No. 3:11 CV 291(JBA), 2012 WL 4344304, *20 (D. Conn. Aug. 14, 2012), which are
set forth in 20 U.S.C. § 1415(j), Plaintiff contends that the Court erred in reducing the
attorney’s fees award below the actual amount billed. (Pl.’s Mot. 311 at 2-3.) KCS opposes
Plaintiff’s interpretation of § 1415, arguing that IDEA only requires the reimbursement of
reasonable fees, rather than all fees expended. (KCS’ Consolidated Opp’n at 8-9.)
Plaintiff’s objection to the Court’s fee award is misplaced. IDEA does not require that
litigation be “free to a prevailing party.” (Pl.’s Mot. 347 at 25.) While IDEA requires states,
through their state and local education agencies, to provide a free and appropriate education
to all children, 20 U.S.C. § 1412(a)(1)(A), it provides only for the award of reasonable
attorneys’ fees and costs to the prevailing party, 20 U.S.C. § 1415(i)(3)(B)(i). Plaintiff is
correct that this divergence means a free education may nonetheless require an outlay of
unreimbursed legal costs by parents, (Pl.’s Mot. 347 at 25), but that may be what the statute
provides in some instances. Second, subparagraph G governs the fee reductions in
subparagraph F; subparagraph G “does not mandate that the district court abandon its
discretion to ensure that fees are reasonable.” M.M. v. N.Y. City. Dep’t of Ed., 20 Civ. 6915 (ER),
2022 WL 3043218, *4 (S.D.N.Y. Aug. 2, 2022). As the Sixth Circuit explained in Somberg v.
Utica Comm. Sch., 908 F.3d 162, 181 (6th Cir. 2018):
20 U.S.C. § 1415(i)(3)(B)(i) . . . —the provision enumerating the circumstances that warrant an award of attorney fees— specifically says that, in those circumstances, the court may award reasonable attorney fees in its discretion. If a court determines, therefore, that fees are warranted under subparagraph (B), then it may award only reasonable fees. One way for a court to ensure that fees are reasonable is to reduce
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the suggested award if the amount requested is found to be unreasonable. Subparagraph (G), when found applicable, does not mandate that the district court abandon its discretion to ensure that fees are reasonable. The Court’s reductions to Plaintiff’s fee award from the amount billed by KCS were not based
on subparagraph F but were instead based on the Court’s obligation under subparagraphs B
and C to only award reasonable fees and costs. (Ruling on Pl.’s Second Mot. for Att’y’s Fees
[Doc. # 291] at 9-10.) Thus, awarding less than the billed fees was proper.
Plaintiff also appears to argue that the Court should apportion the Court’s fee award
so that she is reimbursed for all fees and costs she paid and KCS receives the remaining
portion of the fee award, asserting that this division is necessary in order to fulfill IDEA’s
guarantee of a free education. (Pl.’s Mot. 311 at 2.) Essentially, she is requesting that the
Court apportion the award so KCS, not Plaintiff, bears the shortfall between the Court’s fee
award and her actual fees and costs. KCS argues that the Court should instead enforce
Plaintiff’s written agreement with KCS and apportion the award so KCS receives all its
outstanding fees.4 (KCS’ Consolidated Opp’n at 3.) As discussed above, while IDEA
guarantees a free and appropriate education, it does not guarantee complete reimbursement
of attorney’s fees and costs. Therefore, there is no basis for the Court to revisit the award or
apportion it as Plaintiff requests.
4
KCS’ preferred apportionment Plaintiff’s preferred apportionment
$758,133.92 KCS’ total fees $537,728.82 Fee award -$274,465.12 Amount already paid to KCS -$60,000.00 Attorney Joseph fees $483,668.80 Amount owed to KCS -$274,465.12 Amount already paid to KCS $203,263.70 Total to be paid to KCS $483,668.80 Amount owed to KCS $0 Unreimbursed costs to Plaintiff +$60,000.00 Attorney Joseph fees $280,405.10 Unreimbursed KCS fees -$537,728.82 Fee award $280,405.10 Unreimbursed costs to Plaintiff $0 Unreimbursed KCS fees
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B. Attorney’s Charging Lien
KCS has an attorney’s charging Lien against Plaintiff for $483,668.80, the remaining
unpaid fee balance. (KCS’ Consolidated Opp’n at 14). Connecticut recognizes common law
attorney’s charging liens, which are “founded on the equitable right of an attorney to recover
fees and costs due for services out of the judgment obtained.” Olszewski v. Jordan, 315 Conn.
