Ad ex rel. Sd v. Board of Pub. Educ. of Asheville

• Decision Date: 06 October 1999
• Docket Number: No. Civ.1:99CV87.,Civ.1:99CV87.
• Parties: AD, a minor, By and Through his parents, SD and JD, and on their own behalf, Plaintiffs, v. The BOARD OF PUBLIC EDUCATION OF THE CITY OF ASHEVILLE a/k/a Asheville City Schools, Defendant.
• Court: U.S. District Court — Western District of North Carolina

99 F.Supp.2d 683

AD, a minor, By and Through his parents, SD and JD, and on their own behalf, Plaintiffs, v. The BOARD OF PUBLIC EDUCATION OF THE CITY OF ASHEVILLE a/k/a Asheville City Schools, Defendant.

No. Civ.1:99CV87.

United States District Court, W.D. North Carolina, Asheville Division.

October 6, 1999.

Paul Lawrence Erickson, Asheville, NC, for plaintiffs.

Cynthia S. Lopez, Sarah M. Washburn, Asheville, NC, for defendant.

MEMORANDUM AND ORDER

THORNBURG, District Judge.

THIS MATTER is before the Court on Plaintiffs' motion for summary judgment seeking attorney's fees pursuant to 20 U.S.C. § 1415(i)(3)(B) (1997). Defendant does not contest that Plaintiffs are eligible to receive attorney's fees, but objects to the amount sought. Both parties agree this matter is ripe for summary judgment and have waived their rights to a hearing. Thus, based on the pleadings, motions, and supporting affidavits, the undersigned grants Plaintiffs' motion for summary judgment and awards $2,742.28 in attorney's fees and costs.

I. FACTUAL AND PROCEDURAL HISTORY

The minor Plaintiff, AD, is a ten-year old child with Down syndrome. Complaint, at ¶ 9. AD is eligible for special education and related services pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Id., at ¶ 6. AD lives with his parents, SD and JD, in the Buncombe County School District, but has attended Asheville City Schools ("Defendant") as an out-of-district student since 1989. Id., at ¶ 's 10-11. Since AD was identified as a special needs child in 1989, Defendant has provided special education services to AD pursuant to Individualized Education Plans ("IEPs"). Id., at ¶ 's 12-15. AD has been placed at Isaac Dixon Elementary School as an out-of-district student since the 1994/1995 school year. Id., at ¶ 18.

On November 17, 1998, Defendant and AD's parents developed a new IEP for AD, placing him at Isaac Dixon for the fifth consecutive year. Id., at ¶ 19. The new IEP called for 9.25 hours per week of special education and related services. Id., at ¶ 20. Soon thereafter, Defendant attempted to rescind AD's placement at Isaac Dixon. Answer, at ¶ 20.

AD's parents obtained counsel and, on January 4, 1999, filed a petition on AD's behalf for a contested case hearing under IDEA challenging Defendant's decision to rescind AD's acceptance. Complaint, at ¶ 22. By letter dated January 19, 1999, within 15 days of the filing of the petition, Defendant's counsel notified Plaintiffs that Defendant would not rescind AD's acceptance and that the November 1998 IEP would be fully implemented. Answer, at ¶ 20; Exhibit A, Affidavit of Cynthia S. Lopez, attached to Defendant's Response to Plaintiffs' Motion for Summary Judgment [Defendant's Response], filed August 16, 1999, at ¶ 1. The parties then negotiated a Confidential Settlement Agreement and Consent Judgment. Complaint, at ¶ 24. Pursuant to that agreement, filed on April 15, 1999, AD is entitled to remain at Isaac Dixon through the 1999-2000 school year. Exhibit C, Confidential Settlement Agreement and Consent Judgment, attached to Plaintiffs' Motion for Summary Judgment [Plaintiffs' Motion], filed July 30, 1999, at ¶ 's 1-2.

During negotiations for the Confidential Settlement Agreement, Defendant was requested to pay Plaintiffs' legal fees. In a letter dated February 16, 1999, Mr. Paul Erickson, counsel for Plaintiffs, suggested Defendant pay $3,000. Exhibit G, attached to Answer. Mr. Erickson phoned the next day to indicate he had miscalculated the amount, which should have read $3,500. Composite Exhibit B, Affidavit of Paul L. Erickson Regarding Settlement of Case, attached to Plaintiffs' Motion, at B-47, ¶ 's 4-5. Enclosed with the letter, Mr. Erickson provided Defendant with copies of Plaintiffs' account invoices which were current through February 15, 1999. Exhibits D and E, attached to Answer. The invoices indicated that Mr. Erickson had charged Plaintiffs for 13.75 hours of his time at $125 per hour,¹ 6.5 hours of legal assistant time at $25 per hour, and 3 hours of legal secretarial time at $18.75 per hour. Id. Mr. Erickson suggested in the February 16, 1999, letter that an additional 3 hours of work would likely be needed to conclude the settlement agreement. Id., at Exhibit G.

