UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ================================================== N.C. a child with a disability, Individually and by her parent And next friend, L.S., Plaintiffs,
v. 5:07cv01230 NPM/ATB
ONEIDA CITY SCHOOL DISTRICT, Defendant.
APPEARANCES
Office of Andrew K. Cuddy Jason H. Sterne, Esq. Attorney for plaintiffs 5888 Main Street Williamsville, NY 14221
Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C. Susan T. Johns, Esq. Attorney for defendant 5010 Campuswood Drive East Syracuse, NY 13057
NEAL P. McCURN, Senior U.S. District Court Judge
MEMORANDUM - DECISION AND ORDER
This is an action brought by N.C., a child with a disability, individually and
by her parent and next friend, L.S. (“plaintiffs”), pursuant to the Individuals with
Disabilities Education Act (“IDEA” or “the Act”). Specifically, plaintiffs seek to
recover attorneys’ fees from defendant Oneida City School District (“defendant”),
pursuant to the provision of the IDEA for the award of attorneys’ fees to
prevailing parties, codified at 20 U.S.C. §1415(i)(3)(B). Currently before the
court are cross-motions for summary judgment by the parties. For the reasons set
forth below, defendant’s motion for summary judgment is denied. Plaintiffs’
summary judgment motion for attorneys’ fees pursuant to the IDEA is granted.
I. FACTS AND PROCEDURAL HISTORY
The following uncontested facts are taken from the plaintiffs’ complaint and
from the parties’ motions, as well as from affidavits and exhibits attached to same.
N.C. was born in 1996 and was classified by defendant’s committee on special
education (“CSE”) as having a learning disability. N.C. attended the Oneida
School District’s Seneca Street Elementary School. By letter dated June 29, 2006,
N.C.’s next friend, L.S., requested a due process hearing pursuant to 20 U.S.C. §
1415(f)(1),1 demanding, inter alia, a finding that defendant did not provide N.C. a
free appropriate public education (“FAPE”) as required by the IDEA. L.S. sought,
among other things, placement of N.C. in a smaller, more appropriate classroom
setting with children of similar needs and abilities, and to have N.C. provided with
an appropriate individualized education program (“IEP”) including specialized
1 “Whenever a complaint has been received under subsection (b)(6) or (k), the parents or the local educational agency involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency.” 20 U.S.C. § 1415(f)(1)(A) (West 2010). 2
reading and math instruction, an assistive technology evaluation, an FM auditory
trainer,2 an appropriate occupational therapy program, and additional corrective
services to compensate for past deprivations. Plaintiffs also requested an
assurance that defendant would comply with the state’s regulatory requirements in
the future, including provision of prior written notice, and requested payment of
attorneys’ fees and expenses.
Defendant appointed Robert Briglio as impartial hearing officer (“IHO”).
Prior to the meeting, the parties met for settlement purposes, and in a July 24,
2006 letter to the parent, defendant stated that the district was willing to provide
forty minutes of resource room instruction, forty minutes of direct consultant
teacher services in math, special education counseling, and also agreed to conduct
a 30-day trial of the auditory trainer. The settlement was not accepted, partially
due to the defendant’s resistance to including attorneys’ fees in the settlement
offer.
On September 15, 2006, the parties executed a consent decree, which was
“so ordered” by the IHO, thus settling the case. Specifically, the consent decree
2 An FM trainer, sometimes called an FM auditory trainer, is a device that allows students to focus on a teacher’s voice and eliminate distractions caused by background noise. The trainer is “for use in the classroom and/or at home. The benefit is that the background room noise is not amplified, and the parent or teacher's voice goes directly to the child's ear from any location, even from another nearby room.” http://www.hearinglosshelp.com/glossary.htm. (last visited October 6, 2010).
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called for a CSE meeting to review an inclusive placement at the Durhamville
School, review of two evaluations, an FM trainer for a trial period, and a CSE
meeting after that trial period to discuss its effectiveness. The consent decree also
provided an evaluation in occupational therapy, and forty hours of corrective
instruction.
After the consent order was signed, efforts by the plaintiffs to collect
attorneys’ fees and costs pursuant to the Act were unsuccessful. Arguing that they
prevailed in the underlying proceedings, plaintiffs brought the current action to
demand reasonable attorneys’ fees and costs pursuant to 20 U.S.C. § 1415(i)(3).
