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declining to measure fees by counting issues
Summary of this case from B.B. v. Perry Township School Corp.Opinion
1:03-cv-1611-LJM-WTL
March 19, 2004
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This cause is now before the Court on cross motions for summary judgment. The plaintiffs', M.P., a minor, and his parents and next friends, Mark and Donna Palmatier (collectively, the "Palmatiers"), assert that there is no material question of fact that the defendants, Noblesville Schools and Hamilton-Boone-Madison Special Services Cooperative ("Co-Op") (defendants collectively, the "School"), owe them attorney's fees as provided in 20 U.S.C. § 1415(i)(3)(B) for services rendered to the Palmatiers for their due process challenge with the Indiana Department of Education. In the due process challenge, the Palmatiers contended that the School had violated the Individuals with Disabilities Education Act ("IDEA"), Article 7, and the implementing regulations, in connection with the provision of special education services to M.P between 1997 and the present. The instant suit seeks to recover attorney's fees for the due process challenge and the current action.
In contrast, the School contends that attorney's fees are not appropriate in this case because the Palmatiers were not prevailing parties as required by the fees shifting statute of the IDEA. Even if they were prevailing parties, the School argues that the Palmatiers' success was de minimus, which precludes them from recovering attorney's fees.
For the reasons discussed herein, the Court GRANTS in part and DENIES in part the Palmatiers' Motion for Summary Judgment and GRANTS in part and DENIES in part the School's Motion for Summary Judgment.
I. BACKGROUND A. THE PLAINTIFFS
The majority of these facts were taken from the defendants' brief in support of their cross motion for summary judgment and are not disputed by the Palmatiers.
The Plaintiffs in this case are Donna and Mark Palmatier as parents and next friends of M.P. M.P. is a thirteen-year-old seventh-grader at Noblesville Intermediate School, in Noblesville, Indiana. Hrg. Tr. Vol. I, at 21. He has been receiving special services since he was five years old and has a primary disability of emotional disability and a secondary disability of learning disability. Admin. Rec. Exh. 1D, at 9. The Palmatiers are not the biological parents of M.P., but instead have adopted him. Hrg. Tr. Vol. II, at 95. M.P. is the son of one of the Palmatiers' daughters through a teenage pregnancy. Hrg. Tr. Vol. III, at 240.
B. THE DEFENDANTS
The defendants in this case are the Noblesville Schools and the Hamilton-Boone-Madison Special Education Cooperative. Noblesville provides special education services to its students through the Co-Op. The Director of Special Services for Noblesville is Tom Ryan. Hrg. Tr. Vol. II, at 8.
C. M.P.'s EDUCATIONAL HISTORY
According to a report dated March 5, 1997, M.P. was first seen for possible attention deficit hyperactivity disorder ("ADHD") in February of 1996 by Dr. Ernest Smith. School records indicate that although M.P. was on track academically, he had significant problems with waiting turns and sharing. IQ testing indicated a full scale IQ of 100. Dr. Smith diagnosed M.P. with ADHD and placed him on Ritalin to control impulsiveness and concentration and last saw him on December 16, 1996, concluding that M.P. might also have a pervasive developmental disorder. Admin. Rec. Exh. 1(A), at 1-3.
While he was in Kindergarten during the 1996-97 school year at Forest Hill Elementary School, M.P.'s teacher referred him for evaluation by the Co-Op because of developmental delays, processing difficulties and distractibility/over-activity. The Psychoeducational Report dated May 30, 1997, indicates that M.P.'s composite IQ score was 100 and that he suffered from Attention Deficit Disorder and significant behavioral problems. Admin. Rec. Exh. 1(B), at 1-7.
On March 10, 1997, a case conference was convened to discuss the results of the two reports. The primary disability listed was emotional disability ("ED") with a secondary disability of communication disorder. M.P. began receiving speech therapy and his Individual Education Plan ("IEP") contained a behavioral development program. The Palmatiers approved this IEP. Admin. Rec. Exh. 2(A), at 4.
For 1st grade, M.P. was moved to Hinkle Creek Elementary School where he could receive more intensive services. The Case Conference reconvened on September 16, 1997, to develop an IEP for the 1997-98 schoolyear. M.P.'s skills were noted to be average, but his behavioral problems were precluding his education. He continued to be labeled ED and a behavioral plan remained in the IEP. The Palmatiers approved this IEP. Admin. Rec. Exh. 2(B) at 6. Following the development of the IEP the Palmatiers had M.P. evaluated at the Children's Resource Group. M.P.'s IQ again tested at 105 and his abilities fell within the average range. Significant in this report is the identification of aggressive behaviors and the fact that M.P. was taking medication to reduce those behaviors. The report also identified three pages of suggestions to assist M.P. in succeeding in the classroom. His progress that year was described as "unsteady, but he is making strides toward goals." Admin. Rec. Exh. 1(C), at 1-11.
An Annual Case Review was held on April 30, 1998, to prepare an IEP for the 1998-99 school year, M.P.'s 2nd grade year. He remained labeled as ED and the recommendations from the Children's Resource Group were implemented in developing goals and objectives in behavior for the 1998-99 school year. Admin. Rec. Exh. 2(C), at 1-16. M.P. was to be placed in a general education classroom for most of the day with individualized instruction in the resource room for the remainder of the day. He was also to receive school related counseling. The Palmatiers approved this IEP. Admin. Rec. Exh. 2(C), at 13.
On March 25, 1999, an Annual Case Review was held to prepare an IEP for the 3rd grade, the 1999-2000 school year. The report notes that M.P.'s academic skills were "average with support (frequent focusing and 1:1 instruction)." He remained labeled as ED and continued in a general education classroom for most of the day, with individualized instruction in the resource room for the remainder of the day. He was also to continue to receive school related counseling. There was an extensive discussion regarding the problem of balancing consequences for behavior with M.P.'s anxiety problems. M.P. also began physical and occupational therapy once a week to address some motor skills problems. Admin. Rec. Exh. 2(D), at 1-18. The Palmatiers approved this IEP. Admin. Rec. Exh. 2(D), at 12.
