M.B. v. Howard

Decision Date19 August 2021
Docket NumberCase No. 18-2617-DDC-GEB
Citation555 F.Supp.3d 1047
Parties M.B. and S.E. through their next friend Katharyn McIntyre, et al., Plaintiffs, v. Laura HOWARD in her official capacity as Kansas Department for Children and Families Secretary, et al., Defendants.
CourtU.S. District Court — District of Kansas

Caryn G. Schechtman, Pro Hac Vice, Jeffrey Rotenberg, Pro Hac Vice, Joshua Kane, Pro Hac Vice, DLA Piper LLP, Ira Lustbader, Pro Hac Vice, Marissa C. Nardi, Pro Hac Vice, Stephen A. Dixon, Pro Hac Vice, Jonathan M. King, Pro Hac Vice, Children's Rights, Inc., New York, NY, Freya Pitts, Pro Hac Vice, Leecia Welch, Pro Hac Vice, Poonam Juneja, National Center for Youth Law, Oakland, CA, Larry R. Rute, Associates in Dispute Resolution, LLC, Topeka, KS, Loretta E. Burns-Bucklew, Kansas City, MO, Teresa A. Woody, Kansas Appleseed Center for Law and Justice, Inc., Lawrence, KS, for Plaintiffs Katharyn McIntyre, Allan Hazlett, Ashley Thorne.

Brian C. Fries, Grant Allen Harse, Jean Paul Bradshaw, II, Reid Day, Lathrop GPM, LLP, Kansas City, MO, Carrie E. Josserand, Lathrop GPM, LLP, Overland Park, KS, Corliss Scroggins Lawson, Kansas Department for Children and Families, Topeka, KS, for Defendant Laura Howard.

Brian C. Fries, Grant Allen Harse, Jean Paul Bradshaw, II, Reid Day, Lathrop GPM, LLP, Kansas City, MO, Carrie E. Josserand, Kansas Department for Children and Families, Overland Park, KS, for Defendant Lee A. Norman.


Daniel D. Crabtree, United States District Judge Plaintiffs filed a Motion for Attorneys’ Fees and Expenses (Doc. 142). Defendants filed a Memorandum in Opposition (Doc. 157) and plaintiffs filed a Reply (Doc. 161). Plaintiffs request $3,750,396.50 in fees and $114,802.59 in expenses. Doc. 161 at 14 n.20.1 For the following reasons, and as explained in this Order, the court grants plaintiffs’ motion in part and denies it in part.

I. Background
A. Pre-Complaint Investigation

Before filing the initial Complaint, plaintiffscounsel conducted a year-long investigation into the Kansas child welfare system. Doc. 147 at 5 (Burns-Bucklew Decl. ¶ 10). Plaintiffs investigated "housing instability and mental health care deficiencies" in the Kansas child welfare system. Id. This included attending "community forums in Topeka, Overland Park, and Garden City to hear concerns from families and service providers around the state." Id. Their investigation collected and reviewed "a large volume of publicly available information and performance data." Doc. 144 at 10 (Lustbader Decl. ¶ 23). Also, plaintiffscounsel "researched and analyzed applicable law and identified ten representative Named Plaintiffs and suitable Next Friends." See Doc. 143 at 8–9.

B. Commencement of Lawsuit

Plaintiffs filed their Complaint on November 16, 2018, commencing a putative class action seeking relief on behalf of children in the Kansas foster care system. Doc. 1 at 1. The Complaint alleged defendants had violated (1) substantive due process rights arising under the Fourteenth Amendment of children in Kansas's child welfare system, (2) the Medicaid Act by failing to screen and diagnose mental and behavioral health concerns, and (3) the Medicaid Act by failing to provide or otherwise arrange medically necessary behavioral and mental health services. Id. at 61–64. Plaintiffs filed an Amended Complaint (Doc. 63) on September 6, 2019. It added new "Named Plaintiffs to the case[,]" Doc. 143 at 9, but asserts the same legal theories of recovery as its predecessor.

C. DefendantsMotion for Extension of Time to File Answer

On December 28, 2018, defendants filed a Motion for Extension of Time to File Answer. Doc. 19. Defendants requested an extension of their January 2, 2019 deadline citing the change in administration after the Kansas Gubernatorial election. Id. at 2. Defendants asked for a March 29, 2019 deadline to allow the new administration to determine its litigation strategy and research the Named Plaintiffs. Id. at 4–5. Plaintiffs opposed this motion, arguing defendants "offer[ed] no justification for this lengthy extension, effectively a stay of the proceedings, other than the change in administration and the need to retrieve and review Plaintiff records." Doc. 20 at 2. Plaintiffs proposed a January 31, 2019 deadline to file an answer. Id. at 7. The court, after conducting a status conference on the motion, found "good cause to grant Defendants’ Motion" and ordered defendants to "answer or otherwise respond to the Complaint by 3/29/19." Doc. 23.

