Opinion
21-CV-10962 (JMF) (JLC)
11-15-2022
T.H., individually and on behalf of M.H, a child with a disability, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant. Hourly Rate Recommended Hours Recommended (20% discount) Hourly Rate Recommended Hours Recommended (20% discount)
Honorable Jesse M. Furman, United States District Judge
REPORT & RECOMMENDATION
JAMES L. COTT UNITED STATES MAGISTRATE JUDGE
Before the Court is a motion by T.H. on behalf of M.H., pursuant to the feeshifting provisions of the Individuals with Disabilities Education Act, for attorneys' fees and costs for work performed by attorneys and paralegals at the Cuddy Law Firm. The New York City Department of Education opposes the motion, arguing that both the requested hourly rates and the number of hours expended are excessive and unreasonable. For the reasons set forth below, I recommend that the motion be granted to the extent that plaintiffs be awarded attorneys' fees and costs in the amount of $24,571.76, plus post-judgment interest.
I. BACKGROUND
A. Factual Background
Plaintiff T.H. is the parent of Plaintiff M.H. (together, “Plaintiffs”), a child classified as a student with a speech language impairment by the New York City Department of Education's (“DOE”) Committee on Special Education (“CSE”). Complaint (“Compl.”), Dkt. No. 1 ¶¶ 3, 4, 9. On August 5, 2020, the Cuddy Law Firm (“CLF”), a law firm specializing in cases brought under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400, et seq., filed a Due Process Complaint (“DPC”) on behalf of Plaintiffs, alleging that M.H. was denied a Free Appropriate Public Education (“FAPE”) during the 2020-2021 school year in violation of the IDEA. Id. ¶¶ 10, 12; see also Declaration of Kevin M. Mendillo dated June 2, 2022 (“Mendillo Decl.”), Ex. A, Dkt. No. 22-1 at 1. The DPC requested that the DOE (1) find that it denied M.H. a FAPE for the 2020-2021 school year; (2) find that the Gillen Brewer School is an appropriate placement for the 2020-2021 school year and the summer portion of 2020; (3) reimburse Plaintiffs for tuition and related costs, including transportation for M.H.'s attendance at Gillen Brewer for the 2020-2021 school year and the 2020 summer portion; (4) in the alternative, if the Impartial Hearing Officer (“IHO”) did not find Gillen Brewer School to be an appropriate placement, then to locate and enroll M.H. in an appropriate New York State approved nonpublic school within 10 days of the final order; (5) amend M.H.'s Individualized Education Program (“IEP”) to include a summer reading program; (6) amend M.H.'s IEP to include aids, supports, and modifications recommended by the doctor who conducted his neuropsychological evaluation; (7) pay Plaintiffs' reasonable attorneys' fees and expenses in conjunction with representation in this matter; and (8) in the event an impartial hearing was scheduled, any additional relief that may be appropriate and necessary to ensure M.H. is provided with a FAPE for the 2020-2021 school year. Mendillo Decl. Ex. A at 7-8.
The DOE responded on August 7, 2020, denying the allegations in the DPC. Mendillo Decl. ¶ 18. It did not hold a mandated resolution meeting in response to the DPC. Id. A pre-hearing conference was held on February 11, 2021 with the IHO by telephone. Mendillo Decl. ¶ 20; Declaration of Roslyn Roth dated July 18, 2022 (“Roth Decl.”), Dkt. No. 30 ¶ 7. A pendency hearing was held by the IHO on March 24, 2021 at which time she decided that rather than evaluate the issue of pendency, she would schedule a hearing on the merits. Mendillo Decl. ¶ 22. On March 29, 2021, the DOE issued a written offer of settlement to Plaintiffs, proposing to fund M.H.'s attendance at the Gillen Brewer School for the 2020-2021 school year, and to pay attorneys' fees. Roth Decl. ¶ 9. On April 1, 2021, the DOE offered Plaintiffs $5,354.00 in attorneys' fees. Id. ¶ 11. Plaintiffs countered with $20,000, which the DOE did not have the authority to approve. Id.
