Pazik v. Gateway Regional School Dist.

• Decision Date: 30 January 2001
• Docket Number: No. Civ.A. 00-30078-MAP.,Civ.A. 00-30078-MAP.
• Citation: Pazik v. Gateway Regional School Dist., 130 F.Supp.2d 217 (D. Mass. 2001)
• Parties: James PAZIK and Debra Pazik, Plaintiffs, v. GATEWAY REGIONAL SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — District of Massachusetts

Page 217

130 F.Supp.2d 217

James PAZIK and Debra Pazik, Plaintiffs, v. GATEWAY REGIONAL SCHOOL DISTRICT, Defendant.

No. Civ.A. 00-30078-MAP.

United States District Court, D. Massachusetts.

January 30, 2001.

Marilyn J. Schmidt, Schmidt & Botter, Northampton, MA, for James Pazik and Debra Pazik, plaintiffs.

Claire L. Thompson, Doherty, Wallace, Pillsbury & Murphy, Springfield, MA, for Gateway Regional School District, defendant.

ORDER

PONSOR, District Judge.

Upon de novo review this Report and Recommendation is hereby adopted, without objection. The plaintiff's motion for summary judgment is allowed, and the defendant's motion is denied. The clerk will enter judgment for plaintiffs in the amount of $13,491.58.

REPORT AND RECOMMENDATION WITH REGARD TO THE PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT

NEIMAN, United States Magistrate Judge.

The predominant issue presented by the parties' cross motions for summary judgment, which have been referred to the court for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1), is whether or not expert witness fees can be recovered by James and Debra Pazik ("Plaintiffs") from Gateway Regional School District ("Gateway") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i)(3)(B). For the reasons which follow, the court will recommend that Plaintiffs recover such fees. As to a secondary issue — regarding other costs and attorney's fees incurred by Plaintiffs prior to commencing suit — the court will recommend that Plaintiffs recover such costs and fees as well.

I. BACKGROUND

The underlying facts of the case are undisputed. Plaintiffs' daughter is a learning-disabled student at Gateway. In July of 1999, Plaintiffs filed a formal request for a hearing with the Bureau of Special Education Appeals ("BSEA") to challenge the Individual Education Plan ("IEP") proposed for their daughter's education. Hearings were held before the BSEA in October and November of 1999, and in February of 2000 the hearing officer found in favor of Plaintiffs, concluding that their daughter should be placed in a more appropriate school setting.

Following the BSEA decision, Plaintiffs sought attorney's fees and costs, as well as expert witness fees totalling $3,250 for testimony provided by Cristina Dinardo-Dupre, LICSW, Plaintiffs' daughter's therapist ($100), and Lois Carra, Ph.D., a neuro-psychologist from Tufts' Floating Hospital for Children ($3,150). Unable to resolve their dispute with Gateway, Plaintiffs filed a complaint in this court in May of 2000 seeking relief under the IDEA for costs and fees totaling $15,407.18. (See Docket No. 11: Amended Complaint ¶¶ 8 and 9.)

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where the record reveals no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). The facts must be viewed in a light most favorable to the non-moving party. Santiago-Ramirez v. Secretary of Dep't of Defense of the United States, 62 F.3d 445, 446 (1st Cir. 1995). The non-moving party bears the burden of placing at least one material fact into dispute after the moving party shows the absence of any disputed material fact. Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir.1994) (discussing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Absent a genuine dispute of material fact, questions of law are appropriate for resolution on summary judgment. Jimenez v. Peninsular & Oriental Steam Nav. Co., 974 F.2d 221, 223 (1st Cir.1992). The mere fact that both parties move for summary judgment does not change the foregoing analysis. United Paperworkers Intern. Union Local 14, AFL — CIO — CLC v. International Paper Co., 64 F.3d 28, 32 n. 2 (1st Cir.1995).

III. DISCUSSION

In 1985, following the Supreme Court's decision in Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), which held that the right to sue did not include the right to recover attorney's fees, Congress enacted the Handicapped Children's Protection Act, P.L. 99-372, which amended the IDEA by adding a new provision relating to fees and costs. As now recodified, the IDEA provides that, "[i]n any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party." 20 U.S.C. § 1415(i)(3)(B). There is no dispute that fees and costs can be awarded to parents who prevail at the administrative level. See King v. Floyd County Bd. of Ed., 228 F.3d 622, 625 (6th Cir.2000). Nor is there any dispute here that Plaintiffs prevailed before the BSEA. (Docket No. 10: Statement of Undisputed Facts ¶ 2.) The sole issues, then, are the amount of attorney's fees and costs due Plaintiffs and whether expert fees incurred by them in the administrative process are recoverable in this calculus.

In the court's opinion, the amount of attorney's fees and costs, other than expert fees, is readily resolvable. Of somewhat greater complexity is the question of expert fees, and it is on this issue that the parties expend most of their energy. After due consideration, the court believes that expert fees are also payable under the IDEA and, as a result, that Plaintiffs are entitled to have those fees paid by Gateway. Accordingly, the court will recommend that Plaintiffs' motion be allowed and that Gateway's motion be denied.

It should be noted, however, that if the court's recommendation is adopted, the matter would not entirely end. The fees and costs presently at issue include only those incurred to the point this lawsuit was filed. Thus, as both parties agree, if Plaintiffs' motion for summary judgment is allowed, they would be entitled to seek additional attorney's fees and costs related to the present litigation.

A. Attorney's Fees

Although it is undisputed that Plaintiffs may recover attorney's fees from Gateway under the IDEA, the parties do dispute the amount of fees payable. Compare State of N.H. v. Adams, 159 F.3d 680, 684 (1st Cir.1998). Plaintiffs seek $180 per hour for their counsel's time, while Gateway asserts that $125 per hour is a more reasonable fee for attorneys practicing special education law. In this regard, the IDEA establishes certain circumstances under which requested attorney's fees may be reduced. See 20 U.S.C. § 1415(i)(3)(F). Gateway chooses to rely on only one of those circumstances, subsection (ii). That subsection allows a court to reduce a requested fee if it finds that it "unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation and experience."

Setting aside the somewhat self-serving affidavits which the parties' attorneys executed (Docket Nos. 15 and 18), the court concludes — in partial reference to the affidavit of another attorney, Peter Smith, submitted by Gateway (Docket No. 20) — that $150 is the appropriate hourly fee in this matter. See Mr. and Mrs. B. v. Weston Bd. of Ed., 34 F.Supp.2d 777, 782 (D.Conn.1999) (lack of affidavits from other attorneys results in a failure to establish that requested rate is consistent with those prevailing in the community for similar services); Smart SMR of New York, Inc. v. Zoning Commission of Town of Stratford, 9 F.Supp.2d 143, 148 (D.Conn. 1998) (similar). The $150 hourly fee is also comparable to rates with which the court is familiar for attorneys of somewhat greater experience. See, e.g., Andrew S. v. School Committee of Greenfield, 59 F.Supp.2d 237, 248 (D.Mass.1999) (finding, based on affidavits, $175 hourly fee reasonable, although number of hours claimed excessive).

Applying the $150 rate to Plaintiffs' counsel's claimed hours, the court recommends that Plaintiffs be awarded $9,600 in attorneys fees for 64 hours of work. The court also recommends that Plaintiffs recover $498.60 in paralegal fees and $143.98 in non-expert costs, neither of which Gateway has challenged with any force. See Yaris v. Special Sch. Dist. of St. Louis County, 661 F.Supp. 996, 1002 (E.D.Mo. 1987) (awarding paralegal fees and costs); Gonzalez v. Puerto Rico Dep't of Education, 1 F.Supp.2d 111, 116 (D.P.R.1998) (awarding uncontested paralegal fees).

In making these recommendations, the court is aware of Gateway's attempt at oral argument to question the number of hours expended. This was belated at best. In applying for judicial approval of a fee award, not only is it "the plaintiffs burden to furnish the evidence required," Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 527 n. 11 (1st Cir.1991), but a defendant's objection needs a certain level of particularity and specificity, see Domegan v. Ponte, 972 F.2d 401, 420 n. 35 (1st Cir.1992) (defendants' failure to produce evidence of market rates means they cannot prevail on rate-based objection to fee award), vacated on other grounds, 507 U.S. 956, 113 S.Ct. 1378, 122 L.Ed.2d 754 (1993); Rogers v. Okin, 821 F.2d 22, 30 (1st Cir.1987) (noting that the realities of fee award reviews compel objectors "to select priority targets and marshal the facts as effectively as possible"), abrogated on other grounds by Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989); Brewster v. Dukakis, 786 F.2d 16, 18-19 (1st Cir.1986) (recognizing defendants' obligation to object with some particularity to plaintiffs fee application). Gateway ignored this obligation until the last minute and, in any case, its oral proffer was too general to be of much assistance to the court.

B. Expert Witness Fees

As indicated, the IDEA provides that "the court, in its discretion, may award reasonable attorney's fees as part of the costs to the parents of a child with a disability who is the prevailing party." 20 U.S.C. § 1415(i)(3)(B). Whether expert fees are payable under this section is a matter of first impression in this circuit. Indeed,...