N.S. ex rel. P.S. v. Stratford Bd. of Educ., 3:98CV1864 SRU.

• Decision Date: 28 January 2000
• Docket Number: No. 3:98CV1864 SRU.,3:98CV1864 SRU.
• Court: U.S. District Court — District of Connecticut
• Parties: N.S., By and Through her parents and next friends, P.S. and P.S., Plaintiff, v. STRATFORD BOARD OF EDUCATION, Defendant.

97 F.Supp.2d 224

N.S., By and Through her parents and next friends, P.S. and P.S., Plaintiff, v. STRATFORD BOARD OF EDUCATION, Defendant.

No. 3:98CV1864 SRU.

United States District Court, D. Connecticut.

January 28, 2000.

COPYRIGHT MATERIAL OMITTED

David Shaw, Hartford, CT, for plaintiff.

Richard Buturla, Marsha Moses, Berchem, Moses & Devlin, P.C., Milford, CT, for defendant.

RULING ON PENDING OBJECTION AND MOTION

UNDERHILL, District Judge.

This is an action seeking attorneys' fees and costs incurred during administrative proceedings under the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1415, et seq. Those proceedings were held at the request of the plaintiff parents to challenge the special education program offered to their child by the defendant, Stratford Board of Education (the "Board"). After 26 days of hearings, the hearing officer issued a final order. Plaintiff then brought this action, claiming to be a prevailing party entitled to an award of fees and costs under the IDEA.

The matter was referred to Magistrate Judge Donna F. Martinez for rulings on plaintiff's Motion For Summary Judgment (doc. # 17), Supplementary Motion For Costs And Fees Subsequent To January 22, 1999 And For Revised Costs (doc. # 31), and Supplementary Motion For Costs And Fees Subsequent To June 10, 1999 Supplementary Motion (doc. # 38). On September 30, 1999, Judge Martinez issued a Recommended Ruling On Pending Motions ("Recommended Ruling") (doc. # 43) in which she recommended granting in part plaintiff's motion for summary judgment and supplementary motions for costs and fees.

Presently pending are Defendant's Objection To Magistrate's Recommended Ruling On Pending Motions ("Objection") (doc. # 47) and plaintiff's Supplementary Motion For Costs And Fees Subsequent To September 30, 1999 Recommended Ruling (doc. # 50). For the reasons given below, the Objection is overruled, the Recommended Ruling is adopted and accepted, and the pending supplementary motion for costs and fees is granted.

Objection to Recommended Ruling

The Board timely filed its Objection to the Recommended Ruling. When an objection to a Magistrate Judge's recommended ruling on a dispositive motion has been filed by any party, the Court must "make a de novo determination of those portions of the proposed decision to which objection is made, and may accept, reject, or modify the recommended ruling in whole or in part." Rule 2(b), Local Rules for United States Magistrate Judges; see Fed.R.Civ.P. 72; 28 U.S.C. § 636(b)(1)(B).

The Board raised five "central" objections to the Recommended Ruling. These can be divided into objections based upon the claimed existence of a genuine issue of material fact and an objection based upon a perceived misapplication of the standard for awarding attorneys' fees to prevailing parties.

A. Undisputed Material Facts

Four of the Board's five central objections turn on a claim that facts relied upon by Judge Martinez in the Recommended Ruling were disputed.¹ Those objections lack merit.

For purposes of the summary judgment motion, the facts relied upon by Judge Martinez were undisputed because the Board failed to file a statement of disputed material facts, as required by the Local Rules.² Under Rule 9(c) of the Local Rules of Civil Procedure, a party filing a motion for summary judgment must file a Local Rule 9(c)1 Statement, setting forth "in separately numbered paragraphs a concise statement of each material fact as to which the moving party contends there is no genuine issue to be tried." Significantly, the Rule also provides that: "All material facts set forth in said statement will be deemed admitted unless controverted by the statement required to be served by the opposing party in accordance with Rule 9(c)2." (Emphasis supplied.) Rule 9(c)2 provides, in relevant part, that the papers opposing a motion for summary judgment must include a statement "whether each of the facts asserted by the moving party [in its Rule 9(c)1 Statement] is admitted or denied. [And] ... must also include in a separate section a list of each issue of material fact as to which it is contended there is a genuine issue to be tried." L.R.Civ.P. 9(c)2.