Defendant argues, inter alia, that the complaint fails to state a claim upon which
relief can be granted and that the consent decree did not provide N.C. with any
substantive educational benefits that she would not otherwise have received. Doc.
No. 4. Despite efforts by the magistrate judge to encourage the parties to settle,
with ample time afforded by the magistrate for them to do so (Doc. No. 10-3),
defendant made no good faith effort to settle this matter. In fact, on May 30, 2008,
defendant’s counsel stated that her client was “adamant that they don’t want to
settle this.” Doc. No. 10-4, p. 20. At that time, the amount requested for attorneys’
fees was approximately $5155.00. Doc. No. 10-4, p. 4. Defendant never made a
settlement offer. Doc. No. 10-3, p. 4.
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Currently before the court is plaintiff’s First Motion for Attorneys’ Fees
(Doc. No. 10) which the court construes as a motion for summary judgment, and
defendant’s cross motion for summary judgment (Doc. No. 11). For the sake of
judicial efficiency, the court will initially consider defendant’s motion.
II. DISCUSSION
A. The IDEA and Attorneys’ Fees
“The IDEA is designed 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.” B.W. ex rel.
K.S. v. New York City Dept. of Educ., --- F.Supp.2d ----, 2010 WL 2220492 at *5
(S.D.N.Y. 2010) (citing 20 U.S.C. § 1400(d)(1)(A); Schaffer v. Weast, 546 U.S.
49, 51, 126 S.Ct. 528 (2005); A.R. ex rel. R.V. v. N.Y. City Dep't of Educ., 407
F.3d 65, 72 (2d Cir.2005). “The IDEA requires that, as a condition to receiving
federal funds, a school district ensure that a disabled child receives a free and
appropriate public education (“FAPE”) through an Individual Education Plan
(“IEP”), which “must include an assessment of the child's current educational
performance, must articulate measurable educational goals, and must specify the
nature of the special services that the school will provide.” B.W. ex rel. K.S. v.
New York City Dept. of Educ., 2010 WL 2220492 at *5 (internal citations
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omitted).
“The IDEA ... contains a fee-shifting provision under which a ‘prevailing
party’ may recover attorneys' fees from the party against which it prevailed. See 20
U.S.C. § 1415(i)(3)(B). The first question we must address, then, is whether the
Parents were “prevailing parties” in the proceedings before the IHOs.” A.R. v.
New York City Department of Education, 407 F.3d at 73.
1. Prevailing party
In pertinent part, 20 U.S.C. § 1415(i)(3)(B) states that “[i]n any action or
proceeding brought under this section, the court, in its discretion, may award
reasonable attorneys’ fees as part of the costs -- (I) to a prevailing party who is the
parent of a child with a disability ....” 20 U.S.C. § (i)(3)(B)(i)(I). “A party attains
‘prevailing party’ status if that party attains success on any significant issue in the
litigation that achieves some of the benefit sought in bringing the litigation, and
the manner of the resolution of the dispute constitutes a change in the legal
relationship of the parties.” B.W. ex rel K.S. v New York City Dept. of Educ.,
2010 WL 2220492 at * 6.
2. Reasonable Attorney Fees
The statute also states in pertinent part that “[f]ees awarded under this
paragraph shall be based on rates prevailing in the community in which the action
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or proceeding arose for the kind and quality of services furnished. No bonus or
multiplier may be used in calculating the fees awarded under this subsection.” 20
U.S.C. § 1415 (i)(3)(C). “Attorneys’ fees may not be awarded and related costs
may not be reimbursed in any action or proceeding under this section for services
performed subsequent to the time of a written offer of settlement to a parent if -- ...
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.” 20
U.S.C. § 1415 (i)(3)(D)(III) (West 2010).
B. Legal Standard for Summary Judgment
A motion for summary judgment shall be granted “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show 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.” Fed. R. Civ. P.
56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552
(1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d
77, 82 (2d Cir. 2004). “[I]n assessing the record to determine whether there is a
genuine issue as to a material fact, the court is required to resolve all ambiguities
and draw all permissible factual inferences in favor of the party against whom
summary judgment is sought[.]” See Security Ins., 391 F.3d at 83, citing
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Anderson V. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505 (1986).
“Only when reasonable minds could not differ as to the import of the evidence is
summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.),
citing Anderson, 477 U.S. at 250-51.
While the initial burden of demonstrating the absence of a genuine issue of
material fact falls upon the moving party, once that burden is met, the non-moving
party must “set forth specific facts showing that there is a genuine issue for trial,”
see Koch v. Town of Brattleboro, Vermont, 287 F.3d 162, 165 (2d Cir. 2002),
(citing Fed. R. Civ. P. 56(c)), by a showing sufficient to establish the existence of
every element essential to the party’s case, and on which that party will bear the
burden of proof at trial, see Peck v. Public Serv. Mut. Ins. Co., 326 F.3d 330, 337
(2d Cir. 2003), cert. denied, 124 S.Ct. 540 (2003).
C. Defendant’s Motion
Defendant comes before the court arguing initially that plaintiffs’ motion
should be denied for failure to comply with Local Rule 7.3 (sic), i.e., for failure to
contain a statement of material facts. The court infers defendant’s intent to cite
Local Rule 7.1 (a)(3) which states that “[a]ny motion for summary judgment shall
contain a Statement of Material Facts ... Failure of the moving party to submit an
accurate and complete Statement of Material Facts shall result in a denial of the
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motion.” See N.D.N.Y. L.R. 7.1(a)(3). In B.R. v. Lake Placid Central School
District, 2009 WL 667453 (N.D.N.Y. 2009), the court addressed that very issue,
denying defendant’s request “because the statement of material facts will not aid
the court in its independent review of the record in deciding whether plaintiffs are
the prevailing party and, if so, whether they are entitled to attorneys[’] fees.” Id. at
* 2 (citations omitted). Adopting this reasoning, the court will not deny plaintiffs’
motion on this basis.
Defendant next argues that the plaintiffs did not prevail, and that the
consent decree lacks the administrative imprimatur necessary to deem the parent
the prevailing party. Doc. No. 11-5 at p 7. Citing Buckhannon Board & Care
Home v. West Virginia Department of Health & Human Resources, 532 U.S. 598,
605 (2001) for the premise that in order to be found a prevailing party, there must
be a judicially sanctioned change in the legal relationship of the parties that bears
the necessary judicial imprimatur, defendant argues that the consent degree lacks
sufficient administrative imprimatur. Defendant argues that the district did not
provide any service as a result of the consent decree, and in fact the consent decree
resulted in nothing more than the district agreeing to what it had already
determined to provide, along with a CSE meeting, which by law it was required to
conduct to simply consider various items. Doc. No. 11-5 at p. 10. Based on the
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following facts, the court finds the defendant’s argument unavailing.
On June 7, 2006, N.C. was evaluated by licensed psychologist Dr. Sandra
DeMyer-Gapin (“DeMyer-Gapin”) at L.S.’s request. DeMyer-Gapin administered
a battery of tests which revealed that N.C. was years behind in reading rate,
accuracy, fluency, and comprehension. Her math ability was severely delayed, and
she had various executive functioning problems. DeMyer-Gapin recommended
that the district should consider a more self-contained classroom for N.C., given
her difficulties, her age, and her relatively limited progress. DeMyer-Gapin also
opined that since N.C. presented with many weaknesses and a very scattered
profile, a more individualized program might be more appropriate. DeMyer-Gapin
also strongly recommended counseling for N.C. to provide some insight into her
behavioral problems.
L.S. provided the district with DeMyer-Gapin’s report on June 10, 2006,
and a meeting was held at L.S.’s request on June 19, 2006 for discussion of same.
The report was circulated among the participants, which included the school
principal, N.C.’s resource room teacher, N.C.’s regular education teacher, and L.S.
Refusing to implement any of the recommendations in the report, the school
principal told L.S. that N.C. would continue to be in the regular education
classroom in September of 2006, and her current IEP reflected that placement.
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Defendant also failed to provide N.C. with an FM Trainer that was recommended
by Doctor of Audiology Cheryl A. Longwell in February of 2006 (at least on a
thirty day trial basis), to help accommodate N.C. in the classroom and to help her
learn more efficiently.
