UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
B.R., a child with a disability, individually and by his parent and next friend, R.R.,
Plaintiffs, 07-CV-1195
v.
LAKE PLACID CENTRAL SCHOOL DISTRICT,
Defendant.
APPEARANCES:
FOR THE PLAINTIFF: Office of Andrew K. Cuddy JASON H. STERNE, ESQ. 5888 Main Street Williamsville, NY 14221
FOR THE DEFENDANT: Stafford, Owens Law Firm THOMAS W. PLIMPTON, ESQ. One Cumberland Avenue Plattsburgh, NY 12901
Gary L. Sharpe U.S. District Judge
DECISION AND ORDER
Following the execution of an agreement with the Lake Placid Central
School District (“the School District”), B.R., through his parent R.R.
(collectively referred as the “Plaintiffs”), filed this motion for summary
judgment seeking attorneys fees pursuant to the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.1 The School
District responded with its own motion for summary judgment. After
reviewing the parties’ motions, briefs in support thereof, responses, and the
record on the matter, the court grants the plaintiffs’ motion and denies the
School District’s motion.
BACKGROUND
The following relevant facts are undisputed. On July 24, 2006, the
plaintiffs initiated an administrative proceeding requesting a Demand for a
Due Process Hearing (the “hearing”) because they were dissatisfied with
the Individualized Education Plan (“IEP”) B.R. was receiving at the School
District. (Ex. A to Cuddy’s Affirmation) More than ten days prior to the
commencement of the hearing, the School District submitted an Offer of
Settlement. (Ex. B to Cuddy’s Affirmation, Offer of Settlement) However,
the plaintiffs did not respond to such offer. (School District’s Memorandum
of Law at p. 1.) The plaintiffs proceeded to the hearing and the parties, on
September 6, 2006, settled the matter signing a “Consent Decree.” (Ex. B
1 B.R. is a child with a disability within the meaning of the IDEA.
2
to Cuddy’s Affirmation, Consent Decree)
On November 9, 2008, the plaintiffs filed the instant action seeking
attorneys fees. The School District responded with its own motion for
summary judgment arguing, among other things, that plaintiffs are not
entitled to recover attorneys fees due to their failure to comply with the
Local Rule 7.1 and for not being the prevailing party under the IDEA.
DISCUSSION
To defeat a summary judgment motion, the nonmoving party must
show sufficient evidence to create a genuine issue of material fact. Wills v.
Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004). The nonmoving
party must provide more than a scintilla of evidence. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). In other words, the party must
present sufficient evidence to permit a reasonable juror to find in its favor,
but the nonmoving party cannot simply rely on unsupported allegations in
attempting to survive a summary judgment motion. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986).2
2 The court notes that within the Second Circuit, many sister district courts recognize that “IDEA actions in federal court generally are resolved by examination of the administrative record in a summary judgment procedural posture.” J.R. v. Board of Educ. of the City of Rye, 345 F.Supp.2d 386, 394 (S.D.N.Y. 2004); see also A.S. ex rel. Mr. and Mrs. S v. Norwalk Bd. of Educ., 183 F.Supp.2d 534, 539 (D.Conn. 2002); and Wall v. Mattituck-Cutchogue Sch. Dist., 945 F.Supp. 501, 508 (E.D.N.Y. 1996).
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“The IDEA’s central mandate is to provide disabled students with a
free appropriate public education in the least restrictive environment
suitable for their needs.” Cave v. East Meadow Union Free School Dist.,
514 F.3d 240, 245 (2d Cir. 2008) (quotations and citation omitted). “Under
the educational scheme of the IDEA, parents of students with disabling
conditions are guaranteed both an opportunity for meaningful input into all
decisions affecting their child’s education and the right to seek review of
any decisions they think inappropriate.” Id. (parenthesis omitted). “Parents
are specifically entitled to request a due process hearing in order to present
complaints as to any matter relating to the identification, evaluation, or
educational placement of the child, or to the provision of a free appropriate
public education.” Id. (citations omitted). “New York has opted for a two-
tier administrative system for review of [Individual Education Plans].” Id.