M.P. benefitted from the program and his teachers noted that he was more cooperative and less resistant to procedures. He also stopped receiving physical therapy services as he had met all of his goals. Testing done in September of 1999 when he was going into the 3rd grade demonstrated him to be at a 2.5 grade equivalent in math, a 2.2 grade equivalent in spelling, a 1.9 grade equivalent in basic reading, and a 2.2 grade equivalent in reading comprehension. Admin. Rec. Exh. 2(E), at 5.
During this school year M.P. underwent the required Three Year Reevaluation. Interestingly, in stark contrast to two prior sets of IQ testing which showed M.P. in the average range, the testing done on January 25, 2000, indicated that his full scale IQ was 126 and that his performance IQ was 132, in the very superior range. A 25-30 point jump in IQ is extremely unusual. Admin. Rec. Exh. 1(D), at 1-12. However, the report did note that in contrast to prior and subsequent testing, "M[.P.] was cooperative and attempted all tasks presented. He was enthusiastic and persistent during cognitive assessment, appearing to enjoy the challenge." Admin. Rec. Exh. 1(D), at 7.
On May 15, 2000, the Case Conference Committee reconvened for the Annual Case Review. M.P. continued to be classified as EH and was to attend Hinkle Creek for the 4th grade during the 2000-01 school year. While M.P.'s primary disability remained EH, his secondary disability was changed from Communication Disorder to Learning Disability ("LD"). As a consequence of this while M.P. continued to receive daily resource room assistance for his emotional handicap and counseling for his behavioral problems, he also began receiving learning disability assistance in the resource room three times a week. The Palmatiers approved this IEP. Admin. Rec. Exh. 2(E), at 1-26.
Terra Nova testing done in September of 2000 when M.P. was entering the 4th grade demonstrated that he was at a 3.7 grade equivalent in math, a 2.9 grade equivalent in spelling, a 4.4 grade equivalent in basic reading, and a 4.4 grade equivalent in reading comprehension. Admin. Rec. Exh. 2(F), at 5. This showed a substantial increase from prior testing in the 3rd grade. However, teacher reports indicate that by January and February of 2001, his behavioral problems were strongly manifesting themselves.
M.P.'s Annual Case Review took place February 12, 2001, and he continued to be classified as EH (now "ED") and LD and was to attend Noblesville Intermediate School for the 5th grade during the 2001-02 school year. Admin. Rec. Exh. 2(F), at 1-18. M.P. also had a very specific behavioral management plan as a consequence of his increased behavioral problems. Admin. Rec. Exh. 2(F), at 18. Under this IEP, M.P. was to spend almost all of his time in a general inclusionary environment with less than 20% spent in the resource room. Id. The Palmatiers approved this IEP. Id. at 17.
During 5th grade M.P.'s progress began to deteriorate. He received below average grades, C's and D's, and began exhibiting much more significant behavioral issues including hair pulling, tic-like behavior and other problems. During a case conference on May 11, 2002, the Palmatiers noted that he was having "emotional issues — dealing with traumatic events" but did not elaborate. Admin. Rec. Exh. 2(G), at 2. It was noted that M.P. had been drawing "scary pictures" and that his "academics have dropped steadily over the course of the year." Admin. Rec. Exh. 2(G), at 3. He also expressed that he "is afraid someone `will come get him, kill him.'" Id. at 4. As a consequence the Palmatiers also requested that he receive more one-on-one instruction. The School agreed to extended time for M.P. in the pull-out program. Id. at 1.
Comparing independent records from this time reflect that unknown to both the School and the Palmatiers at the precise time that M.P.'s behavior problems began to escalate, his academics deteriorated, he began to draw scary pictures, and he expressed fear that someone would get him and kill him, he was being sexually molested by an acquaintance named Harrold. This abuse began in November of 2000 and continued through the fall of 2001 and into 2002. Admin. Rec. Exh. 5(A), at 4. The abuse was discovered by the Palmatiers in January of 2002. Id. The information about the sexual abuse was not disclosed to School personnel until February 6, 2002, when Ms. Geller called Mrs. Palmatier to talk about the continuing and escalating behavior problems. Id.; Hrg. Trans., Vol. II, at 187-89. Meanwhile M.P.'s performance continued to deteriorate as a result of the abuse and he expressed deep fear of the abuser: "Do want to tell you though M[.P.] told me today that he is afraid that Harold may hurt him for telling us what he was told not to. I assured him that he will never have to worry about Harold again but I am not sure that he believes this." Admin. Rec. Exh. 5(C), at 81.
At the same time that M.P. was being sexually abused by Harold the Palmatiers were going through marital problems that Ms. Palmatier reported to the School because she feared they were upsetting to M.P. Thus for example on August 20, 2001, Mrs. Palmatier wrote a letter to Ms. Geller noting "[h]e had a very rough weekend due to his father and I. His father did leave last night, so all he knows at this time is that M[.P.] misses his father very much. He tried all day to fix things, `trying to fix everything between his father and myself.'" Id. at 66. In an August 23, 2001, phone call from Mrs. Palmatier to Ms. Geller she noted "M[.P.] is upset over parents divorce. Mad at mother that she made dad [sic] leave. Mother is unable at this time to focus and help M[.P.] because of lack of sleep and concerns over divorce." Admin. Rec. Exh. 5(A), at 1. These concerns continued with a note that on September 21, 2001, "M[.P.] concerned about Dad picking him up." Id. at 3. On September 28, 2001, Mrs. Palmatier advised Ms. Geller "I am off task because of all things going on at home." Id. Indeed the animosity between the Palmatiers got so bad that on November 9, 2001, the School received a note from Mr. Palmatier opining, "His mother should be the one in detention." Hrg. Tr. Vol. 1, at 187. See also Admin. Rec. Exh. 5(C), at 69.
For his sixth grade year, the 2002-03 school year, M.P. again attended the Noblesville Intermediate School. According to his Annual Case Review held on May 14, 2002, his time in the pull-out program was increased by one-half hour each day to a total of two hours a day. A behavioral plan was deferred pending reevaluation of M.P. over the summer. Admin. Rec. Exh. 2(H), at 1-12. The Palmatiers approved this IEP. Id. at 11. M.P. was noted to be seeing a counselor and a doctor for therapy relating to the abuse. Id. at 12.
