Eirschele by & through Eirschele v. Craven Cty. Bd

• Decision Date: 20 May 1998
• Docket Number: No. 4:97-CV-217-H2.,4:97-CV-217-H2.
• Citation: Eirschele by & through Eirschele v. Craven Cty. Bd, 7 F.Supp.2d 655 (E.D. N.C. 1998)
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Nicholas EIRSCHELE, By and Through his parents Charles EIRSCHELE, his father and Kathleen Eirschele, his mother; and Charles and Kathleen Eirschele on their own behalf, Plaintiffs, v. CRAVEN COUNTY BOARD OF EDUCATION, Defendant.

7 F.Supp.2d 655

Nicholas EIRSCHELE, By and Through his parents Charles EIRSCHELE, his father and Kathleen Eirschele, his mother; and Charles and Kathleen Eirschele on their own behalf, Plaintiffs, v. CRAVEN COUNTY BOARD OF EDUCATION, Defendant.

No. 4:97-CV-217-H2.

United States District Court, E.D. North Carolina, Eastern Division.

May 20, 1998.

Stacey B. Bawtinhimer, New Bern, NC, for Plaintiffs.

Ann L. Majestic, Elaine M. Whitford, Tharrington Smith, Raleigh, NC, for Defendant.

ORDER

MALCOLM J. HOWARD, District Judge.

The plaintiffs filed this action to recover for attorneys' fees, expert witness fees, and other costs they incurred in challenging the educational program provided to their son by the defendant, Craven County Board of Education, in a case heard before the North Carolina Office of Administrative Hearings. Defendant filed motions to dismiss and strike portions of plaintiffs' complaint, for entry of a protective order, and to stay discovery of information regarding defendant's expert witness fees and costs associated with the previous administrative proceeding. Plaintiffs responded to defendant's motions, and requested that the court order defendant to pay plaintiffs' expenses incurred in compelling discovery. These matters are ripe for ruling.

STATEMENT OF THE CASE

Nicholas Eirschele ("Nick") and his parents, Charles and Kathleen Eirschele, filed a state administrative action on May 28, 1996, in which they alleged that Nick, a learning disabled child diagnosed with Attention Deficit Hyperactivity Disorder (A.D.H.D.), was denied a free and appropriate public education. Because of their dissatisfaction with the education Craven County public schools provided to their son, Nick's parents sent him to live with his grandparents in LaCrosse, Wisconsin, where Nick attended public school and received private tutoring for the 1995-96, and part of the 1996-97, school years.

State Review Officer Gail Sorenson ("Sorenson"), affirmed the administrative law judge's conclusion that Craven County's Individualized Education Plan ("IEP") for Nick for the 1995-96 school year was inappropriate under state and federal laws and that Nick's parents' decision to place him in Wisconsin public schools that year was appropriate. Sorenson also upheld the administrative law judge's ("ALJ") order that Craven County reimburse Nick's parents for costs associated with certain evaluations of Nick, costs for private tutoring, and some of the travel costs and expenses associated with Nick's Wisconsin education. However, Sorenson reversed the ALJ's order that Nick's parents recover for lost wages and other incidental expenses associated with their trips to Wisconsin and for independent evaluations of Nick conducted in April and June of 1996. Sorenson also upheld the ALJ's ruling that the IEP Craven County developed for Nick for the 1996-97 school year was appropriate, and, accordingly, denied any recovery for expenses plaintiffs incurred during that school year.

Plaintiffs then filed this action pursuant to 20 U.S.C. § 1415(i)(3) and 42 U.S.C. § 1988 to recover for attorneys' fees, costs, paralegal fees, and expert witness fees they incurred in litigating claims for defendant's alleged violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Defendant filed a motion to dismiss plaintiffs' claims for expert witness fees and plaintiffs' claims that they were entitled to recover for their fees pursuant to 42 U.S.C. § 1988. In addition, defendant moved to strike portions of plaintiffs' complaint for misrepresenting the administrative record, being immaterial to the present action, and for failure to comply with the notice pleading requirements of Fed.R.Civ.P. 8.

Defendant then filed a motion asking that the court prohibit the discovery of information plaintiffs requested in Request for Admissions 1, 1A, 1B, and Request for Production 7, except for information related to billing by defendant's lawyers and legal staff. Defendant also requested that the court stay discovery of any information related to defendant's expert witness fees and costs pending resolution of defendant's motion to dismiss.