“First, an impartial hearing officer is selected from a list of certified officers
and appointed by the local board of education or the competent state
agency to conduct the initial hearing and issue a written decision.” Id. That
decision can then be appealed to a state review officer of the New York
Education Department. Id.
The “IDEA expressly provides that any party aggrieved by the final
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state decision shall have the right to bring a civil action challenging the
decision in any State court of competent jurisdiction or in a district court of
the United States.” Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730,
732 (2d Cir. 2007) (quotations and citation omitted). A district court may in
its discretion award attorneys fees to a prevailing party in an IDEA
proceeding or action. 20 U.S.C. § 1415(i)(3)(B)(i)(I); see also Mr. B. v.
East Granby Bd. of Educ., 201 F.App’x. 834, *2 (2d Cir. 2006). Under the
IDEA, attorneys fees may not be awarded if the court determines that the
relief 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). The IDEA also indicates
attorneys fees should be reduced if the court finds that the parent has
unreasonably protracted the final resolution of the controversy, the hourly
rate unreasonably exceeds the applicable prevailing rate, or time expended
is excessive. 20 U.S.C. § 1415(i)(3)(F)(i)-(iii).
The parties’ disputes are: (1) whether the plaintiffs are prevailing
parties within the meaning of the IDEA for the purpose of recovering
attorneys’ fees; and (2) the amount of attorneys fees, if any.3
3 The court notes that the School District asked the court to dismiss the plaintiffs’ motion under the IDEA because they failed to comply with Local Rule 7.1(a)(3), which requires that a statement of material facts accompanies a typical summary judgment motion. The court, however, will deny such request because the statement of material facts will not aid the court
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Prevailing Party
The Second Circuit has recognized that an individual can be the
prevailing party by virtue of having obtained IDEA relief through a
settlement or consent decree. See A.R. v. N.Y.C. Dep’t of Educ., 407 F.3d
65, 78 (2d Cir. 2005). In A.R., the Second Circuit stated dispositive
administrative orders incorporating the terms of settlements affords a party
prevailing status. Id. at 77. The Court noted, “[w]e think that
[administrative consent decrees] evidence the same combination of
administrative imprimatur, change in the legal relationship of the parties,
and judicial enforceability that renders the winner on the merits in an
[Impartial Hearing Officer (“IHO”)] decision . . . . a “prevailing party” under
the IDEA [].” Id.
Here, the parties proceeded to a hearing before an IHO and agreed
to, and signed, a Consent Decree which incorporated almost every item
plaintiffs requested in their demand for a due process hearing. The IHO
signed and ordered the decree. This gave rise to the “combination of
administrative imprimatur, a change in the legal relationship of the parties,
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. See Student X v. New York City Dept. of Educ., 2008 WL 4890440, at *11 (E.D.N.Y. 2008) (citing Lillbask ex rel. Mauclaire v. State of Conn., 397 F.3d 77, 83 n. 3 (2d Cir. 2005).
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and judicial enforceability” rendering plaintiffs the prevailing party status for
IDEA purposes. Id; see also V.G. v. Auburn Enlarged Cent. School Dist.,
2008 WL 5191703 (N.D.N.Y. 2008).
Attorneys Fees
With respect to the issue of attorneys fees, the School District’s main
contention is that plaintiffs are not entitled to attorneys fees because
plaintiffs obtained relief which is not more favorable than the School
District’s offer of settlement. The court disagrees.