After reviewing the invoices, Defendant made a counter-offer of $2,000 in attorney's fees in a letter dated March 5, 1999. Id., at Exhibit F, at ¶ 4 (misnumbered as ¶ 2). The letter explained that Defendant objected to an unexplained previous balance of $810, the different hourly rates charged by Plaintiffs' counsel, and charges for billing and drafting fee agreements. Id. Defendant claims that Plaintiffs "summarily rejected" the $2,000 offer and "did not engage in further settlement discussions or negotiations." Id., at 5.

Instead, on May 14, 1999, Plaintiffs filed this Complaint for attorney's fees, costs, litigation expenses, and prejudgment interest incurred in pursuing the underlying action. In the Complaint, Plaintiffs claim their attorney, The Law Firm of Paul L. Erickson, P.A., expended 58 hours pursuing the Plaintiffs' claims. In addition to 31 hours of Mr. Erickson's time, Plaintiffs claimed entitlement to 14.75 hours of legal assistant time and 12.25 hours of legal secretary time. Complaint, at ¶ 27. Plaintiffs contend the prevailing rate for special education legal work ranges between $175-$225 an hour for attorney's time; $25-$40 an hour for legal assistant time; and $18.75-$30 for legal secretarial time. Id., at ¶ 28.

Defendant filed its Answer on July 6, 1999. On July 12, 1999, Defendant filed a motion for judgment on the pleadings, asserting that Plaintiffs did not submit adequate documentation of their legal expenses to substantiate their claims, thus requiring the dismissal of their Complaint. Plaintiffs filed a motion for summary judgment on July 30, 1999, which included additional documentation of their purported legal expenses as well as affidavits from various special education lawyers in support of their claims. In that motion, which is now before the Court, Plaintiffs seek a recovery of fees, costs and expenses in the amount of $8,016.55.

II. STANDARD OF REVIEW

Summary judgment is appropriate when there is no genuine issue of material fact and judgment for the moving party is warranted as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue exists if a reasonable jury considering the evidence could return a verdict for the nonmoving party. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The moving party has the initial burden to show a lack of evidence to support its opponent's case. Id., at 798 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If this showing is made, the burden then shifts to the nonmoving party, who must convince the Court that a triable issue does exist. Id. Such an issue will be shown "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. A "mere scintilla" of evidence will not suffice to defeat summary judgment. Id.

In considering the facts of the case for the purposes of a summary judgment motion, the Court views the pleadings and materials presented in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Where facts are in legitimate dispute, such disputes are resolved in favor of the nonmoving party. Id., at 587, 106 S.Ct. 1348; Nguyen v. CNA Corp., 44 F.3d 234, 237 (4th Cir.1995).

III. DISCUSSION

The controlling statutory authority provides:

(3) Jurisdiction of district courts; attorney's fees

(B) Award of attorney's fees In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorney's fees as part of the costs to the parents of a child with a disability who is the prevailing party.

20 U.S.C. § 1415(i)(3)(B) (1997). The plaintiff must be a prevailing party in order to recover attorney's fees. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). A prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Id., at 429, 103 S.Ct. 1933 (quoting S.Rep. No. 94-1011, p. 4 (1976)). Since Plaintiffs were successful in the underlying administrative action, and Defendant does not contest that Plaintiffs are a prevailing party under 20 U.S.C. § 1415(i)(3)(B), it is within the Court's discretion to award reasonable attorney's fees and costs to the Plaintiffs. When a fee award is warranted, the district court has substantial discretion in determining the amount of any such award. Hensley, 461 U.S. at 437, 103 S.Ct. 1933. In determining reasonable attorney's fees, it is well-settled law in the Fourth Circuit that the district court must consider the twelve factors originally set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir.1974), although there is no strict manner in which the factors are to be considered or applied. E.E.O.C. v. Service News Co., 898 F.2d 958, 965 (4th Cir.1990). The Johnson factors are as follows:

(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship...