Summary
awarding attorneys' fees for administrative work performed by an attorney at a paralegal's hourly rate
Summary of this case from Bloise-Freyre v. City of N.Y.Opinion
17-CV-4887 (LTS) (KNF)
07-19-2018
P.R. INDIVIDUALLY AND ON BEHALF OF H.R., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Plaintiffs Defendant.
REPORT AND RECOMMENDATION
TO THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE
Before the Court is the plaintiff's motion "for an order granting attorneys' fees, costs, and expenses" in the amount of $87,248.13, expended in connection with the administrative proceedings in which they prevailed and the instant motion, pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i)(3). The defendant opposes the amount requested by the plaintiff.
Although the movant's papers refer to "the plaintiffs" in a plural form, the Court will refer to the plaintiff in a singular form because the motion is made pursuant to a statutory provision allowing for an award of reasonable attorneys' fees as part of the costs "to a prevailing party who is the parent of a child with a disability." 20 U.S.C. § 1415(i)(3).
PLAINTIFF'S CONTENTIONS
The plaintiff filed two due process complaints ("DPC") asserting IDEA violations, on February 17, 2016, and September 14, 2016. The plaintiff contends that, by two interim orders and a final administrative decision, dated May 4, 2016, September 23, 2016, and February 7, 2017, respectively, an impartial hearing officer ("IHO") awarded the plaintiff relief on her claims. Counsel represented the plaintiff in the administrative proceedings and the plaintiff seeks attorneys' fees, pursuant to IDEA's fee-shifting provision, 20 U.S.C. § 1415(i)(3). According to the plaintiff, the administrative proceedings were unusual because: (1) "they involved especially severe and systemic violations of the IDEA"; and (2) "Defendant chose to retaliate against the Parent after her decision to file a Demand for Due Process Hearing" by reporting "P.R. to New York City Administration for Children's Services," ("ACS") resulting in "an educational neglect investigation that unfairly burdened and intimidated P.R. during the pendency of the administrative proceedings." The plaintiff asserts that the defendant failed to provide H.R. any educational or related services for approximately eighteen months. The defendant "disregarded an Interim Order issued by the Impartial Hearing Officer shortly after the first Due Process Complaint was filed," requiring the issuance "immediately [of] authorizations" for speech and language therapy for H.R. In the second DPC, the plaintiff alleged that the defendant had not complied with the interim order, prompting the issuance of the second interim order, directing the defendant to have H.R.'s speech and language therapy in place "within 10 school days." The plaintiff contends that the final administrative decision awarded H.R. substantial compensatory and "forward-looking" relief. P.R. included a claim for damages for retaliation in her second DPC, but "chose not to pursue the damages claim"; however, counsel "took steps to prevent Defendant's retaliatory act from having a chilling effect on P.R." Counsel's communications with the IHO as well as the defendant's representative "were reasonably calculated to the presentation of [the plaintiff's] case at the administrative level because they were calculated to ameliorate and prevent intimidation of P.R. and to ensure her ability to testify openly and freely as a witness." Moreover, "by these communications counsel argued for the importance of prompt interim relief, and compliance with the Interim Orders." The complaint of educational neglect against P.R. was determined to be unfounded. The IHO determined that the defendant breached its obligation to educate H.R. by failing to provide her with instruction and related services during the time she did not attend school, and awarded interim instruction and related services. The plaintiff maintains that her counsel's time records include communications regarding the ACS complaint and "are consistent with the work necessary to bring such a serious and unusual IDEA case to its conclusion." The plaintiff provided charts detailing the February 17, 2016 and September 14, 2016 claims for relief and whether and to what extent the relief requested was granted.
The plaintiff contends that she is the prevailing party, which is demonstrated by the IHO's interim orders and the February 2, 2017 final findings of fact and decision. According to the plaintiff, she achieved a substantial degree of success and the relief obtained "is major: an order to place H.R. in a nonpublic school, 671 hours of compensatory academic tutoring, and 600 hours of compensatory related services." Moreover, "[o]ther, more procedural and ancillary relief, such as interim academic tutoring, interim related services, and educational evaluations, was nonetheless meaningful." The plaintiff maintains that, respecting "the few items of relief that [the plaintiff] claimed, but did not get, most were relinquished without [the plaintiff] making a presentation to the finder of fact on the issue." For example, the plaintiff "made no representation regarding the claims, alleged in [her] pleadings at the administrative level, for parent training, counseling, and applied behavioral analysis," and the IHO did not rule on those claims. The plaintiff acknowledges that she attempted to present evidence regarding her claim for a functional behavioral assessment and behavioral intervention plan, but the IHO "did not agree with [the plaintiff], finding that because the student was not attending school, her behaviors would not be 'meaningfully determinable.'" The plaintiff asserts that "[t]he issue of the functional behavioral assessment and behavioral intervention plan was small in the context of the overall case." The plaintiff "achieved their main objective: meaningfully remediating Defendant's gross failure to educate H.R. over the 2014-2015, 2015-2016 and 2016-2017 school years."
The plaintiff contends that 202.5 hours "divided between two attorneys (billing at different rates) and one paralegal" is a reasonable number of hours and "[a]ttorneys in the community who also handle special education cases aver that this number of hours is appropriate in light of the nature and complexity of the case." Moreover, the plaintiff submitted a detailed itemization of the time expended by counsel, which "was well-allocated and spent on appropriate tasks." The hours claimed include the time spent on this action through November 6, 2017. The plaintiff seeks $476.13 in costs.
The plaintiff asserts that the claimed hourly rates for legal services, $400 by Gina De Crescenzo ("DeCrescenzo"), "$300 for associate attorneys," Benjamin Brown ("Brown") and Grace Duffin ("Duffin"), and "$140 for a paralegal with several decades of administrative experience," Charlene Lolis ("Lolis"), are reasonable. According to DeCrescenzo, "[m]ore than 51% of the firm's clients retain the firm on a direct fee-for-service basis, at the stated rates." DeCrescenzo "does a large volume of special education work each year that is paid for directly and contemporaneously by individuals in the community who retain the firm for its services and pay promptly and essentially in cash, e.g., by check or credit card"; thus, the rates charged "are actual market rates that are offered and paid in the course of business throughout the year." Furthermore, the rates requested "are well within the range of rates that other law firms in the community charge for the same services" in the field of special education. According to DeCrescenzo, "[t]he universe of law firms in the New York City metropolitan area that make themselves available to the public to perform special education legal work is small."
