Opinion
21-CV-9180 (LGS) (KHP)
10-21-2022
M.D., INDIVIDUALLY, AND M.D, ON BEHALF OF MAM.D. AND MAR.D., CHILDREN WITH DISABILITIES, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants. FEDERAL ACTION ADMINISTRATIVE COMPONENT Case No. 175432 ADMINISTRATIVE COMPONENT Case No. 176501 Federal Action ADMINISTRATIVE COMPONENT Case No. 175432 FEDERAL ACTION ADMINISTRATIVE COMPONENT Case No. 175432 ADMINISTRATIVE COMPONENT Case No. 176501 Federal Action
HONORABLE LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON MOTION FOR ATTORNEYS' FEES
KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE
Plaintiff M.D., individually and on behalf of his children Mam.D. and Mar.D., children with disabilities, filed this lawsuit against the New York City Department of Education (the “DOE”) seeking attorneys' fees under the fee-shifting provision of the Individuals with Disabilities Education Act (the “IDEA”) 20 U.S.C. § 1415(i)(3), after a successful outcome in the underlying administrative proceedings brought to enforce Mam.D's and Mar.D.'s right to a free and appropriate public education (“FAPE”). Plaintiffs filed this summary judgment motion requesting $70,063.72 in fees and costs for the administrative proceedings of Mam.D. and Mar.D. and this federal action. For the reasons set forth below, I respectfully recommend Plaintiffs' motion be granted subject to the modifications outlined below.
BACKGROUND
Plaintiffs' attorneys are from the Auburn, New York office of Cuddy Law Firm (“CLF”), which is “one of the largest private special education law firms in the country[.]” (Cuddy Decl., ¶ 12.) On July 27, 2018, Justin Coretti (“Coretti”), Plaintiffs' counsel, initiated the first underlying administrative proceeding-Case Number 175432-on Plaintiffs' behalf by filing a seven-page due process complaint (“DPC”) with the DOE. (Pls. 56.1 Stmt. ¶ 5; Coretti Decl., ¶¶ 20-23; Coretti Decl., Ex. A.) The DPC alleged that the DOE had denied Mam.D. a FAPE during the 2016-2017, 2017-2018, and 2018-2019 school years. (Coretti Decl. ¶¶ 22-23.) Plaintiffs sought relief in the form of orders from the Impartial Hearing Officer (“IHO”) for Defendant to conduct or fund an Applied Behavior Analysis (“ABA”) therapy evaluation, a functional behavior assessment (“FBA”), psychoeducational evaluation, speech and language evaluation and occupation therapy evaluation. (Id. ¶ 24.) Plaintiffs also sought an order for the DOE to reconvene the Committee on Special Education to develop a new educational program and additional relief considered appropriate and necessary to make up for the Defendant's denial of FAPE to Mam.D. (Id.)
The case was assigned to Impartial Hearing Officer (“IHO”) Edgar De Leon on May 13, 2019. (Id. ¶ 27.) In July 2019, the Defendant informed the Plaintiffs that Defendant would not present a case. (Id. ¶ 28.) The Plaintiffs provided the Defendant with the Plaintiffs' disclosure, including the affidavits of their witnesses a week before the hearing. (Id. ¶¶ 29-30.) In the days before the hearing, the Defendant informed the Plaintiffs that it would not cross examine the witnesses, and the parties prepared a Statement of Agreement (“SAG”) that the Defendant did not provide FAPE and agreeing to the Plaintiffs' proposed relief. (Id. ¶¶ 31-32.) At the January 9, 2020 administrative hearing, the parties agreed to 212 sessions of speech and language therapy, 111 sessions of occupational therapy, an ABA skills assessment, a FBA, psychoeducational evaluation, speech and language evaluation, and occupational therapy evaluation. (Id. ¶ 33.) The IHO did not accept any of Plaintiffs' exhibits. On May 30, 2020, the IHO issued an order accepting the parties' agreed relief and ordering that the CSE reconvene to develop a new educational program. (Id. ¶ 37.)
On or around August 31, 2018, Coretti initiated the second underlying administrative proceeding-Case Number 176051-on Plaintiffs' behalf by filing a seven-page due process complaint (“DPC”) with the DOE. (Pls. 56.1 Stmt. ¶ 12; Coretti Decl., ¶¶ 39-42; Coretti Decl., Ex. D.) The DPC alleged that the DOE had denied Mar.D. a FAPE during the 2016-2017, 2017-2018, and 2018-2019 school years. (Coretti Decl. ¶¶42.) Plaintiffs sought relief in the form of orders from the IHO for Defendant to conduct or fund an evaluation for counseling service, an ABA therapy evaluation, a FBA, psychoeducational evaluation, speech and language evaluation, occupation therapy evaluation, and assistive technology. (Id. ¶ 43.) Plaintiffs also sought an order for the DOE to reconvene the Committee on Special Education to develop a new educational program and additional relief considered appropriate and necessary to make up for the Defendant's denial of FAPE to Mar.D. (Id.)
The case was also assigned to IHO Edgar De Leon on September 6, 2018. (Id. ¶ 46.) The IHO scheduled the administrative hearing for March 19, 2019, which was later rescheduled for March 27, 2019. On March 15, 2019, in advance of the originally scheduled hearing, the Defendant notified the plaintiffs that it would not cross-examine the Plaintiffs' witnesses at the hearing. (Id. ¶ 52.) The Plaintiffs prepared eleven documents, including three witness affidavits. (Id. ¶ 55.) The IHO accepted four exhibits. (Id. ¶ 58.) At the hearing, the Defendant conceded it did not provide FAPE and agreed to conduct or fund 57 sessions of speech and language therapy, 113 sessions of occupational therapy, an ABA therapy evaluation, a FBA, a psychoeducational evaluation, speech and language evaluation, an assistive technology evaluation, and occupational therapy evaluation. (Id. ¶ 56.) On June 13, 2019, the IHO issued an order accepting the parties' agreed relief and ordering that the CSE reconvene to develop a new educational program. (Id. ¶¶ 59-60.)