D. PlaintiffsMotions to Proceed Using Pseudonyms

On January 23, 2019, plaintiffs filed an Unopposed Motion to Proceed Using Pseudonyms to protect the privacy interests of the minor plaintiffs. Doc. 24 at 1–2. The court granted the motion. Doc. 25. By agreement of the parties, the court entered a Stipulated Confidentiality and Protective Order. Doc. 26 at 1. Plaintiffs filed a second Unopposed Motion to Proceed Using Pseudonyms, Doc. 57, which the court granted, Doc. 62.

E. DefendantsMotion to Dismiss Governor Kelly

On October 25, 2019, defendants filed a Motion to Dismiss Defendant Governor Laura Kelly for lack of subject matter jurisdiction under the Eleventh Amendment. Doc. 79 at 1. Defendants argued Governor Kelly "plays no direct role in the administration of the programs that Plaintiffs" challenged, so, "principles of sovereign immunity bar this suit against the Governor." Doc. 80 at 2. Defendants did not challenge the court's jurisdiction over any other defendant or causes of action asserted in the Complaint. Plaintiffs filed a Memorandum in Opposition with supporting affidavits and evidence. See Docs. 96, 97. Defendants filed a Reply. Doc. 102. The court granted defendants’ motion and dismissed Governor Kelly from the suit because plaintiffs had "not alleged sufficient facts, that, if true, could support a finding that Governor Kelly possesses the requisite duty to enforce the statutes and policies placed in issue by the Amended Complaint." Doc. 118 at 12.

F. Discovery Disputes

Plaintiffs contend that they "engaged in significant fact discovery, including by propounding targeted written discovery on Defendants and third parties, taking and preparing for depositions, and reviewing and analyzing over 78,000 pages across over 12,000 documents." Doc. 143 at 28. They assert this "effort included a significant number of hours dedicated to addressing discovery delays and inadequate responses and productions, and participating in more than a dozen meet and confer conferences with Defendants to resolve discovery issues." Id. Plaintiffs assert the case files they received:

lacked custodial information or metadata; often were produced in massive, non-unitized PDF files containing hundreds of pages each; were heavily and inappropriately redacted without explanation as to confidentiality or privilege assertions; presented pages out of order; were missing pages; were poorly scanned and unreadable; did not specify whether the files included documents collected from foster care contractors or other third parties; and lacked information as to the process Defendants used to search for and collect documents.

Doc. 144 at 13 (Lustbader Decl. ¶ 32). Defendants respond, asserting that "it is noteworthy and most telling that Plaintiffs filed exactly zero discovery motions in this case." Doc. 157 at 18 (emphasis omitted). Defendants contend that "Plaintiffs’ time entries reflect no discussion, research, or drafting of any motion to compel or order for discovery from this Court." Id. And, they argue, plaintiffs didn't file any such motion "because these Defendants were very responsive to Plaintiffsdiscovery requests and even voluntarily provided additional data and documents during the mediation to expedite reaching a settlement." Id. (emphasis omitted).

G. Mediation and Settlement

The parties notified the court of their intent to mediate the dispute on October 24, 2019, with Kevin M. Ryan from Public Catalyst. Doc. 55 at 1. According to the ADR report, the parties met on two separate occasions—November 12, 2019 and December 15–16, 2019—for about 20 hours. Doc. 90-1 at 1. The parties made progress toward settlement during these sessions and "exchanged drafts of provisions of a possible settlement agreement."

Id. The court granted a Joint Motion to Stay Discovery for 45 days. Doc. 91. It granted a stay in light of the ongoing mediation efforts by the parties. Doc. 94. The parties met in person on February 7, 25, and 26 of 2020. Doc. 103-1 at 1. Negotiations reached an impasse on February 26 and the "mediator formally declared an impasse" on February 28. Id. According to plaintiffsUnopposed Motion for Settlement, "the parties re-engaged in settlement negotiations, exchanging settlement drafts, and then meeting by videoconference on June 4, 10, 11, and 18, 2020." Doc. 139 at 5. On July 8, 2020, the parties filed Notice of Settlement. Doc. 133.

II. Legal Standard for Fee Requests

Plaintiffs request attorneys’ fees and expenses under 42 U.S.C. § 1988(b), Fed. R. Civ. P. 23(h), Fed. R. Civ. P. 54(d), and D. Kan. Rule 54.2. Doc. 142 at 1. Defendants challenge plaintiffsfee request, arguing plaintiffs fail to meet the requirements of § 1988(b). Doc. 157 at 5. "In any fee request under § 1988(b), a claimant must prove two elements: (1) that the claimant was the prevailing party in the proceeding; and (2) that the claimant's fee request is reasonable." Robinson v. City of Edmond , 160 F.3d 1275, 1281 (10th Cir. 1998) (internal quotation marks and citation omitted).

A. Prevailing Party

Under 42 U.S.C. § 1988(b), 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.’ " Verlo v. City & Cnty. of Denver , 789 F. App'x 709, 712 (10th Cir. 2019) (quoting Farrar v. Hobby , 506 U.S. 103, 111–12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) ). "Relief on the merits...

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