DeCrescenzo graduated from Pace University Law School in 2007, and was admitted to the New York bar in 2008. Since 2010, DeCrescenzo's practice focuses primarily on special education. DeCrescenzo founded her firm in 2013, which "has unique competence in handling cases that will not settle" and "has been profitable over the last several years," based on "numerous clients voluntarily paying the full, quoted rates for the firm's services." DeCrescenzo has been honored as a Lawyer of Distinction in Special Education Law and was named a Super Lawyer, Rising Star, in 2017, as well as a Top 40 under 40 National Trial Lawyer. In 2016, DeCrescenzo gave a presentation at the annual, national conference of Council of Parent Advocates and Attorneys, Inc., "a nonprofit organization that is the premier hub for the exchange of ideas among parent-side special education attorneys," and she lectures regularly "to parents of children with special needs and providers in the field."
Duffin graduated from the Catholic University of America, Columbus School of Law, in 2015, and started working for DeCrescenzo's firm in 2016. She was an associate attorney who participated in representing the plaintiff in the administrative proceedings, but left the firm in March 2017. While Duffin was employed by DeCrescenzo's firm, she served numerous clients who retained the firm "on a full fee-for-service basis, and the clients willingly paid her hourly rate of $300."
Brown graduated from the University of Michigan Law School in 2012. Prior to joining DeCrescenzo's firm in June 2017, he worked as a general practice staff attorney for Legal Services of the Hudson Valley. Brown started working on this case after the conclusion of the administrative proceedings. His hourly rate for legal services is $300.
Irina Roller ("Roller"), the principle at the Law Offices of Irina Roller, PLLC, states in her declaration that she graduated from New York Law School in 1999. Roller started her firm in 2004, and, since 2007, has dedicated her practice to assisting parents in advocating for their children's needs in Committee on Special Education meetings and pursuing due process through impartial hearings. Roller's hourly rate for legal services charged to clients in the Southern District of New York, commencing in 2016, is $500, and in the past, she increased her hourly rate incrementally to reflect the prevailing rates in New York City for attorneys with a similar level of experience. The current rate at which Roller's firm bills for paralegal services is between $185 and $225.
H. Jeffrey Marcus ("Marcus") states in his declaration that he graduated from SUNY at Buffalo Law School in 1990. Marcus started representing parents in special education matters in 1993. In 1995, he opened his own practice, the Law Office of H. Jeffrey Marcus, which is almost entirely devoted to representing parents of children with disabilities in special education matters. In 1996, Marcus became a full-time clinical instructor at the law school, teaching special education law and directing the Special Education Clinic, while also representing clients in his private practice. In 2005, after the Special Education Clinic was eliminated, Marcus expanded his private practice dedicated to the representation of parents of children with disabilities in special education matters. Marcus states that the practice of special education law is highly specialized and complex; thus, "there are very few practitioners." Marcus's firm employs five attorneys and he has acted as "of counsel" to the Law Office of Steven L. Goldstein for approximately eight years. Marcus takes clients on the contingency that the clients will prevail and the clients agree to cooperate in the recovery of attorney's fees from the relevant school district. Marcus's hourly rate for legal services charged to clients in the Southern District of New York, since 2017, is $475, and his attorneys' hourly rates for legal services charged in the Southern District of New York are: (1) $450, by Karen McMahon, admitted to practice in 1987; (2) $395, by Kyle Costello, who graduated from SUNY at Buffalo Law School in 2005 and has represented hundreds of parents successfully in special education matters since the fall of 2005; (3) $350, by Wendy Zimny, admitted to practice in California, in 2002, and in New York, in 2008, who, for several years, worked for the New York City Department of Education, impartial hearing representation office, and is a licensed and experienced special education teacher; (4) $325, by Courtney Haas, who graduated from the Hofstra University School of Law in 2010 and worked for the New York City Department of Education, impartial hearing representation office, in the past; and (5) $300, by Olga Vlasova, "admitted to practice in January 2014" and has been employed by Marcus's firm since then. Marcus bills at the hourly rate of $150 for his legal assistants' services in the Southern District of New York. Concerning Marcus's "of counsel" attorneys, the hourly rates for legal services performed in the Southern District of New York range from $315 to $450, including DeCrescenzo, whose hourly rate as "of counsel" to Marcus's firm is $400. Marcus asserts that "the Court should view our rates as the minimum of fair current market value. For whatever reason, attorneys in this practice have historically been undervalued when compared to similarly geographically situated attorneys in virtually any other practice area." Moreover, "the practice of special education law is underserved in that there are many more in need of services than can be handled by the small corps of parent special education attorneys. That is likely due at least in part to the disparity in pay, including court awarded fees, between those in special education practice and virtually all other practice areas." According to Marcus, DeCrescenzo "has uncommonly good trial advocacy skills, and the reputation of her independent private practice has been growing." Marcus asserts that DeCrescenzo's time records "are roughly consistent with the amount of time my office spends on matters of like nature and complexity."
Jesse Cutler ("Cutler"), a partner and Supervising Attorney at the Law Office of Regina Skyer and Associates, L.L.P., states in his declaration that he is a 2002 graduate of Brooklyn Law School and, since 2003, has been representing parents of students with disabilities in connection with special education matters. Cutler's hourly rate for legal services is $475, which he believes "currently reflects rates within the Southern District of New York for attorneys of similar skills and experience practicing in this area." Cutler is familiar with the majority of the attorneys who practice in the area of special education and is "often retained to review the administrative records and decisions of special education matters that were handled by other attorneys and/or with an eye toward making recommendations regarding the appeal of such matters to the District Courts and recognize that the length and complexity of due process hearings has significantly increased due to the increasing number of cases that are appealed to the Office of State Review and to the District Courts." Cutler has personal knowledge of the hourly rates charged to paying clients for legal services provided in conjunction with administrative hearings and appeals, as well as litigation in the Southern District of New York; they range between $400 and $650.
DeCrescenzo submitted a document, dated October 27, 2015, setting out the terms of the agreement between her firm and the plaintiff, in which the firm "agrees to take this case for no upfront money or retainer amount" and the plaintiff agrees, inter alia, to the "fee schedule [that] will pertain to all services rendered by my firm": $400, for DeCrescenzo and "other counsel and attorneys pending admission" and $125-140, for paralegals. In exchange for not making any payments during the hearing process, the plaintiff agreed to: (1) "cooperate with attorney fee recovery from the DOE"; (2) "not breach this agreement"; and (3) "not settle the matter with the DOE without attorney fees being included in the settlement agreement." The agreement provides that "[t]he total amount of my firm's fees will ultimately depend solely upon the amount of time spent by me and others working under my supervision." DeCrescenzo submitted a consolidated chart she prepared based on the contemporaneous time records of each attorney who worked on this matter, showing the following hours expended by the attorney: 150, by DeCrescenzo, 11.7, by Duffin, 24.6, by Brown, and 16.2, by Lolis. The total amount of attorneys' fees requested is $76,374.13. The costs requested consist of the $400 filing fee and $76.13 for service of process.
