Cortes v. Kern Cnty. Superintendent of Sch.

GUSTAVO CORTES, Plaintiff, v. KERN COUNTY SUPERINTENDENT OF SCHOOLS,VALLEY OAKS CHARTER SCHOOL - TEHACHAPI, Defendant.

No. 1:18-cv-01355-NONE-JLT

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

September 11, 2020

ORDER GRANTING PLAINTIFF AN EXTENSION OF TIME TO FILE MOTION FOR ATTORNEY'S FEES AND GRANTING IN PART THAT MOTION FOR ATTORNEY'S FEES

(Doc. Nos. 25, 26)

Plaintiff Gustavo Cortes, on behalf of his minor daughter A.C., initiated this action on October 1, 2018 by filing a complaint for attorney's fees as the prevailing party against defendant Kern County Superintendent of Schools-Valley Oaks Charter School Tehachapi. (Doc. No. 1.) Therein, based upon his allegation that the parties had settled a due process proceeding brought under 20 U.S.C. § 1415, the Individuals with Disabilities Education Act ("IDEA"), and that he was therefore the prevailing party, plaintiff moved for an award of attorney's fees and costs. (See id.) As part of the settlement, the parties agreed that plaintiff is the prevailing party. (Doc. No. 16-5.) The only issue the parties were unable to agree upon was the amount of attorney's fees owed to plaintiff's counsel, the Law Office of Andrea Marcus ("Marcus").

///// On August 26, 2019, the previously assigned district judge awarded plaintiff $84,448.18 for attorney's fees and costs, plus interest accruing from August 21, 2018 at the statutory rate. (Doc. No. 22.) This award did not include, however, fees for services provided in connection with plaintiff's filing of the motion for attorney's fees. (See generally id.) Judgment was entered on August 28, 2019, and thereafter, the case was closed. (Doc. No. 24.)

On December 24, 2019, plaintiff filed: 1) a request for a 104-day extension to file a motion for attorney's fees; and 2) a motion for attorney's fees and costs incurred in connection with the October 1, 2018 complaint for attorney's fees, the February 4, 2019 motion for attorney's fees, and the pending motion for fees. (Doc. Nos. 16-17, 19-20, 25, 26.) Defendant filed its opposition on February 10, 2020. (Doc. No. 28.) Plaintiff filed his reply on February 12, 2020. (Doc. No. 29.)

The court has determined plaintiff's request for an extension of time and the motion for additional attorney's fees are suitable for decision based on the papers under Local Rule 230(g) and, for the reasons explained below, will grant plaintiff's request for an extension to file his motion for attorney's fees, and will also grant, in part, plaintiff's motion for attorney's fees.

BACKGROUND

In the prior order granting, in part, plaintiff's motion for attorney's fees and costs, the previously assigned district judge described at length the circumstances giving rise to the underlying administrative hearing. (See Doc. No. 22 at 1-3.) The court need not repeat all of those facts here, but will briefly summarize those that are relevant to the pending motion for attorney's fees incurred in connection with litigating the prior fee motion.

At the time of the parties' settlement, A.C. was 19 years old and had been diagnosed with "Schizoaffective Disorder mixed typed" and "Autistic disordered, social phobia, generalized." (Doc. No. 16 at 10.) Issues arose when the parties sought to find a suitable residential treatment center for A.C. (See generally id. at 5-6; Doc. No. 19 at 5-10.) Plaintiff filed a due process complaint in May 2018, alleging that defendant denied A.C. a free appropriate public education in A.C.'s individualized education program as required by the IDEA. (Id.)

///// On August 21, 2018, on the eve of the anticipated multi-day due process hearing, the parties reached a settlement. (Doc. No. 16-5 at 10.) As part of the settlement, the parties agreed that A.C.'s parents were the prevailing party for purposes of awarding reasonable attorney's fees. (Id. at 6.) However, the settlement agreement did not include resolution of the amount of plaintiff's attorney's fees. (See id.) The parties instead agreed to resolve the amount of attorney's fees by way of motion before this federal court. (See id.)

Accordingly, on February 4, 2019, plaintiff filed a motion for attorney's fees and costs. (Doc. No. 16.) Therein, plaintiff requested $79,180 for services provided by attorney Marcus in connection with the underlying administrative hearing and $7,123.18 in costs. (Doc. No. 16-6.) Thus, plaintiff sought a total award of $86,303.18 in attorney's fees and costs, excluding interest. (Doc. No. 17.)

On March 3, 2019, defendant filed an opposition to plaintiff's motion, seeking a significant reduction in the amount of attorney's fees from that sought by plaintiff. (Doc. No. 19.) On August 26, 2019, the district judge awarded $84,448.18 in attorney's fees and costs, plus interest accruing from August 21, 2018 at the statutory rate. (Doc. No. 22 at 24.) Judgment was entered on August 28, 2019, and thereafter, the case was closed. (Doc. No. 24.)

