RENÉE MARIE BUMB, District Judge.
K.L. and J.L., the parents of J.L., a minor and a child with special needs, and J.L. (collectively, the "Plaintiffs") filed a due process petition against Defendants Harrison Township Board of Education and Clearview Board of Education (collectively, the "Defendants" or "School District") with the New Jersey Office of Special Education. At the time the petition was filed, J.L. attended seventh grade at the Clearview Regional School District for the 2013-14 school year and had previously attended the Harrison Township School District. The Plaintiffs' petition for due process alleged that J.L.'s Individual Educational Programs ("IEPs") and accommodations were inappropriate.
Within days of the request for due process, counsel for the Defendants, Brett Gorman, reached out to J.L.'s lawyer, Jamie Epstein, in an attempt to resolve the matter. Despite being immediately rebuffed by Mr. Epstein, Mr. Gorman persisted, continuing to offer to provide J.L. with the relief the Plaintiffs were seeking. Mr. Epstein stonewalled and the Plaintiffs' attorney's fees escalated.
Unable to resolve the matter, the Defendants moved for summary judgment months later. The Defendants argued to Administrative Law Judge ("ALJ") John Schuster, III, that the petition should be deemed moot because the Defendants were providing or were willing to provide all the relief J.L. sought in the due process petition. Judge Schuster agreed and dismissed the petition as moot on January 28, 2014. In the span of a mere five months, having engaged in unnecessary and, in fact, what appears to be spiteful protracted litigation, Mr. Epstein had amassed fees in the amount of $49,450 by the time of Judge Schuster's Order.
After Plaintiffs filed a Complaint in federal court for attorney's fees, this Court held a hearing where it gave the parties an opportunity to set forth the facts of what had happened in the administrative proceedings. Thereafter, the Court found that the Plaintiffs had achieved prevailing party status under Section 1415(i)(3)(B)(i)(I) of the Individuals with Disabilities Education Act ("IDEA") and Section 504 of the Rehabilitation Act, 28 U.S.C. § 794a [Docket Nos. 69, 70]. Since the filing of the Complaint to the within motion, the Plaintiffs' amassed another $77,750 in attorney's fees.
In total, the Plaintiffs seek to have the Defendants pay $149,900 in fees, plus $11,314 in costs and expert fees. There is not one compelling fact, however, to justify the hefty award Mr. Epstein seeks. As will be discussed, Mr. Epstein presents many arguments in support of his fees — some are a product of revisionist history; some are plainly disingenuous; almost all have no merit. Suffice it to say that it has been a challenge for this Court to sift through the record, to separate the facts from fiction, the sophisms from paralogisms. Indeed, this Court has labored countless weeks reviewing this record; much of its review has been hampered by Mr. Epstein's obfuscation and tired repetition of arguments this Court and the administrative law courts have rejected. It has been no easy task. Enough is enough.
The Defendants oppose the Plaintiffs' motion for fees, arguing that the flagrant bad faith of Mr. Epstein compels no award. IDEA mandates a reduction in fees whenever the court finds that
20 U.S.C. § 1415(i)(3)(F)(i). "[A]s Congress recognized when it mandated reduced fees for a parent who `unreasonably protracted the final resolution,' needless litigation frustrates the [IDEA's] objectives by fostering delay, exacerbating ill-will among parties who should cooperate in educating the handicapped child, and wasting the resources of all concerned."
Accordingly, if the parent or the parent's attorney unreasonably protracts the litigation, the "court
A court, in its discretion, may even deny attorney's fees under IDEA altogether where the parent or the parent's attorney unreasonably protracts the final resolution of the dispute.
Similarly, the Rehabilitation Act provides that "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 29 U.S.C. § 794a(b). Attorney's fees under the Rehabilitation Act, then, are "not a matter of right but a matter of discretion."
"Once the fee petitioner submits evidence supporting the hours worked and rates claimed, the party opposing the fee application has the burden to challenge the reasonableness of the requested fee."
As a preliminary matter, the Court notes that, after finding that the Plaintiffs were prevailing parties, this Court also found that "[a] reduction in fees is therefore clearly warranted given the bad faith conduct of Mr. Epstein." August 25, 2015 Opinion at 33 [Docket No. 69]. Accordingly, contrary to Plaintiffs' position, the question now before the Court is not whether Mr. Epstein's fees should be reduced, but by how much.
