Doe v. Aberdeen Sch. Dist.

Decision Date04 April 2023
Docket Number1:18-CV-01025-CBK
PartiesJANE DOE and JOHN DOE, individually and on behalf their minor child, A. A.; JESSICA DOE, individually and on behalf their minor child, B.B.; JILL DOE and JEFF DOE, individually and on behalf their minor child, C.C.; JANET DOE, individually and on behalf her minor child, D.D.; and JULIE DOE, individually and on behalf of her minor child, E.E., Plaintiffs, v. ABERDEEN SCHOOL DISTRICT and CARRIE WIESENBURGER, in her individual capacity, Defendants.
CourtU.S. District Court — District of South Dakota



Three plaintiffs instituted this action allegedly on behalf of their minor children who were students with disabilities enrolled in the Aberdeen School District in Aberdeen, South Dakota, during the 2014/15 and 2015/16 school years. The action was commenced on December 21, 2018, pursuant to a complaint filed by South Dakota attorney Hilary Johnson. This is the only case she has “handled.” On February 19, 2019, on motion of the plaintiffs, Minnesota attorney Margaret O'Sullivan Kane of Kane Education Law, LLC was admitted pro hac vice.

Plaintiffs' complaint sought damages for physical and emotional abuse allegedly suffered by the children at the hands of defendant Wiesenberger and her educational aides. Plaintiffs asserted claims under the United States Constitution, the Americans with Disabilities Act, the Rehabilitation Act, the South Dakota Human Rights Act, and a state law negligence claim. Defendants moved to dismiss for lack of subject matter jurisdiction. I denied the motion to dismiss. Doe v Aberdeen School District, 2019 WL 4740163 (D.S.D. Sept 27, 2019).

The parties stipulated to the joinder of two additional parties and an amended complaint was filed. Defendants filed six motions for summary judgment, five relating to each individual plaintiffs claim and one omnibus motion claiming the school district is shielded from municipal liability under Monell v. Dep't. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and the individual defendants are shielded from liability and damages on the basis of qualified immunity. I granted the individual motions for summary judgment in part, dismissing claims under the South Dakota Human Rights Act. I denied the school district's claims as to all plaintiffs that it was shielded from liability under Monell. I denied defendant Wiesenberger's claims that she was entitled to qualified immunity. I granted summary judgment to the individual defendants on plaintiffs' Fourteenth Amendment parental due process and procedural due process claims but denied summary judgment to defendant Wiesenberger on three plaintiffs' Fourth Amendment and Fourteenth Amendment substantive due process claims. I granted summary judgment to all defendants as to plaintiffs' retaliation and hostile environment claims under the Americans with Disabilities Act and the Rehabilitation Act but denied summary judgment as to plaintiffs' claims against the Aberdeen School District under the American with Disabilities Act and Rehabilitation Act for equal access to educational services. Finally, I granted summary judgment to the Aberdeen School District on plaintiffs' state law negligence claims but denied summary judgment to defendant Wiesenberger as to plaintiffs' negligence claims and denied summary judgment to the individual defendants alleged to have assaulted plaintiffs. Doe v. Aberdeen School District, 2021 WL 4268264, at *34 (D.S.D. Sept. 20, 2021).

Defendants filed an interlocutory appeal to the United States Court of Appeals for the Eighth Circuit. On appeal, the United States Court of Appeals for the Eighth Circuit limited the denial of defendant Wiesenberger's qualified immunity to four instances of conduct, finding that other conduct alleged in the complaint did not amount to an unreasonable seizure. Doe v. Aberdeen School District, 42 F.4th 883, 890-92 (8th Cir. 2022). The Eighth Circuit reversed my decision denying defendant Wiesenberger qualified immunity as to plaintiffs' substantive due process claims. Doe v. Aberdeen School District, 42 F.4th at 893-94. Finally, based upon its determination that plaintiffs' substantive due process claims against Wiesenberger fail, the Eighth Circuit dismissed any supervisory liability claim against the Aberdeen School District. Doe v. Aberdeen School District, 42 F.4th at 894-95.

Following remand from the Court of Appeals, on September 12, 2022, a pretrial conference was held and trial was scheduled for November 7, 2022. The settlement deadline set by the Court was ten working days before trial - October 24, 2022. On September 20, 2022, Ms. Kane, on behalf of plaintiffs, notified the Court by letter that plaintiffs were abandoning any Rehabilitation Act claims and clarifying that no state court assault claims were raised in the amended complaint, thus abandoning any such claims.