618, 624-25 (2015). The lien is placed on “any money recovered or fund due the client at the
conclusion of the lawsuit.” D'Urso v. Lyons, 97 Conn. App. 253, 256 (Conn. Ct. App. 2006).
Plaintiff argues that the Court should either nullify (Pl.’s Mot. to Nullify KCS’ Charging Lien
(“Pl.’s Mot. 309”) [Doc. # 309])or reduce the lien (Pl.’s Mot. 347; Pl.’s Mot. 369).
1. Plaintiff’s Motion to Nullify the Lien
Similar to Plaintiff’s motion to apportion the fee award, Plaintiff moves to nullify the
charging lien and have KCS bear the difference between the Court’s award and Plaintiff’s
total fees and costs. (Pl.’s Mot. 309 at 2.) Plaintiff asserts that KCS does not have a valid
charging lien because it is not mentioned in her written fee agreement. (Pl.’s Mot. 309 at 3-
4.) She also argues that having to pay KCS’ full costs, as per the charging lien, would violate
public policy because IDEA entitles her to a free education for John (Id. at 2), and because the
lien places KCS’ interests over hers, impeding further settlement with Defendant and
generally weakening her bargaining position. (Id. at 5-6.) KCS claims a valid charging lien
and that Plaintiff has confused IDEA’s guarantee of a free and appropriate education with a
guarantee that all litigation costs will be reimbursed. (KCS’ Consolidated Opp’n at 15.)
In D'Urso, 97 Conn. App. at 257, the appellate court found that where a judgment was
obtained as a result of an attorney’s work, the attorney had a charging lien even if the
attorney’s fees were hourly and the written fee agreement between the attorney and the
client was silent on the payment of fees from any recovery. The fact that Plaintiff’s fee
agreement with KCS did not mention fees contingent on Plaintiff’s recovery does not
invalidate the charging lien. Id. at 257-58. For more than a century, Connecticut has
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recognized common law charging liens, with the amount of the lien depending on the amount
of the attorney’s fees charged, not the amount of any award. See Olszewski, 315 Conn. at 624-
25.
The lien also does not contravene public policy and is consistent with IDEA’s statutory
scheme. First, IDEA’s fee-shifting provision provides for an award of reasonable fees and
costs to the prevailing party, not all fees and costs. 20 U.S.C. § 1415(i)(3)(B). Second, the goal
of fee-shifting provisions like IDEA’s is “to enable potential plaintiffs to obtain the assistance
of competent counsel in vindicating their rights.” Kay v. Ehrler, 499 U.S. 432, 436 (1991). If
competent counsel are denied their fees, they are less likely to be able or willing to take on
cases like Plaintiff’s.
2. Plaintiff’s Motion to Reduce the Lien
In addition to seeking to void the lien, Plaintiff moves to reduce the lien by the amount
of Plaintiff’s unreimbursed attorneys’ fees and costs, pro se appellate costs, and educational
expenses. (Pl.’s Mot. 347 at 3; Pl.’s Mot. 369 at 7.)
As to attorneys’ fees and costs, Plaintiff argues that the value of the lien should be
reduced so the Court’s fee award will fully cover all Plaintiff’s attorney’s fees and costs,
including Plaintiff’s payments to firms other than KCS, which Plaintiff argues should have
been included in KCS’ fee petition. (Pl.’s Mot. 347 at 23-28).5 KCS responds that the attorneys’
fee award was reasonable given that Plaintiff did not succeed on many of her claims, Plaintiff
did not inform KCS about many of the other attorneys she consulted and there were valid
legal grounds for KCS’ decision to exclude the other attorneys’ fees it was aware of. (KCS
Reply to Pl.’s Mot. 347 [Doc. # 353] at 15-17.)