COURT'S DISCUSSION

I. Standard of Review

Motions to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure are only granted when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In the words of this court: "As a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." First Fin. Sav. Bank, Inc. v. American Bankers Ins. Co., 699 F.Supp. 1158, 1161 (E.D.N.C.1988).

In reviewing a motion to dismiss for failure to state a claim, the court should view the allegations of the complaint in the light most favorable to the plaintiff. De Sole v. United States of America, 947 F.2d 1169, 1171 (4th Cir.1991). A motion to dismiss should only be granted when the plaintiff can prove no set of facts that would entitle him to relief. Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993).

II. Defendant's Motion to Dismiss Plaintiffs' Claim for Fees and Costs Associated with Expert Witnesses

Defendant argues that § 1415(i)(3)(B) of the IDEA, which permits prevailing parties to recover "reasonable attorneys' fees as part of the costs," does not entitle plaintiffs to recover for fees and expenses associated with the work of expert witnesses. Furthermore, defendant contends that although 42 U.S.C. § 1988 permits a prevailing party to recover expert witness fees, plaintiffs' § 1988 claims are barred because § 1988 does not apply to a separate federal action filed solely to recover attorneys' fees.

Plaintiffs devote much of their brief responding to defendant's motion to dismiss to a discussion of cases that permit a prevailing party under the IDEA to recovery attorneys' fees and costs in a separately filed action — a point that defendant does not appear to dispute. Plaintiffs respond to defendant's argument that expert witness fees are disallowed under § 1415 of the IDEA by making two arguments: first, that expert witness fees constitute "related costs" within the meaning of § 1415; and, second, that plaintiffs are entitled to recover such costs under 42 U.S.C. § 1988. The court will address these arguments in turn.

A. Are expert witness fees recoverable under § 1415 of the IDEA?

The IDEA requires each state to adopt "a policy that assures all children with disabilities the right to a free appropriate public education" in order to receive federal funding for special education programs. 20 U.S.C § 1412(1). In addition, the IDEA requires states to adopt procedural safeguards to protect children with disabilities and their parents. 20 U.S.C. § 1415. Among the procedural protections mandated by Congress is the requirement that school systems provide a due process hearing during which parents may present their complaints. 20 U.S.C. § 1415(b)(1),(2). In addition, § 1415(e)(4)(B) provides:

In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents or guardians of a child or youth with a disability who is a prevailing party.

Courts construing 20 U.S.C. § 1415's fee-shifting provisions have consistently relied on cases interpreting the fee-shifting provisions of 42 U.S.C. § 1988, which permits courts to award attorneys' fees to prevailing parties in civil rights litigation. See Beard v. Teska, 31 F.3d 942, 950 (10th Cir.1994). While no circuit court has ruled on the issue of whether expert witness fees are part of the "costs" listed in § 1415, the Supreme Court in West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991), interpreted almost identical language in the former version of 42 U.S.C. § 1988 as failing to convey authority to shift expert fees.¹

The Supreme Court rejected the petitioner's argument in Casey that the $100,000 petitioner had incurred in fees for expert services could be considered "costs" under § 1988. The Court relied upon its holding in Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987), that 28 U.S.C. § 1920, which lists the items that may be taxed as costs, and 28 U.S.C. § 1821(b), which limits the witness fees authorized by § 1920, define the full extent of a federal court's power to shift litigation costs absent express statutory authority to go further. Therefore, the Casey court concluded that, as to the testimonial services of the petitioner's experts, Crawford Fitting plainly required, as a prerequisite to reimbursement, that petitioner identify explicit statutory authority, which petitioner could not do. Casey further rejected petitioner's argument that fees for expert consultation, rather than testimony, were included as a category of "costs" under § 1920. After concluding that none of the expert fees beyond the $30 per diem then authorized for witnesses under 28 U.S.C. § 1821(b) were reimbursable as costs under § 1988, the court then addressed whether such expert fees were part of "attorney's fees" within the meaning of the statute.

After reciting a litany of statutes in which Congress had separately delineated provisions for recovering attorneys' fees and expert witness fees, the Court concluded that one term could not embody the other without rendering "dozens of statutes referring to the two separately [ ] an inexplicable redundancy." Id. 499 U.S. at 92, 111 S.Ct. 1138. The Casey Court likewise rejected the petitioner's argument that the "congressional purpose in enacting § 1988 must prevail over the ordinary...