On April 11, 2020, Plaintiffs submitted a demand for attorneys' fees for matter 176051. (Id. ¶ 38.) The Defendant assigned Jeffrey Cassuto to settle the claim, but the Defendant did not respond. (Id. ¶¶ 39-41.) On November 30, 2020, Plaintiffs, through their counsel, submitted a demand for attorneys' fees for matter no. 175432. (Cuddy Decl., ¶ 35.) Although the Defendant acknowledged receipt of the demand and assigned Armelle Hillman to settle the claim, it did not respond. (Id. ¶¶ 36-37.) Plaintiffs commenced this action to resolve their claim for attorneys' fees and costs. (Id. ¶ 43.)
PROCEDURAL HISTORY
Plaintiffs filed this action on November 5, 2021, pursuant to the fee shifting provisions of the IDEA, alleging that Defendant had not made a reasonable offer of attorneys' fees for the underlying administrative hearings. (ECF No. 1.) On June 3, 2022, the Honorable Lorna G. Schofield referred the case to the undersigned for a report and recommendation on the instant motion. (ECF No. 30.) On March 30, 2022, Defendant offered to settle the matter for $21,600, which the Plaintiffs rejected. (Def. Mot. for Summary Judgment, pg. 4; Nimmer Decl., ¶ 20.)
CLF now seeks a total of $70,063.72 in fees and costs-consisting of $21,555.00 for the administrative action no. 175432 and $27,115.00 for the administration action no. 176501, and $20,147.00 for the instant federal action. (Cuddy Decl., ¶ 64; Cuddy Rep. Decl., ¶¶ 3-4.) CLF also seeks post-judgment interest. Specifically, Plaintiffs' request for fees is broken down according to the following chart:
| ADMINISTRATIVE COMPONENT Case | No.175432 | ||
| Hourly Rate | Number of Hours | Total | |
| Andrew Cuddy (attorney) | $550.00 | 1.00 | $550.00 |
| Justin Coretti (attorney) | $425.00 | 36.10 | $15,342.50 |
| Justin Coretti (travel) | $212.50 | 10.00 | $2,125.00 |
| Jason Sterne (attorney) | $550.00 | 0.50 | $275.00 |
| Allison Bunnell (paralegal) | $225.00 | 1.10 | $247.50 |
| Amanda Pinchak (paralegal) | $225.00 | 5.00 | $1,125.00 |
| Sarah Woodard (paralegal) | $225.00 | 3.10 | $697.50 |
| Emma Bianco (paralegal) | $225.00 | 2.70 | $607.50 |
| Cailin O'Donnell (paralegal) | $225.00 | 1.40 | $315.00 |
| Shobna Cuddy (paralegal) | $225.00 | 1.20 | $270.00 |
| ADMINISTRATIVE COMPONENT Case | No.176051 | ||
| Andrew Cuddy (attorney) | $550.00 | 1.00 | $550.00 |
| Justin Coretti (attorney) | $425.00 | 47.70 | $20,272.50 |
| Justin Coretti (travel) | $212.50 | 15.00 | $3,187.50 |
| Kevin Mendillo (attorney) | $450.00 | 0.20 | $90.00 |
| Allison Bunnell (paralegal) | $225.00 | 2.20 | $495.00 |
| Amanda Pinchak (paralegal) | $225.00 | 5.10 | $1,147.50 |
| Sarah Woodard (paralegal) | $225.00 | 2.40 | $540.00 |
| Burhan Meghezzi (paralegal) | $225.00 | 0.40 | $90.00 |
| John Slaski (paralegal) | $225.00 | 2.10 | $472.50 |
| Shobna Cuddy (paralegal) | $225.00 | 1.20 | $270.00 |
| FEDERAL ACTION | |||
| Andrew K. Cuddy (attorney) | $550.00 | 4.10 | $2,255.00 |
| Justin M. Coretti (attorney) | $425.00 | 39.30 | $16,702.50 |
| ChinaAnn Reeve (paralegal) | $225.00 | 1.40 | $315.00 |
| Shobna Cuddy (senior paralegal) | $225.00 | 2.10 | $472.50 |
| FEE SUBTOTAL | $68,415.00 |
According to Plaintiffs, the total costs associated with this matter amount to $1,648.72 as outlined below.
| ADMINISTRATIVE COMPONENT Case No. 175432 | |
| Printing | $131.00 |
| Fax | $12.00 |
| Postage | $1.41 |
| Meal | $35.82 |
| Mileage | $287.50 |
| Parking | $50.00 |
| Tolls | $26.25 |
| ADMINISTRATIVE COMPONENT Case No. 176501 | |
| Copy at $0.50/page | $213.50 |
| Fax at $2.oo/page | $60.00 |
| Postage | $1.41 |
| Meal | $63.85 |
| Mileage | $162.98 |
| Parking | $46.50 |
| Tolls | $12.50 |
| Transportation | $142.00 |
| Federal Action | |
| Federal Filing Fee | $402.00 |
| COST SUBTOTAL | $1,648.72 |
LEGAL STANDARD
“The IDEA grants district courts the discretion to award reasonable attorneys' fees and costs to a ‘prevailing party.'” R.G. v. New York City Dep't of Educ., 2019 WL 4735050, at *1 (S.D.N.Y. Sept. 26, 2019) (quoting 20 U.S.C. § 1415(i)(3)(B)(i)). A plaintiff “prevails when actual relief on the merits of [her] claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.” K.L. v. Warwick Valley Cent. Sch. Dist., 584 Fed.Appx. 17, 18 (2d Cir. 2014). In addition to a judgment on the merits, settlement agreements that are enforced through a consent decree may qualify a party as a prevailing party. Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health & Hum. Res., 532 U.S. 598, 604 (2001). The prevailing party standard has been “interpreted generously by the Supreme Court and the Second Circuit.” B.W. ex rel. K.S. v. New York City Dep't of Educ., 716 F.Supp.2d 336, 345 (S.D.N.Y. 2010) (quoting D.M. ex rel. G.M. v. Bd. Of Educ., Ctr. Moriches Union Free Sch. Dist., 296 F.Supp.2d 400, 403 (E.D.N.Y. 2003)). The party “must succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.” Id. (quoting Tex. State Teachers Assn v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989)) (internal quotations omitted).