5 Plaintiff also restates her argument that under 20 U.S.C. § 1415(i)(3)(G) she should be reimbursed for all attorneys’ fees and costs. (Pl.’s Mot. 347 at 21-26.) As explained previously, Plaintiff’s understanding of IDEA’s fee-shifting provision is misplaced. 7
The Court will not hold KCS responsible for fees it was not aware of and accepts KCS’
explanation for not including the other attorneys’ fees. As Plaintiff acknowledges (Pl.’s Mot.
347 at 33-37), Attorney Barrington was not able to provide contemporaneous time records,
as required for a court to determine whether time billed was reasonable, and thus
reimbursable under IDEA. See G.B. v. Tuxedo Union Free Sch. Dist., 894 F. Supp. 2d 415, 435-
36 (S.D.N.Y. 2012) (explaining the importance of contemporaneous records to determining
reasonable compensation in IDEA cases). Regarding Attorney Joseph, at the time the fee
request was submitted, none of the appellate claims on which he had represented Plaintiff
were successful, as required for a fee award under IDEA, and KCS explains that the work he
had done in the district court was duplicative of their work and so was not sought by KCS.
See G.B., 894 F. Supp. at 437 (reducing the fee award where entries are duplicative).
As to unreimbursed educational expenses and pro se appellate costs, Plaintiff argues
that the charging lien should be reduced by these amounts because they are “damages”
caused by deficient representation by KCS. (Pl.’s Mot. 347 at 23; Pl.’s Mot. 369 at 7.) KCS
replies that there is no valid legal basis for any of these claimed deductions and that Plaintiff
has not accurately depicted KCS’ efforts in representing her. (KCS’ Reply to Pl.’s Mot. 369
[Doc. # 371] at 7-17.)
Plaintiff’s arguments on this front, which attempt to seek reimbursement that the
Second Circuit has already denied, are foreclosed by the law of the case doctrine, which
requires the court “follow an appellate court's previous ruling on an issue in the same case,”
United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002), and “forecloses
reconsideration of issues that were decided—or that could have been decided—during prior
proceedings,” United States v. Williams, 475 F.3d 468, 471 (2d Cir. 2007). In Doe III, the
Second Circuit ruled that Plaintiff is not entitled to reimbursement for private school tuition,
summer services, or physical therapy. Id. at 662, 666. It also declined to grant Plaintiff’s claim
to reimbursement for her expert witness fees. Id. at 666. Finally, in an order following Doe
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III, the Second Circuit denied Plaintiff’s motion for her pro se appellate costs. Order at 1, Doe
v. E. Lyme Bd. Of Ed., No. 19-354 (2d Cir. Jan. 27, 2021).6
III. Damages Award
Plaintiff has moved to supplement the record with evidence related to the current
educational trajectory of John Doe, seeking to extend the prospective compensatory
education award. (Pl.’s Mot. to Supplement (“Pl.’s Mot. 381”) [Doc. # 381] at 1.) Plaintiff
explains that because John was a college science major who graduated in May 2022, his
major and graduation date deprived him of sufficient opportunities to fully take advantage
of the six-year prospective award ordered by the Court, so the Court should instead award
her the full value of the related services she provided during her son’s elementary and
secondary education. (Id. at 2-3. 5.) Defendant responds that both this Court and the Second
Circuit were aware of John Doe’s interest in hard science and the fact that he might graduate
college, concluding the prospective award before its six-year end point. (Def.’s Reply to Pl.’s
Mot. 381 (“Def.’s Reply 381”) [Doc. # 382] at 2-3.)
The information that Plaintiff seeks to introduce is not newly discovered. Plaintiffs’
evidence and briefing at both the trial and appellate levels reflected John’s interest in science
and intent to focus on science in college. (Hearing Tr. Sept. 22, 2016 [Doc. # 222] at 185-191;
Supp. Br. For Pl.-Appellants, Doe v. E. Lyme Bd. Of Ed., No. 19-354 (2d Cir. May 24, 2019).) The
Court’s decision to structure the prospective award so that it would be in place until the
earlier of John’s college graduation or six years, a structure that the Second Circuit affirmed,
6 For the same reason, Plaintiff’s request that the Court directly award her pro se appellate
costs is denied. (Pl.’s Mot. 369 at 3.)