DEFENDANT'S CONTENTIONS
The defendant contends that the amount of attorneys' fees and costs requested is grossly excessive and unjustified. According to the defendant, "175.9 hours spent by Plaintiff's counsel on work performed at the administrative level" should be "reduced by 56.3 hours, to account for a large number of vague entries and excessive number of hours billed." For example, counsel billed 60 hours for participating in 12 administrative pre-hearing conference calls and hearings "when the transcript for these calls and hearings confirm an aggregate of only 9.6 hours"; thus, "counsel billed 50.7 hours over the length of the hearings." Counsel also billed excessive hours for preparing two DPCs. The February 17, 2016 DPC "is not quite five pages long and relies heavily on information distilled from a single document: the Student's May 20, 2015 Individualized Education Plan ('IEP')," which makes "8.9 hours to draft, edit and revise the February DPC . . . unreasonable." Similarly, "11.6 hours that counsel spent drafting, editing and revising" the September 14, 2016 DPC is unreasonable because: (i) "the allegation in Plaintiff's September DPC stem from the DOE's implementation of an interim order issued in a concurrent administrative proceeding handled by Ms. DeCrescenzo's firm"; and (ii) "Plaintiff's eight-page September DPC relies heavily on a May 6, 2016 Interim Order, which was itself issued pursuant to the February DPC, as well as four educational evaluations flowing from that Order." The September 2016 DPC "merely summarized the evaluator's recommendations and alleged that DOE's failure to implement the recommendations was a denial of FAPE [Free and Appropriate Public Education]," which "did not require 11.6 hours to draft, summarize, edit and revise." The defendant asserts that combined, 20.5 excessive hours for preparing the February 2016 DPC and the September 2016 DPC should be reduced by 25% or 5.1 hours. Moreover, DeCrescenzo billed 2 hours of "pre-litigation work," on August 1, 2016, which is "so vaguely worded that it is largely impossible to decipher what the work entailed," requiring reduction by 25% or 0.5 hours.
The defendant contends that the plaintiff's limited success at the administrative level justifies a further reduction of the remaining 119.4 hours "by 40.9 hours," including "7.2 hours spent on an unsuccessful ACS claim, for which counsel admits she did not obtain all relief requested." Requesting 7.2 hours for the work on the ACS claim is unreasonable because: (a) "the ACS claim was unsuccessful as it was not a basis for the IHO's decision"; and (b) "the ACS claim is distinct from Plaintiff's claim under the IDEA and based on separate and distinct facts." The defendant asserts that, after reducing 7.2 hours, the remaining hours should be reduced by 30% or 33.7 hours, to account for partial success at the administrative level because: (1) "the IHO denied one category of relief, failed to address a second, and only partially granted a third," and "also denied three out of five categories of interim relief requested by Plaintiff in her September DPC, and granted Plaintiff's request for interim tutoring services in modified form"; and (2) "the IHO ultimately denied or failed to address seven out of 15 categories of Plaintiff's requested final relief."
The defendant maintains that the hourly rates billed by the plaintiff's counsel are unreasonable because: (a) the plaintiff did not establish prevailing hourly rates; and (b) "representation on a contingency fee basis negates the probative value of the hourly rates identified in her retainer agreement." According to the defendant, attorneys who provided declarations are not lawyers of comparable skills, experience and reputation, given that: (1) Cutler has "a full five years more [experience] than Ms. DeCrescenzo, 10 years more than Mr. Brown, and 13 years more than Ms. Duffin"; (2) Roller "has eight more years of experience than Ms. DeCrescenzo, 13 more than Mr. Brown, and 16 more than Ms. Duffin"; and (3) Marcus "has 17 more years of experience than Ms. DeCrescenzo, 22 more than Mr. Brown, and 25 more than Ms. Duffin." Furthermore, "several attorneys associated with Mr. Marcus are billing at rates lower than those charged by Ms. DeCrescenzo notwithstanding that they have more years of experience than Ms. DeCrescenzo. The defendant maintains that "the declarations have limited probative value to the extent that they say nothing about the reasonableness of the rates charged by other special education attorneys in this district" and "none of the declarants have had their hourly rates evaluated or adopted by a court in the Southern District." The defendant asserts that "none of the outside attorney declarations specify whether the rates charged are actually paid by their parent clients in IDEA cases where fee-shifting is not available"; thus, the case law "setting out rates for IDEA practitioners in the Southern District is a more decisive measure of the fees that should be awarded here."
The defendant contends that $400 is an unreasonable hourly rate for an attorney, like DeCrescenzo, who has "less than 10 years of experience"; "courts have awarded attorneys with less than 10 years of experience rates in the range of $275 to $350 per hour." An hourly rate "for attorneys with comparable experience" to Brown's ranges between $200 and $225, and Duffin's hourly rate should be lowered from $300 to $200, in light of her "limited legal experience." The defendant asserts that "courts typically award rates in the range of $90 to $150 per hour for paralegal work in IDEA cases, depending on the individual's credentials and/or experience." "Although Ms. Lolis has extensive administrative experience, she lacks specialized paralegal experience," and her work on this case was "largely clerical-administrative," warranting a reduction of her hourly rate from $140 to $90. Moreover, as the plaintiff was not required to pay anything to her counsel to litigate the matter, the retainer agreement "is of limited probative value." The defendant proposes that 175.9 hours claimed be reduced to 73.3, and, based on the reduced hourly rates, the attorneys' fees be reduced to $23,996.
The defendant contends that the amount requested for litigating the fee application is unreasonable. The plaintiff seeks 5.5 hours for preparing DeCrescenzo's declaration, which is excessive "because the declaration improperly repeats statements made in other declarations in support of [the plaintiff's] motion." Similarly, 0.9 hours spent on a proposed declaration for Tracey Spencer Walsh, "which was not submitted with this motion" should be deducted from the fee award, as well as 0.8 hours "for unsuccessfully arguing that this case is related to B.B. v. New York City Dep't of Edu ., 17 Civ. 4255." According to the defendant, 7.2 hours preparing the eight-page complaint, which "relies heavily on boilerplate language used in other complaints filed by [the plaintiff's] counsel in earlier cases," is unreasonable" and "DeCrescenzo could have assigned the bulk of drafting the Complaint to a junior associate, like Mr. Brown," warranting a reduction "across-the-board by 15% or 1.1 hours." Brown billed 3.2 hours improperly for clerical and administrative tasks, including filing and serving documents, and those hours "should have been billed at a paralegal rate of $125 per hour." The defendant does not challenge $476.13 in costs.