“Reasonable attorneys' fees under the IDEA are calculated using the lodestar method, whereby an attorney fee award is derived by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.” Streck v. Bd. of Educ., 408 Fed.Appx. 411, 415-16 (2d Cir. 2010) (internal quotation marks and citation omitted). In determining whether an hourly rate is reasonable, courts primarily consider the prevailing market rates in the community for comparable legal services. See 20 U.S.C. § 1415(i)(3)(C) (providing that attorneys' fees “shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished”). The prevailing market rate has been characterized as “the rate a paying client would be willing to pay . . . bearing in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Ortiz v. City of New York, 843 Fed.Appx. 355, 359 (2d Cir. 2021). Courts also consider the twelve factors discussed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974):
(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 the 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.Lilly v. City of New York, 934 F.3d 222, 228 (2d Cir. 2019). Because “the determination of fees should not result in a second major litigation,” Fox v. Vice, 563 U.S. 826, 838 (2011) (citation omitted), courts may consider the Johnson factors holistically, rather than applying each factor individually to the facts of the case. See Green v. City of New York, 2010 WL 148128, at *10 (E.D.N.Y. Jan. 14, 2010) (citation omitted). The trial court's goal should be “to do rough justice, not to achieve auditing perfection.” Fox, 563 U.S. at 838. “The fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
Courts also have discretion to reduce attorneys' fees awards under the IDEA if:
(i) the parent, or the parent's attorney unreasonably protracted the resolution, (ii) the amount exceeds the hourly rate prevailing in the community where the action arose for similar services by a [comparable] attorney, (iii) the time spent is excessive for the nature of the action, or (iv) parents' attorney did not provide proper notice in the complaint.20 U.S.C. § 1415 (i)(3)(F)). In addition, “[a] district court should reduce the number of hours included in the fee calculation if the claimed time is ‘excessive, redundant, or otherwise unnecessary.'” Luessenhop v. Clinton Cnty., 324 Fed.Appx. 125, 126-27 (2d Cir. 2009) (quoting Hensley, 461 U.S. at 434).
The Second Circuit has observed that “recycling rates awarded in prior cases without considering whether they continue to prevail may create disparity between compensation available under [the applicable statute] and compensation available in the marketplace,” which would “undermine [the statute's] central purpose of attracting competent counsel to public interest litigation.” Farbotko v. Clinton County, 433 F.3d 204, 209 (2d Cir. 2005). Accordingly, while a court may consider rates awarded in prior similar cases and its “own familiarity with the rates prevailing in the district,” it should also evaluate the “evidence proffered by the parties.” Id.
DISCUSSION
Here, Plaintiffs are the prevailing party insofar as they obtained the relief requested in the DPCs following the two administrative hearings. Defendant contends that Plaintiffs were not a prevailing party because the relief was awarded via SAGs prior to the administrative hearings. Defendant's argument is not persuasive, because Plaintiffs in fact prepared for and participated in the administrative proceedings, the relief sought was awarded as part of these proceedings, and the requested relief was granted by the IHO. See Buckhannon Bd. & Care Home, Inc., 532 U.S. at 604. It is well established that a party does not need to win a judgment on the merits after a contested case to be a prevailing party and that settlement agreements enforced by a consent decree also qualify a party as a prevailing party. Therefore, Plaintiffs are entitled to fees and costs. However, upon review of Plaintiffs' submissions, there are aspects of the hourly rates sought, the hours submitted, and the costs requested that are not reasonable. Each are discussed in turn.
A. Protracted Litigation
Plaintiffs assert that the Defendant unreasonably protracted both of the administrative proceedings, so the CLF's fees should not be reduced. In the first hearing, Plaintiffs claim that Defendant failed to (1) assign an IHO until over eight months after the DPC submission; (2) respond to the DPC; (3) hold the statutorily mandated resolution meeting that begins upon the submission of Plaintiff's DPC; and (4) offer to resolve the matter outside of the hearing process. (Pls. Mot. for Summary Judgment, pg. 6.) In the second administrative hearing, Plaintiffs claim Defendant unreasonably protracted the hearing because Defendant failed to (1) assign an IHO until 44 days after plaintiffs submitted the DPC; (2) file a response to the DPC; (3) hold the statutorily mandated resolution meeting; and (4) settle the matter before the day of the hearing. Id.
20 U.S.C. § 1415(i)(3)(G) provides that Courts should not reduce fees where “the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section.” While there is evidence that the Defendant prolonged the hearings, this Court finds that any delay the Defendant may have caused did not rise to an unreasonable protraction. See D.P. v. New York City Dep't of Educ., 2022 WL 103536, at *12 (S.D.N.Y. Jan. 10, 2022) (finding the DOE's failure to hold a mandatory resolution session did not constitute an unreasonable delay even where this necessitated a hearing before an IHO where the DOE did not present a case); S.J. v. New York City Dep't ofEduc., 2021 WL 100501, at *4 (S.D.N.Y. Jan. 12, 2021), aff'd 2022 WL 1409578, at *1 (2d Cir. May 4, 2022) (finding there was no unreasonable delay where the representative failed to schedule a resolution session, required the hearing be adjourned, delayed implementing the award, and the IHO did not award relief until almost six months after the DPC was filed).
Even if Defendant unreasonably protracted the final resolution of the hearing, the law is not that the Court therefore must grant all of the Plaintiff's requested fees. The plain language of the IDEA mandates that the Court grant-in its discretion-only those fees that are reasonable. 20 U.S.C. § 1415(i)(3)(B)(i). A finding that a party unreasonably protracted the litigation does not relieve this Court of its obligation to determine reasonable fees. While certain enumerated sections of the IDEA warrant mandatory reduction, and 1415(i)(3)(G) would except those reductions, the Court must determine what a reasonable fee would be in the first instance before making any mandatory reductions. This reading comports with that of other courts, including opinions in this District that have rejected the argument the CLF renews here. Somberg v. Utica Cmty. Schs., 908 F.3d 162, 180-82 (6th Cir. 2018); Williams v. Fulton Cty. Sch. Dist., 717 Fed.Appx. 913, 916-17 (11th Cir. 2017); D.P., 2022 WL 103536, at *11-12; M.H. v. New York City Dep't of Educ., 2021 WL 4804031, at *25 (S.D.N.Y. Oct. 13, 2021) (collecting cases).
B. Hourly Rates
Plaintiffs request the Court award $425.00 as the hourly rate for lead counsel Justin Coretti. Coretti has been a member of the bar for over nine years, since 2013, including over seven years as an attorney with CLF. (Coretti Decl., ¶¶ 11-13.) Plaintiffs request the Court award $550.00 as the hourly rate for Andrew Cuddy (“Cuddy”). Cuddy has over 20 years of experience and has “personally litigated hundreds of special education due process hearings throughout New York and three other States, has been invited to speak on the special education legal field by several organizations, and provides daily supervision to five offices with approximately 20 attorneys and support staff.” (Pl. Mot. for Summary Judgment, pg. 14.) Plaintiffs request that attorney Jason Sterne (“Sterne”) be awarded $550.00 per hour. Plaintiffs also request the Court award $225.00 as the hourly rate for paralegals. Of note, the CLF attorneys state these are their normal hourly rates and that their clients pay such rates. (See Cuddy Decl., ¶ 59.)
Defendant contends that the administrative hearings did not raise complex issues and that the proceedings were substantially settled, weighing in favor of lower hourly rates. (Def. Mot. for Summary Judgment, pg. 7-8.) Defendant further argues the proceedings lasted no more than ten minutes and neither party presented any witnesses. (Id.) Therefore, Defendants argue that the hourly rates assigned in the Northern District of New York, where CLF has its principal offices, should apply.
As to the Johnson factors favoring a higher award, CLF secured all of Plaintiffs' requested relief, an admission from the Defendant that they failed to provide a FAPE, the Defendant's compliance with the IHO's order, and implementation of the SOAs. While this case was not heavily contested or complex, the degree of success achieved and the additional labor Defendant caused Plaintiffs by delaying action on Mam.D.'s case until eight months after the DPC and delaying notification to Plaintiffs that they would agree to their requested relief in one of the hearings weigh in favor of a relatively higher rate. See S.P. v. New York City Dep't of Educ., 2022 WL 109266, at *5 (S.D.N.Y. Jan. 11, 2022) (noting where the DOE's own conduct required more skill and labor by plaintiff's attorneys, the award of a lower rate is not appropriate).
However, the Court has evaluated the parties' evidence and determined that the CLF's requested fees are unreasonable under the Johnson factors. First, the issues litigated were not especially difficult and were substantially settled prior to or early in the hearings. Second, the Plaintiffs were able to accept other cases while litigating this one. Third, awards in similar cases are significantly lower than the rates requested by CLF. See D.P., 2022 WL 103536, at *10 (collecting cases). Plaintiffs have not submitted any documents that contradict these findings, including their submission of years of statistics indicating at what hourly rates the DOE has settled past attorneys' fees cases. (Kopp Decl., Exs. A-L.) In fact, while this list includes a range of law firms, many of the rates fall within the $350 to $500 range for attorneys, which is largely consistent with the rates awarded in this district for similar cases.
In addition, Plaintiffs submitted over a dozen retainer agreements with other clients of CLF to support their assertion that reasonable clients are willing to pay the requested hourly rates, as well as an exhibit with a table displaying IDEA fee award amounts in this district. (See Arkontaky Decl., Exs. B-K.; Cuddy Decl. ¶ 7; Cuddy Decl. Ex. E.) These two documents do not reflect the level of skill required, time limitations imposed in the case, or the degree of success in the case, all relevant under Johnson. Further, most of the retainer agreements Plaintiffs submitted to the Court do not cover IDEA-related due process hearings and specifically state that a separate agreement must be drawn for the type of work at issue in the instant case. See C.B. v. New York City Dep't of Educ., 2019 WL 3162177, at *7 (S.D.N.Y. July 2, 2019).
Plaintiffs also assert that the current trend of this Court of relying on historical rates rather than the practitioners' declared rates is improper and allows Defendant to pursue low counters to fee demands. (Pl. Mot. for Summary Judgment, pg. 14.) Plaintiffs cite a decision in this district where a practitioner was awarded a rate that was $25 an hour higher than her rate five years prior in part because of the passage of time. See A.B. v. New York city Dept. of Educ., 2021 WL 951928 (S.D.N.Y., Mar. 13, 2021) (awarding $400 hourly rate). Plaintiffs compare this to a case from the same judge where Mr. Cuddy was awarded an hourly rate of $360, which was less than some of the fees he had been awarded in the past. See S.J. v. New York City Dept. of Educ., 2020 WL 6151112 (S.D.N.Y., Oct. 20, 2020). However, Plaintiffs' argument ignores that fee calculation is not solely based on the skill and experience of the practitioners, but also on the other Johnson factors, including the novelty and difficulty of the questions and the skill required to litigate the case. As in S.J., this case is essentially uncontested, weighing in favor of lower rates than those requested.
However, Defendant's assertion that the Court should apply rates applicable in the Northern District of New York is also not persuasive. The IDEA specifically provides that the prevailing market rates in the community in which the action or proceeding arose should be used to determine fees. Here, CLF is practicing in the Southern District of New York, and the Defendant's argument is unavailing as it provides insufficient justification to award lower rates. See K.F. v. New York City Dep't of Educ., 2011 WL 3586142, at *2 (S.D.N.Y. Aug. 10, 2011), adhered to as amended, 2011 WL 4684361 (S.D.N.Y. Oct. 5, 2011) (applying the rates common in the Southern District of New York); C.D. v. Minisink Valley Cent. Sch. Dist., 2018 WL 3769972, at *6 n.8 (S.D.N.Y. Aug. 9, 2018) (same).