The Consent Decree gives the parents more input on B.R.’s care
than the Offer of Settlement provides. For example, Paragraph 1 of the
Offer of Settlement provides for an evaluation by the Traumatic Brain Injury
Center (“TBI”). (Ex. E to Cuddy’s Affirmation, Offer of Settlement at ¶ 1)
However, the Consent Decree adds that the parents also have the right to
request an independent evaluation if they disagree with TBI’s report or
recommendation. (Ex. B to Cuddy’s Affirmation, Consent Decree at ¶ 12)
Paragraph 2 of the Offer of Settlement provides that the district shall
maintain an expert with knowledge of bi-polar disorder, but the Consent
Decree gives the parents input in the selection of this expert, i.e., by mutual
agreement. (Ex. E to Cuddy’s Affirmation, Offer of Settlement at ¶ 2 and
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Ex. B to Cuddy’s Affirmation, Consent Decree at ¶ 2) Paragraph 3 of the
Offer of Settlement indicates the district will incorporate the results of the
expert’s evaluation, but the Consent Decree gives the expert, who the
parents agreed upon, an opportunity to participate more directly in the
implementation of his evaluations. (Ex. E to Cuddy’s Affirmation, Offer of
Settlement at ¶ 3 and Ex. B to Cuddy’s Affirmation, Consent Decree at ¶ 2)
The Offer of Settlement provides for a six-hour school day, but the Consent
Decree guarantees B.R. will start and end his school day at the same time
as non-disabled students in school. (Ex. E to Cuddy’s Affirmation, Offer of
Settlement at ¶ 10 and Ex. B to Cuddy’s Affirmation, Consent Decree at ¶
7)
The Consent Decree is also more specific than the Offer of
Settlement regarding the benefits for B.R. For example, paragraph 4 of the
Offer of Settlement provides for an unspecified amount of compensatory
education, but the Consent Decree sets forth the exact number of
compensatory sessions B.R. should receive. (Ex. E to Cuddy’s Affirmation,
Offer of Settlement at ¶ 4 and Ex. B to Cuddy’s Affirmation, Consent
Decree at ¶ 11) Paragraph 9 of the Offer of Settlement vaguely states the
School District shall continue supporting B.R.’s social development and
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integration, and shall seek opportunities to allow integrated learning, but
the Consent Decree specifically refers to those integration activities stating
“interaction with his peers, including homeroom, lunch and recess.” (Ex. E
to Cuddy’s Affirmation, Offer of Settlement at ¶ 9 and Ex. B to Cuddy’s
Affirmation, Consent Decree at ¶ 1) “Push-in social skills services shall be
provided to support and address socialization goals during these times.”
(Ex. B to Cuddy’s Affirmation, Consent Decree at ¶ 1) The Offer of
Settlement provides no information regarding physical restraint of B.R.
(undoubtedly a very important issue for B.R. and his parents), but the
Consent Decree provides detailed instructions with respect to this issue.
(Ex. B to Cuddy’s Affirmation, Consent Decree at ¶ 6)
Viewing the Offer of Settlement and the Consent Decree in their
entirety, the court determines plaintiffs obtained substantially more
favorable relief with the Consent Decree. The School District contends
plaintiffs failed in their primary goal which, according to the School District,
was to revamp B.R.’s program in its entirety. However, this argument
misses the mark. The record shows that out of the seventeen points the
plaintiffs sought in their demand for a due process hearing, they obtained
fifteen in the Consent Decree. The School District also vaguely contends
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plaintiffs were already receiving the benefits they obtained in the Consent
Decree. However, as the plaintiffs noted, if this was the case, the School
District could have asked for a dismissal at the hearing.
Anticipating the logical rejection of its arguments against a grant of
attorneys fees, the School District contends attorneys fees should be
reduced. The School District vaguely contends the plaintiffs protracted the
resolution of the controversy, thus, the fees should be reduced. In support
of this argument, the School District states that failing to settle constitutes
protraction. But, as the plaintiffs note, this case was settled, as manifested
by the Consent Decree. The School District’s argument for a reduction of
attorneys fees based on the plaintiffs’ protraction of the case lacks merit.4
Without much explanation, clarity or case law, the School District also
states attorneys fees should be limited to the hourly rate of $210 instead of
the $250 hourly rate the plaintiffs’ attorneys seek. This rate was
established one year ago by this district in J.S. by D.S. v. Crown Point
Central Sch. Dist., 2007 WL 475418 (N.D.N.Y. 2007). The court, however,
4 The court rejects the School District’s argument that it is entitled to costs pursuant to Federal Rule of Civil Procedure 68 because plaintiffs refused to settle this matter in a manner which the School District considers appropriate. See School District’s brief at 24. In this case, plaintiffs, upon the conclusion of the administrative proceedings, were entitled to file a motion for attorneys fees pursuant to the IDEA.
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declines to follow that case for purposes of setting a reasonable rate in this
case and, instead, will follow the most recent case of Luessenhop v.
Clinton County N.Y., 558 F.Supp.2d 247 (N.D.N.Y. 2008). In Luessenhop,
Magistrate Judge Treece, in a very thorough analysis concerning rates for
attorneys fees in this geographical area5 for these types of cases,
observed:
[B]ased upon the rates currently set by the Court, the billing rates of civil rights litigators in this geographical district, and our experiences with the hourly rate a reasonable, paying client is willing to pay, and being further mindful of the relevant factors and that the rate should be sufficient to attract competent counsel without generating a windfall, we find the reasonable hourly rate to be $235.
Luessenhop, 558 F.Supp.2d at 266-67. In arriving at this reasonable
hourly rate, this court, as in Luessenhop, adheres to the directives of the
Second Circuit and takes into consideration several factors which include:
(1) the complexity and difficulty of the case, (2) the available expertise and
capacity of the client’s other counsel, (3) the resources required to
prosecute the case effectively, (4) the timing demands of the case, and (5)
whether an attorney might have an interest in achieving the ends of the
5 In the Second Circuit, it is presumed “that a reasonable, paying client would in most cases hire counsel whose rates are consistent with those charged locally.” Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany and Albany County Bd. of Elections, 522 F.3d 182, 191 (2d Cir. 2008).
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litigation. Arbor Hill, 522 F.3d at 184.
In addition, the court considers factors like: (1) the time and labor
required, (2) the novelty and difficulty of the questions, (3) the level of skill
required to perform the legal service properly, (4) the preclusion of
employment by the attorney due to acceptance of the case, (5) the
attorney’s customary hourly rate, (6) whether the fee is fixed or contingent,
(7) the time limitations imposed by the client or circumstances, (8) the
amount involved in the case and the results obtained, (9) the experience,
reputation and ability of the attorneys, (10) the undesirability of the case,
(11) the nature and length of the professional relationship with the client,
and (12) awards in similar cases. Id. at 186 n. 3 (citation omitted).
In exercising its considerable discretion and considering the relevant
factors mentioned above, and keeping in mind that plaintiffs’ team of
counsel includes a very experienced attorney in the field, plus the fact that
the case demanded out of town travel, and the attendance and preparation
for certain administrative proceedings, the complexity of IDEA cases as
well as the fact that reasonable paying clients wish to spend the minimum
necessary to litigate the case effectively and could have the opportunity to
negotiate the fees with their attorneys, Id. at 184 (emphasis added), the
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court, as in Luessenhop, finds that an hourly rate of $235 is reasonable in
this case.
Multiplying the hourly rate of $235 by the number of hours reasonably
expended by the two attorneys in this case (70.6 hours as indicated by
plaintiffs’ attorneys in their Exhibit D),6 and not being able to discern that
this number of hours is excessive despite the School Districts’ vague
assertions of unreasonableness due to the plaintiffs’ counsels’ request of
B.R.’s records, and keeping in mind the Second Circuit’s caution that
“attorney fees are to be awarded with an eye to moderation, seeking to
avoid either the reality or the appearance of awarding windfall fees,” New
York State Assoc. for Retarded Children v. Carey, 711 F.2d 1136, 1139 (2d
Cir. 1983), results in a total fee recovery of $18,874.007
CONCLUSION
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that plaintiffs’ motion for an award of attorneys’ fees (Dkt.
6 Attorney Cuddy billed 51 hours and attorney Sterne billed 19.6 hours. See Plaintiffs’ Ex. D. 7 This amount includes paralegal fees of $3,288 (41.1 hours at $80.00) and other expenses totaling $870.00 for mileage, overnight fees, filing fees, and also takes into consideration the reduction of $1,875 for travel hours that plaintiffs’ attorneys include in their Ex. D at p. 7.
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No. 15) is GRANTED in the amount of $18,874.00 and defendant’s cross-
motion for summary judgment (Dtk No. 16) is DENIED; and it is further
ORDERED that the Clerk provide copies of this Decision and Order
to the parties.
IT IS SO ORDERED.
Albany, New York Dated: March 10, 2009
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