PLAINTIFF'S REPLY
The plaintiff contends that the defendant made no evidentiary showing to support its proposed hourly rates and only "refers to prior judicial opinions in which attorneys were awarded rates lower than those" the plaintiff seeks. Contrary to the defendant's contention that the plaintiff's' rates are not actual market rates, Marcus "attested to the rates his firm charges for more than thirteen different attorneys as well as several legal assistants," and his declaration constitutes evidence of market rates. Moreover, DeCrescenzo's statements, attesting that her firm's stated rates-are those that clients pay in full voluntarily, as well as Roller's and Cutler's declarations also constitute evidence of market rates, not "hypothetical, but actually in effect." The defendant "has not produced so much as one example of a law firm that currently charges rates undercutting those claimed by [the plaintiff's] attorneys." The plaintiff asserts that the "record contains no evidence whatsoever that there is even one practicing special education attorney within the relevant geographical area who offers the market a rate below the $300 rate asserted for [the plaintiff's] attorneys" Brown and Duffin.
The plaintiff contends that she was successful in her claims for interim relief requested, although she obtained some of that relief in modified form. For example, the plaintiff requested "[p]rovision of in-home tutoring services during pendency of administrative proceeding 'or until an appropriate nonpublic school placement is identified,'" and obtained "tutoring provided outside of home, offsite from school." Moreover, the plaintiff was "extremely successful winning major relief at every stage of the proceeding and actually achieving [her] major objectives." As it concerns time billed for the plaintiff's ACS claim, "the bulk of this time was expended not to directly develop or present a legal claim, but indirectly, to ensure P.R.'s freedom to participate in the proceeding without fear and harassment" and the "time expended following-up on the ACS report bore a reasonable relation to the needs of the case."
The plaintiff asserts that the defendant's request for a reduction of time concerning the conferences and hearings "is based on the assumption that any time not within the start and end stated on a transcript is improper," and overlooks the facts that: (1) "impartial hearings often start later than their scheduled start time, requiring parties and their counsel to wait"; (2) "impartial hearings often involve off-the-record discussion with the Hearing Officer" that is not included in the times indicated on the transcript; (3) "counsel must spend time traveling to and from the location of the impartial hearing"; (4) counsel may arrive early for the hearing and use that time "to organize and prepare"; (5) practice at impartial hearings involves conversations with clients, defendant's representatives or witnesses not occurring within the time indicated on the transcript; and (6) counsel spends time after the hearing debriefing the client or communicating with the defendant's representative and organizing materials. For example, "[t]he end of the transcript for the May 2, 2016 hearing reflects that the next hearing is scheduled for '12 o'clock on June 16,'" but the June 16, 2016 hearing did not begin until 1:14 p.m. The transcript for the September 22, 2016 hearing begins with the IHO noting that "extended discussions of the status of this matter" had taken place "off the record," preceding the conference. The September 22, 2016 transcript indicates that the next hearing would be at 2:00 p.m. on October 24, 2016, but the hearing on that day did not start until 3:09 p.m. The plaintiff acknowledges an error in the time record for August 15, 2016, and agrees with the defendant "that only 0.3 hours should be billed," which is reflected in the plaintiff's' total hours requested.
Concerning the defendant's contesting the amount of time spent preparing two administrative complaints, the plaintiff asserts that "the procedural and factual complexity of the underlying administrative proceeding should be taken into account when assessing the time and difficulty involved in creating these documents." The defendant contests 0.9 hours spent preparing a witness's declaration which was not submitted "but overlooks the fact that gathering evidence is not an exact science, and not all attempts to obtain evidence are successful." The defendant also contests 0.8 hours spent "preparing the Statement of Relationship in this case" because "the identified cases were not ultimately deemed related," disregarding that Local Civil Rule 1.6 of this court requires attorneys to bring to the attention of the court all facts relevant to a determination of relatedness to other cases. "Given the existence of prior, similar cases which the Court had deemed related," counsel's action was prudent. The plaintiff asserts that the defendant's contention that counsel's work is described vaguely concerns one "remarkably isolated nature of the instance identified by Defendant"; however, counsel are not required to record their tasks "in excruciating detail." In reply, the plaintiff submitted time records for work performed from November 7, 2017, to December 18, 2017, inclusive of the instant motion, seeking an additional $13,614 for that period, consisting of DeCrescenzo's 2.3 hours, Lolis's 2.6 hours and Brown's 41.1 hours of work. The total requested in attorneys' fees is $87,248.13.
LEGAL STANDARD
"In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs . . . to a prevailing party who is the parent of a child with a disability." 20 U.S.C. § 1415(i)(3)(B)(i)(I). "Fees awarded under this paragraph shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this subsection." 20 U.S.C. § 1415(i)(3)(C). "[A] plaintiff who received IHO-ordered relief on the merits in an IDEA administrative proceeding is a 'prevailing party.'" A.R. Ex Rel. R.V. v. New York City Dep't of Edu., 407 F.3d 65, 75 (2d Cir. 2005). "[T]he combination of administrative imprimatur, the change in the legal relationship of the parties arising from it, and subsequent judicial enforceability, render such a winning party a 'prevailing party' under [Buckhannon Bd. & Care Home, Inc. v. West Virgnia Dep't of Health & Human Res., 532 U.S. 598, 121 S. Ct. 1835 (2001)] principles." Id. at 76.
When exercising their discretion to determine the reasonableness of the attorney's fees sought in an action based on a federal question, courts in this Circuit use the "presumptively reasonable fee" standard. Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 190 (2d Cir. 2008) ("Arbor Hill"). The presumptively reasonable fee, also known as the lodestar, is "the product of a reasonable hourly rate and the reasonable number of hours required by the case." Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011). In calculating the presumptively reasonable fee, a district court must consider, among others, the twelve factors articulated in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See Arbor Hill, 522 F.3d at 190. Those 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.A reasonable hourly rate is "the rate prevailing in the [relevant] community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Farbotko v. Clinton Cty. of N.Y., 433 F.3d 204, 208 (2d Cir. 2005) (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11, 104 S. Ct. 1541, 1547 n.11 (1984)). "Thus, 'a reasonable hourly rate' is not ordinarily ascertained simply by reference to rates awarded in prior cases." Id. "[T]he equation in the caselaw of a 'reasonable hourly fee' with the 'prevailing market rate' contemplates a case-specific inquiry into the prevailing market rates for counsel of similar experience and skill to the fee applicant's counsel. This may, of course, include judicial notice of the rates awarded in prior cases and the court's own familiarity with the rates prevailing in the district." Id. at 209. "[T]he fee applicant has the burden of showing by 'satisfactory evidence—in addition to the attorney's own affidavits'—that the requested hourly rates are the prevailing market rates." Id. (quoting Blum, 465 U.S. at 896 n.11, 104 S. Ct. 1547 n.11). "The 'community' to which the IDEA's fee calculation provision refers is typically measured by the geographic area in which 'the action was commenced and litigated.'" A.R. Ex Rel. R.V., 407 F.3d at 79. A fee application that is not supported by evidence of "contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done" should normally be denied. N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983).
Id. at 186-87 n.3.
APPLICATION OF LEGAL STANDARD
Whether the Plaintiff is a Prevailing Party
P.R. is a parent of H.R, a child with a disability. The defendant does not contest that P.R. is the prevailing party. P.R. filed the February 17, 2016 and September 14, 2016 DPCs and obtained interim relief for H.R. by IHO's orders dated May 4, 2016, and September 23, 2016. See Docket Entry No. 16, Exhibits A, B, C and D. The two DPCs were consolidated and the IHO issued the Findings of Fact and Decision, on February 7, 2017, providing relief to H.R. See Docket Entry No. 16, Exhibits E and F. The Court finds that P.R. is the prevailing party for the purpose of determining reasonable attorneys' fees and costs under 20 U.S.C. § 1415(i)(3)(B)(i).
The Community in Which the Action or Proceeding Arose
Neither the plaintiff nor the defendant identified, in their memoranda of law, "the community in which the action or proceeding arose," as required by 20 U.S.C. § 1415(i)(3)(C). The plaintiff refers to "the New York City metropolitan area," in her memorandum of law, when arguing that the claimed hourly rates are reasonable. The defendant contends, in its memorandum of law, that: (a) "the Court may take judicial notice of the 48 attorneys and practitioners of special education/IDEA litigation in this district listed among the Council of Parent Attorneys and Advocates"; and (b) "the ample case law . . . setting out rates for IDEA practitioners in the Southern District is a more decisive measure of the fees that should be awarded here."
H.R. is a student who resided with P.R. in Brooklyn, New York, within the boundaries of school District 13, when the underlying administrative proceedings arose. The February 17, 2016 and the September 14, 2016 DPCs were sent to the Impartial Hearing Office, New York City Department of Education, 131 Livingston Street, Brooklyn, New York, which is where the hearings were conducted. Evidence before the Court demonstrates that the only thing that is not connected to Brooklyn, New York, is the location of the office of the plaintiff's counsel and this court: the Southern District of New York. Given that, at the time the underlying administrative proceedings arose: (a) the plaintiff resided in Brooklyn, New York; (b) school District 13, where H.R. resided, was located in Brooklyn, New York; (c) the DPCs were sent to the Impartial Hearing Office in Brooklyn, New York; and (d) the administrative hearings were conducted in Brooklyn, New York, the Court finds that "the community in which the action or proceeding arose," for the purpose of 20 U.S.C. § 1415(i)(3)(C), is Brooklyn, New York, which is in Kings County, located in the federal judicial district denominated Eastern District of New York.
The plaintiff's' counsel has offices in White Plains, New York, which is in Westchester County, and Wappingers Falls, which is in Dutchess County, both within the federal judicial district denominated Southern District of New York.
Although the plaintiff alleged in the complaint that the defendant "has its principal place of business at 52 Chambers Street, New York, NY 10007," the defendant in its answer "[d]enies the allegations set forth in paragraph '9' of the Complaint, except admits that the Department of Education maintains an office at 52 Chambers Street, New York, New York 10007."
Whether the Hourly Rates Requested Are Reasonable
DeCrescenzo had been practicing law since 2008, and has focused primarily on special education matters, since 2010. Marcus states in his declaration that DeCrescenzo serves in an "of counsel" capacity to his firm, she "has uncommonly good trial advocacy skills, and the reputation of her independent private practice has been growing." DeCrescenzo states that her law firm's hourly rates for legal services, $400 for DeCrescenzo, $300 for associate attorneys and $140 for paralegals, are "competitive with prevailing market rates in the New York City metropolitan area for special education matters," and these rates are offered "to clients who pay directly in transactions for legal services on the open market." DeCrescenzo and her law firm offer the same hourly rates to all clients "in the New York City metropolitan area," which includes the Eastern District of New York. DeCrescenzo did not indicate in her declaration what time limitations, if any, were imposed by the plaintiff or the circumstances. The October 27, 2015 retainer agreement between the plaintiff and counsel indicates the nature and length of their professional relationship. DeCrescenzo states that her law firm "has unique competence in handling cases that will not settle: cases that must be litigated to a resolution in the context of administrative and judicial proceedings"; thus, it can be inferred that this case was not "undesirable," as it is the type of case DeCrescenzo's law firm has expertise in handling.
DeCrescenzo contends that her law firm's legal services "are performed on a full fee-for-services basis," without explaining the meaning of "fee-for-services basis." The October 27, 2015 retainer agreement between P.R. and DeCrescenzo's firm, Docket Entry No. 16, Exhibit P, provides: (a) "[m]y firm agrees to take this case for no upfront money or retainer amount"; (b) "the following fee schedule will pertain to all services rendered by my firm: my time is billed at $400 per hour; associates, other counsel and attorneys pending admission are billed at $400 per hour; and paralegals are billed at $125-$140 per hour"; (c) "you will not need to make any payment during the hearing process, so long as you 1) cooperate with attorney fee recovery from the DOE, 2) do not breach this agreement and 3) do not settle this matter with the DOE without attorney fees being included in the settlement agreement"; (d) "[m]y firm will render a bill each month . . . accompanied by a statement of the total number of hours worked by each staff member of my firm on a given day, together with a general description of the work performed on the day"; and (e) "[t]he total amount of my firm's fees will ultimately depend solely upon the amount of time spent by me and others working under my supervision." The retainer agreement demonstrates that P.R., who lived in the Eastern District of New York, entered into the October 27, 2015 agreement with DeCrescenzo's law firm willing to pay the hourly rates its attorneys charge for legal services to be performed in connection with this matter, notwithstanding that the agreement does not require "upfront money or retainer amount." Although the agreement makes clear that its parties rely "on the fee-shifting provision of the IDEA," in case P.R. prevails, it does not relieve P.R. from the obligation to pay the attorneys' fees specified in the agreement. The retainer agreement shows that the hourly rates charged by DeCrescenzo's law firm are the rates a client is willing to pay for legal services related to special education matters in the Eastern District of New York.