Although Judge Martinez did not expressly state that she relied upon the plaintiff's uncontroverted Rule 9(c)1 statement as setting forth the undisputed facts, a comparison of the Recommended Ruling with the Rule 9(c)1 statement demonstrates that she did so. That reliance was appropriate. See Dusanenko v. Maloney, 726 F.2d 82, 84 (2d Cir.1984) (facts set forth in statement of undisputed facts were properly deemed admitted given opposing party's failure to file local rule statement of disputed material facts; entry of summary judgment appropriate), Booze v. Shawmut Bank, Connecticut, 62 F.Supp.2d 593, 595 (D.Conn.1999) (all facts in Rule 9(c)1 statement deemed admitted given failure to file timely Rule 9(c)2 statement). One important purpose of Local Rule 9(c) is to direct the court to the material facts that the movant claims are undisputed and that the party opposing the motion claims are disputed. Otherwise the court is left to dig through a voluminous record, searching for material issues of fact without the aid of the parties. Although the Board has attempted to identify material issues of fact in its Objection, that effort is unavailing.

The Board repeatedly complains that Judge Martinez "found" certain facts "without citation" to the record. E.g., Objection at 7, 9, 10, 13-14. In each instance, the undisputed fact relied upon by Judge Martinez is set forth either in plaintiff's Rule 9(c)1 Statement, see Rule 9(c)1 Statement ¶¶ 37 ("the parents proposed that a mutually acceptable independent educational consultant be retained"), 43 ("the Board was well aware of [parents'] long-repeated desire for an independent consultant"), 64 ("The hearing officer found that the Board has not offered an appropriate program and placement."); or in the hearing officer's report, see Final Decision and Order at 16, ¶¶ 9 & 10 ("Therefore, the purported IEP also fails as it has no basis in any recent evaluation of N.'s areas of need." "It is fairly clear that certain elements of the purported IEP were planned with little thought to meeting N.'s unique needs."); 19, ¶ 15 ("Having found that an appropriate program and placement has not been offered, what should N.'s program look like? The simple answer is that we do not know what the final program will look like because the information needed to make informed decisions is not yet available. So far, programming for N. has been reactive—not proactive."); 20, ¶ 1 ("The Board has not offered N. an appropriate program and placement."). Any mistakes made by Judge Martinez were immaterial.³

The Board attempts to create material issues of fact by parsing out differences between the affidavit submitted by Dr. Vespe for the Board and the affidavit submitted by N.'s father. That effort fails.

The Board focuses here on a perceived dispute over the purpose of the due process hearing, an important factor in deciding whether the plaintiff is a prevailing party. The Board cites to Dr. Vespe's affidavit as establishing that "the parents' primary objective was to have N. attend the Stratford Academy," a local school attended by her siblings. Objection at 5 (emphasis supplied). Although Dr. Vespe's affidavit supports the proposition that attending the same school as her siblings was one of the objectives of the plaintiff, that proposition was expressly recognized by both the hearing officer and Judge Martinez, see Final Decision and Order at 2; Recommended Ruling at 10, and therefore is not a genuine issue of fact. Moreover, even assuming Dr. Vespe's competence to opine on the plaintiff's intentions, his affidavit cannot be fairly read as supporting the proposition that the plaintiff's primary objective was to secure a place at Stratford Academy. See Vespe Affidavit ¶¶ 6-12. Therefore, even without reliance on the absence of a Rule 9(c)2 statement, the affidavit of Dr. Vespe fails to create a genuine issue of material fact.⁴ Judge Martinez acknowledged that the plaintiff both raised and lost the issue of attending the same school as her siblings. The Recommended Ruling is wholly consistent with the Vespe affidavit on this issue.

The Board also seeks to limit the issues raised by the parents to those expressly stated in their request for a due process hearing. See Objection at 10 ("[T]he hearing officer was never asked to make any findings of fact or orders with respect to the program or placement.... The hearing officer was asked only to decide whether the IEP ... was appropriate."). As the final order itself makes clear, however, the hearing officer understood that more issues than those expressly included in the parents' request for hearing were to be decided. See Final Decision and Order at 2 ("ISSUES: 1. Has the Board offered N. an appropriate program and placement? a. Does the IEP comport with all statutory requirements?"). The Board's contention that the hearing officer did not conclude "that the program or placement offered by the Board was inadequate," Objection at 10-11, is directly contradicted by point one of the hearing officer's final decision and order: "1. The Board has not offered N. an appropriate program and placement."

The Board's effort to challenge the Recommended Ruling on the basis that Judge Martinez made findings on material issues of disputed fact fails.

B. The Legal Standard Governing Fee Applications

The Board also challenges the legal standard employed by Judge Martinez when ruling on the merits of the fee applications. In essence, the Board argues that Judge Martinez erred by considering success on issues not formally raised in the written request for a due process hearing when deciding whether the plaintiff was a prevailing party. Judge Martinez did rely on the outcome of such issues when deciding the...