The Defendants first contend that
The Defendants next contend that from the time of Judge Schuster's Order until the filing of the present motion, Mr. Epstein committed bad faith and unnecessarily protracted the litigation before this Court. Thus, in Defendants' view, no fees should be awarded for this time either.
Finally, in the event the Court awards any fees, Defendants have posed objections to certain entries which this Court will address.
The Court first turns to the Defendants' position that no fees should be awarded from the time of the filing of the due process petition (billing entry [118]
Mr. Epstein's abject failure to engage in settlement discussions or to even answer the most basic question — how can this case settle? — is simply inexcusable.
From the very beginning to December 2013, Mr. Epstein insisted on discovery — even though he was not entitled to it until five days before the hearing and even though he, to this day, has not adequately explained how discovery would have assisted in settlement discussions. During the July 14, 2015 hearing, this Court pressed Mr. Epstein for an answer. Mr. Epstein simply echoed the same refrain: that he wanted to see what his chances were at trial.
The Court finds that the fees related to Mr. Epstein's insistence that J.L. receive discovery before settlement discussions are patently unreasonable. That Mr. Epstein should force a school district to turn over 2,500 pages of discovery in the face of a school district's offer to provide the due process relief requested is unreasonable.
Mr. Epstein claims that his experts "were still waiting to review the discovery and prior written notice [and that] when J.L. finally received the discovery in the middle of November 2013, discussions with both experts resumed immediately." Pls. Reply Br. at 6. This Court finds Mr. Epstein's statement to be disingenuous. For example, Elizabeth Smith's Occupation Therapy Evaluation was written after a November 18, 2013 evaluation of J.L. and a November 22, 2013 classroom observation of J.L. The only records Ms. Smith reviewed were the current evaluations, reports, and IEPs, all of which Plaintiffs had. [Docket No. 11-10]. Moreover, Dr. Drew A. Nagele amended his February 6, 2012 and June 14, 2013 reports on December 10, 2013, "in consideration of additional records
Moreover, any fees associated with the Plaintiffs' Motion to Compel discovery are disallowed. Such motion was frivolous and, as Judge Kerins ruled, J.L.'s position was unsupported by the law. Kerins Order at 4-5 [Docket No. 65-1].
Similarly, Mr. Epstein's fees in opposing the Motion to Amend the Answer will not be permitted. This Court finds that the Plaintiffs' argument before Judge Kerins that, as a result of a deficient Answer, Defendants "have hindered [Plaintiffs'] ability to substantiate their claims and assess [Defendants'] defenses" to be absurd. See Kerins Order at 4 (quoting Plaintiffs' 10/11/2013 Brief at 6). Not even two months had passed since the filing of the due process petition when the Defendants filed their Motion to Amend the Answer. Up until that time, Mr. Epstein was dealing with an adversary who continuously expressed a "willingness to resolve Petitioner's concerns" and who desired not to engage in protracted litigation. 10/11/2013 Letter [Docket No. 83-5 at p. 43]. Therefore, fees incurred in opposing the Defendants' Motion to Amend the Answer will not be allowed.
Finally, as this Court has previously written, the stumbling block to the Defendants' meeting all of the Plaintiffs' demands was the Plaintiffs' insistence that the school hire a neuro-psychologist
It was not until December 9, 2013 that the Plaintiffs finally responded to the Defendants' position. Specifically, Plaintiffs demanded Defendants retain a "neuro-psychologist,
At the end of the matter, the Plaintiffs neither amended the petition nor justified the legal basis for insisting that J.L. retain an expert
The Supreme Court and the Third Circuit have noted that it is "mindful that [IDEA] leaves questions of educational policy to state and local officials."
This rationale applies with equal force to personnel decisions. IDEA and the Rehabilitation Act do not permit parents to make decisions regarding the personnel a school district hires and assigns to provide educational services. "The applicable law does not permit parents to usurp the school district's role in selecting its staff to carry out the IEP's cprovisions."
The New Jersey Supreme Court has also stated that it is "local school boards [that] are vested with the managerial prerogative `to deploy personnel in the manner which it considers most likely to promote the overall goal of providing all student with a thorough and efficient education.'"
In the Motion for Attorney's Fees, however, the Plaintiffs attempt to recast their demand, claiming that it was for "a neuro-psychologist to monitor J.L.'s IEP compliance and train staff members." Plaintiffs' Brief in Support of Motion for Attorney's Fees at 4 [Docket No. 83-4]. Mr. Epstein spins pages of legal argument regarding the propriety of a monitor. He slyly ignores the fact that all along he had demanded that the Defendants hire a neuropsychologist
Moreover, as discussed, after Judge Kerins's decision, on December 6, 2013, the Defendants made what was the first formal Offer of Judgment. 12/6/2013 Offer of Judgment [Docket No. 83-5 at p. 58-59]. On December 9, 2013, Mr. Epstein finally responded in writing with specific demands. 12/9/2013 Letter [Docket No. 83-5 at p. 60]. In response, on December 12, 2013, the Defendants amended their Offer of Judgment to address Plaintiffs' written demands. 12/12/2013 Amended Offer of Judgment [Docket No. 83-5 at p. 63-64]. What is most remarkable is that even after the Defendants offered to meet the Plaintiffs' demands, Mr. Epstein not only failed to timely respond but racked up over $10,350 in fees before responding, and an additional $1,450 in fees preparing his overdue response. According to the Plaintiffs' own billing records, the chronology is as follows: on December 12, 2013, the Plaintiffs received the Defendants' December 12, 2013 responsive offer and Mr. Epstein discussed it with his clients.
The amount Mr. Epstein billed for trial preparation, without first making a reasonable and good faith effort to at least respond to the Defendants' counteroffer, is unacceptable. Incredibly, even when Mr. Epstein did finally respond, on the day before trial, he accused Mr. Gorman of "negotiating in bad faith." 12/16/2013 Letter [Docket No. 83-5 at p. 73]. It is hard for this Court to understand such insolence and belligerence. Because the Court finds the expenditure of fees for trial preparation could and should have been avoided, it will not allow such fees.
On December 17, 2013, the parties appeared before Judge Kerins. At that hearing, Mr. Gorman expressed that he wished to advise the Court as to the School District's position. Mr. Epstein objected to any discussion of settlement on the record — which apparently prompted Mr. Gorman to advise the Court that the petition was moot because the School Districts were offering all the relief sought in the petition. The following colloquy occurred:
12/17/2013 Hearing Tr. 9:12-12:18 [Docket No. 48-1] (emphasis added).
Mr. Epstein responded that there was no settlement, that his clients were entitled to an enforceable order, and that if Judge Kerins was not going to disqualify herself, due to having heard the School District's terms, "then this matter should proceed with the due process hearing
What Judge Kerins recognized is that the matter appeared moot except for attorney's fees. That could have been the end of this litigation except for fees — J.L. would have gotten the relief Plaintiffs wanted. But, unfortunately, it was not. Upon Mr. Epstein's perplexing objection, Judge Kerins subsequently recused herself on December 20, 2013, and the matter was set before Judge Schuster on the Defendants' motion for summary decision.
Clearly, Mr. Epstein was well aware before and on December 17, 2013 that the Defendants were willing to provide all the relief sought by the Plaintiffs in the petition. Indeed, he admits so in a letter dated December 20, 2013 addressed to Judge Kerins. 12/20/2013 Letter [Docket No. 41-6] ("[I]t now appears Respondents assert the Petition should be dismissed . . . because they now agree to all the remedies in the Petition.").
It was bad enough that Mr. Epstein pressed forward for a due process hearing on December 17, 2013 before Judge Kerins, when he clearly knew the Defendants would give J.L. what was sought in the petition. It is even more egregious that Mr. Epstein boorishly opposed any adjournment of the due process hearing even after the Defendants had filed their motion for summary disposition on December 28, 2013. Incredibly, the very day after the parties argued the Defendants' motion for summary decision before Judge Schuster on January 14, 2014, Mr. Epstein wrote a letter apparently complaining, not to Judge Schuster, but to the Chief ALJ that the Defendants (
Knowing that the School District wanted to give the Plaintiffs all the relief sought, Mr. Epstein went on to bill more than $10,000 before receiving Judge Schuster's Opinion, which held that the due process petition was moot because the Defendants had conceded all the relief Plaintiffs sought, incidentally, a fact long known to Mr. Epstein. Schuster Opinion [Docket No. 65-2, Ex. 23]. The fees from December 19, 2013 to January 28, 2014 are all denied because they were completely unnecessary and both could and should have been avoided.