Roller states in her affidavit that she has "represented parents in the geographic areas covered by the Southern and Eastern District of New York," and her hourly rate is $500. Cutler states in his declaration that he has "represented parents in the geographic areas covered by the Southern District of New York and the Eastern District of New York geographic area" and his hourly rate is $475. Both Roller and Cutler charge one hourly rate for legal services to their clients, without distinguishing between the clients from the Eastern District of New York and those from the Southern District of New York.
The Court finds that evidence of DeCrescenzo's law firm's hourly rates as well as Roller's and Cutler's hourly rates is convincing and probative of the current market rates that the clients in the Eastern District of New York are willing to pay for legal services performed in special education matters by attorneys of reasonably comparable skills, experience and reputation. However, evidence of the hourly rates Marcus, his law firm's attorneys and his law firm's "of counsel" attorneys charge in the Southern District of New York is not probative of the rates prevailing in the Eastern District of New York for similar services by attorneys of reasonably comparable skill, experience, and reputation. Marcus in his declaration did not identify hourly rates he, his law firm's attorneys and his law firm's of-counsel attorneys charge in the Eastern District of New York or whether each of them charges the same rate in the Eastern District of New York as in the Southern District of New York.
In support of the hourly rates requested, the plaintiff makes citation to: (1) "S.A. v. N.Y. City Dep't of Educ., No. 12 Civ. 435, 2015 U.S. Dist. LEXIS 126874 at *13 (E.D.N.Y. Sept. 22, 2015) , contending that "litigation involving the IDEA is a highly specialized practice area"; and (2) "John v. Demaio, No. 15 Civ. 6094, 2016 U.S. Dist. LEXIS 136339 at *8 (E.D.N.Y. Sept. 29, 2016) , adopted by John v. Demaio, 2016 U.S. Dist. LEXIS 177578 (E.D.N.Y. Dec. 21, 2016)," contending that, in fee-shifting litigation generally, "[a]lthough the fee must be 'sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case,' the exact determination of what constitutes such a reasonable fee in a particular case is within the district court's discretion." In opposing the plaintiff's hourly rates, the defendant makes citation to: (i) "ample case law" from the Southern District of New York "setting out rates for IDEA practitioners in the Southern District"; and (ii) one case from the Eastern District of New York, "Hassan v. New York City, 11 Civ. 5382, 2014 U.S. Dist. LEXIS 26194, at 11-12 (E.D.N.Y. Feb. 10, 2014)," contending that in that case the court characterized an hourly "rate of $400 [as] outside the acceptable current range for attorneys practicing in [the Eastern District,]" and recommended that the attorneys—each with less than a decade of experience—be awarded $325 per hour. The recommendation was later adopted by the assigned district judge.
The Court is convinced by the record evidence that "litigation involving the IDEA is a highly specialized practice area," as contended by the plaintiff and stated by the court in S.A., 2015 U.S. Dist. LEXIS 126874, at 13. The "ample case law" from the Southern District of New York cited by the defendant is not helpful for determining the prevailing rates in the Eastern District of New York. The defendant did not make citation to any IDEA case from the Eastern District of New York, and the only Eastern District of New York case it cited is Hassan, a report and recommendation issued by a magistrate judge to a district judge on February 10, 2014, and subsequently adopted by the district judge. However, "[t]he reasonable hourly rate is the rate a paying client would be willing to pay," Arbor Hill, 522 F.3d at 190, not conjecture about what a paying client might have been willing to pay more than one year prior to engaging the attorney, which occurred on October 27, 2015, in this case. See A.R. Ex. Rel. R.V., 407 F.3d at 83 (an award of attorneys' fees "should be based on prevailing market rates, and current rates, rather than historical rates, should be applied in order to compensate for the delay in payment."). The Court does not find helpful or convincing, for determining the prevailing rates in the community in this case, decisions issued prior to 2015, when the plaintiff entered into the retainer agreement with DeCrescenzo, since those cases tend to reflect historic and not current rates prevailing in the market.
The Court agrees that "[t]here is no straight line between years of practice and skill" and "there is little substitute for the knowledge and skills that an attorney can develop over time through active litigation," as the court stated in Hassan, 2014 U.S. Dist. LEXIS 26194, at * 13. However, the defendant places undue weight on the number of years of experience for each attorney requesting fees, given that experience is only one of many non-determinative factors to be considered when determining the reasonableness of an hourly rate. See Arbor Hill, 522 F.3d at 186-87 n.3 (listing the twelve Johnson factors). The defendant does not contest the reputation and ability of DeCrescenzo and Duffin or their expertise in the field of special education law, only that their hourly rates should be reduced from $400 to $350 for DeCrescenzo, and from $300 to $200, for Duffin, based exclusively on the number of years of experience each has acquired. The defendant contends that: (a) Brown has "limited experience in special education law" and his hourly rate should be reduced from $300 to $225; and (b) Lolis "lacks specialized paralegal experience" and her hourly rate "should be reduced from $140 to $90 per hour" as her experience was "largely clerical/administrative."
The administrative proceedings in this case commenced with the filing of the first DPC on February 17, 2016, and ended on February 7, 2017, when the Findings of Fact and a Decision were issued. During that period: (a) the plaintiff filed a second DPC, on September 14, 2016; (b) two interim orders were issued, on May 4, 2016, and September 23, 2016; and (c) twelve hearings were held on March 31, 2016, April 12, 2016, May 2, 2016, June 16, 2016, June 23, 2016, August 2, 2016, August 15, 2016, September 22, 2016, October 24, 2016, November 18, 2016, December 2, 2016 and January 5, 2017. Given the two DPCs, the amount and frequency of the hearings and the results obtained, the Court finds that the time and labor expended in connection with this matter were substantial. Notwithstanding that this case did not appear to involve any novel or difficult questions of law, the level of skill required to perform the legal services in this case properly, is above basic. This is so because IDEA litigation is a highly specialized practice area and, in this case, included two DPCs, two interim orders, one final decision and numerous and frequent hearings. The Court finds that the plaintiff obtained a substantial degree of success because H.R. received a significant part of the relief the plaintiff sought, including the placement of H.R. in an independent school, 671 hours of compensatory academic tutoring and 600 hours of compensatory-related services.