Turning to attorneys Sterne and Mendillo, Plaintiffs do not provide sufficient information to justify their requested rate. For Sterne, the attorney in proceeding no. 175432, the Plaintiffs simply state that he was employed by CLF until April of 2020 and had 14 years of experience in IDEA hearings. (Cuddy Decl., ¶¶ 16-17; Cuddy Decl., Ex. A.) For Mendillo, the attorney in proceeding no. 176051, the Plaintiffs only provide that he has been with the firm since 2014 and began practicing in New York in 2012 (suggesting ten years of experience). (Cuddy Decl., ¶ 13; Cuddy Decl. A). This is not sufficient information to justify awarding a rate that is higher than what is awarded in similar cases, particularly for Sterne, whose requested rate of $550 an hour is on the highest end of the range awarded in IDEA cases.
Finally, Plaintiffs' requested rate for paralegals of $225 per hour is unreasonable. Plaintiffs have not given any reason that paralegals in this case should be awarded fees at that rate given prevailing rates in this district are from $100 to $125 per hour. See Restivo v. Hessemann, 846 F.3d 547, 591 (2d Cir. 2017), cert. denied, 138 S.Ct. 644 (2018) (approving paralegal fees of $ 125 per hour as a “Southern District rate”); Decastro v. City of New York, No. 16-cv-3850 (RA), 2017 WL 4386372, at *6 (S.D.N.Y. Sept. 30, 2017) (approving $ 125 per hour rate for paralegals and collecting cases).
Accordingly, I recommend that the hourly rate for Cuddy be set at $425, Sterne at $375, Coretti and Mendillo at $325, and paralegals at $125.
C. Hours Expended
i. Administrative Action 175432
Plaintiffs' counsel represented Plaintiffs in the administrative case for Mam.D. For the administrative hearing, Plaintiffs' counsel was required to prepare affidavits and other exhibits to present at the hearing. After the hearing, Counsel monitored the DOE's compliance obligations as ordered by the IHO.
To initiate M.D.'s cases, Counsel filed a DPC for Mam.D. of seven pages and reviewed educational records. Coretti billed 1.1 hours for reviewing IEP records. (Cuddy Decl. A.) A month later, Coreti billed another 2.8 hours to review IEP records. Further, while drafting the DPC, Coretti billed another 0.7 hours to review the IEPs. There is no showing that the records were voluminous or particularly complicated, so the Court reduces this time to 1.5 hours total reviewing records, which should have been more than adequate to review these records. See R.G. v. New York City Dep't of Educ., 2019 WL 4735050, at *4 (S.D.N.Y. Sept. 26, 2019) (reducing 3.6 hours of billed attorney time for reviewing standard educational records to 1 hour). Further, CLF billed 5.6 hours to draft, review, and file the DPC in case no. 175432. (Cuddy Decl., Ex. A.) Of this, Coretti billed 1.2 hours to drafting the preliminary statement, educational history, abilities, and needs, and the relief requested, all of which are sections that merely list facts. The preliminary statement is half a page that is largely standard for every hearing request with only a handful of sentences that require modification, for which Coretti billed 0.4 hours. Altogether, these three sections should not have taken more than 0.7 hours. Further, the 4.4 hours CLF spent drafting the remaining three pages of the DPC is unreasonable as the document is a standard recitation of issues that are not particularly novel or complicated and should be reduced to 3 hours.
CLF also spent an excessive amount of time preparing for the administrative hearing considering the simplicity of the issues and the signal from opposing counsel that they would not present a case many months before the hearing. The IHO held an administrative hearing for case no. 175432 on January 9, 2020 that lasted nine minutes, including a recess. (Coretti Decl., ¶ 29.) In July 2019, Defendant informed Plaintiffs that they would not present a case. (Id. ¶¶ 27-28.) However, the Plaintiffs spent 11.9 hours preparing for a short, uncontested hearing that Plaintiffs knew well in advance would be uncontested. There is no information about the number of documents prepared for this hearing, but based on the billing records, it appears CLF prepared one parent disclosure, an affidavit from a behavior analyst, affidavit from Dr. Emily Levy, and affidavit from Sharlene LeGendre Khan of the Exceptional Results Agency. Even after the Plaintiffs were informed in July 2019 that the Defendant would not be presenting a case, CLF billed over ten hours of preparation time for a hearing that was less than ten minutes and entered no exhibits and for which CLF seemingly prepared four documents. This is excessive.
In Plaintiffs' Reply Brief, the Plaintiffs state they were informed by Plaintiffs' counsel that Defendant informed them they would not present a case on June 2, 2020. As this was after the conference in January 2020, this Court will credit the assertion in Coretti's Declaration that Defendant informed Plaintiffs in July 2019.
On the disclosure, Coretti billed 1.2 hours preparing the document and 0.5 hours reviewing it two months later. A week later, he billed another 0.3 hours reviewing the disclosure and making final edits. Two days later, Coretti spent another 0.4 hours reviewing the disclosure. The 0.9 hours Coretti spent on solely reviewing the disclosure to prepare for an uncontested hearing is unreasonable and duplicative. The 0.5 hours billed should be reduced to 0, and the 0.4 hours reduced to 0.2 hours. Further, the 1.2 hours Coretti spent on the disclosure is unreasonable. CLF provides very little information about what this disclosure was, but receipts for printing indicate that the parent disclosure totaled 243 pages with exhibits, exhibit lists and cover pages. (Cuddy Decl., Ex. A). Considering paralegal Emma Bianco (“Bianco”) spent 2.7 hours preparing the exhibits and exhibit lists, it is unlikely that Coretti needed more than an hour to prepare the other parts of the disclosure, so his time should be reduced to 0.5 hours. Further, Bianco's time was in addition to the 0.5 hours Amanda Pinchak and 1.1 hours that Allison Bunnell billed to disclosure exhibits prior to July 2019. This is also duplicative and an unreasonable amount of time billed to disclosure exhibits, so the 4.3 hours of paralegal time billed should be reduced to 2.5 hours. Coretti also later billed another 0.4 hours to prepare the binders and instruct Bianco on communicating with the client. The time Coretti spent preparing binders and instructing Bianco on client communication should be reduced in half.