During a case conference held on November 11, 2002, the committee revised the IEP such that M.P. was placed in a self-contained classroom five hours a day so that he could receive 1:1 instruction to deal with his increasing emotional and behavioral problems. Admin. Rec. Exh. 2(1), at 1-11. As promised in the May 14, 2002, Case Conference, the Case Conference Committee also developed a behavioral contract designed to reward positive behavior and discourage negative behavior. Id. at 11.
Pursuant to the provisions of the IDEA, M.P. underwent a three-year reevaluation on February 13, 2003, by Carol Lowe, a school psychologist. Interestingly, his IQ tested at 105, the exact same as it had been six years earlier, and twenty-one points less than it had been three years earlier. In testimony at the due process hearing Ms. Lowe attributed this decline to "[a]n emerging psychotic disorder, the abuse through M[.P.] [sic], through reading his file [sic], the problems that his parents were having during a period of time would certainly impact his ability to focus, to take a test." Hrg. Tr. Vol. II, at 86. She also attributed these problems as culprits in his academic decline as well. Id. Ms. Lowe concluded that "M[.P.] should be taken to a child psychiatrist or clinical psychologist for further evaluation to determine if a diagnosis of a possible psychotic disorder is appropriate." Admin. Rec. Exh. 1(E), at 7.
In addition to the academic and behavioral problems, a significant factor in M.P.'s poor performance was his poor attendance. By the March 26, 2003, Annual Case Review, he had missed school 29 days, and was tardy another 23 times thus missing one out of every three school days. Admin. Rec. Exh. 2(M), at 1.
D. EVENTS LEADING TO THIS LAWSUIT
As M.P.'s performance spiraled downward requiring a more and more restrictive environment, the relationship between the Palmatiers and the School became strained. Things came to a head during the March 26, 2003, Annual Case Review. Because M.P. continued to have behavioral problems and in light of Ms. Lowe's evaluation, a Functional Behavioral Assessment and Behavioral Intervention Plan were prepared by Ms. Geller to be presented to the Palmatiers at the March 26, 2003, case review for implementation during the 2003-04 school year. Admin. Rec. Exh. 2(J), at 1-4.
The Palmatiers in turn presented a list of requested changes to the IEP. Specifically, the Palmatiers made the following requests:
1. Extended school year services, Admin. Rec. Exh. 2(K), at 1;
2. Re-evaluation by a Child psychologist at the schools expense, id.;
3. Provide M[.P.] with a laptop computer and training to use said computer due to weakness in handwriting, id.;
4. Use of a calculator for math, id.;
5. Use of tutorials, id.;
6. Full time aide (paraprofessional); id.;
7. Request tutoring be provided by Supplemental Education Services 3 days a week one hour sessions, id.
8. Remove M[.P.] behavior contract, his behavior is a manifestation of his disability. Request FBA (Functional Behavioral Assessment) be performed and then BIP (Behavior Intervention Plan) depending on the finding then maybe a behavior contract, id.;
9. Focus attention on development of M[.P.]'s strengths and interest. Once M[.P.] was classified as LD, remediation of basic skills, focusing on M[.P.]'s weaknesses, which has been a key factor in poor self esteem, lack of motivation, depression, and stress. M[.P.] needs a stimulating educational environment, which will enable him to develop his talents and abilities, id.;
10. Request counseling/therapy services to work on his self-esteem issues that hinder his education, id.;
11. Develop enrichment activities that are designed to circumvent problematic weaknesses, highlight abstract thinking and creative production, id.;
12. Due to M[.P.]'s problematic weaknesses develop compensation techniques to assist M[.P.] in coping with those weaknesses. Such as: visitation, interviews, photographs, pictorial histories, films experimentation, id.;
13. Provide Advance Organizers, id.;
14. Use of technology, this may promote productivity; id.;
15. Options for communication, slide shows, models, speeches, mime, murals, id.;
16. Full time private schooling for 2003/04 school year at Hamilton County expense. Id.
According to admissions by Mr. Palmatier and the IEP, the School refused only one of the Palmatiers' requests, the one for a private tutor at school paid for by the School. Every other request was either granted or was tabled pending the results of the psychological/psychiatric evaluation. The minutes from the meeting note: "The Case Conference Committee has agreed that this is an appropriate placement, but we will reconvene after the psychological testing has been done to discuss changes in this placement." Admin. Rec. Exh. 2(L), at 14. However, the Palmatiers presented evidence to suggest that the School never helped the Palmatiers identify an appropriate independent evaluator as promised at the conference. Hrg. Tr. Vol. III., at 173, 188-89.
On April 2, 2003, the Palmatiers filed a request for a due process hearing with the Indiana Department of Education ("IDOE") contending that the School violated the IDEA, Article 7, and the implementing regulations, in connection with the provision of special education services to M.P. between 1997 and the present. During the pre-hearing conference held on May 23, 2003, the issues were further clarified into fifteen separate issues:
1. Has the School in the past provided and is currently providing a free appropriate public education?
2. Did the School provide appropriate Extended School year services from 1998-2002?
3. Is the proposed Extended School Year program for 2003-04 appropriate?
4. Did the School complete a timely and appropriate functional behavioral assessment?
5. Did the School develop and implement an appropriate intervention plan?
6. Has the School developed and implemented appropriate Individualized Education Plans for school years 1997-98 through 2002-2003?
7. Is the proposed Individualized Education Plan for 2003-2004 appropriate?
8. Have teachers, staff, administrators and parents properly been trained in the areas of the Student's needs and disabilities?
9. Has the School appropriately shared information with the family?
10. Has the School violated confidentiality by disclosing information without parental consent?
11. (a) Did the School appropriately evaluate the Student? (b) If not, are the parents entitled to reimbursement of their expense for an independent educational evaluation?
12. Did the School fail to share information with the parents within five days before a case conference?
13. Are the parents entitled to reimbursement for transportation for the student?
14. Is the student entitled to compensatory educational services?
15. Should the Student be placed in a private, non-public school at public expense?
McDowell Aff ¶ 4, Mem. To Dorene Jackson Philpot, Esq. Thomas E. Wheeler, Esq., From Kevin McDowell, RE: Bd. of Special Educ. Apps.' Decision, In the Matter of M.P. (Art. 7 Hrg. No. 1342.03 (Nov. 21, 2003), In the Matter of M.P., Art. 7 Hrg. No. 1342.03, Comb. Findings of Fact Concl. of Law, with Orders, at 2-3 (Bd. of Special Educ. App. Sept. 6, 2003) ("IHO Findings Concl.").