The defendant asserts that: (a) Brown's hourly rate for legal services should be lowered from $300 to $225, because "he has limited experience in special education law"; (b) Duffin's hourly rate for legal services should be lowered from $300 to $200, in light of her "limited legal experience"; and (c) Lolis' hourly rate for legal services should be reduced from $140 to $90 because "she lacks specialized paralegal experience." Although Brown has limited experience in special education law, the work he performed in this matter relates solely to the instant application for attorneys' fees and he has five years of experience as a general practitioner. Duffin, who has less experience than Brown, performed work in connection with the administrative proceedings and, together with DeCrescenzo, obtained significant results for the plaintiff. With respect to Lolis, the defendant acknowledges that she "has extensive administrative experience." However, the defendant failed to submit any evidence in support of the proposed hourly rate reductions or make citation to any decision from the Eastern District of New York that would support the proposed amounts.
The Court is convinced by the evidence presented in support of the plaintiff's motion and upon the above assessment of the Johnson factors that the following hourly rates for legal services are reasonable: (1) $400 for DeCrescenzo; (2) $300 for Duffin; (3) $300 for Brown; and (4) $140 for Lolis.
Whether the Hours Requested Are Reasonable
The defendant contends that 175.9 hours spent in connection with administrative proceedings should be reduced by 56.3 hours, "to account for a large number of vague entries and excessive number of hours billed." According to the defendant, 60 hours for attending administrative hearings should be reduced to 9.6 based on the transcripts from the hearings. The Court rejects the defendant's proposition that the transcripts from the administrative proceedings in this case are conclusive evidence of the time counsel expended in connection with attending administrative hearings. As DeCrescenzo explains in her declaration, the indication of time in transcripts from administrative proceedings does not reflect accurately or conclusively the total hours spent in connection with administrative proceedings, and it is neither practicable nor required that counsel keep detailed time records for every minute spent on numerous tasks in connection with attending administrative proceedings. Thus, no reduction of 60 hours, for time spent in connection with attending administrative hearings, is warranted.
The defendant asserts that counsel "overbilled for work produced at the administrative level" and "8.9 hours to draft, edit and revise the February DPC is unreasonable" because it "is not quite five pages long and relies heavily on information distilled from a single document: the Student's May 20, 2015 Individualized Education Plan ('IEP')." Similarly, 11.6 hours "preparing a second DCP submitted on September 14, 2016" is excessive "because the allegations in Plaintiff's September DPC stem from the DOE's implementation of an interim order issued in a concurrent administrative proceeding handled by Ms. DeCrescenzo's firm" and the "eight-page September DPC relies heavily on a May 6, 2016 Interim Order" and "four educational evaluations flowing from that Order." The defendant seeks a reduction of "25% or 5.1 hours" from the 20.5 hours spent preparing the two DPCs. The plaintiff asserts that "the procedural and factual complexity of the underlying administrative proceeding should be taken into account when assessing the time and difficulty involved in creating" DPCs.
The defendant does not explain why the 25% reduction it seeks, and not some other percentage, is appropriate. The defendant makes citation to Osterweil v. Bartlett, 92 F. Supp. 3d 14, 34 (N.D.N.Y. 2015), in which the court applied a 25% reduction to the attorneys' time spent drafting a 25-page brief to account for excessive time billed. In Osterweil, the court determined that awarding "fees for the time [the plaintiff] spent opposing certification of the state statutory question to the New York Court of Appeals," was not warranted. Id. Consequently, the court reduced by 25% "32.75 hours Plaintiff's counsel billed for the drafting and editing of Plaintiff's reply brief to the Second Circuit" because "Plaintiff devoted seven pages of its twenty-five page reply brief to arguing that the Second Circuit should not certify the statutory construction question to the New York Court of Appeals," which "essentially duplicated the arguments raised in Plaintiff's certification opposition, and was not reasonably necessary to a successful outcome for Plaintiff." Id.
The defendant does not assert that any pages of the five-page February 17, 2016 DPC, or the eight-page September 14, 2016 DPC duplicate arguments raised in any previous briefs; it contends only that counsel "relies heavily on information distilled from a single document: the Student's May 20, 2015 Individualized Education Plan," prepared by the defendant, not the plaintiff. The defendant does not explain: (a) why "heavy[]" reliance on the IEP was improper, given that the IEP was the subject of the challenge and the plaintiff requested the IEP's annulment in the February 17, 2017 DPC; or (b) how the IEP could have been challenged and its annulment sought without such reliance. Similarly, the defendant does not explain: (i) why "merely summarize[ing] the evaluators' recommendations and alleg[ing] that DOE's failure to implement the recommendations was a denial of FAPE," is improper, where the September 14, 2016 DPC challenged the defendant's failure to implement the recommendations; or (ii) how the defendant's failure to implement the recommendations could be challenged without summarizing the recommendations and alleging failure to implement them. The Court finds that 8.9 hours spent preparing the February 17, 2017 DPC and 11.6 hours spent preparing the September 14, 2016 DPC are reasonable.
The defendant asserts that 2 hours, on August 1, 2016, identified as "pre-litigation work," should be reduced by 25%. The plaintiff asserts that counsel is not required to record the tasks performed "in excruciating detail." Although the plaintiff is correct that counsel "is not required to record in great detail how each minute of his time was expended," "at least counsel should identify the general subject matter of his time expenditures." Hensley v. Eckerhart, 461 U.S. 424, 437 n.12, 103 S. Ct. 1933, 1941 n.12 (1983). Counsel's notation "Pre-litigation work" is too general to serve as a proper basis for determining whether two hours are reasonable, and the plaintiff does not explain what tasks are encompassed within the time entry "Pre-litigation work." Accordingly, reducing the two hours by 25% or 0.5 hours from 150, DeCrescenzo's total hours expended, is warranted.
The defendant asserts that 40.9 hours should be deducted from 119.4 hours "claimed by Plaintiff for work performed at the administrative level," to account for "limited success, which includes 7.2 hours spent on an unsuccessful ACS claim," which "was not a basis for the IHO's decision." The plaintiff contends that "the bulk of this time was expended not to directly develop or present a legal claim, but indirectly, to ensure P.R.'s freedom to participate in the proceeding without fear and harassment," and the "time expended following-up on the ACS report bore a reasonable relation to the needs of the case." DeCrescenzo submitted an e-mail message she received from the ACS, on November 9, 2017, indicating that the case against P.R. was unfounded. The Court finds that including a claim of retaliation in the second DPC was reasonable because that claim was reasonably related to the IDEA violations claim raised in the September 14, 2016 DPC, notwithstanding that "it was not a basis for the IHO's decision." The Court is not convinced that reducing, by 7.2 hour, the time spent in connection with the retaliation claim, is warranted.