For time the spent in the hearing, Coretti billed 0.3 hours for a hearing that lasted 9 minutes. He also billed (unnecessarily) 0.6 hours reviewing an SOA arising from an uncontested hearing with all requested relief awarded to determine if appeal was necessary, and he spent 0.2 hours sending the SOA to paralegals and the client. Here, Coretti should have billed 0.2 hours for the hearing and billed 0.3 hours total for reviewing the statement and sending that statement to others. In monitoring the implementation status of the hearing, Coretti billed 1 hour for reviewing the status implementation and background of the case and 0.3 hours to a conference with Cailin O'Donnell (“O'Donnell”) for an update. The amount of time Coretti billed merely reviewing the hearing after the fact was unreasonable, particularly given he receive an updated from O'Donnell the same day. Therefore, these 1.3 hours should be reduced to 0.5 hours in total. Additionally, Shobna Cuddy billed 1.2 hours for reviewing the case file in preparation for the billing statement and forwarding this to Andrew Cuddy for review, and Andrew Cuddy billed 1 hour for reviewing the billing statement for accuracy and discretionary reduction. Both of these entries are unreasonable, and the DOE should not have to compensate CLF for administrative clean-up of CLF's own time entries. See R.G. v. New York City Dep't of Educ., 2019 WL 4735050, at *4 (S.D.N.Y. Sept. 26, 2019). Shobna Cuddy's time should be reduced to 0.5 hours, and Andrew Cuddy's time should be reduced to 0 hours accordingly.
Throughout the administrative action, CLF spent an unreasonable amount of time reading and writing emails or on the phone. For example, on February 4, 2019, Coretti billed 0.2 hours for reading an email from the department representative. The next day, Coretti billed 0.1 hour for reading an email from the hearing officer. These two entries should be reduced to 0.15 hours total. On March 4, 2019, Coretti billed 0.2 hours to reading an email from the hearing officer about recusal from the case and drafting an email to the client informing them of the hearing officer's recusal. On the same day, Coretti billed another 0.1 hour reading an email from the hearing office detailing the change and sent another email to the client informing them of the hearing office change. The next day Coretti billed another 0.1 hour reading an email from the hearing office concerning the change and updating the client again, totaling 0.4 hours to reading presumably three emails and sending three emails relaying the same information. These 0.4 hours should be reduced to 0.2 hours, as combined these tasks should not have taken more than .2 hours. On June 4, 2019, Coretti billed 0.4 hours drafting correspondence to the hearing officer, a department representative, and a behavior analyst. On July 3, 2019, he spent another 0.4 hours drafting correspondence to another department representative, the same behavior analyst, and the hearing officer. Both of these bills should be reduced to 0.2 hours each. On November 18, Coretti billed 0.1 hour reading an email from the hearing officer that provides the date of the hearing and billed 0.1 hour the next day sending an email to the client with the hearing date, two separate items that could have been done together in 0.1 hour. On January 1, Coretti billed 0.2 hours to reading emails from the hearing officer and the department representative about expectations for the hearing. The next day Coretti spent another 0.2 hours reading an email from the hearing office and case manager about the hearing and responding. These two should reduced to 0.2 hours. Over two days in June 16 and 17, 2020, Coretti billed 0.4 hours to reading several emails on implementation and sending one email with instructions - all of which should have taken half the time and thus this should be reduced to 0.2 hours. The above examples are merely a sampling of inefficient email practices evidenced in CLF's bills and inappropriate use of 0.1 hour entries.
In total, this Court recommends reducing the hours billed from 52.10 hours to a more reasonable 38.95 hours.
i. Administrative Action 176501
CLF also represented M.D. in administrative action No. 176501. To initiate the action, Plaintiffs prepared a 7-page DPC that CLF billed 10.2 hours to draft. (Cuddy Decl., Ex. B.) The time spent on this DPC was excessive, considering it was roughly the same length and similar in content to the one in Mam.D.'s action but took a substantially longer time to draft. Coretti billed 1.6 hours to draft the preliminary statement, the educational history, abilities, and needs section, and outline the issues. Again, this is an unreasonable amount of time for what is mostly factual recitations standard in many DPCs. Further, he billed 8.6 hours to draft the denial of free appropriate public education section, which amounts to three pages of language that could easily have been found in other DPCs the firm has filed. Therefore, the amount billed for the DPC should be reduced to half.The hearing for administrative action No. 176501 took place on March 27, 2019 and lasted no more than ten minutes, in which time the case was resolved with no opposition from Defendant. (Id. ¶ 54.) In preparation for this short hearing, Plaintiffs billed 15.7 hours. As above, there were many instances of duplicative billing. For example, to draft a two-page affidavit of Dr. Emily Levy of EBL Coaching, within one day, Coretti billed 0.1 hours to draft an email asking about the possibility of an affidavit, 0.5 hours to draft the affidavit, 0.1 hour to revise the affidavit, and then another 0.1 hour to review the updated affidavit. Coretti then billed 0.1 hour to discuss the affidavit with Dr. Levy on the phone, and Mendillo billed 0.2 hours to review and give feedback on this affidavit. Lastly, three days later, Coretti billed 0.1 hour to read an email from Dr. Levy's office that contained the executed affidavit. In this example, a full half hour to draft a short affidavit for a witness that CLF often turns to is unreasonable. Further, billing separately to revise the affidavit and review the updated affidavit is duplicative. The time spent on this affidavit should be reduced from 1.2 hours to 0.8 hours.
Additionally, there are many instances of 0.1 hour charges throughout the billing statements that Coretti spent on status updates, reading emails, and other simple tasks. Further, Coretti billed 0.7 hours for the hearing, which last only 9 minutes. (Coretti Decl., Ex. E.; Cuddy Decl., Ex. B.) This is a clear example of overbilling by half an hour. Further as above, Shobna Cuddy billed 1.2 hours for reviewing the case file in preparation for the billing statement and forwarding this to Andrew Cuddy for review and discretionary reductions, and Andrew Cuddy billed 1 hour for reviewing the billing statement for accuracy and discretionary reduction. Both of these entries are unreasonable, and the DOE should not have to compensate CLF for administrative clean-up of their own time entries. See R.G., 2019 WL 4735050, at *4. Shobna Cuddy's time should be reduced to 0.5 hours, and Andrew Cuddy's time should be reduced to 0 hours.
Plaintiffs assert that the CLF has removed duplicative time and assigned many of its tasks to paralegal staff. However, in light of the above, the charges demonstrate that “rough justice” as described in Fox, 563 U.S. at 838, requires a further reduction across the board. In only the sample discussed above, there are 7.7 hours that were overbilled out of 62.30 total hours billed (excluding attorney travel). Therefore, I recommend a 15 percent reduction for the time CLF spent on this hearing.
ii. Federal Action
This case presented to the Court is no different from the many IDEA fee dispute cases litigated by the CLF and consists primarily of recycled arguments and exhibits. To litigate this fee dispute in federal court, Coretti drafted, filed, and served the summons and complaint. (Coretti Decl., ¶¶ 63-65.)
For Plaintiffs' motion for summary judgment, CLF billed at least 20 hours, which included drafting a 20-page memorandum of law and four declarations with several exhibits each. The memorandum of law and several of the declarations raise similar issues to those raised in the CLF's other cases and contain language carried over from previous motions. Therefore, CLF should have taken less time in drafting these documents. See M.Z. v. New York City Dep't of Educ., 21-cv-9451 (AT) (ECF Nos. 18-24, 26); L.C. v. New York City Dep't of Educ., 21-cv-1250 (VSB) (ECF Nos. 20-27).
Furthermore, to prepare Plaintiffs' 10-page reply, Coretti billed 7.1 hours (Nimmer Supp. Decl. ¶ 7), which is excessive, as this document is substantially similar to replies that the CLF has filed in previous fee motions. See M.Z. v. New York City Dep't of Educ., 21-cv-9451 (AT) (ECF No. 34); L.C. v. New York City Dep't of Educ., 21-cv-1250 (VSB) (ECF No. 27). The CLF also billed over 3.5 hours to review and finalize its billing statements as part of the instant federal action, which is unreasonable considering that this is in addition to the 2.2 hours billed in each of the administrative hearings above for the same purported task. See R.G., 2019 WL 4735050, at *4. CLF even billed the client 0.8 hours of attorney time to review my individual rules and practices and those of Judge Schofield - an excessive amount of time that should not be borne by DOE.
In all, CLF billed a total of 46.9 hours to the instant federal action. This far exceeds a reasonable amount of time for fee petitions. Indeed, in many cases in this District, courts have noted far fewer hours spent on fee applications. See City of Almaty, Kazakhstan v. Ablyazov, 2020 WL 2488179 (S.D.N.Y. May 14, 2020) (finding a cap of 11 hours of fees in connection with the fee application for a total of $5,640.75 reasonable); Torres v. City of New York, 2020 WL 6561599, at *1 (S.D.N.Y. June 3, 2020), report and recommendation adopted 2020 WL 4883807 (S.D.N.Y. Aug. 20, 2020) (finding 9.55 hours spent on the fee application reasonable); Samms v. Abrams, 198 F.Supp.3d 311, 322 (S.D.N.Y. 2016) (finding 41.9 hours spent on a fee application was excessive and reducing to 25 hours); Cooper v. Sunshine Recoveries, 2001 WL 740765, at *4 (S.D.N.Y. June 27, 2001) (reducing 40 hours billed on a fee application to 19 hours); Colbert v.Furumoto Realty, 144 F.Supp.2d 251, 261-62 (S.D.N.Y. 2001) (reducing 20.5 hours billed for a fee application to 15.5 hours); Rosasa v. Hudson River Club Rest., 1998 WL 106141, at *4 (S.D.N.Y. Mar. 9, 1998) (reducing 48.9 hours billed for a fee application to 15 hours).
In light of the above, I recommend a 40 percent reduction in the time spent on the federal action. See also L.L. v. New York City Dep't of Educ., 2022 WL 392912, at *5 (S.D.N.Y. Feb. 9, 2022) (reducing the firm's hours spent on a similar summary judgment motion by roughly half); J.R. v. New York City Dep't of Educ., 2021 WL 3406370, at *6 (S.D.N.Y. Aug. 4, 2021) (reducing the firm's time for a straightforward motion for attorney's fees).
D. Costs
Plaintiffs are entitled to an award of all reasonable costs associated with this matter under 20 U.S.C. § 1415(i)(3)(B) and Fed.R.Civ.P. 54(d)(2). Supreme Court precedent indicates the term “costs” in 20 U.S.C. § 1415(i)(3)(B) refers to the list, including reasonable filing fees, provided under 28 U.S.C. § 1920, the general statute governing taxation of costs in federal court. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297-98 (2006); C.D., 2018 WL 3769972, at *4.
Upon review, the Court finds several costs that are unreasonable given the analysis above. Plaintiff asserts that printing for case no. 176051 cost $0.50 per page and does not specify a per page cost for case no. 175432, so this Court will assume that in both cases the charge of printing was calculated with this per page cost. Defendant argues that cost of printing should be reduced to $0.10 per page. (Nimmer Supp. Decl. ¶ 11.) Here, $0.15 per page is a reasonable figure. See C.B., 2022 WL 3577837, at *9 (reducing the per page printing rate from $0.50 per page to the “reasonable rate” of $0.15 per page). Thus, Plaintiffs' printing costs should be reduced to $39.30 in case no. 175432 and $64.05 in case no. 176501.
For his time spent traveling, Coretti should only be permitted to charge $162.50 per hour (half of the recommended hourly rate) and limited to billing for one hour of travel time each way for his trips. See J.R., 2021 WL 3406370, at *6 (allowing Coretti to bill for no more than one hour of travel time each way for trips to New York City).