The Plaintiffs never appealed that decision. Thus, it was as Mr. Gorman had represented on December 17, 2013 to Judge Kerins. $13,700 in attorney's fees later, Judge Schuster dismissed the petition as moot. All of these fees could have been avoided had Mr. Epstein engaged Mr. Gorman in a bona fide settlement conversation. One need only read the transcripts and the correspondence to reach this conclusion.
The question remaining is whether any of the fees from the filing of the due process petition to Judge Schuster's Order, not already disallowed, should be permitted. The unequivocal answer is no. Courts have held that when a request for attorney's fees is so exorbitant or exaggerated so as to shock the conscience of the court, fees may be outright denied.
In
Similarly, in
Attorneys "are quasi-officers of the court and they are expected to be careful and scrupulously honest in their representations to the court. . . . Lawyers therefore must exercise care, judgment, and ethical sensitivity in the delicate task of billing time and excluding hours that are unnecessary."
While these courts have generally addressed the exaggeration of the amount of fees billed, as opposed to the egregious conduct of the attorney, the Court finds the same rationale applicable here. Here it is not only the exorbitant amount of fees billed that shocks the conscience, but also the Plaintiffs' strategy of unnecessarily protracting the litigation in an apparent effort to continue accumulating fees.
The Defendants urge this Court to deny the Plaintiffs' attorney's fees request because it was the Defendants,
Sadly, the Court is not convinced that Mr. Epstein even appreciates how unacceptable his conduct was and how the Defendants actually sought to provide J.L. the relief Mr. Epstein initially requested. In Mr. Epstein's Affidavit in Support of the Plaintiffs' Reply Brief, he makes the incredulous statement that "[c]ontrary to Defendants' representations there was no finding that Plaintiffs' counsel acted in bad faith and unnecessarily protracted the litigation in this Court." Affidavit ¶ 18 [Docket No. 90-2]. If this Court's Opinions — which Mr. Epstein purports to have read and, in fact, has billed several hours for reading — have little effect on Mr. Epstein's recognizing how lawyers should not behave, then, perhaps an entire reduction in fees will.
Accordingly, the Court will disallow all remaining fees for the period from the filing of the due process petition on August 27, 2013 through the filing of the present Complaint in federal court on April 27, 2014.
The Court next turns to the Defendants' positon that no fees should be awarded from the time of the filing of the Complaint in federal court to the present motion because of Mr. Epstein's bad faith and litigation misconduct. Although this Court is tempted to deny these fees outright given Mr. Epstein's misconduct, it must avoid such temptation and review the record. Certainly, the Plaintiffs were justified in opposing the Defendants' Motion for Summary Judgment. Indeed, the Court found that Plaintiffs achieved prevailing party status on August 25, 2015. Opinion at 24 [Docket No. 69].
Yet, there is no question that in filing the Complaint and litigating the attorney's fees issue before this Court, Mr. Epstein engaged in bad faith. He continued, and continues, to make arguments that were rejected by the ALJs. He continues to distort the record. The Court will address Mr. Epstein's misconduct in three stages: the filing of the Complaint; the Motion to Dismiss/for Summary Judgment; and the Motion for Attorney's Fees.
The filing of the Complaint was reasonable; the fees incurred, however, were not. Three hours will be disallowed.
Moreover, in opposing the Motion to Dismiss, Mr. Epstein billed a whopping 23.3 hours in connection with filing an opposition brief that consisted of a mere six pages (relative to the claim) and had little value. The Court will allow two hours.
On December 19, 2014, this Court converted Defendants' Motion to Dismiss to a summary judgment motion. 12/19/2014 Opinion [Docket No. 38]. It was a relatively short and straightforward Opinion. It should not have taken 2.5 hours to review and "analyze" it.
Plaintiffs billed over twenty hours for legal research and drafting of the Plaintiffs' Motion for Summary Judgment. The Court finds these fees excessive. For the most part, the briefs regurgitated the same worn arguments Plaintiffs had argued before. Because Plaintiffs did prevail, however, reasonable fees will be allowed. Four hours is more than reasonable.
On July 14, 2015, the Court conducted a hearing on the parties' motions for summary judgment. Plaintiffs billed 15.8 hours for the hearing and for preparation on the day before the hearing.
Moreover, Plaintiffs filed an unauthorized submission, aptly characterized as a sur-reply, without this Court's permission. 8/12/2015 Letter [Docket No. 66]. Mr. Epstein claims that the sur-reply serves as "Plaintiffs' Notice of Supplemental Authority as permitted by numerous New Jersey District Court's adaption of" Federal Rule of Appellate Procedure 28(j).
The unauthorized sur-reply was a mere two page document, yet Mr. Epstein billed 2.9 hours, or $1,450, preparing it.
By Opinion dated August 15, 2015, the Court found that Plaintiffs were the prevailing parties, but that a reduction in fees was "clearly warranted given the bad faith conduct of Mr. Epstein." 8/15/2015 Opinion at 35 [Docket No. 69]. The Court's ruling explicitly left only two issues that needed to be briefed:
It should have been obvious that further discovery was not needed, but that the Court needed a better understanding of Plaintiffs' positons as to why they delayed settlement of this matter. Yet, Plaintiffs expended hours upon hours seeking discovery before this Court put a stop to it. Pursuant to Magistrate Judge Schneider's Scheduling Order on October 8, 2015,
Plaintiffs failed to timely comply. More than one month later, on November 15, 2015, Plaintiffs filed a "First Motion for Discovery" [Docket No. 77]. The filing was in blatant disregard of Judge Schneider's Order. It was late. It was not a letter brief. It failed to set forth what discovery was needed and why. It is hard to comprehend Mr. Epstein's flagrant disregard of court orders. These fees will not be allowed.
Because it appeared to this Court that Plaintiffs were, once again, attempting to drag out the proceedings under the guise of the need for discovery, the Court ordered oral argument. The parties appeared before the Court on December 9, 2015 to address Plaintiffs' improper filing of a Motion to Compel Discovery. At the hearing, Mr. Epstein took the remarkable position that Judge Schneider's September 2, 2015 Order requiring discovery was still in effect
12/9/2015 Tr. 5:15-22 [Docket No. 87]. But Defendants from almost day one were not interested in pursuing defenses then or now. Sadly, this Court remains firmly convinced that Mr. Epstein sought discovery solely to delay this case and churn fees. Accordingly, 11.9 hours related to this misconduct will be disallowed.
What remains are the fees spent by Plaintiffs in preparing their motion for fees. By this Court's calculation, Plaintiffs seek $16,800 related solely to the fee pleadings.
Accordingly, for the period between the filing of the Complaint [329] to the conclusion of this matter [479], the Court finds that Mr. Epstein reasonably billed 25.6 hours. The Court, however, is compelled once again to ask whether this number should be reduced further in light of Mr. Epstein's unprofessional, combative, and dilatory conduct. And, once more, the answer is unmistakably clear — these fees must be reduced.
At every step in this litigation, Mr. Epstein has done nothing except foster delay, waste resources, and engender illwill with a School District that was willing to provide J.L. the education the Plaintiffs sought. To grant him reasonable attorney's fees for this conduct, without the reduction that is mandated by IDEA, would merely reward his inappropriate and unacceptable conduct.
As explained more fully above,
This Court reiterates its finding that Mr. Epstein has unnecessarily and unreasonably protracted the resolution of this litigation for years. What's more, he has done so in an unprofessional, at times unethical, and hostile manner. Accordingly, the Court will reduce Mr. Epstein's reasonable attorney's fees by approximately seventy-five percent. In this Court's view, any higher award would only serve to undermine IDEA's objectives and provide Mr. Epstein with an unwarranted windfall. The Court will allow Plaintiffs to recover fees for 6.5 hours billed by Mr. Epstein at the applicable reasonable hourly rate, which is yet to be determined.
Of the fees billed prior to the filing of the due process petition this Court will permit, several appear to relate to clerical tasks. Mr. Epstein affirms in his Affidavit of Services that he did not have any paraprofessionals work on the case, but that tasks he performed "which could have been performed by a paralegal were billed at $150 per hour." Affidavit of Services ¶ 25 [Docket No. 83-2]. Yet, the Court does not find even
Based on the description, the tasks described in the following billing entries should have been billed at the paraprofessional rate of $150 per hour: [3]-[7]; [10]-[12]; [16]; [29]; [31]; [34]; [36]; [40]; [43]-[44]; [48]; [63 (3 hours)]; [64]-[65]; [73]; [83]-[86]; [98]; [100]; [102]; [113]; [116]; [119]; [392]; [394]; [436]; [439]; and [445].
Accordingly, the Court will permit 6.9 hours, the ones identified above, at the paraprofessional rate and the remaining 19.1 pre-petition hours at the reasonable hourly rate, to be determined.
Mr. Epstein, as the attorney for the prevailing party, is entitled to "a reasonable fee, not a windfall."
Even assuming the hourly rate that Plaintiffs request, Plaintiffs would be entitled to recover a total amount of $12,800 in reasonable attorney's fees. In this Court's view, this is the type of award that would have appropriately been recovered in a straightforward case. This could have been a straightforward case, if only Mr. Epstein had litigated in good faith from the start. Had he done so, Mr. Epstein would have prepared and filed the due process petition. The matter would have been resolved expeditiously, as Defendants were eager to accede to Plaintiffs' reasonable demands. J.L. would have started the school year with the accommodations sought in the due process petition instead of being forced to wait until the following semester. Plaintiffs would have then recovered their reasonable attorney's fees to properly compensate them for reaching the best result for J.L. — a successful, quick, and amicable resolution to the dispute.
To award Plaintiffs reasonable attorney's fees, this Court "must calculate the amount of the award beginning with the lodestar, which is a reasonable hourly rate multiplied by a reasonable number of hour expended."
"[A] reasonable hourly rate should be determined by examination of the prevailing market rates in the relevant community at the time of the fee petition, not the time the legal services were performed. A court should assess the skill and experience of the prevailing party's attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation."
Plaintiffs, as the party seeking to recover attorney's fees, carry "the initial burden of `producing sufficient evidence of what constitutes a reasonable market rate for the essential character and complexity of the legal services rendered in order to make out a prima facie case.'"
Plaintiffs claim that, in light of Mr. Epstein's skill and expertise in the area of special education law, as well as his lengthy legal career, Mr. Epstein is entitled to an hourly rate of $500. Plaintiffs submit the affidavits of three attorneys, among other documents, in support of the requested hourly fee. Appendix to Affidavit of Services. Defendants, in turn, challenge this rate as excessively high compared to attorneys of similar skill, experience, and reputation in the relevant market.
While this Court is not yet in a position to determine the reasonable hourly rate in this matter, it feels obliged to briefly address Plaintiffs' position that they are entitled to a $500 per hour rate because of Mr. Epstein's extensive experience in special education matters.
Mr. Epstein cites to a separate action before Judge Noel H. Hillman,
Mr. Epstein's pattern of overstating his fees and engaging in unprofessional and unreasonable behavior has continued into this litigation. In this Court's view, to say that Mr. Epstein's "skill, experience, and performance in the litigation before" this Court has been "unprofessional and contentious" is an understatement.
Accordingly, at this time, the Court finds that Plaintiffs are entitled to attorney's fees for 25.6 hours billed at an hourly rate to be determined at a later date after the Court conducts a hearing, $1,035 in paralegal fees for 6.9 hours billed at an hourly rate of $150, and $11,314.34 in costs and retainer and expert fees. The Court reserves as to the total amount of attorney's fees to which Plaintiffs are entitled until such a time that the Court determines the appropriate reasonable market rate after a hearing or the parties stipulate to a reasonable hourly rate.
In addition to attorney's fees, Plaintiffs also seek to recover $11,314.34 in costs and fees, representing $2,314.34 in administrative and other costs, such as filing fees, traveling expenses, and copying services, $8,000 in retainer fees, and $1,000 in expert fees for services rendered by Dr. Nagele between August 17, 2013 and December 10, 2013. Appendix to Affidavit of Services at 14 [Docket No. 83-3].
Under the IDEA, a prevailing party may recover reasonable attorney's fees and costs related to the litigation. 20 U.S.C. § 1415(i)(3)(B)(i)(I). While "[t]he fee-shifting provision of [IDEA] authorizes the recovery of reasonable attorneys' fees and other enumerated costs," it "does not authorize a prevailing parent to recover fees for services rendered by an expert educational consultant in IDEA proceedings."
Defendants do not contest Plaintiffs' request for $2,314.34 in administrative and other costs and expenses and $8,000 in retainer fees. Accordingly, Plaintiffs, as the prevailing party, are entitled to reimbursement of these costs pursuant to IDEA and Section 504 of the Rehabilitation Act.
Defendants, however, dispute Plaintiffs' request for $1,000 in expert fees for Dr. Nagele's services. According to Defendants, Defendants have already paid Dr. Nagele's costs and fees through the final judgment issued by Judge Schuster on January 28, 2014. Defs. Opp. Br. at 30-31 [Docket No. 88]. Judge Schuster ordered that Defendants pay $5,587 to reimburse the Plaintiffs for expert "expenses incurred for services and evaluations . . . representing the full amount requested." Schuster Order at 3-4 [Docket No. 65-2, Ex. 23]. Defendants also cite to Plaintiffs' December 9, 2013 letter demanding that Defendants reimburse Plaintiffs "$5,587.00 for all out of pocket expenses for privately obtained evaluations and services since 8/28/11." 12/9/2013 Letter ¶ 11. Accordingly, Defendants contend that the $5,587 already paid by Defendants represents
Plaintiffs, in turn, claim that $5,587 represented the full amount that Dr. Nagele had billed Plaintiffs as of the date the demand was initially made and, therefore, does not limit Plaintiffs' ability to obtain reimbursement for expert fees billed later. Plaintiffs note that Dr. Nagele had not yet billed them this $1,000 at the time they made the demand. Reply Affidavit ¶¶ 24, 26-28 [Docket No. 90-2].
The Billing Statement Summary provided to Defendants set forth a series of expert fees and costs for services rendered from January 11, 2012 through May 22, 2013. Billing Statement Summary [Docket No. 65-1, Ex. 8]. The total amount billed at that time was $5,587.
The Court finds that the parties' agreement did not limit reimbursement of expert fees for the entire litigation to $5,587. That amount represented merely "all out of pocket expenses" for experts' services at the time the demand was made, but Plaintiffs had not yet been billed the additional $1,000 by Dr. Nagele. Although Plaintiffs did not disclose the additional $1,000 in expert fees in the underlying administrative proceeding, Plaintiffs, as the prevailing party, are entitled to reimbursement of expert fees under Section 504 of the Rehabilitation Act. Accordingly, Plaintiffs' request for reimbursement of this expert fee will be granted.
Defendants also contend that they are entitled to recover their own attorney's fees under Federal Rule of Civil Procedure 11. Defs. Opp. Br. at 32-33 [Docket No. 88]. Rule 11(b) provides, in relevant part:
Fed. R. Civ. P. 11(b)(1)-(2).
Defendants argue that, throughout this litigation, Plaintiffs have acted frivolously, "improperly, unnecessarily delayed this proceeding, and needlessly increased the cost of litigation." Defs. Opp. Br. at 32. Therefore, in Defendants' view, Plaintiffs have violated Rule 11(b) and should be sanctioned pursuant to Rule 11(c).
Rule 11(c)(1), however, states that a "motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violated Rule 11(b)." Additionally, Rule 11(c) contains a so-called safe harbor provision which dictates that the motion must first be served upon the adversary, but not filed for twenty-one days, to allow the adversary to take corrective action. Fed. R. Civ. P. 11(c)(2). Moreover, sanctions can only be imposed "after notice and a reasonable opportunity to respond." Fed. R. Civ. P. 11(c)(1). Accordingly, Defendants' request for Rule 11 sanctions against Plaintiffs in the form of attorney's fees, which was made in their brief in opposition to Plaintiffs' motion for fees, was improperly made and will be denied.
For the foregoing reasons, Plaintiffs' motion for attorney's fees [Docket No. 83] is granted, in part, denied, in part, and reserved, in part. The Court shall hold a hearing, on a date to be agreed upon by the parties and presented to the Court, regarding the appropriate reasonable hourly rate. The Court, in its discretion, declines to exercise supplemental jurisdiction over Plaintiffs' only remaining state law claim,
As the Defendants correctly point out and as Judge Kerins held, "[d]iscovery in special education matters is governed by the Administrative Procedure Rules for Special Education matters," not the UAPR. Defs. Opp. Br. at 4;
N.J.A.C. 1:6A-1.1 also states, however, that "[a]ny aspect of notice and hearing not covered by these special hearing rules shall be govern by the [UAPR] contained in N.J.A.C. 1:1." Seizing upon this, Plaintiffs now argue before this Court that N.J.A.C. 1:1-10.4(c), which requires that "[n]o later than 15 days from receipt of a notice requesting discovery, the receiving party shall provide the requested information," must be read into the special hearing rules under N.J.A.C. 1:6A-1.1. Specifically, Plaintiffs contend that "unless N.J.A.C. 1:6A-10.1 (the `five-day disclosure rule') is explicitly inconsistent with N.J.A.C. 1:1-10.4(c) then both timelines apply equally to a special education case." Plaintiffs' Reply Brief ("Pls. Reply Br.") at 3 [Docket No. 90-1] (relying on
Whether the discovery deadlines must be read together is not presently before this Court. More importantly, the resolution of that issue is immaterial to the task at hand. The record is crystal clear that Plaintiffs, by refusing to engage in any good faith settlement discussions and single-mindedly commanding discovery, unreasonably protracted the resolution of the dispute. Furthermore, to the extent Plaintiffs argue that Defendants unreasonably protracted the litigation by not timely providing discovery, the Court finds this argument to be entirely devoid of merit. Regardless of whether N.J.A.C. 1:1-10.4(c) applied in the underlying administrative proceedings, Defendants clearly and indisputably complied with N.J.A.C. 1:6A-10.1(c) by completing discovery at least five days in advance of the hearing before Judge Kerins. But more to the point, Defendants readily sought an amicable and speedy resolution to the matter without resort to litigation. Meanwhile, Plaintiffs unbendingly insisted upon discovery, even though, to date, they are unable to articulate why such discovery was needed. See 12/9/2015 Tr. 5:15-22 [Docket No. 87]. The Court suspects Plaintiffs' true motivation to be fees.
It is ironic that Mr. Epstein billed for each time he reviewed an e-mail or letter from Mr. Gorman to settle. Yet, he did not respond in good faith. Any award of fees for such conduct would reward bad conduct.
Furthermore, it is evident from the record that the hearing before Judge Futey, documented in billing entry [185], was a waste of time as it was during this hearing that the Plaintiffs made the unsupportable demand to force the Defendants to hire their neuropsychologist.
Additionally, billing entries [233] and [234] are denied as duplicative of billing entry [232].
The Court will not allow billing entry [135] either, which lists "REVIEW ANSWERS". If the Answer was as deficient as Mr. Epstein claims, the 0.3 hours billed to review the Answer is exaggerated and, therefore, denied.
Additionally, billing entry [280] will be denied as it is subsumed within billing entry [281].
It is a fairly pro forma complaint, however, that an experienced attorney can easily draft in 2.5 hours. 3.0 hours are therefore disallowed.
Mr. Epstein also billed 0.5 hours for handling a clerical overcharge error:
Of these, 0.4 hours will also be disallowed. There is no reason that drafting quick letters regarding an overcharge and reviewing the refund order should have taken a full 0.5 hours.
In addition, when pleadings are filed, the Clerk of the Court automatically generates a notice as to the return date. Sometimes this Court also generates a quick notice. Incredibly, Mr. Epstein billed a cumulative 2.3 hours, or $1,150, merely reviewing these notices:
These hours will not be allowed. All could have been read together in minutes. Only 0.1 hour will be allowed. As to billing entry [426], the Court finds it utterly bewildering that counsel can bill 0.2 hours for reviewing an order setting oral argument, especially when counsel then bills another 0.2 hours for reviewing the same order again with defense counsel in billing entry [427].
Additionally, the hours billed for the unopposed protective order are excessive and will not be allowed:
The Court cannot help but note that on August 27, 2013, Mr. Epstein has five billing entries entitled "KL: case status."
The Court is appalled, but unsurprised, by the cavalier way in which Mr. Epstein hurls such outlandish and serious accusations without an iota of evidence. To add insult to injury, Mr. Epstein subsequently filed a motion requesting that the Court deny Defendants' request to file a sur-reply or, in the alternative, for leave to take discovery from the lawyers with whom Mr. Gorman consulted [Docket No. 93]. This is yet another example of Mr. Epstein's scorched earth litigation strategy. The Court, of course, grants Mr. Gorman's request to file the limited sur-reply. Any attorney should be granted the opportunity to defend himself against such baseless accusations. To the extent Mr. Epstein moves for leave to take discovery from the attorneys with whom Mr. Gorman consulted regarding whether Mr. Gorman obtained their informed consent, the motion is denied. The Court finds that such discovery is merely a collateral issue that Mr. Epstein seeks for the sole purpose of continuing to rack up fees. The Court will not tolerate such conduct any further. Accordingly, Plaintiffs' motion [Docket No. 93] is denied in its entirety.
