M.C. ex rel. E.C. v. Dep't of Educ. of N.Y.

• Decision Date: 28 June 2013
• Docket Number: 12 Civ. 9281 (CM)(AJP)
• Parties: M.C., on behalf of E.C., a minor, Plaintiff, v. DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, Defendant.
• Court: U.S. District Court — Southern District of New York

M.C., on behalf of E.C., a minor, Plaintiff,

v.DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, Defendant.

12 Civ. 9281 (CM)(AJP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: June 4, 2013

FILED: June 28, 2013

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge:

To the Honorable Colleen McMahon, United States District Judge:

Plaintiff M.C. brings this action under the fee shifting provisions of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i)(3) (Dkt. No. 1: Compl.), and moves for summary judgment seeking attorneys' fees of $63,810. (Dkt. No. 15: Notice of Motion; Dkt. No. 29: Hill Supp. Aff. at 3.) The New York City Department of Education ("DOE") opposes the fee application on the grounds that the hourly rate sought and number of hours expended by M.C.'s attorneys are unreasonable. (Dkt. No. 23: DOE Opp. Br. at 3-26; Dkt. No. 33: DOE Sur-Reply Br. at 2-6.)

For the reasons set forth below, M.C.'s motion should be GRANTED as modified herein and M.C. should be awarded $43,993 in attorneys' fees.

FACTS

On November 20, 2009, M.C. filed a due process complaint with the DOE on behalf of her minor son E.C. claiming that he was denied a free and appropriate public education ("FAPE")as required by the IDEA. (Dkt. No. 1: Compl. Ex. A: 11/20/09 DOE Compl.; Dkt. No. 16". Hill Aff. ¶¶ 23-24; Dkt. Nos. 18 & 26: M.C. 56.1 Stmt. & DOE Resp. ¶ 5.) M.C. sought the following relief:

[T]he parent seeks: an related services authorization ("RSA") to receive a minimum of one hundred and ninety-eight hours of compensatory education in the form of speech therapy to compensate for missed services; an RSA to receive three hundred and sixty hours of compensatory education in the form of reading and writing instruction; Committee on Special Education (CSE) to reconvene to draft an appropriate IEP with a deferral to Central Based Support Team (CBST) so that the student may be placed in a nonpublic school setting with transportation provided; and the parent seeks placement at the School for Langauge and Communication Development.

(Compl. Ex. B: 12/30/10 IHO Decision at 2; see also Hill Aff. ¶ 25; M.C. 56.1 Stmt. & DOE Resp. ¶¶ 7, 9.)

Administrative hearings were held on June 9 and September 21, 2010 before an independent hearing officer ("IHO"). (Hill Aff. ¶¶ 26, 30, 33, 34, 36; M.C. 56.1 Stmt. & DOE Resp. ¶ 8; Hill Aff. Ex. O: 6/9/10 IHO Tr.; Hill Aff. Ex. Q: 9/21/10 IHO Tr.) Plaintiff presented documentary and testimonial evidence at the IHO hearings, as well as written closing remarks. (Compl. Ex. B: 12/30/10 IHO Decision at 2-3; Hill Aff. ¶¶ 29, 31, 33, 36, 39; M.C. 56.1 Stmt. & DOE Resp. ¶ 9; Hill Aff. Ex. R: M.C. 11/5/10 IHO Closing Br.; Hill Aff. Ex. Q: 9/21/10 IHO Tr.) The DOE presented no documentary or testimonial evidence and did not make written or oral closing remarks. (Compl. Ex. B: 12/30/10 IHO Decision at 2-3; Hill Aff. ¶¶ 32, 40; Hill Aff. Ex. Q: 9/21/10 IHO Tr.)

The IHO issued a decision on December 30, 2010 concluding that "a gross violation of FAPE was committed by the [D]epartment" and ordered the following relief:

The department is to provide the student, as compensatory education, with up to one hundred and ninety-eight hours of speech and language therapy and three hundred and sixty hours of private tutoring, to commence from the date of this decision until June 30, 2012. The private tutoring is to be provided at the department rate. Also, a duly constituted CSE team is to reconvene, within two-three weeks, todevelop an appropriate IEP. Said CSE team is to consider all evaluations and also consider a deferral to CBST for placement/program and/or the School for Language and Development as a proposed placement. If necessary, the department is to provide the parent with an RSA so that she may acquire the necessary additional services noted above.

(Compl. Ex. B: 12/30/10 IHO Decision at 4, 6.)

M.C.'s Attorneys

Throughout the pendency of this matter, M.C. has been represented by Lincoln Square Legal Services ("LSLS"), a non-profit organization established to implement Fordham Law School's clinical program through which students provide legal representation under faculty supervision. (Dkt. No. 16: Hill Aff. ¶¶ 1, 3; Dkt. Nos. 18 & 26: M.C. 56.1 Stmt. & DOE Resp. ¶¶ 2-4.) M.C.'s representation has included a rotation of eight second and third year law students participating in Fordham's Family Advocacy Clinic ("FAC") under the supervision of Leah A. Hill, Esq., a Clinical Associate Professor and LSLS Supervising Attorney. (Hill Aff. ¶¶ 1, 3, 5, 8; Dkt. No. 29: Hill Supp. Aff. ¶ 2.)

Supervising Attorney: Prof. Leah A. Hill. Esq.