The Court also grants KCS’ motion [Doc. # 378] to disregard the portions of Plaintiff’s reply to KCS’ objection. “Arguments may not be made for the first time in a reply brief,” Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir. 1993), and Plaintiff’s arguments that KCS must reimburse her for certain fees and that the Court should reduce the fees KCS charged Plaintiff were not made in her initial motion. (Pl.’s Mot. 369, Pl.’s Reply to KCS Opp’n [Doc. # 375] at 3-5, 9.) 9
demonstrates awareness of the potential that John could graduate college before six years
had passed. See Doe III, 962 F.3d at 658 (noting this structure for the length of the prospective
award by the Court).
Additionally, Plaintiff’s requested relief is barred by the law of the case. The Second
Circuit has affirmed both the prospective award and the timing of the award. In Doe I, the
Second Circuit noted that reimbursement of the full value of related services was not
permitted under IDEA and directed the Court to instead calculate a prospective award. 790
F.3d at 456-57. Then, in Doe III, the Second Circuit affirmed the Court’s decision to maintain
the prospective award “until John completed college or until six years passed, whichever
comes first.” 962 F.3d at 658, 667. Plaintiff argues that the law of the case doctrine should
not bar this motion because of the newly discovered evidence and the need to prevent a
manifest injustice by unjustly enriching Defendant and forcing her to bear John’s educational
expenses. (Pl.’s Mot. 381 at 5, 16-18.) However, as explained above, this evidence is not
newly discovered. The Court’s intervention is also not required to “prevent manifest
injustice.” Munafo, 381 F.3d at 105 (2d Cir. 2004). In Doe I, the Court considered the
importance of crafting a remedy that neither incentivized stay-put violations by school
systems nor made access to services dependent on parental means and concluded that a
prospective award of compensatory education was the most appropriate remedy in this case.
Doe I, 790 F.3d at 456-57.
IV. Sanctions
Defendant Board of Education requests that the Court sanction Plaintiff for what it
describes as repeated frivolous filings, urging the Court to enjoin Plaintiff to obtain leave of
the Court before making any future filings and requiring Plaintiff to pay the Board’s
attorneys’ fees for responding to Plaintiff’s Motions 369 and 381. (Def.’s Opp’n to Pl.’s Mot.
369 [Doc. # 370] at 13-15; Def.’s Opp’n to Pl.’s Mot. 381 [Doc. # 382] at 3 n.1.) The Court has
previously warned Plaintiff that seeking to relitigate the rulings of the Court and the Second
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Circuit would be considered frivolous and could lead the Court to require Plaintiff to obtain
the permission of the Court before making future filings. Doe v. E. Lyme Bd. of Ed., No.
3:11cv291 (JBA), 2022 WL 2105855 (D. Conn. Jun. 10, 2022). As discussed above, both
Plaintiff’s Motions 369 and 381 are obvious attempts to relitigate issues related to Plaintiff’s
damages award and attorneys’ fees that have already been addressed by this Court and the
Second Circuit. The Court will accordingly issue an injunction directing the Clerk of the Court
to refuse any filing from Plaintiff related to the prospective award or attorneys’ fees unless
Plaintiff first obtains the leave of the Court. However, the Court denies Defendant’s request
for attorneys’ fees. Rule 11 sanctions must be “made separately from any other motion,” Fed.
R. Civ. P. 11(c)(2), and Defendant's requests for sanctions are made in opposition
memoranda. Thus, the Court will not consider Defendant’s request at this time.
V. Conclusion
For the reasons given above, Plaintiff’s motions [Doc. ## 309, 311, 347, 369, 381] are
DENIED, and KCS’ motion [Doc. # 378] to disregard portions of Plaintiff’s reply is GRANTED.
It is hereby ordered that Plaintiffs are enjoined from filing any further motions
related to the prospective award of compensatory education or the terms of the attorney fee
award unless Plaintiffs first obtains leave of the Court to do so.
IT IS SO ORDERED.
__________________/s/________________
Janet Bond Arterton, U.S.D.J. Dated at New Haven, Connecticut this 5th day of January, 2023
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