On April 9, 2021, the DOE's counsel informed Plaintiffs' counsel that the DOE would not be presenting documentary evidence or witness testimony in defense of whether it provided M.H. a FAPE. Mendillo Decl. ¶ 23. A hearing on the merits was held on April 15 and 16, 2021. Mendillo Decl. ¶¶ 24-25. The hearing lasted for approximately one-and-a-half hours in total. Declaration of Andrew Cuddy dated June 2, 2022 (“Cuddy Decl.”), Dkt. No. 21-1, Ex. A at 20; Roth Decl. ¶ 12. Kevin Mendillo of CLF appeared for Plaintiffs and introduced 15 documents into the record and presented direct testimony from two witnesses. Mendillo Decl. ¶¶ 24-25. The DOE rested its case without presenting documentary evidence or witness testimony. Id. ¶ 24.
On April 17, 2021, the IHO issued Findings of Fact and Decision (“FOFD”) ordering the DOE to fund M.H.'s 2020-2021 school year tuition at Gillen Brewer School in the total amount of $89,100.00, within 45 days of the date of the FOFD. Mendillo Decl. ¶¶ 26-27. However, the DOE failed to issue the payment within 45 days, and relief efforts remained ongoing until January 2022. Mendillo Decl. ¶¶ 28-29.
On October 14, 2021, CLF submitted a request to the DOE for attorneys' fees and costs incurred for work performed in connection with the administrative proceeding. Cuddy Decl. ¶ 28; Roth Decl. ¶ 14. The DOE acknowledged the demand on October 20, 2021, but made no further response subsequent to that and prior to the filing of this action. Cuddy Decl. ¶¶ 29-30.
B. Procedural History
On December 21, 2021, Plaintiffs commenced this action pursuant to 20 U.S.C. § 1415 seeking attorneys' fees and costs incurred in connection with the administrative proceeding. Mendillo Decl. ¶ 33; Compl. ¶ 28. On May 23, 2022, the DOE served Plaintiffs' counsel with an Offer of Settlement pursuant to 20 U.S.C. § 1415(i)(3)(D) in the amount of $20,000.01. Cuddy Decl. ¶ 53; Def. Opp. at 3 n. 2. Plaintiffs rejected that offer and the DOE made no further proposals. Mendillo Decl. ¶ 39.
Plaintiffs moved for summary judgment on June 2, 2022. Motion for Summary Judgment, Dkt. No. 17; Memorandum of Law in Support of Motion for Summary Judgment (“Pl. Mem.”), Dkt. No. 23. In support of their motion, Plaintiffs filed the following declarations: the Declaration of Benjamin Kopp, Dkt. No. 18; the Declaration of Adrienne Arkontaky, Dkt. No. 19; the Declaration of Steven Tasher (“Tasher Decl.”), Dkt. No. 20; the Declaration of Andrew Cuddy, Dkt. No. 21; and, the Declaration of Kevin Mendillo, Dkt. No. 22. Plaintiffs also filed a Local Rule 56.1 Statement (“Pl. 56.1”), Dkt. No. 24.
The DOE filed opposition papers on July 26, 2022. Memorandum of Law in Opposition (“Def. Opp.”), Dkt. No. 27. DOE also filed a Response to Plaintiffs' Rule 56.1 Statement (“Def. 56.1”), Dkt. No. 28. In support of its opposition, the DOE filed the following declarations: the Declaration of Emily R. Goldman, Dkt. No. 29; the Declaration of Roslyn Roth, Dkt. No. 30; and the Declaration of Martin Bowe, Dkt. No. 31.
Plaintiffs filed their reply papers on August 10, 2022. Reply Memorandum of Law in Support of Motion for Summary Judgment (“Pl. Rep.”), Dkt. No. 33. Along with their reply, Plaintiffs filed the Declaration of Andrew K. Cuddy dated August 10, 2022 (“Cuddy Reply Decl.”), Dkt. No. 32. In total, Plaintiffs seek $46,178.40 in attorneys' fees and costs. Cuddy Reply Decl. ¶ 4. The motions have been referred to me for a report and recommendation. Dkt. No. 6.