An independent hearing officer ("IHO") held a hearing on these issues on July 16-17, 2003, and August 13, 2003. Id. at 1. At the opening of the hearing, the School objected to litigating issues that referred to past IEPs because the parents had agreed to those plans. Id. at 3. After discussion between the parties, the IHO ruled that the issues could be addressed in testimony and evidence with regard to implementation of the IEPs, but the content should not be pursued. Id. On September 6, 2003, the IHO issued his Combined Findings of Fact and Conclusions of Law, with Orders. In relevant part, the IHO's findings were:
1. Has the School in the past provided an is currently providing a free appropriate public education?
"The lEPs were agreed to by the parents and the evidence indicates, that, for the most part, they were implemented according to the stated plan. Although the parents may disagree in retrospect with the prior IEPs, they were developed and implemented appropriately based on the available information. The IEP in effect at the time of the March 26, 2003, [case conference] was appropriate and was being implemented. . . ." Id. at 13.
2. Did the School provide appropriate Extended School Year services from 1998-2002?
"There is was [sic] not sufficient evidence presented to indicate that the Student showed or would be expected to show significant regression over the summer months from 1998-2002. Therefore, the School was not required to provided [sic] Extended School Year Services. . . ." Id.
3. Is the proposed Extended School Year program for 2003-04 appropriate?
"The School agreed to Extended School Year services to provide tutoring for one hour per week [sic], three times per week, for six weeks. The evidence suggests that this amount of time is appropriate." Id. at 14.
4. Did the School complete a timely and appropriate functional behavior assessment?
". . . [B]ecause none [of the] conditions [that require a public agency to complete a functional behavior assessment] were applicable to the Student, the School was not required by law to conduct a functional behavior assessment. In an effort to gain more information, however, the School did perform a functional behavior assessment in the Fall of 2002. The parents were not made aware of this assessment, however, which required parental consent because it was not listed in the IEP. Therefore, the School should have notified the parents of the proposed need for additional evaluation to obtain their consent ( 511 IAC 7-25-7(a)(b)(c); 34 C.F.R. § 300.520(b)(1)). The evaluation as described in evidence and testimony was done in an appropriate manner." Id.
5. Did the School develop and implement an appropriate intervention plan?
"The School did develop and implement a variety of classroom-based interventions over time, as well as a behavior intervention plan subsequent to the functional behavior assessment in 2002-03. . . . There was no evidence to suggest that the plan, per se, was not appropriate. . . ." Id. (citations omitted).
6. Has the School developed and implemented appropriate Individualized Education Plans for the school years 1997-1998 through 2002-2003?
"The parents had signed permission to implement the IEPs. There is no evidence to suggest that the lEPs were not implemented as stated. . . . Testimony indicated that some [specific instructional methods and disciplinary consequences] were not effective and may have increased [M.P.'s] behaviors at times. Therefore, although the specific IEPs were implemented, some instructional and behavioral strategies were not appropriate. . . ." Id. at 14-15 (citations omitted).
7. Is the proposed Individualized Education Plan for 2003-2004 appropriate?
"The evidence and testimony indicates that the goals and objectives listed for the Student are appropriate, i.e., the Student has needs in the areas addressed. Behaviors not addressed that interfere with educational performance, such as pulling out hair, picking at scalp, skin, ears, and fingernails are not addressed. The evidence indicates that the Student has continued to have difficulty over several years, despite a variety of interventions. . . . The IHO concludes that the goals, objectives, and implementation may not be sufficiently thorough." Id. at 15.
8. Have teachers, staff, administrators, and parents properly been trained in the areas of the Student's needs and disabilities?
". . . [T]he IHO concludes that school personnel were properly trained. . . . No evidence was presented to suggest that the parents needed such training. Therefore, the School is not found to be in violation of 511 IAC 7-28-1(7) or 34 C.F.R. § 300.24(b)(7) [sic]." Id. at 15.
9. Has the School appropriately shared information with the family?
"The evidence indicates that the School provided information about the Student's progress as provided in the IEP through reports sent home and in his assignment book. Therefore, the school met the provisions of the IEP as provided by 511 IAC 7-27-7." Id.
10. Has the School violated confidentiality by disclosing information without parental consent?
". . . [T]he School has not violated confidentiality in a manner as described as 511 IAC 7-23-1 and 34 C.F.R. § 300.571." Id. at 15-16.
11. (a) Did the School appropriately evaluate the Student?
"The School conducted evaluations . . . as required . . . for the current and proposed IEPs." Id. at 16 (citations omitted).
(b) If not, are the parents entitled to reimbursement of their expenses for an independent educational evaluation?
"This issue was removed by the Petitioner at the beginning of the hearing." Id.
12. Did the School fail to share information with the parents within five days before a case conference?
"This issue refers to the parents obtaining a copy of the January, 2003, evaluation prior to the case conference of March 26, 2003. The report was mailed on March 7, 2003, although the Student's father could not recall seeing it. Given the testimony about when it was mailed, there is no evidence that the parents did not receive the report. Further, receiving a copy of an educational evaluation is required only for initial evaluations ( 511 IAC 7-25-4)." Id.
13. Are the parents entitled to reimbursement for transportation for the Student?
"The parents elected to transport the Student after he was attacked on the bus, because he continued to be somewhat fearful for a time. Attempts were made to arrange bus transportation, but the parents declined. The School did not require the parents to transport the Student. If the parents do transport the Student and a written agreement is made with the School, then they are to be reimbursed at the same rate as employees of the public agency ( 511 IAC 7-21-7). However, there is no evidence that the parents were given this information by the School. The father testified that he did not know about this provision in Article 7. . . . Therefore, under the circumstances of the transportation matter and the pertinent case law, the IHO determines that the parents should be reimbursed for transportation for the 2002-2003 school year at prevailing school employee rates and up to the date of this decision." Id.