The parties prepared for trial, filing motions in limine, proposed jury instructions, and trial briefs. On November 1, 2022, the parties jointly moved for an extension of the settlement deadline, including a confidential memorandum outlining the proposed monetary and non-monetary settlement terms.

I notified the parties that they had failed to comply with Fed.R.Civ.P. 17(c) requiring minors to be represented by a fiduciary. The jury trial was cancelled based upon the written memorandum of settlement. Plaintiffs moved for the appointment of the parents as guardians ad litem for the minor plaintiffs and that motion was granted.

On December 1, 2022, Mr. Sannes filed a motion on behalf of plaintiffs to approve the settlement, including determining the amounts of attorneys' fees owed, if any, to Ms. Kane, Ms. Johnson, and Mr. Sannes. This matter came on for an evidentiary hearing on February 8, 2023.


The evidence received, together with the affidavits and exhibits filed herein, show that one of the parents originally contacted Ms. Kane, seeking her representation in this case. A written fee agreement was entered into between Ms. Kane and the mother of A.A. on June 18, 2018. Ms. Kane employed Ms. Johnson as local counsel to pursue litigation but parents were not advised of the arrangements for the payment of Ms. Johnson's attorney's fees. Ms. Johnson was thus, in a sense, an employee of Ms. Kane. Ms. Johnson had no contract with the plaintiffs or a fiduciary for the children.

The fee agreement between the mother of A.A. and Kane Education Law, LLC (“KEL”) provides, in part:

The retainer of $3,000 is due at the time Client signs this agreement. Client agrees to make a minimum monthly payment of $250.00 toward the balance beginning the first of the month following the date this agreement was signed. Attorney time will be billed at $400.00 per hour. Time will be charged in .25 increments. Administrative time [my comment being what is that?] will be billed at $150.00 per hour. If legal action is required to procure payment, the Client may also be responsible for the fees and costs associated with procuring payment. KEL reserves the right to pursue fees and costs under any fee-shifting statutes or to take 33% of any monetary damages. KEL reserves the right to take the larger of the two, based on KEL billing statements, and based on the non-monetary relief pursued. The Client is not responsible to pay the balance of the fees and costs if the Client receives an adverse decision and declines to appeal the decision.

A refund provision provides: “Once KEL begins to perform legal services, if the Client terminates KEL, KEL will as soon as practicable provide an accounting of the services provided and provide any refund due to the Client.” The agreement further provided that the “Client agrees to fully cooperate with KEL's efforts to obtain fees and costs associated with the representation as a prevailing party.”

I practiced law as a trial lawyer for 28 years before taking office as an Article III judge in May of 1995. The fee agreement is the most unusual attorney fee agreement I have ever seen. It appears Ms. Kane intended to charge the clients an hourly fee with monthly payments for her hourly billing and Ms. Kane did receive payments monthly. Ms. Kane also exacted a contingent fee agreement from the clients. Finally, Ms. Kane intended to seek statutory fees if that amount was greater than the amount she had already received as payment or was greater than the contingent fee. There is nothing in the record to even suggest that Ms. Kane advised any of the parents to seek independent legal advice before signing the fee agreements. Such advice is always appropriate.

Plaintiffs assert that no billing statements were ever received by plaintiffs from Ms. Kane and none were offered to the Court by Ms. Kane. Plaintiffs did receive bills for costs incurred and those “costs” were reimbursed by plaintiffs. The parents of A.A. claim they paid a total of $22,233.81 to Ms. Kane, of which $14,450.00 was allegedly paid for attorney's fees and $7,783.81 was paid to Ms. Kane to reimburse “costs.” Ms. Kane submitted a transaction record showing that the parents of A.A. paid $ 16,250.00 to Ms. Kane in attorney fees. Ms. Kane submitted a transaction report claiming the parents of A.A. only paid $2,015.47 to Ms. Kane to reimburse “costs.”

The mother of B.B. entered into a fee agreement with Ms. Kane on June 11, 2018. The agreement in the record is set forth in an email but is the same agreement set forth above. The mother of B.B. claims to have paid Ms. Kane a total of $31,798.29 of which $16,250.00 was allegedly paid for attorney's fees and $15,548.29 was paid to reimburse “costs.” Ms. Kane submitted a transaction report claiming the mother of...

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