II. DISCUSSION
A. Applicable Law
The IDEA grants district courts the discretion to award “reasonable attorneys' fees” and costs to a “prevailing party.” 20 U.S.C. § 1415(i)(3)(B)(I). Its fee-shifting provisions are interpreted in the same manner as other civil rights feeshifting statutes. See A.R. ex rel. R.V. v. N.Y.C. Dep't of Educ., 407 F.3d 65, 73 (2d Cir. 2005). When determining whether to award attorneys' fees under a federal feeshifting statute such as the IDEA, a court must undertake a two-pronged inquiry. See, e.g., A.B. v. N.Y.C. Dep't of Educ., No. 20-CV-3129 (SDA), 2021 WL 951928, at *2 (S.D.N.Y. Mar. 13, 2021). First, “[t]he court ‘must determine whether the party seeking the award is in fact a prevailing party.'” Id. (quoting Mr. L. v. Sloan, 449 F.3d 405, 407 (2d Cir. 2006)). “If the party is a prevailing party, the court must then determine whether, under the appropriate standard, that party should be awarded attorney's fees.” Id. (quoting Mr. L, 449 F.3d at 207).
A district court may award attorneys' fees if they are “reasonable” and “based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of the services furnished.” 20 U.S.C. § 1415(i)(3)(B)-(C); see also A.R., 407 F.3d at 79. To determine the amount of a prevailing party's fee award, a court calculates a “presumptively reasonable fee, reached by multiplying a reasonable hourly rate by the number of reasonably expended hours.” Bergerson v. N.Y. State Office of Mental Health, Cent. N.Y. Psychiatric Ctr., 652 F.3d 277, 289 (2d Cir. 2011) (citation omitted); see also Lilly v. City of New York, 934 F.3d 222, 229-30 (2d Cir. 2019).
Here, the DOE does not dispute that Plaintiffs are “prevailing part[ies]” entitled to recover reasonable fees and costs under 20 U.S.C. § 1415(i)(3)(B) for the work performed in the administrative proceeding. Def. Opp. at 1. Accordingly, the Court turns to an analysis of the presumptively reasonable fee for Plaintiffs' counsel.
B. Analysis
1. Hourly Rates
When determining a reasonable hourly rate for an attorney or paralegal, courts consider both the prevailing market rates for such legal services as well as the case-specific factors articulated in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany, 522 F.3d 182, 190 (2d Cir. 2008). The Johnson factors are:
(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.G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 894 F.Supp.2d 415, 428 (S.D.N.Y.2012) (citation omitted). A court does not need to make specific findings as to each factor as long as it considers all of them when setting the fee award. See, e.g., E.F. ex rel. N.R. v. N.Y.C. Dep't of Educ., No. 11-CV-5243 (GBD) (FM), 2014 WL 1092847, at *3 (S.D.N.Y. Mar. 17, 2014) (citations omitted); see also Lochren v. Cty. of Suffolk, 344 Fed.Appx. 706, 709 (2d Cir. 2009) (“Arbor Hill did not hold that district courts must recite and make separate findings as to all twelve Johnson factors.”).
Plaintiffs request the following hourly rates: $550 for Andrew Cuddy and Jason Sterne; $450 for Kevin Mendillo; $425 for Justin Coretti; and $225 for their paralegals. Cuddy Decl. ¶ 52. The DOE objects to the hourly rates sought by Plaintiffs and seeks to reduce them based upon the Johnson factors. Def. Mem. at 5-12. Having considered all the Johnson factors, the Court concludes that Plaintiffs' proposed hourly rates should be reduced, though not to the extent proposed by the DOE. As with many of the other actions brought by CLF in this District in recent years, the underlying case here does not appear to have been “novel or difficult,” and the proceeding seems to have been “a fairly straightforward administrative matter.” Y.S. v. N.Y.C. Dep't of Educ., No. 21-CV-2159 (RA), 2022 WL 4096071, at *3 (S.D.N.Y. Sept. 6, 2022). Although the hearing took place over two days, in total it lasted only about one-and-a-half hours, during which Plaintiffs presented 15 documents and took testimony from only two witnesses. Notably, the DOE did not present a case in opposition.
Plaintiffs submit affidavits from other attorneys that purport to establish the prevailing market rates for attorneys practicing special education law in this District. Dkt. Nos. 19-20. Courts in this District have repeatedly determined that these types of affidavits are of limited value if they do not also provide the context necessary to properly apply the Johnson factors. See, e.g., B.C. v. N.Y.C. Dep't of Educ., No. 21-CV-2840 (ER), 2022 WL 3214374, at *6 n. 2 (S.D.N.Y. Aug. 9, 2022) H.C. v. N.Y.C. Dep't of Educ., No. 20-CV-844 (JLC), 2021 WL 2471195, at n. 5 (S.D.N.Y. June 17, 2021); R.G. v. N.Y.C. Dep't of Educ., No. 18-CV-6851 (VEC), 2019 WL 4735050, at *2 n.4 (S.D.N.Y. Sept. 26, 2019); M.D. v. N.Y.C. Dep't of Educ., No. 17-CV-2417 (JMF), 2018 WL 4386086, at *3 n.2 (S.D.N.Y. Sept. 14, 2018). Because the attorney affidavits submitted by Plaintiffs do not provide enough context to apply the Johnson factors, they should not be accorded any weight.
“The relevant community for the purposes of determining a reasonable rate is the Southern District of New York, where both this litigation and the underlying administrative proceeding are centered.” H.A. v. N.Y.C. Dep't of Educ., No. 20-CV-10785 (PAE), 2022 WL 580772, at *5 (S.D.N.Y. Feb. 25, 2022). There have been numerous cases involving nearly all of the same CLF attorneys and paralegals brought in this District in this year alone in which courts have made findings with respect to their rates. See, e.g., M.R. v. N.Y.C. Dep't of Educ., No. 21-CV-5503 (VEC), 2022 WL 4396835, at *2 (S.D.N.Y. Sept. 23, 2022) ($367 to Cuddy, $210 for Mendillo, $183.75 for Coretti, and $100 for junior paralegals), on reconsideration 2022 WL 16575767 (Oct. 31, 2022); Y.S., 2022 WL 4096071, at *3 ($400 for Cuddy, $300 for Mendillo, $125 for S. Cuddy, and $100 for junior paralegals); F.N. v. N.Y.C. Dep't of Educ., No. 21-CV-3379 (JPO), 2022 WL 3544128, at *4 (S.D.N.Y. Aug. 18, 2022) ($375 for Cuddy, $300 for Mendillo, $120 for senior paralegals, and $100 for junior paralegals); R.P. v. N.Y.C. Dep't of Educ., No. 21-CV-4054 (JMF), 2022 WL 1239860, at *3 (S.D.N.Y. Apr. 27, 2022) ($375 for Cuddy and Sterne, $300 for Mendillo, $200 for Coretti, $125 for senior paralegals, and $100 for junior paralegals); H.W. v. New York City Dep't of Educ., No. 20-CV-10591 (RA), 2022 WL 541347, at *3 (S.D.N.Y. Feb. 23, 2022) ($400 for Cuddy and Sterne, $300 for Mendillo, $125 for S. Cuddy, and $100 for junior paralegals); V.W. v. N.Y.C. Dep't of Educ., No. 20-CV-2376 (RA), 2022 WL 37052, at *5-6 (S.D.N.Y. Jan. 4, 2022) ($400 for Cuddy, $300 for Mendillo and Coretti, $125 for S. Cuddy, and $100 for junior paralegals). Cf. Y.G. v. N.Y.C. Dep't of Educ., No. 21-CV-641 (AKH), 2022 WL 1046465, at *2 (S.D.N.Y. Apr. 7, 2022) (outlier decision in which administrative hearing “heavily contested” and therefore CLF awarded requested rates).
The DOE contends that the Court should look to prevailing market rates in the Northern District of New York, where CLF is based, instead of the Southern District of New York. Def. Opp. at 5-6. “However, an out-of-district attorney may be entitled to receive a higher rate when practicing in this district than the rate . . . he or she ordinarily receives in the community in which he or she usually practices.” H.A., 2022 WL 580772, at *5 n.6 (internal quotations and citation omitted). Thus, since the underlying action took place in this District, prevailing market rates in this District should apply.
Appeals have been filed in several of these cases, including Y.G., which are pending in the Second Circuit.
For the same reasons articulated in those cases, the Court recommends the following hourly rates: Andrew Cuddy and Jason Sterne, two senior CLF attorneys, should be awarded an hourly rate of $400. Kevin Mendillo, the lead counsel in both this action and the administrative proceeding, should be awarded an hourly rate of $300. Justin Coretti, a CLF attorney with nearly ten years of experience, should be awarded an hourly rate of $300. The paralegals who worked on this case, Burhan Meghezzi, Cailin O'Donnell, Emma Bianco, Allyson Green, and ChinaAnn Reeve, should be awarded an hourly rate of $100, except for the senior paralegal, Shobna Cuddy, who should be awarded an hourly rate of $125.
In R.P., hourly rates of $375 and $200 were awarded to Andrew Cuddy and Justin Coretti, respectively. 2022 WL 1239860, at *4. On balance, we believe higher hourly rates are warranted here for Cuddy and Coretti. First, unlike in R.P. where the administrative hearing lasted a total of 15 minutes, the hearing here lasted one-and-a-half hours. Second, unlike in R.P. where the plaintiff failed to provide a declaration attesting to Coretti's credentials and experience, in this case, these details are provided. See Cuddy Decl. ¶ 15. Finally, these rates comport with rates recently awarded by other courts in this District. See, e.g., Y.S., 2022 WL 4096071, at *3, and V.W., 2022 WL 37052, at *5-6.
While the Court is mindful of the arguments that Plaintiffs have made to support their proposed rates, Arbor Hill held that a court must “step[] into the shoes of the reasonable, paying client, who wishes to pay the least amount necessary to litigate the case effectively.” O.R. v. N.Y.C. Dep't of Educ., 340 F.Supp.3d 357, 364 (S.D.N.Y. 2018) (quoting Arbor Hill, 522 F.3d at 184). In other words, as the court in O.R. observed, “whether the attorneys on this case properly command the rates they seek in the marketplace is not dispositive of the rate they are to be awarded.” Id. Until the Second Circuit modifies the directives set forth in Arbor Hill, this Court is constrained to determine, as it has done here, the least expensive hourly rate an effective attorney would have charged to litigate the case.
2. Hours Reasonably Expended
Having determined the hourly rates for each timekeeper, the Court will now analyze the number of hours reasonably expended.
A fee award should compensate only those hours that were “reasonably expended” by the attorneys on the case. See, e.g., McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96 (2d Cir. 2006). “In determining the number of hours reasonably expended for purposes of calculating the lodestar, the district court should exclude excessive, redundant or otherwise unnecessary hours.” Quarantino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999) (citation omitted). Whether a case was “particularly complicated” or involved any “significant” legal issues may be considered in determining the reasonable number of hours a case requires. See, e.g., Millea v. Metro-North R.R. Co., 658 F.3d 154, 167 (2d Cir. 2011). District courts have “ample discretion” in assessing the “amount of work that was necessary to achieve the results in a particular case.” K.L. v. Warwick Valley Cent. Sch. Dist., No. 12-CV-6313 (DLC), 2013 WL 4766339, at *10 (S.D.N.Y. Sept. 5, 2013) (quoting Ortiz v. Regan, 980 F.2d 138, 141 (2d Cir. 1992)), aff'd, 584 Fed.Appx. 17 (2d Cir. 2014).
Ultimately, “‘trial courts need not, and indeed should not, become greeneyeshade accountants. The essential goal in shifting fees . . . is to do rough justice, not to achieve auditing perfection.'” C.B. v. N.Y.C. Dep't of Educ., No. 18-CV-7337 (CM), 2019 WL 3162177, at *5 (S.D.N.Y. July 2, 2019) (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)). To calibrate an appropriate award, “[t]he district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award” by a reasonable percentage. Hensley v. Eckerhart, 461 U.S. 424, 436-37 (1983); see also McDonald, 450 F.3d at 96 (“A district court may exercise its discretion and use a percentage deduction as a practical means of trimming fat from a fee application.”) (internal quotation marks and citation omitted); see also K.E. v. N.Y.C. Dep't of Educ., No. 21-CV-2815 (KPF), 2022 WL 4448655, at *14 (S.D.N.Y. Sept. 23, 2022). With this background in mind, the Court first considers the hours expended in connection with the administrative proceeding and then the hours expended in connection with this action.
a. Administrative Proceeding
Plaintiffs seek $31,080.00 in fees for 73.9 hours of attorney and paralegal time spent on the administrative proceeding. Cuddy Decl. ¶ 52. The DOE contends that Plaintiffs should be awarded no more than $17,031.40 for the administrative proceeding because the pre-hearing conference and hearing itself were brief and generally uncontested, and because Plaintiffs' attorneys spent excessive hours on hearing preparation and administrative tasks. Def. Opp. at 3, 17-18. Plaintiffs contend that a reduction of hours billed is inappropriate because the hours expended were reasonable. Pl. Mem. at 21-24. Plaintiffs also argue that a reduction of hours is inappropriate because the DOE unreasonably protracted the final resolution of the proceeding by (1) taking six months from the filing of the DPC to appoint an IHO to the case; (2) failing to hold a resolution meeting pursuant to 8 N.Y.C.R.R. § 200.5(j)(2)(i); and (3) failing to adopt a consistent position on whether it would defend the case. Pl. Mem. at 5-6; see also 20 U.S.C. § 1415(i)(3)(G).
As an initial matter, any protraction on the DOE's part did not rise to the level of being “unreasonable.” In S.J., the plaintiffs argued that the DOE unreasonably protracted the resolution of the DPC because its representative was unresponsive, leading to significant delays in the administrative proceedings. See Plaintiffs' Memorandum of Law in Support of Summary Judgment at 6-8, in S.J. v. N.Y.C. Dep't of Educ., No. 20-CV-1922 (LGS) (SDA), 2021 WL 100501 (Jan. 12, 2021), Dkt. No. 36. Similarly, in F.N., the court acknowledged plaintiff's contentions that the DOE failed to participate in a mandatory resolution session and failed to settle the matter before the IHO hearing. F.N., 2022 WL 3544128, at *2. However, in both S.J. and F.N., the court concluded that the DOE did not unreasonably protract the final resolution of the action. See S.J., 2021 WL 100501, at *4; F.N., 2022 WL 3544128, at *2.
Here, as in F.N., there was a delay: the DOE took six months to assign the IHO, did not hold a mandatory resolution session, and delayed informing Plaintiffs that it was not going to defend its position at the IHO hearing. However, as in F.N., Plaintiffs offer “no evidence beyond [these facts] to establish that this delay was ‘unreasonable.'” F.N., 2022 WL 3544128, at *2-3.
As the parties are well aware, IDEA attorneys' fees litigation has become increasingly common in this District (at least with respect to Plaintiffs' counsel). The Court strongly encourages the DOE to avail itself of the resolution sessions to actually resolve DPCs (or at the very least, provide clarity on its position in the case), thereby reducing the amount of attorneys' fees and expenses incurred (and potentially reducing the number of IDEA attorneys' fees lawsuits as well). H.C. v. N.Y.C. Dep't of Educ., No. 20-CV-844 (JLC), 2021 WL 2471195, at *8 n.8 (S.D.N.Y. June 17, 2021). It also encourages CLF to reconsider its persistence in looking for decisions from judges to support its aspirational rates that have been consistently denied. See, e.g., D.P. v. N.Y.C. Dep't of Educ., No. 21-CV-27 (KPF), 2022 WL 103536, at *6 (S.D.N.Y. Jan. 10, 2022) (admonishing CLF for its “continued adherence . . . to aspirational rates that no court has awarded”).
Accordingly, the Court has reviewed the hours billed by Plaintiffs' counsel in connection with the administrative proceeding as well as the DOE's challenges, and concludes that an across-the-board 20% reduction of hours expended is appropriate. See Cuddy Decl. Ex. A, B, Dkt. Nos. 21-1, 21-2; see also Def. Mem. at 17-18.
First, the hours spent preparing the DPC were excessive. Mendillo spent 13.3 hours drafting the eight-page complaint, after which Cuddy reviewed it for one hour. Cuddy Decl. Ex A at 5-7. These hours do not include the four hours Mendillo billed for reviewing documents in connection with drafting the DPC. Id. “Numerous courts in this district have reduced the time eligible for reimbursement in other fee applications involving the drafting of DPCs of similar length or complexity.” Y.S., 2022 WL 4096071, at *5 (hours reduced by 20% where Mendillo spent 13.1 hours drafting eight-page DPC, Cuddy spent 1.1 hours reviewing, and Mendillo spent 4.1 hours reviewing records in anticipation of drafting) (collecting cases).
Next, several hours billed by Mendillo were for tasks that were administrative and/or secretarial in nature (such as formatting documents and saving records), further warranting at least a modest reduction. See, e.g., Cuddy Decl. Ex. A at 8, 10, 14; Def. Mem. at 17; see also O.R., 340 F.Supp.3d at 368 (reducing hours for tasks that were secretarial or clerical).