Prof. Hill received her B.A. in 1982 and her J.D. in 1985. (Dkt. No. 16: Hill Aff. ¶ 12 & Ex. F: Hill Resume at 2.) She was admitted to practice in New York in 1987. (Hill Aff. ¶ 12.) From 1986 to 1995, Prof. Hill worked as a trial attorney at Legal Services for New York City and the Legal Aid Society focusing on trial-level family proceedings. (Hill Aff. ¶ 13 & Ex. F: Hill Resume at 2.) Prof. Hill became an Assistant Clinical Professor in the Family Defense Clinic at NYU Law School in 1995; in 1996, she began teaching as an Associate Clinical Professor at Fordham Law School, where she has been for the past seventeen years. (Hill Aff. ¶¶ 14-15 & Ex. F: Hill Resume at 1.) Prof. Hill "began to focus heavily on special education cases beginning in2006, and those cases now make up the bulk of the FAC's interdisciplinary docket." (Hill Aff. ¶ 16.) Prof. Hill's clients have prevailed at every hearing to date. (Hill Aff. ¶ 16.)

Prof. Hill has lectured extensively on family law issues. (Hill Aff. Ex. F: Hill Resume at 4-8.) Prof. Hill asserts that her "experience is commensurate with a senior partner in private practice, with an hourly rate easily above the $400" rate sought here. (Hill Aff. ¶ 17.)

Law Student Interns

Intern 1 (reflected in the billing records as "STS1") worked on M.C.'s case during the Fall 2009 semester of her third year of law school. (Dkt. No. 16: Hill Aff. ¶ 9; Dkt. No. 19: M.C. Br. at 6.) Intern 1 had no experience in education or family law, but had approximately seventeen months of unrelated legal experience including seven months as a judicial intern and ten months as a law clerk in the insurance sector. (M.C. Br. at 6; Hill Aff. Ex. A: Intern 1 Resume.)

Intern 2 (reflected in the billing records as " AA9") worked on M.C.'s case during the Spring 2010 semester of her second year of law school. (Hill Aff. ¶ 9; M.C. Br. at 6.) Intern 2 had no experience in education or family law, but had approximately three years of unrelated, non-legal work experience prior to matriculating at Fordham Law School. (M.C. Br. at 6; Hill Aff. Ex. B: Intern 2 Resume.)

Intern 3 (reflected in the billing records as "RWU") also worked on M.C.'s case during the Spring 2010 semester of her second year of law school. (Hill Aff. ¶ 9; M.C. Br. at 6.) Intern 3 had no experience in education or family law, but had worked as a summer associate at a law firm in an unrelated practice for approximately four months. (M.C. Br. at 7; Hill Aff. Ex. C: Intern 3 Resume.)

Intern 4 (reflected in the billing records as "SMI") worked on M.C.'s case during the Fall 2010 semester of her second year of law school. (Hill Aff. ¶ 9; M.C. Br. at 7.) Intern 4 had noexperience in education or family law, but had approximately three months of experience each as a research assistant and judicial intern in unrelated practice areas. (M.C. Br. at 7; Hill Aff. Ex. D: Intern 4 Resume.) Additionally, prior to and during law school, Intern 4 worked as a paralegal for approximately three years. (M.C. Br. at 7; Hill Aff. Ex. D: Intern 4 Resume.)

Intern 5 (reflected in the billing records as "BDU") worked on M.C.'s case during the Fall 2010 and Spring 2011 semesters of his third year of law school. (Hill Aff. ¶ 9; M.C. Br. at 8.) Intern 5 had no experience in education or family law, but had approximately fourteen months of experience as an intern and fellow in unrelated areas. (M.C. Br. at 8; Hill Aff. Ex. E: Intern 5 Resume.)

Intern 6 (reflected in the billing records as "JMO1") worked on M.C.'s case during the Fall 2012 semester of her third year of law school. (Dkt. No. 29: Hill Supp. Aff. ¶ 3; Dkt. No. 30: M.C. Reply Br. at 3.) Intern 6 had no experience in education or family law, but had approximately twenty-eight months of unrelated, non-legal work experience prior to law school, and some legal experience as an intern and analyst for an unspecified period of time during law school. (M.C. Reply Br. at 3 & Ex. A: Intern 6 Resume.)

Intern 7 (reflected in the billing records as "EFR") worked on M.C.'s case during the Fall 2012 and Spring 2013 semesters of her third year of law school. (Hill Supp. Aff. ¶ 3; M.C. Reply Br. at 3.) Intern 7 had no experience in education law, but had approximately four years of family law experience as a legal intern. (M.C. Reply Br. at 3-4 & Ex. B: Intern 7 Resume.)

Intern 8 (reflected in the billing records as "HCR") worked on M.C.'s case during the Spring 2013 semester of her third year of law school. (Hill Supp. Aff. ¶ 3; M.C. Reply Br. at 4.) Intern 8 had no experience in education law, but had approximately sixteen months of experience as an intern on the Second Circuit, at the United States Attorney's Office and at a law firm whereher work involved family law matters. (M.C. Reply Br. at 4 & Ex. C: Intern 8 Resume.) Additionally, prior to law school, Intern 8 worked as a paralegal for approximately three years. (M.C. Reply Br. at 4 & Ex. C: Intern 8 Resume.)

M.C.'s Attorneys' Fees And Billing Records

M.C.'s attorneys' billing submission reflects 978.3 hours expended between October 7, 2009 and March 31, 2011 in connection with the underlying DOE proceedings. (Dkt. No. 1: Compl. Ex. C: Billing Records.) Of the 978.3 hours, 14.41 are attributable to Prof. Hill. (Compl. Ex. C: Billing Records at 3, 4, 21, 23, 24, 26, 27, 28, 31.) M.C. requests...