On December 24, 2019, plaintiff filed the pending: 1) request for a 104-day extension to file a motion for attorney's fees for costs incurred in preparing the October 1, 2018 complaint for attorney's fees and the February 4, 2019 motion for attorneys' fees and costs; and 2) a motion for attorney's fees and costs incurred while preparing the February 4, 2019 motion for attorney's fees and this pending motion for fees on fees. (Doc. Nos. 16-17, 19-20, 25, 26.) In her request for an extension of time, attorney Marcus states that she "failed to timely file for attorneys' fees and costs" within 14 days after entry of judgment as required by Rule 54(d)(2)(B)(i) because the "deadline was mistakenly left off the firm's calendar." (Doc. No. 25 at 3.) Attorney Marcus also provided the following reasons through her sworn declaration for missing that deadline: 1) attorney Marcus operates a solo-attorney firm; 2) her firm "unexpectedly lost the employee responsible for calendaring pleading and litigation deadlines at the time the court entered judgment for plaintiff and therefore the deadline was not calendared; 3) significant emergenciesarose as two of her clients in an unrelated case, whom Marcus states are disabled and homeless with significant mental health needs, "had stopped attending school and [had] been victimized by sex-traffickers, and had been extensively interviewed by law enforcement officials"; 4) another former client suffering from post-traumatic stress disorder threatened to commit suicide "by the 26th of August" and Marcus's firm "was working to locate critical and safe alternative placement options" for that client; and 5) these crises occurred in addition to attorney Marcus's active caseload that tends to be busier at the beginning of the school year, which was around the same time the previously assigned judge entered judgment in this case. (See id. at 3-6.)

In his motion for attorney's fees filed on December 24, 2019, plaintiff seeks an additional $32,801.60 in attorney's fees and costs in connection with his previously filed fees motion. (Doc. No. 26-2 at 5.) Defendant filed its opposition to that motion on February 10, 2020. (Doc. No. 28.) Plaintiff filed his reply on February 12, 2020. (Doc. No. 29.) For the reasons explained below, the court will grant plaintiff's request for an extension of time to file the pending motion for attorney's fees and will also grant plaintiff's motion for additional fees and costs in part.

DISCUSSION

A. Excusable Neglect

Plaintiff's counsel acknowledges she failed to timely file a motion for attorney's fees under Rule 54. (Doc. No. 25 at 3.) However, attorney Marcus argues that she should be permitted to proceed with the motion for fees based on her excusable neglect. (Id.) Defendant argues that counsel's inadvertence and ignorance of the rules do not constitute excusable neglect. (Doc. No. 28 at 3, 6.)

Local Rule 293 provides that "[m]otions for awards of attorneys' fees to prevailing parties pursuant to statute shall be filed not later than twenty-eight (28) days after entry of final judgment." E.D. Cal. L.R. 293 (citing Fed. R. Civ. P. 54(d)). Rule 6(b)(2) of the Federal Rules of Civil Procedure provides that a district court may, within its discretion, permit a party to file an untimely motion, "when the failure to act was the result of excusable neglect." Courts analyze the following equitable factors in determining whether a missed deadline was a result of excusable neglect: 1) the danger of prejudice to the opposing party; 2) the length of the delay andits potential impact on judicial proceedings; 3) the reason for the delay, including whether it was within the reasonable control of the movant; and 4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993). The Supreme Court has noted that "[a]lthough inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute 'excusable' neglect, it is clear that 'excusable neglect' under Rule 6(b) is a somewhat 'elastic concept' and is not limited strictly to omissions caused by circumstances beyond the control of the movant." Id. at 392 (internal citations omitted); see also Kyle v. Campbell Soup Co., 28 F.3d 928, 931-32 (9th Cir. 1994); Kroll v. Kaiser Found. Health Plan Long Term Disability Plan, No. 3:09-CV-01404-LB, 2011 WL 13240371, at *2-3 (N.D. Cal. Aug. 25, 2011) (recommending granting a delayed filing for attorney's fees despite counsel's anticipated surgery and paralegal's vacation, where there was no evidence of prejudice, delay was only two days, and absence of evidence of bad faith), adopted by No. 3:09-CV-01404-JSW (N.D. Cal. Oct. 26, 2011) (Doc. No. 134); A.F. v. Hamamoto, No. CV 07-00278-JMS-KSC, 2007 WL 2684133, at *4-5 (D. Haw. Sept. 7, 2007) (allowing plaintiff to file a belated attorney's fee motion in IDEA case where there was no evidence of prejudice, delay in filing the motion was one month, the reason for delay was counsel's mistaken assumption that...