L.S. retained counsel shortly thereafter. In his June 29, 2006 letter to the
Oneida City School District Board of Education requesting an impartial hearing
pursuant to the relevant IDEA statutes, counsel for plaintiffs pointed out
defendant’s failure to accommodate L.S.’s requests set forth above and also
asserted that despite evaluations completed by district personnel that N.C. was in
need of occupational therapy services, none were provided. Finally, plaintiffs’
counsel argued that the CSE did not provide L.S. with proper written notice
following the October 6, 2005 CSE meeting that included the options the CSE
considered and the reason they were rejected.
Plaintiffs requested the following remedies for N.C.:
Placing [N.C. in] a smaller, more appropriate classroom setting with children of similar individual needs. The use of a consultant teacher would also be considered a possible remedy as this may afford [N.C.] the individual attention she requires.
Providing her with an appropriate IEP that includes specialized reading and math instruction with appropriate methodologies.
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Assuring [L.S.] that in future years, the CSE will develop and provide [N.C.] with appropriate IEPs in a timely fashion, and that extended school year services will be considered at appropriate times.
Providing [N.C.] with an FM Trainer and an appropriate assistive technology evaluation.
Providing [N.C.] with an appropriate occupational therapy program.
Providing [N.C.] with corrective services to remedy the district’s failure to provide an appropriate program in the past.
Assuring [L.S.] that the district will comply with New York State regulatory requirements governing Special Education due process procedures, and that the parent will be provided with proper notice in the future.
Payment of attorney fees and expenses. Because [L.S.] is relying on the availability of attorney fees under the law, this is a significant issue to any possible resolution, as [L.S.] would not have been able to engage counsel otherwise.
Doc. No. 10-2, pp. 2-4.
Defendant asserts that it made the following written offer of settlement
which it memorialized in the July 24, 2006 letter to the parent, provided here in
pertinent part: “As we discussed, we remain willing to provide the following:
Forty (40) minutes of resource room instruction[,] Forty (40) minutes of direct
consultant teacher services in math[,] Special education counseling[, and]
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Agreement to conduct a 30-day trial of the auditory trainer.” The letter also stated
that “[w]e thought we had reached agreement regarding changes to [N.C.’s]
program, but were disappointed that your attorney obstructed resolution through
his insistence that the district agree to pay his attorney fees as part of the
resolution process.” Doc. No. 11-1, Exh. 2-A.
The Consent Decree that was eventually signed by the IHO memorialized
the following:
The parties agree:
1. The District will convene a CSE meeting within 15 days of the execution of this agreement. The CSU, including the Durhamville special education team, will meet to review placement of the Student in the “inclusive” program located at that school.
2. At the herein referenced CSE meeting, evaluations completed by Dr. Sandra DeMyer-Gapin and Dr. Cheryl Longwell will be circulated and considered. Appropriate recommendations will be made after consideration of these reports.
3. The District will provide the Student with an FM trainer for 30 days for use on a trial basis. Following the 30 day trial period, the CSE will convene to discuss its effectiveness, and any concern related to its use.
4. The District will conduct an Occupational Therapy evaluation, and, upon receipt of its results, the CSE will consider whether occupational therapy is an appropriate related service for the Student.
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5. The District will provide the Student with 40 hours of corrective instruction in the form of Academic Intervention Services over the next five months.
6. Upon execution of this settlement agreement, the Parent’s [sic] agree to withdraw their hearing request dated June 29, 2006 without prejudice. The parent retains the right to challenge the recommendation of the CSE referenced herein through a due process hearing request should the parent disagree with that recommendation.
7. This agreement shall be entered into the record by Impartial Hearing Officer Robert Briglio as a consent decree.
Doc. No. 10-2, pp. 8-9.
The threshold issue to resolve is whether plaintiffs were the prevailing party
under the relevant statutes. The court finds that the plaintiffs did in fact prevail.
The defendant initially denied L.S.’s requests made on N.C.’s behalf, and the
written offer of settlement was only made after L.S. requested, through her
attorney, an impartial hearing. The court also finds that the consent decree
provided more relief to N.C. than defendant’s offer of settlement. The court finds
that plaintiffs are the prevailing party pursuant to the guidelines set forth under the
IDEA. Accordingly, defendant’s motion for summary judgment is denied.
In considering plaintiffs’ motion for attorneys’ fees, the court notes that it
has been posited that “[h]earing officers do not ordinarily enter orders termed
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‘consent decrees’ in special education cases.” Mark C. Weber, 3 Settling
Individuals With Disabilities Education Act Cases: Making Up Is Hard To Do, 43
LYLALR 641 (2010). However, from the facts of this case and others in this
district that have been reported before and since the instant action, the Cuddy law
firm is known for requiring consent decrees,4 and the courts have found that,
pursuant to A.R. v. New York City Department of Education, 407 F.3d at 77,
“parents are entitled to ‘prevailing party’ status if they obtain the administrative
analog of a consent decree from an IHO, even where the terms of such orders arise
out of an agreement between the parties, rather than out of the wisdom of the
IHO.” V.G. v. Auburn Enlarged Central School District, 349 Fed.Appx. 582 (2d
Cir. 2009). The court finds that there are no genuine issues of material fact on the
issue of attorneys’ fees and plaintiffs are entitled to attorneys’ fees in the
submitted amount of $12,305.00. The court finds these fees reasonable pursuant
to case law in this district. See, e.g., J.S. by D.S. v. Crown Point Central School
District, 2007 WL 475418 (N.D.N.Y. 2007) (awarding an hourly rate of $210 for
the work of Cuddy and Sterne, $80 for the work of paralegal Zambotti); V.G. v.
3 Vincent dePaul Professor of Law, DePaul University. 4 See, e.g., V.G. v. Auburn Enlarged Central School District, 2008 WL 5191703 (N.D.N.Y. 2008) (affirmed, 349 Fed.Appx. 582, 2009); B.R. v. Lake Placid Central School District, 2009 WL 667453 (N.D.N.Y. 2009).
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Auburn Enlarged Central School District, 2008 WL 5191703 (N.D.N.Y. 2008)
(awarding an hourly rate of $210 for the work of Cuddy and Sterne, $80 for the
work of Ms. Zambotti); B.R. v Lake Placid Central School District, 2009 WL
667453 (N.D.N.Y. 2009) (awarding an hourly rate of $235 for the work of Cuddy
and Sterne, $80 for the work of Ms. Zambotti). In the case at bar, plaintiffs are
requesting an hourly rate of $250 per hour for experienced attorneys Cuddy (8.7
hours) and Sterne (22.4 hours), $150 an hour for attorney Costello (27.2 hours)
based on his experience at the relevant time period, and $90 per hour for paralegal
Zambotti (5 hours),5 for a total of $12,305.00. The court finds these rates to be
reasonable for attorneys in this district, based on rates prevailing in the
community. Plaintiffs are also entitled to fees and costs in connection with the
instant motions. The court presumes that the amount submitted by plaintiffs for
$727.42 is a true and accurate accounting of the fees and costs incurred from filing
and litigating this action, and finds the amount for attorneys’ fees and costs to be
reasonable where, based on the documentation before it, the court finds that
defendant refused to negotiate or discuss payment for plaintiff counsel’s services,
necessitating litigation to recover attorneys’ fees and costs provided for under the
IDEA. In sum, the court awards plaintiffs a total of $ 13,032.42 for
5 Curricula Vitae of the attorneys and paralegal are set forth in Doc. No. 10-7.
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attorney/paralegal fees costs in the instant action.
In drafting this opinion, the court noted that, in violation of Local Rule 8.1
of this court, both plaintiffs’ and defendant’s counsels named the minor child in
their supporting papers. Despite the conscientious efforts of counsel for plaintiffs
in redacting most of Exhibit A to the Cuddy Affidavit, minor N.C.’s name was not
redacted. Doc. No. 10-2. Likewise, defendant named the minor child in Exhibit
One to Doc. No. 11-3, the affidavit in opposition to plaintiffs’ motion. The court,
sua sponte, directs the Clerk to seal the offending documents to shield them from
public view.
III. CONCLUSION
For the reasons set forth supra, plaintiffs motion for summary judgment on
the issue of attorneys’ fees for a prevailing party under the IDEA is hereby
GRANTED. Defendant’s cross motion for summary judgment is hereby
DENIED. The Clerk is directed to seal the documents set forth supra, to enter
judgment in favor of the plaintiffs in the amount of $ 13,032.42, and to close this
case.
SO ORDERED.
October 8, 2010
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