The DOE also seeks a reduction for attorney and paralegal hours billed for preparing and reviewing billing statements. Def. Mem. at 17. While time spent preparing a fee submission (including compiling time entries) is compensable, attorney and paralegal time spent reviewing and editing the billing statement for clarity should not be compensated. See, e.g., R.G., 2019 WL 4735050, at *4 (allowing hours for fee-memo preparation and time entry compilation, but disallowing fees for time spent on “administrative clean-up” of time entries). The recommended 20% reduction of the hours expended accounts for any hours billed for these tasks as well.
In addition, the Court finds that, after applying a 20% reduction, CLF spent a reasonable number of hours preparing for the September 28, 2018 hearing and any post-hearing briefing. The DOE contends that CLF's time spent on these tasks was excessive because the hearing was “uncontested.” Def. Mem. at 17; Roth Decl. ¶ 17. However, the hearing only became “uncontested” at the eleventh hour, and therefore it was reasonable for Mendillo to spend a number of hours on preparation. Mendillo Decl. ¶ 23. At the time of the hearing preparation, Mendillo was uncertain whether the DOE would be putting on a case and had prepared to introduce 15 exhibits in order to secure the requested relief. Id. ¶ 24.
In sum, after careful consideration of the record before the Court and applying the relevant legal standards, the Court recommends awarding attorneys' fees for the administrative hearing as follows:
Time Keeper
Hourly Rate Requested
Hourly Rate Recommended
Hours Requested
Hours Recommended (20% discount)
Total
A.Cuddy
$550.00
$400.00
2.50
2.00
$800.00
J. Sterne
$550.00
$400.00
3.70
2.96
$1,184.00
K. Mendillo
$450.00
$300.00
54.30
43.44
$13,032.00
J. Coretti
$425.00
$300.00
1.10
0.88
$264.00
B. Meghazzi
$225.00
$100.00
1.10
0.88
$88.00
C. O'Donnell
$225.00
$100.00
3.80
3.04
$304.00
E. Bianco
$225.00
$100.00
1.40
1.12
$112.00
A. Green
$225.00
$100.00
3.30
2.64
$264.00
S. Cuddy
$225.00
$125.00
2.70
2.16
$270.00
TOTAL FEES
$16,318.00
b. Federal Court Litigation
Plaintiffs seek an award of $15,097.00 in fees for 33.3 hours billed for the federal court litigation by Cuddy, Mendillo, and paralegals S. Cuddy, O'Donnell, and Reeve. Cuddy Reply Decl. Ex. A at 1. The DOE contends that the hours billed in connection with the federal court litigation should be reduced by 80%. Def. Mem. at 16. It is true, as the DOE argues, that CLF used the same template for its complaint and summary judgment motion papers as it has used in other cases and that the time billed to working on the expert declaration and Cuddy's declaration is excessive. However, the Court finds an 80% reduction to be too drastic and not in line with what courts in this District have applied in similar circumstances. Notably, other courts have found as much as 46 hours billed to the federal action by CLF attorneys to be reasonable. See, e.g., V.W., 2022 WL 37052, at *6 (46.7 hours for “limited scope and straightforward nature” in federal case considered reasonable) (collecting cases).
Nonetheless, in this particular case CLF appears to have billed excessively when working on the federal action. For example, in total, CLF billed 3.3 hours working on the Declaration of Steven Tasher, an expert report that courts in this District have found to be of limited persuasion on multiple occasions. See, e.g, Y.S. v. New York City Dep't of Educ., No. 21-CV-711 (MKV), 2022 WL 3572935, at *6 (S.D.N.Y. Aug. 19, 2022) (collecting cases); K.O. v. New York City Dep't of Educ., No. 20-CV-10277 (LJL), 2022 WL 1689760, at *11 (S.D.N.Y. May 26, 2022). Further, declarations such as the Declaration of Benjamin Kopp dated June 2, 2022, are “of the kind routinely submitted by [CLF] in multiple cases.” C.B. v. New York City Dep't of Educ., No. 20-CV-6914 (MKV), 2022 WL 3577837, at *9 (S.D.N.Y. Aug. 19, 2022) (citation omitted). Accordingly, some reduction is necessary, and a 20% reduction on the hours billed in the federal action should deliver the required “rough justice.” See, e.g., H.W., 2022 WL 541347, at *5 (20% discount where no “difficult legal question” and submissions were routine and “cut-and-paste”).
The DOE also contends that if the Court recommends that CLF is entitled to less than the DOE's settlement offer amount of $20,001, for work performed up to June 6, 2022, then CLF is barred from recovering for any work beyond that date. Def. Opp. at 3. The IDEA's fee-shifting provisions prohibit an award of fees and costs for work performed after a written offer of settlement is made within 14 days before the date set for trial but not accepted within 10 days if “the court . . . finds that the relief finally obtained by the parents is not more favorable to the parents than the offer.” 20 U.S.C. § 1415(i)(3)(D)(i). In O.R., the court declined to award fees and costs incurred after the Offer of Settlement date because, after applying reductions to the attorneys' hourly rates and hours expended, the fees and costs plaintiff was entitled to through the Offer of Settlement date were less than the offered settlement amount. 340 F.Supp.3d at 371; see also H.C., 2021 WL2471195, at *10-11. Conversely, in C.B., the court found that the fees and costs plaintiff was entitled to through the DOE's Offer of Settlement date exceeded the offered settlement amount, and therefore awarded fees for work performed after that date (though at a significantly reduced rate). 2019 WL 3162177, at *11-12.
Here, by the Court's calculations and applying the reductions discussed above, Plaintiffs were entitled to $23,168.88 in attorneys' fees and costs through June 6, 2022. Because this amount is more than the $20,001 the DOE offered on June 6, 2022, fees and costs incurred after that date should be awarded.
To calculate this total, the Court looked to the final invoice for the federal action. See Cuddy Reply Decl. Ex A. The Court then subtracted any hours billed after June 6, 2022, and applied the hourly rate and hours expended reductions as discussed above.
In sum, after careful consideration of the record and applying the relevant legal standards, the Court recommends awarding attorneys' fees for the federal action as follows:
| Time Keeper | Hourly Rate Requested | Hourly Rate Recommended | Hours Requested | Hours Recommended (20% discount) | Total |
| A.Cuddy | $550.00 | $400.00 | 3.40 | 2.72 | $1,088.00 |
| K. Mendillo | $450.00 | $300.00 | 27.10 | 21.68 | $6,504.00 |
| C. O'Donnell | $225.00 | $100.00 | 0.30 | 0.24 | $24.00 |
| S. Cuddy | $225.00 | $124.00 | 1.80 | 1.44 | $178.56 |
| C. Reeve | $225.00 | $100.00 | 0.70 | 0.56 | $56.00 |
| TOTAL FEES | $7,850.56 |
3. Costs/Expenses
“A district court may award reasonable costs to the prevailing party in IDEA cases.” C.D. v. Miniskink Valley Cent. Sch. Dist., No. 17-CV-7632 (PAE), 2018 WL 3769972, at *12 (S.D.N.Y. Aug. 9, 2018) (citing 20 U.S.C. § 1415(i)(3)(B)(i)(1)). Here, Plaintiffs request $403.20 in costs. This includes a $1.40 postage fee in the administrative proceeding and the $402 filing fee in the federal action. Pl. Mem. at 24. The DOE does not take issue with Plaintiffs' request and these costs appear reasonable. See, e.g., R.P., 2022 WL 1239860, at *7 (reimbursement granted for postage and filing fee). Accordingly, the Court recommends granting Plaintiffs' requested costs.
4. Pre- and Post-Judgment Interest
Lastly, Plaintiffs seek pre- and post-judgment interest on the award granted. Pl. Mem. at 25. Plaintiffs contend that they are due pre-judgment interest because of the DOE's unreasonable delay. Pl. Mem. at 25. However, as discussed above, the Court does not find any delay on the DOE's part to rise to the level of “unreasonable.” Therefore, the Court, in line with other cases in this District, recommends denying Plaintiffs' request for pre-judgment interest. See R.P., 2022 WL 1239860, at *7 (collecting cases). Plaintiffs' request for post-judgment interest, on the other hand, should be granted. See id.; S.J., 2021 WL 100501, at *5 (pursuant to 28 U.S.C. § 1961, “the award of post-judgment interest is mandatory on awards in civil cases as of the date judgment is entered.”) (citation omitted).
III. CONCLUSION
For the reasons set forth above, Plaintiffs should be awarded a total of $24,571.76 in attorneys' fees and costs, plus post-judgment interest.
The $24,571.76 consists of $16,318 for the administrative action, $7,850.56 for this action, and $403.20 in costs.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jesse M. Furman, United States Courthouse, 40 Foley Square, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Furman.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). Dated: November 15, 2022