14. Is the Student entitled to compensatory educational services?
"The School implemented appropriate IEPs until the impasse on March 26, 2003. There is no evidence that the School failed to meet its responsibility to implement signed IEPs. A school may not be held accountable if a student does not make progress as projected in the IEP ( 511 IAC 7-27-8(b)). The goals and objectives were agreed to by the parties and there is no evidence that the IEPs were not implemented as written. Therefore, the Student is not entitled to compensatory educational services." Id. at 17.
15. Should the Student be placed in a private, non-public school at public expense?
"Although [the Student] might derive some benefit from a non-public school setting with non-disabled peers, a lack of special education services would not be appropriate.
Therefore, to place him in a non-public setting without those supports would not be appropriate to provide a free appropriate public education ( 511 IAC 7-17-36; 34 C.F.R. § 300.13)." Id.
Based on his conclusions, the IHO issued six orders. Id. at 17-18. Because the issues in the instant case are fact sensitive, rather than trying to paraphrase the IHO's orders and perhaps miss a pertinent point, they are set forth in total here:
1. The Student is to be place in the School's Public Separate Day School Facility for a diagnostic period of no less than sixty (60) instructional days. The time maybe extended, depending on the information gained and upon the recommendation of the case conference committee. The proposed IEP is to be implemented to the extent possible, with adjustments made for the setting. During that time, school personnel are to conduct necessary behavioral evaluations, detailed assessment of academic and instructional needs, and development of behavioral and therapeutic interventions to address social and emotional needs. Consideration is to be given to the possibility that the Student has more cognitive ability than he is able to demonstrate and that academic modifications must be adapted for him. At the time and in the manner deemed appropriate by the case conference committee, the Student is to begin a transition period back to the general education environment with as much assistance as is needed, perhaps including the full-time instructional aide approved by the School previously. The parents are to make every reasonable attempt to assure that the Student attends school regularly and on time.
2. The case conference committee is to obtain the services of an independent licensed mental health professional who is knowledgeable about special education issues and social, emotional, and behavioral problems of students. This professional will provide input to the case conference committee in developing the IEP during the diagnostic period, the IEP for transition back to general education, and provide consultation to the program, as needed. The selection of this professional shall be a collaborative effort of the school and the parents and the parties shall arrive at a mutually acceptable agreement in the final selection. The School will be responsible for all costs of the professional.
3. The School is to reimburse the parents for transportation costs described in Conclusion of Law #15 within thirty (30) days of receipt of this decision.
4. At a time deemed appropriate by the case conference committee, the Student is to be given the opportunity to re-take the ISTEP with appropriate modifications and accommodations.
5. The School is to implement the list of parental requests agreed to at the case conference upon the Student's attendance in class.
6. The Student is to be provided counseling services for school-related matters as recommended by the case conference committee after consultation with the mental health professional.Id.
The School appealed the IHO's decision to the Board of Special Education Appeals ("BSEA") arguing that the Palmatiers were not entitled to compensation for transporting M.P. to school because the School had offered transportation, but the parents turned it down. Id. at 18. The BSEA found that
[t]he IHO correctly concluded in his Conclusion of Law #15 that there is no evidence that the parents were given information as to reimbursement by the School for transportation as a related service. The School's IEP form did not document specific information about transportation as a related service. The only reference to transportation on page [Administrative Record Exhibit 2(1) at 10] of the IEP was ambiguous.
. . . The IHO correctly ordered reimbursement for transportation in his Order #3.Id. at 22.
On October 7, 2003, the Palmatiers filed the instant suit in Hamilton County Circuit Court. Notice of Removal, ¶ 2. The School timely removed the case to this Court on October 31, 2003. Id. On December 15, 2003, the Palmatiers filed a Motion for Summary Judgment. During a pre-trial conference on January 12, 2004, the parties agreed that the case would best be resolved on cross-motions for summary judgment.
II. STANDARD
Summary judgment is granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R Civ. P. 56(c). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the opposing party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if it might affect the outcome of the suit in light of the substantive law. See id.The moving party has the initial burden to show the absence of genuine issues of material fact. See Wollin v. Gondert, 192 F.3d 616, 620 (7th Cir. 1999); Schroeder v. Barth, Inc., 969 F.2d 421, 423 (7th Cir. 1992). This burden does not entail producing evidence to negate claims on which the opposing party has the burden of proof. See Green v. Whiteco. Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir. 1994). The party opposing a summary judgment motion bears an affirmative burden of presenting evidence that a disputed issue of material fact exists. See Wollin, 192 F.3d at 621.
In considering a summary judgment motion, a court must draw all reasonable inferences "in the light most favorable" to the opposing party. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). If a reasonable fact finder could find for the opposing party, then summary judgment is inappropriate. See Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992). When the standard embraced in Rule 56(c) is met, summary judgment is mandatory. Id.
III. DISCUSSION
The School argues that summary judgment in its favor is appropriate because the Palmatiers were not the prevailing party at the due process hearing. Specifically, the School contends that the Palmatiers won only 1/7th of one out of fifteen issues at the hearing: the reimbursement for costs of transportation in the amount of $350.00. Even if the Court determines the Palmatiers were the prevailing party, the School states that pursuant to the Supreme Court's decision in Farrar v. Hobby, 506 U.S. 103, 115 (1992), "because of the de minimus nature of their success, the only reasonable fee is no fee at all." Defs.' Br. in Supp. of S.J. Opp'n to Pl.s' Mot. for Summ. J., at 29; id. at 30-31 (citing Linda W. v. Ind. Dep't of Educ., 200 F.3d 504, 507 (7th Cir. 1999); Monticello Sch. Dist. No. 25 v. George L., 102 F.3d 895, 907-08 (7th Cir. 1996); M.P. V. v. DeKalb County Sch. Sys., 244 F. Supp.2d 1331 (N.D. Ga. 2003)).In contrast, the Palmatiers aver that summary judgment in their favor is appropriate because they did prevail at the hearing. The Palmatiers contend that the IHO's orders "materially alter[ed] the legal relationship between the parties by modifying the defendants behavior in a way that directly benefits the plaintiff[s]." Pl's Resp. to Defs.' Cross Mot. for Summ. J., at 5 (quoting Fischer v. SJB P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000) (quoting Farrar v. Hobby, 506 U.S. 103, 111-13 (1992)). Similarly, the Palmatiers quote the Seventh Circuit: "`[A] plaintiff may be considered a "prevailing party" if "they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'"" Id. at 6 (quoting T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 479 (7th Cir. 2003) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). See also Evanston Comm. Consol. Sch. Dist. 65 v. Michael M., 356 F.3d 798, 805 (7th Cir. 2004) (citing the same standard).
Specifically, the benefits that the Palmatiers' point to include (1) M. P.'s placement in the School's Public Separate Day School Facility that was never offered by the School; (2) M.P.'s evaluation by an independent licensed mental health professional, with the School's identification of such person, which was offered but never followed through on by the school; (3) M.P.'s retaking of the ISTEP examination, which was never offered by the School; (4) M.P.'s receipt of additional counseling services for school-related matters as recommended after the professional examination, which was an inadequacy pointed out by the parents at the hearing; and (5) reimbursement for the transportation to school provided by the Palmatiers. The Palmatiers suggest that these alterations are significant enough to warrant the award of attorneys' fees because "the `prevailing party inquiry does not turn on the magnitude of the relief obtained.'" Id. at 7 (quoting Farrar v. Hobby, 504 U.S. 103, 114 (1992)).
In addition, the Palmatiers contend that the School is not entitled to any deductions of attorneys' fees because it violated 20 U.S.C. § 1415(b)(3), when it failed to provide written notice of several denials of their requests related to changes in M.P.'s IEP. Pl.'s Mem. in Supp. of S.J., at 3-8.
Based on the parties' arguments, there are two issues for the Court: (1) whether or not the Palmatiers were the "prevailing party" for purposes of recovering attorneys' fees pursuant to 20 U.S.C. § 1415(i)(3)(B); and (2) if they were the prevailing party, whether or not the Palmatiers prevailed to the extent that they should receive their reasonable attorneys' fees. The Court finds that the Palmatiers were the prevailing parties in the due process hearing, but their request for fees is unreasonable in amount.
A. WERE THE PALMATIERS THE "PREVAILING PARTY"?
To a large extent the parties agree on the law that applies to the determination of whether or not the Palmatiers were prevailing parties. Specifically,'" [A] plaintiff "prevails" when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.'" Evanston Comm. Consol. Sch. Dist. 65, 356 F.3d at 805 (quoting Farrar, 506 U.S. at 111-12). Moreover, "the `prevailing party inquiry does not turn on the magnitude of the relief obtained.'" Id. at 805 (quoting Farrar, 506 U.S. at 114).
The School contends that the IHO's order did not change the legal relationship between the parties because the School had already either agreed to the ordered items at the March 26, 2003, Case Conference, the School was required to provide the opportunity to take the ISTEP by law, or the Palmatiers asked for more reimbursement than they received. Moreover, the School argues that the Palmatiers succeeded on only l/7th of one out of fifteen issues presented to the IHO.
The Court finds that the School misses a key point in the IHO's findings. In response to two of the questions regarding whether the School had appropriately developed and implemented IEPs for M.P. (issues 6 and 7), the IHO found that certain methods used by the School to treat M.P.'s behavioral problems were not appropriate, and apparently, never corrected. IHO Findings Concl, at 14-15 ("although the specific IEPs were implemented, some instruction behavioral strategies were not appropriate. . . ."). With respect to the IEP for the 2003-2004 school year, the IHO concluded "that the goals, objectives and implementation may not be sufficiently thorough." Id. at 15. In addition, although the Palmatiers do not dispute that the School promised to implement certain things after an independent psychological exam of M.P., the School never followed up with the Palmatiers after the March 26, 2003, conference to get the exam scheduled. Hrg. Tr. Vol. III., at 173, 188-89. In other words, it took the Palmatiers' challenge to the School's performance to prod the School into action for the 2003-2004 school year program. The reevaluation of M.P. was the cornerstone for many of the changes that the Palmatiers sought to the 2003-2004 IEP and for a decision by the School on several important aspects of the new IEP. Because the IHO's findings concluded that the School was not sufficiently implementing the IEP, and his orders specifically called for the School to help in the process of getting M.P. reevaluated by an independent psychologist, which the School had apparently stalled progress toward after the March 26, 2003, conference, the Court must conclude that the Palmatiers' due process challenge materially altered the legal relationship between the parties.
The IHO's finding in favor of the Palmatiers on the issue of reimbursement for transportation, although perhaps minor in relationship to the Palmatiers' challenge on the issue, also points to a similar failing on the part of the School with respect to its duty toward M.P. The IHO found that the School had failed to inform the Palmatiers about the process for obtaining reimbursement for transportation. He stated:
If the parents do transport the Student and a written agreement is made with the School, then they are to be reimbursed at the same rate as employees of the public agency 511 IAC 7-21-7). However, there is no evidence that the parents were given this information by the School. The father testified that he did not know about this provision in Article 7.
IHO Findings Concl., at 16. It is equally clear that the reason the IHO reduced the award of transportation reimbursement to the Palmatiers is because he believed the School's attorney (and, apparently, the cases he cited) that there was a one-year statute of limitations on obtaining this type of relief, notwithstanding the lack of notice to the Palmatiers of their rights in this regard. Id. (stating "[c]ounsel for the Respondents opined in the post-hearing brief that, although Article 7 and IDEA [sic] have no limitations on when such claims can be made, there is case law suggesting that a year is a reasonable time for such claims"). In other words, the size of the Palmatiers' victory on this issue is not indicative of whether or not they prevailed on the issue as a whole or whether it changed the rights of the parties with respect to the School's treatment of M.P.
The IHO's finding support a conclusion that the School was doing a good job in attending to the needs of M.P. However, a reasonable person could conclude that the Palmatiers prevailed because the IHO found that the School had either failed to throughly implement M.P.'s lEPs or failed to assess the proper goals and strategies used in M.P.'s IEPs, and that the School had failed to inform the Palmatiers of certain entitlements under the IDEA. The IHO's orders reflect an attempt to correct these deficiencies for M.P.'s benefit. For these reasons, the Court finds that the Palmatiers were a prevailing party for purposes of determining attorneys fees pursuant to 20 U.S.C. § 1415(i)(3)(B).
B. ARE THE PALMATIERS ENTITLED TO RECOVER ALL OF THEIR ATTORNEYS' FEES?
Notwithstanding the Court's holding that the Palmatiers were a prevailing party, in light of the degree of their success at the due process hearing, the Court finds that the amount of the Palmatiers' request for attorneys' fees is unreasonable. The School argues that the Palmatiers only won one out of fifteen issues brought to the IHO, and only on 1/7th of that issue; therefore, their success was de minimus, which should reduce their fees to none. Defs.' Br. at 29 (citing Farrar, 506 U.S. at 105; id. at 117 (O'Connor, I, concurring); Linda W. v. Ind. Dep't of Educ., 200 F.3d 504, 507 (7th Cir. 1999); Monticello Sch. Dist. No. 25 v. George L., 102 F.3d 895, 907-08 (7th Cir. 1996)).
In contrast, the Palmatiers argue that if the Court determines they were a prevailing party entitled to attorneys fees, the School is estopped from seeking any reduction in fees pursuant to 20 U.S.C. § 1415(i)(3)(G), because it failed to give the Palmatiers written notice of several denials of the Palmatiers' requests regarding various changes to M.P.'s IEPs. Pls.' Resp. at 4 (citing Pls.' Resp., Exh. 1, Ind. Dep't of Educ., Notice of Pro. Safeguards Parent Rights in Spec. Educ., at 16); Pls.' Mem. in Supp., ¶¶ 20-28.
The Court notes that the plaintiffs' memorandum has two sets of paragraphs that are numbered 20-22. This citation intends to include all such numbered paragraphs.
The Court cannot agree that 20 U.S.C. § 1415(i)(3)(G) prohibits the School from arguing for a reduction in attorneys' fees in this case. Assuming without deciding that the Palmatiers' reading of the statute is correct, the IHO clearly found against them on the violations of § 1415 they assert would act as an estoppel. At the hearing, the Palmatiers brought up several instances in which they alleged that the School had failed to provide them with written information related to changes in M.P.'s IEPs, in violation of 20 U.S.C. § 1415(b)(3). Pls.' Mem. in Supp. ¶¶ 22-27. However, issues related to this type of failure to notify were specifically addressed by the IHO's findings. Question 9 asked whether or not the School had "appropriately" share information with the Palmatiers. IHO Findings Concl. at 15. The IHO specifically answered the question in the affirmative. Id. In addition, Question 12 asked whether or not the School failed to share information with the parents within five days before a case conference. Id. at 16. The IHO specifically found that there was no evidence that the Palmatiers did not receive a copy of the January, 2003, evaluation prior to the March 26, 2003, Case Conference. Id. Moreover, the IHO specifically stated that receipt of a copy of an educational evaluation is only required for the initial evaluations. Id.
The Court does not agree with the School, however, that the Palmatiers cannot argue that this section applies to its arguments for a reduction in fees because the School's argument does not fall under the statute. In discussing the appropriate scope of the attorneys' fees statute in J.D. v. LaGrange School District No. 102, 349 F.3d 469 (7th Cir. 2003), the Seventh Circuit stated that "[w]hen Congress added the fee-shifting provision to the IDEA's predecessor statute, the Education of the Handicapped Act, the Senate Committee on Labor and Human Resources provided that `it is the committee's intent that the terms "prevailing party" and "reasonable" be construed consistently with the U.S. Supreme Court's decision in Hensley v. Eckerhart,' which involved 42 U.S.C. § 1988." Id. at 476 (quoting S. Rep. No. 99-112, at 13 (1986), reprinted in 1986 U.S.C.C.A.N. 1798, 1803 (footnote omitted by Seventh Circuit)). Because the term "reasonable" should also be construed consistently with Hensley, it appears that the estoppel wrought by 20 U.S.C. § 1415(i)(3)(G), if that indeed is what subsection (G) does, would not be limited to defendants' arguments for reduction in fees brought for statutory reasons in subsection (F).
To the extent that the Palmatiers seek to challenge whether or not the School conformed with the written notice requirements after the March 26, 2003, conference, there is no evidence to support that these issues were argued to the IHO or brought to his attention or that of the BSEA. Moreover, the Palmatiers have not presented new evidence to this Court for an independent determination of the issue. Therefore, the Court is not persuaded that there is evidence to support a finding that the School violated 20 U.S.C. § 1415(b)(3) after the March 26, 2003, Case Conference.
However, the Court also cannot agree with the School that the Palmatiers' success is de minimus and should preclude their recovery of a reasonable attorneys' fee. The Court declines the School's invitation to quantify the Palmatiers' success based on the percentage of the issues that were delineated and upon which they won. Based on the timing of their challenge and the issues that were delineated, the primary reason the Palmatiers brought the action was their perception that the School was not adequately meeting M.P.'s needs, and in particular, was not providing an adequate plan for the 2003-2004 school year. It is on these broader issues that the Palmatiers won at the hearing and that the Court must consider in determining a reasonable attorneys' fee.
In essence the School contends that because it had already agreed to revisit, after an independent evaluation, many of the Palmatiers' requests that were in fact ordered by the IHO, the Palmatiers' success was de minimus. But, the School ignores the fact that it had delayed progress on all of the Palmatiers' requests by not providing them the name of a qualified independent psychologist to the Palmatiers as it had promised to do at the March 26, 2003, conference. Moreover, the IHO specifically found that the School was not sufficiently implementing the IEP to the benefit of M.P. and his orders reflect his concern that the School do a better job in meeting M.P.'s specific needs. These were issues raised by the Palmatiers challenge to the new IEP, and entitled to some weight, as discussed in the prior section, because the IHO's orders did change the legal relationship between the parties. With the addition of the Palmatiers' partial success on the reimbursement issue, the Court cannot agree that this case is like those of Jodlowski v. Valley View Comm. Unit Sch. Dist., 109 F.3d 1250, 1253 (7th Cir. 1997) (finding that the parents did not win any relief on the merits in challenge to school's request to perform a complete case study evaluation), Hunger v. Leininger, 15 F.3d 664, 670-71 (7th Cir. 1993) (finding that a favorable interim ruling does not create a right to attorney's fees), Edie F. v. River Falls Sch. Dist., 243 F.3d 329, 334-35 (7th Cir. 2001) (finding that the parents had only won interim relief, which does not support an award of attorney's fees), Monticello Sch. Dist. v. George L., 102 F.3d 895, 908 (7th Cir. 1996) (finding that the district court did not abuse its discretion in finding parents' success de minimus in light of the parents' broader goals), or Linda W. v. Ind. Dep't of Educ., 200 F.3d 504, 507 (7th Cir. 1999) (finding the relief afforded the parents, $1,000.00, "paltry compared to the relief they were seeking").
However, the Court is charged to apply the attorneys' fee provision of the IDEA consistent with Hensley v. Eckerhart, see T.D., 349 F.3d at 476, and under that standard, the Palmatiers' request for fees in this case is unreasonable. The Supreme Court in Hensley set out the standard for determining attorneys fees pursuant to a statutory grant of fees. The starting point is the number of hours reasonably expended times the reasonable rate. Hensley, 461 U.S. at 433. The Court may exclude hours not "reasonably expended," such as those that are redundant, excessive and unnecessary. Id. at 434. The Court may then look to other considerations, see id. n. 9, including the novelty and difficulty of the questions involved, the skill requisite to perform the legal services properly, the preclusion of other employment by the attorney as a result of the representation, customary fees in the community, whether the fee is fixed or contingent, any time limits imposed by the client or the circumstances, the experience, reputation and ability of the attorney, the undesirability of the case, the nature and length of the professional relationship with the client, awards in similar cases, and, finally, the results obtained. See Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 717-20 (5th Cir. 1974), abrogated on other grounds by, Blanchard v. Bergeron, 489 U.S. 87 (1989). The Court may consider these factors in determining the reasonable amount of time spent on the litigation. See Hensley, 461 U.S. at 434 n. 9 (citing Copeland v. Marshall, 641 F.2d 880, 890 (1980) (en banc)).
If the plaintiff has been deemed the prevailing party, but not on all claims for relief, as in the instant case, the Court must make two inquiries: (1) whether or not the plaintiffs failed to prevail on claims unrelated to the claims on which they succeeded; and (2) whether or not the plaintiffs achieved a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award. Id. at 434. These are important inquiries because "work on an unsuccessful claim cannot be deemed to have been `expended in pursuit of the ultimate result achieved.'" Id. at 435 (quoting Davis v. County of L.A., 8 E.P.D. ¶ 9444, at 5049 (C.D. Cal. 1974)). To determine a reasonable attorneys' fee award when the plaintiffs have achieved only partial or limited success, "[t]he district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for limited success." Id. at 436-37.
In this case, the Palmatiers admit that they did not succeed on all of their claims below. The Court cannot disagree with that assessment. Therefore, the Court must inquire into the nature of the claims for relief and whether or not those issues upon which the Palmatiers succeeded were related to those upon which they did not succeed. Looking at the fifteen issues that were brought before the IHO, the Court concludes that the issues upon which the Palmatiers prevailed that relate to appropriate IEPs were reasonably related to several other challenges to the IEPs or the IEP process raised by the Palmatiers. Approximately half of the Palmatiers' challenges related to the implementation or content of the IEPs. However, the transportation reimbursement is fairly discrete. And, although the Palmatiers prevailed on this issue, they did not prevail entirely for procedural reasons. Generally then, the Court finds that hours expended on the issues unrelated to IEPs or transportation reimbursement should be excluded.
As a practical matter, based on a review of the Palmatiers' attorney's affidavit in support of their request for attorney fees and expenses, the Court is unable to discern what fees were incurred on individual issues. However, the Court can discern those hours that were spent specifically preparing for the hearing and for the hearing itself and determines that a reduction in those hours by half would be an appropriate reduction for the level of success achieved by the attorney on the Palmatiers' behalf. Moreover, there were hours included in the Palmatiers' attorney's bill that were incurred in preparation for the March 26, 2003, Case Conference, which are not recoverable as they occurred prior to the impasse reached at the Case Conference. See 20 U.S.C. § 1415(i)(3)(D)(ii); J.C. v. Regional Sch. Dist. 10, Bd. of Educ., 278 F.3d 119, 124 (7th Cir. 2002).
In addition, the Court notes that while certain costs are also appropriately awarded to the prevailing party in an IDEA action, see T.D., 349 F.3d at 480-81 (discussing appropriate costs available to a prevailing plaintiff in an IDEA case pursuant to 28 U.S.C. § 1920), the Court considers expenses of a secretary as overhead that is not properly considered a "cost." Therefore, while postage and photocopies are recoverable costs, payment for time spent by a secretary in scheduling meetings or performing other tasks such as going to the post office are not recoverable costs. In addition, duplicative amounts, whether duplicative because more than one person in the office performed them or because more than one copy was sent because the first copy was erroneous, are not recoverable.
Other than these specific categories of charges or reductions, the Court finds that the Palmatiers' request for fees and expenses is reasonable. The Court's review of the Palmatiers' attorney's affidavit reveals that she charged $552.50, for time spent prior to March 26, 2003, approximately $384.30, for staff time, and approximately, $2,787.00, in excess attorney's fees, for a total reduction of $3,723.80. The Palmatiers requested $15,167.89 in fees and costs. With the reduction of $3,723.80, in unreasonable fees or costs, the Court finds that the Palmatiers are entitled to $11,444.09, in attorney's fees and costs.
In summary, the Court has found that the Palmatiers are prevailing parties pursuant to 20 U.S.C. § 1415(i)(3)(B), and therefore are entitled to reasonable attorneys' fees. However, the Court has also found that the Palmatiers' request for attorneys' fees and costs of $15,167.89, is unreasonable because they did not prevail on all of the issues presented to the hearing officer; a reduction in the amount of $3,723.80, is appropriate, for a total fee award of $11,444.09. The School's motion for summary judgment is GRANTED in part and DENIED in part. The Palmatiers' motion for summary judgment is GRANTED in part and DENIED in part.
IV. CONCLUSION
The defendants', Noblesville School Corp. and Hamilton-Boone-Madison Special Services Cooperative, motion for summary judgment is GRANTED in part and DENIED in part. The plaintiffs', M.P., a minor, by his parents and next friends, Mark and Donna Palmatier, motion for summary judgment is GRANTED in part and DENIED in part. The defendants shall pay the plaintiffs' attorney's fees and costs in the amount of $11,444.09.
IT IS SO ORDERED.