J.M. v. Montgomery Cnty. Intermediate Unit, CIVIL ACTION NO. 17-1583

J.M., et al. v. MONTGOMERY COUNTY INTERMEDIATE UNIT

CIVIL ACTION NO. 17-1583

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

March 26, 2018

MEMORANDUM

Bartle, J.

Before the court is the motion of plaintiffs J.M. and C.M. for attorneys' fees and costs under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. and Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. §§ 794 et seq.¹

I

Plaintiffs filed an administrative due process complaint against defendant Montgomery County Intermediate Unit ("MCIU") on September 21, 2016. In that complaint, plaintiffs alleged violations of the IDEA and Section 504. Plaintiffs asserted:

This complaint concerns a past rather than continuing denial of [a Free Appropriate Public Education "FAPE"]. In particular, Parents seek compensatory education for MCIU's failure to provide [C.M.] with appropriate services including a placement in a developmental preschool, from when hewas referred to Early Intervention in August 2014 until December 2015, and for failure to provide related services at the level required for [C.M.] to make meaningful progress.

The administrative complaint also alleged that MCIU had wrongly classified C.M. as emotionally disturbed from the time of his initial evaluation through May 26, 2016, when MCIU agreed to change C.M.'s classification to autistic. In their prayer for relief, plaintiffs sought: (1) compensatory education; (2) any other equitable remedies deemed proper and just; and (3) attorneys' fees and costs.

Thereafter an administrative hearing officer conducted a hearing spanning three full days which included ten witnesses and sixty exhibits. At the conclusion of the hearing, the parties submitted proposed findings of fact and closing memoranda of law. In their closing memorandum, plaintiffs again requested "compensatory education for [MCIU's] failure to place [C.M.] in a developmental preschool beginning on January 5, 2015 through November 29, 2015 (i.e., from implementation of [C.M.'s] initial IEP up to the date when [MCIU] placed him at a developmental preschool, the Gulf School)." Plaintiffs calculated that C.M. was entitled to approximately 900 hours of compensatory education.

The hearing officer issued his decision on January 11, 2017. He concluded that MCIU violated C.M.'s procedural rightsunder the IDEA by improperly classifying him as a student with emotional disturbance. The hearing officer further found that MCIU substantively denied C.M. a FAPE from January 5, 2015 through June 9, 2016, the day C.M. left MCIU.² This conclusion was based on a finding that C.M. failed to make meaningful progress throughout the entirety of his time with MCIU. As a remedy, the hearing officer awarded five hours of compensatory education for each day MCIU was in session from January 5, 2015 through June 9, 2016, which amounted to a total of 1350 hours.

MCIU appealed the decision to this court, as permitted under the IDEA. See 20 U.S.C. § 1415(i)(2)(A). On October 12, 2017, we issued a memorandum opinion and order granting in part and denying in part the motion of MCIU for judgment on the administrative record. Montgomery Cty. Intermediate Unit No. 23 v. C.M., No. CV 17-1523, 2017 WL 4548022, at *9 (E.D. Pa. Oct. 12, 2017).

Specifically, we affirmed the hearing officer's finding that the initial evaluation and classification of C.M. violated the IDEA. Id. at *6. We further affirmed the hearing officer's finding of a denial of FAPE from January 5, 2015 through November 19, 2015. Id. at *6-8. However, we reversedthe hearing officer's decision to the extent he found that C.M. had been denied a FAPE while enrolled in the developmental preschool from November 20, 2015 through June 9, 2016. Id. at *7-8. We reasoned that the hearing officer's decision on this point was contradicted by his own findings of fact, which recognized that the developmental preschool was an appropriate placement for C.M. Id. at *8. We further found that C.M. had, in fact, made progress while enrolled in the developmental preschool. Id. We thus reduced the award of compensatory education to five hours per day for each day MCIU was in session from January 5, 2015 through November 19, 2015. Id. at *8-9. In the accompanying order, we directed the parties to confer on the calculation of the final award and the manner in which the compensatory education would be provided. The parties ultimately agreed to a total award of 820 hours of compensatory education and thereafter stipulated to dismissal of the action with prejudice on December 21, 2017.

Contemporaneous with MCIU's appeal, plaintiffs filed this separate action for attorneys' fees and costs. Plaintiffs seek $97,895 in attorneys' fees, $400 in costs, and $3,200 in expert fees. We held the fee action in suspense pending the outcome of the MCIU's substantive appeal. Once that decision was issued, we removed the case from suspense and the parties have now fully briefed the issue.

II

Under the IDEA, a court may award reasonable attorneys' fees to a prevailing party who is the parent of a child with a disability. 20 U.S.C. § 1415(i)(3)(B)(i)(I). A parent qualifies as a prevailing party if he or she "'succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" John T. ex rel. Paul T. v. Delaware Cty. Intermediate Unit, 318 F.3d 545, 555 (3d Cir. 2003) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

To determine a reasonable award of attorneys' fees, the court must first calculate the lodestar, which is the number of hours reasonably expended multiplied by a reasonable hourly rate for legal services. Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 595 (3d Cir. 2000). A reasonable hourly rate is determined according to the prevailing market rates in the community for lawyers of reasonably comparable skill, reputation, and experience. Id. The prevailing party bears the burden of establishing that the hourly rates and total number of hours expended are reasonable. Washington v. Phila. Cty. Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996).

Here, plaintiffs seek $325 an hour for attorneys Nicole Reimann, Leah Snyder Batchis, and Jennifer Nestle. They seek $240 an hour for attorney Jessica Fried. In support oftheir motion, plaintiffs have submitted the affidavit of Reimann. In that affidavit, Reimann states that she has practiced law for over twenty-eight years. She founded Batchis Nestle and Reimann, LLC in 2015 and has focused primarily on civil rights and special education matters since that time. Nestle has over twenty years of experience and has practiced special education law exclusively since 2008. Batchis has practiced law since 2006 and also focuses exclusively on special education and civil rights law. Finally, Fried has almost eight years' experience and has worked as a contract attorney with the firm since 2015.

Plaintiffs have also submitted the affidavits of attorneys Judith Gran and Dennis R. Suplee. Both Gran and Suplee are seasoned litigators familiar with the work of plaintiffs' attorneys. Gran has over thirty-five years of experience in disability rights law. Suplee is a partner and former chairman of Schnader Harrison Segal and Lewis LLP who has known Reimann since 1989.

The affidavits of Gran and Suplee establish that the hourly rates sought by plaintiffs are reasonable and within the range of prevailing rates charged by Philadelphia attorneys with similar skills and experience. In fact, Gran opines that the rate sought by Reimann is "extremely modest for an attorney of her 28 years of experience" and that the rates of Nestle andBatchis are "too low." In comparison, Gran herself has been awarded a rate of $525 an hour in IDEA actions within this district. See Sch. Dist. of Phila. v. Kirsch, No. 14-4910, 2017 WL 131808, at *6 (E.D. Pa. Jan. 11, 2017). Gran also states that the rate for Fried is reasonable given her qualifications and experience. Suplee declares that Reimann is a "first-rate trial lawyer" who previously billed $665 an hour as a partner at Schnader.

MCIU has not submitted evidence to dispute the reasonableness of the hourly rates of plaintiffs' attorneys. Thus, after review of the record this court finds that the rates sought by plaintiffs are reasonable and will be approved.

We turn next to the reasonableness of the total number of hours submitted by plaintiffs. Plaintiffs seek reimbursement for the following hours for the administrative proceedings: (1) 176.7 hours for Reimann; (2) 2.8 hours for Nestle; (3) 0.5 hours for Batchis; and (4) 6.5 hours for Fried. For work on the appeal to this court and fee action, plaintiffs seek to recover: (1) 98.1 hours for Reimann; (2) 15.3 hours for Fried; and (3) 1.1 hours for Nestle.

In support of these hours, plaintiffs have submitted detailed invoices. A review of these invoices demonstrates that Reimann did the vast majority of work on this matter, with limited consultation from her colleagues. We find no evidenceof duplication of work. Our review of the invoices, as well as the declarations submitted by plaintiffs, also establishes that the amount of time billed is not excessive. In her declaration, Gran states that the time spent by Reimann and her colleagues is reasonable given the outcome in this matter. Gran herself has represented over 100 special education students and recently has spent 200-500 hours on IDEA actions in which the administrative decision is appealed to federal court. Suplee also opines that Reimann is an efficient attorney and that the time spent by Reimann and her colleagues is reasonable.

However, MCIU asserts that plaintiffs' fee award should be reduced by 39 percent to reflect the reduction made by this court to the hearing officer's award of compensatory education. A lodestar may be reduced "to account for 'limited success' by a plaintiff, focusing on the 'significance of the overall relief obtained by...