As for Coretti's travel related expenses (food, mileage, tolls, parking, and lodging), they should be capped at $60 for hearing no. 175432 and $120 for hearing no. 176501 ($60 per trip). See F.N. v. New York City Dep't of Educ., 2022 WL 3544128, at *7 (S.D.N.Y. Aug. 18, 2022) (deducting lodging, parking, and meal costs related to counsel's trip to Brooklyn for the hearing and reducing Mendillo's mileage and toll fees to $60) (internal citations omitted); see also Y.S., 2022 WL 4096071, at *5 (“The Court declines to award costs for all other travel-related expenses-lodging, mileage, transportation, parking, and meals.”); B.C. v. New York City Dep't of Educ., 2022 WL 3214374, at *10 (S.D.N.Y. Aug. 9, 2022) (“an award of lodging expenses is not warranted. The costs associated with meals will be reduced by 50%. Mileage costs will also be reduced by 50%.”) (quotation marks and citation omitted).
E. Offer of Judgment
Defendant formally offered to settle the underlying matter on March 30, 2022 pursuant to 20 U.S.C. 1415(i)(3)(D) in the amount of $21,600, inclusive of fees, costs, and expenses accrued in the administrative proceeding and in this action through March 30, 2022. (Def. Memorandum of Law in Opposition pg. 30.) Plaintiffs did not accept the offer. An offer of settlement prohibits recovery if “the relief finally obtained . . . is not more favorable . . . than the offer of settlement.” 20 U.S.C. § 1415(i)(3)(D); O.R. v. New York City Dep't of Educ., 340 F.Supp.3d 357, 371 (S.D.N.Y. 2018) (denying plaintiff's request for fees subsequent to the offer of settlement because plaintiff was entitled to less than the settlement offer). However, based on the above recommended reductions, Plaintiffs are not barred from recovering for the work the CLF performed after Defendant's offer of settlement because as of March 30, 2022, they were entitled to receive more than $21,600 for work done on both administrative hearings and the federal action even when considering the recommended fee reductions. Accordingly, Plaintiffs' award should include compensation for work performed after March 30, 2022.
Lastly, under 28 U.S.C. § 1961, “[t]he award of post-judgment interest is mandatory on awards in civil cases as of the date judgment is entered.” True-Art Sign Co. v. Local 137 Sheet Metal Workers Int'l Ass'n, 852 F.3d 217, 223 (2d Cir. 2017) (alteration in original); accord S.J. v. New York City Dep't of Educ., 2021 WL 100501, at *5 (S.D.N.Y. Jan. 12, 2021). Accordingly, I recommend Plaintiffs' request for an award of post-judgment interest from the date of judgment be granted.
CONCLUSION
In summary, I respectfully recommend that Plaintiffs be awarded $35,247.63 in attorneys' fees and $760.17 in costs, for a total amount of $36,007.80. Additionally, I recommend Plaintiffs be awarded post-judgment interest from the date of judgment. The following charts highlights the breakdown of the fees and costs I recommend be awarded.
| ADMINISTRATIVE COMPONENT Case No. 175432 | ||||
| Hourly Rate | Number of Hours | Total | ||
| Andrew Cuddy (attorney) | $425.00 | 0 | $ | 0 |
| Justin Coretti (attorney) | $325.00 | 26.45 | $ | 8,596.25 |
| Justin Coretti (travel) | $162.50 | 2.00 | $ | 325.00 |
| Jason Sterne (attorney) | $375.00 | 0.50 | $ | 187.50 |
| Allison Bunnell (paralegal) | $125.00 | 1.10 | $ | 137.50 |
| Amanda Pinchak (paralegal) | $125.00 | 3.20 | $ | 400.00 |
| Sarah Woodard (paralegal) | $125.00 | 3.10 | $ | 387.50 |
| Emma Bianco (paralegal) | $125.00 | 2.70 | $ | 337.50 |
| Cailin O'Donnell (paralegal) | $125.00 | 1.40 | $ | 175.00 |
| Shobna Cuddy (paralegal) | $125.00 | 0.50 | $ | 62.50 |
| ADMINISTRATIVE COMPONENT Case | No. 176051 | |||
| Andrew Cuddy (attorney) | $425.00 | 0.85 | $ | 361.25 |
| Justin Coretti (attorney) | $325.00 | 40.545 | $ 13,177.13 | |
| Justin Coretti (travel) | $162.50 | 4.00 | $ | 650.00 |
| Kevin Mendillo (attorney) | $325.00 | 0.17 | $ | 55.25 |
| Allison Bunnell (paralegal) | $125.00 | 1.87 | $ | 233.75 |
| Amanda Pinchak (paralegal) | $125.00 | 4.335 | $ | 541.88 |
| Sarah Woodard (paralegal) | $125.00 | 2.04 | $ | 255.00 |
| Burhan Meghezzi (paralegal) | $125.00 | 0.34 | $ | 42.50 |
| John Slaski (paralegal) | $125.00 | 1.785 | $ | 223.13 |
| Shobna Cuddy (paralegal) | $125.00 | 1.02 | $ | 127.50 |
| FEDERAL ACTION | |||
| Andrew K. Cuddy (attorney) | $425.00 | 2.46 | $ 1,045.50 |
| Justin M. Coretti (attorney) | $325.00 | 23.58 | $ 7,663.50 |
| ChinaAnn Reeve (paralegal) | $125.00 | 0.84 | $105.00 |
| Shobna Cuddy (senior paralegal) | $125.00 | 1.26 | $157.50 |
| FEE SUBTOTAL | $ 35,247.63 |
| ADMINISTRATIVE COMPONENT Case No. 175432 | |
| Printing | $39.30 |
| Fax | $12.00 |
| Postage | $1.41 |
| Travel | $60.00 |
| ADMINISTRATIVE COMPONENT Case No. 176501 | |
| Copy at $0.50/page | $64.05 |
| Fax at $2.00/page | $60.00 |
| Postage | $1.41 |
| Travel | $120.00 |
| Federal Action | |
| Federal Filing Fee | $402.00 |
| COST SUBTOTAL | $760.17 |
NOTICE
The parties shall have fourteen days, from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2).
The parties shall have fourteen days to serve and file any response. Any objections and any responses to such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lorna G. Schofield at the United States Courthouse, 40 Foley Square, New York, New York 10007, and served on the other parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Schofield. The failure to file timely objections shall result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).