The defendant contends that "the remaining hours spent by Plaintiff's counsel on the administrative proceeding should be reduced by 30% or 33.7 hours, to account for her partial success at the administrative level," namely, the IHO denied: (1) one "out of the four categories of interim relief sought in her February DPC"; and (2) "three out of the five categories of interim relief requested by Plaintiff in her September DPC." Moreover, the IHO "denied or failed to address seven out of 15 categories of Plaintiff's requested final relief." The plaintiff asserts that the defendant attempts to differentiate between interim and final relief, but the plaintiff received almost all interim relief requested, albeit some in modified form, and failed to receive only one form of interim relief: "Provision of in-home counseling and parent training." Although some relief requested was not addressed by the IHO, the plaintiff obtained "major relief at every stage of the proceeding and actually [achieved her] major objectives." The defendant failed to support its request for a 30% reduction or explain why it seeks a 30% reduction and not some other percentage. Contrary to the defendant's assertion that the plaintiff "obtained only a limited degree of success," the Court finds, based on this motion record, that the plaintiff was highly successful in obtaining relief throughout the administrative proceedings; thus, a reduction of 33.7 hours is not warranted.
The defendant asserts that 5.5 hours DeCrescenzo spent drafting her declaration should be reduced by 25%, or 1.4, hours because she "improperly repeats statements made in other declarations in support of [the plaintiff's] motion. See DeCrescenzo Decl. ¶¶ 74-84." The defendant does not explain why 25%, and not some other percentage, is the appropriate reduction for the ten paragraphs alleged to be improper, given that DeCrescenzo's declaration contains 85 paragraphs, and ten paragraphs do not amount to 25% of the total number of paragraphs in DeCrescenzo's declaration. Rather, ten paragraphs amount to 11.76% of the 85 paragraphs, and the corresponding reduction, if any, should not, absent evidence to the contrary, be more than the challenged portion: 11.76% of 5.5 hours, which is 0.64 hours. However, the defendant failed to convince the Court that: (a) the ten challenged paragraphs are improper; (b) the proposed reduction in hours requested is warranted; and (c) any other reduction in hours is warranted.
The Court is convinced that 0.9 hours spent by Brown on a proposed declaration by Tracey Spencer Walsh, which was not submitted with this motion, should be deducted. See Walker v. City of New York, No. 11-CV-314, 2015 WL 4568305, at *11 (E.D.N.Y. July 28, 2015) (the court declined to award one hour "spent composing an e-mail to a police expert who was never disclosed or called at trial" because the plaintiff did not "attempt to justify those fees."). The plaintiff's conclusory contentions that "gathering evidence is not an exact science, and not all attempts to obtain evidence are successful" do not justify the 0.9 hours at issue.
The defendant seeks a reduction of 0.8 hours spent by Brown on the statement of relatedness. The Court finds that no reduction is warranted because the plaintiff acted prudently by following Local Civil Rule 1.6 and bringing to the Court's attention the existence of prior, similar cases deemed related previously.
The defendant seeks a "15% or 1.1 hours" reduction of the 7.2 hours expended preparing the eight-page complaint because: (i) the complaint "relies heavily on boilerplate language used in other complaints filed by [the plaintiff's] counsel in earlier cases"; and (ii) "DeCrescenzo could have assigned the bulk of drafting the Complaint to a junior associate." The defendant does not identify the number of paragraphs or pages containing the boilerplate language used in the prior cases nor does it explain why 15% and not some other reduction percentage is warranted in the circumstance of this case. The Court is not convinced that 15% or any other reduction of the 7.2 hours expended drafting the complaint is warranted simply because the complaint includes some alleged and unidentified amount of boilerplate language used in previous cases.
The defendant seeks a reduction of 3.2 hours expended by Brown on "clerical or administrative tasks, which included redacting, filing and serving documents for this fee application. See DeCrescenzo Decl. Ex. C. at 4. This work should have been billed at a paralegal rate." Exhibit C attached to DeCrescenzo's declaration contains the DPC dated September 14, 2016. Exhibit G to DeCrescenzo's declaration contains "a true itemization of attorney and paralegal time." However, the defendant failed to identify: (1) when and what documents Brown was "redacting" or the nature of the challenged redacting, and why that task is "clerical or administrative"; (2) when Brown performed the tasks of "filing and serving documents." The Court's review of Brown's time records reveal that Brown expended the following hours on tasks that appear to be clerical and administrative in nature: (a) 1.1, on "11/3/2017," "Redact documents from administrative record to conceal identifying information of minor"; (b) 0.2, on "7/12/2017," "Filing/ U.S. District Court Aff. of service of summons & Complaint"; (3) 0.1, on "7/11/2017," "Assemble papers for filing/Original proof of service"; and (4) 1.5, on "6/28/2017," "File Complaint, Civil Cover Sheet, Statement of Relatedness and Request for Issuance of Summons via CM/ECF; paid filing fee ($400)." The Court finds that 2.9 hours that Brown expended on tasks appearing to be clerical and administrative in nature are reasonable but a reasonable rate for them is a reasonable paralegal's hourly rate of $140.
Whether the Costs Requested Are Reasonable
The plaintiff's request for $476.13 in costs is unopposed. The Court finds that $476.13 in costs, consisting of $400 (filing fee) and $76.13 (service of process fee), are reasonable.
Conclusion
The Court finds that reasonable costs are $476.13, and reasonable attorneys' fees are $85,958, based on reasonable hourly rates multiplied by the reasonable hours expended, as indicated below:
| DeCrescenzo | Duffin | Brown | Lolis | Total | |
| Reasonable Hourly Rate | $400 | $300 | $300 | $140 | |
| Reasonable Hours | 152.1 | 11.7 | 61.9 ($300)2.9 ($140) | 18.80 | |
| Rate Multiplied by Hours | $60,840 | $3,510 | $18,976 | $2,632 | $85,958 |
RECOMMENDATION
For the foregoing reasons, I recommend that $85,958 in attorneys' fee and $476.13 in costs be awarded to the plaintiff.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
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 objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 500 Pearl Street, Room 1640, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 425, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). Dated: New York, New York
July19, 2018
Respectfully submitted,
/s/_________
KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE