Rena Individually C. ex rel. A.D. v. Colonial Sch. Dist.

442 F.Supp.3d 858

RENA C., Individually and on Behalf of A.D.

v.COLONIAL SCHOOL DISTRICT

CIVIL ACTION No. 15-1914

United States District Court, E.D. Pennsylvania.

Filed March 5, 2020

David J. Berney, Berney & Sang, Kevin Golembiewski, Vanita Kalra, Law Offices of David J. Berney, Philadelphia, PA, for Plaintiff.

Karl A. Romberger, Jr., Sweet Stevens Katz & Williams LLP, New Britain, PA, for Defendant.

MEMORANDUM OPINION

Savage, District Judge.

This is the second time we consider Rena's motion for attorney's fees in this action brought under the Individuals with Disabilities Education Act ("IDEA") for the sole purpose of obtaining attorney's fees and costs. In our original ruling, we limited fees to services performed prior to the expiration of Colonial School District's ten-day offer,¹ awarding fees in an amount substantially less than what Rena had requested. On appeal, the Third Circuit held that Rena had been substantially justified in rejecting Colonial's offer because it did not include attorney's fees, but also held that she did not obtain more favorable substantive relief than had been offered. In this context, we must determine a reasonable attorney's fee for the services performed in pursuing attorney's fees both before and after the ten-day offer.

We conclude that the hourly rate that Rena agreed to pay and her attorney agreed to accept, which falls within the range of rates prevailing in the community, rather than the higher rate he now requests, is the reasonable hourly rate for determining the lodestar. After deducting excessive and duplicative time, we must further reduce time spent pursuing issues upon which Rena did not prevail.²

Procedural History³

On August 14, 2015, Rena and Colonial filed cross-motions for summary judgment.⁴ We granted Rena's motion and granted in part Colonial's motion.⁵ In our Memorandum Opinion dated December 20, 2016, we found that Rena had not been substantially justified in rejecting Colonial's valid ten-day offer made pursuant to 20 U.S.C. § 1415. Rena C. v. Colonial Sch. Dist. , 221 F. Supp. 3d 634, 646 (E.D. Pa. 2016). Consequently, we allowed costs and attorney's fees only for work performed before September 28, 2014, the date the ten-day offer expired. Id. at 652.

Attorney David Berney and paralegal Jonathan Kruzic were the only ones to work on Rena's case before September 28, 2014. Id. at n.82. Colonial did not challenge Berney's time for work performed before September 28, 2014. Id. at 650. It did contest his hourly rate. After considering both parties' submissions and arguments, we reduced Berney's requested hourly rate. Id. at 646-49. We held that $385, the rate Berney had originally agreed to charge Rena plus two annual increases of five percent, was reasonable. Id. at 649. We denied Colonial's counterclaim for attorney's fees. Id. at 650.

Rena appealed the denial of fees and costs incurred after the ten-day offer had expired.⁶ Colonial did not appeal the denial of its counterclaim. The Third Circuit held that Rena did not receive more favorable relief than what she had been offered, but she was nonetheless substantially justified in rejecting the ten-day offer because it did not include attorney's fees. Rena C. v. Colonial Sch. Dist. , 890 F.3d 404, 411 (3d Cir. 2018). Accordingly, it held that Rena is entitled to attorney's fees and costs incurred after the ten-day offer expired. Id. at 420. After the Supreme Court denied Colonial's petition for certiorari,⁷ Rena filed a second request for attorney's fees and costs, adding time spent on work on appeal.⁸

Analysis

Determining the amount of a reasonable attorney's fee requires a two-part analysis. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ; Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). We must determine the reasonableness of the time spent and fix a reasonable hourly rate. Maldonado, 256 F.3d at 184. Once these two numbers are established, they are multiplied to yield the lodestar, which is presumed to be a reasonable fee. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).

A request cannot be reduced based on factors not raised by the adverse party. Id. (quoting Bell v. United Princeton Props. , 884 F.2d 713, 720 (3d Cir. 1989) ). Objections must be specific. See United States v. Eleven Vehicles, Their Equipment & Accessories, 200 F.3d 203, 211-12 (3d Cir. 2000). Nevertheless, once the adverse party specifically objects to a fee request, we have considerable discretion to "adjust the fee award in light of those objections." Rode , 892 F.2d at 1183 (citations omitted).

Hourly Rate

In her first request for attorney's fees and costs, Rena submitted time spent by attorneys David Berney, Vanita Kalra, and Kevin Golembiewski and paralegal Jonathan Kruzic. Rena requested hourly rates of $495 for Berney, $325 for Kalra, $200 for Golembiewski and $100 for Kruzic. Because Berney and Kruzic were the only ones who performed work before the ten-day offer letter expired, we considered their rates and hours in ruling on that request.

Considering his tenure and experience in the special education field, the declarations, the quality of the work product, the fee agreements, his judicially approved rates in other cases, and the time spent performing routine tasks as revealing his level of proficiency, we concluded that $385 was a reasonable hourly rate for Berney.⁹

In her present request, Rena submits time for Berney, Kalra, Golembiewski, Kruzic and attorney Morgen Black-Smith. Rena requests an hourly rate of $487 for Berney, $350 for Kalra, $300 for Black-Smith, $263 for Golembiewski and $100 for Kruzic.¹⁰ Colonial only challenges the rates for Berney and Golembiewski.¹¹ Colonial asserts that hourly rates of $400 for Berney and $255 for Golembiewski are reasonable.¹²

In determining a reasonable hourly rate, the starting point "is the attorney's usual billing rate, but this is not dispositive." Pub. Interest Research Grp. of New Jersey, Inc. v. Windall , 51 F.3d 1179, 1185 (3d Cir. 1995). We also compare the attorney's rates to the market rates in the community for similar services by lawyers of "reasonably comparable skill, experience, and reputation." Loughner v. Univ. of Pittsburgh , 260 F.3d 173, 180 (3d Cir. 2001) (quoting Rode , 892 F.2d at 1183 ). The IDEA specifically provides that fees "shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished." 20 U.S.C. § 1415(i)(3)(C). Thus, if it does not exceed the prevailing market rate charged in the community, the requested rate is the allowable rate.

In the first request, Berney based his $495 hourly rate on the Community Legal Services ("CLS") fee schedule, the Adjusted Laffey Matrix, law magazine billing surveys, attorney declarations and rates fixed by district courts in Pennsylvania. Rena C. , 221 F. Supp. 3d at 647-48. We declined to consider the CLS schedule and the Adjusted Laffey Matrix because they do not consider attorneys' relevant experience in the field of special education. We gave the surveys little consideration because they did not account for experience, practice area or geographic location. We disregarded the attorney declarations that relied on the CLS schedule and surveys, and those that justified higher rates based on contingency risks. We disregarded the rates fixed by district courts in Pennsylvania because none of the cases involved special education matters and did not account for relevant experience in the field. We also noted that courts have scrutinized and reduced Berney's fee petitions in the past.¹³

Rena submits additional evidence in support of Berney's requested hourly rate of $487. In addition to the CLS fee schedule and three of the same attorney declarations, she offers two more attorney declarations; Colonial's attorneys' timesheets; several of Berney's redacted fee agreements, invoices and proofs of payment for other clients; the CLS fee schedule; recent fee awards to Berney in IDEA cases; and fee awards to attorneys with similar experience. We will not consider the CLS schedule, which we previously found inappropriate for fixing hourly rates in IDEA cases. Id. at 647. We shall disregard one of the attorneys' declarations because it relies on the CLS schedule. The remaining three make sweeping statements about a reasonable hourly rate without identifying any specific rates charged by other special education attorneys.

Colonial presents a countervailing affidavit based on detailed billing reports submitted to its counsel's firm between September 1, 2018 and August 31, 2019 for special education matters in the Eastern District of Pennsylvania.¹⁴ Berney argues that these billing reports and charts omit the rates of multiple high-billing local education attorneys, include inaccuracies, rely on speculation, disproportionately weigh years of experience in special litigation law over general litigation and fail to account for counsel's skill.¹⁵ We disagree. These reports and charts identify local attorneys with varying amounts of experience and skill, some with hourly rates as high as $525.¹⁶ Although we agree that general litigation affords many opportunities to develop relevant and transferable skills to the field of special education, we do not agree that Colonial's matrix overstates the importance of specialized experience. Expertise in the field is critical for working efficiently and strategically. Prolonged litigation and a disproportionate amount of time billed to otherwise straightforward matters are common among attorneys who possess general litigation experience but lack experience in the specific field. Considering the billing reports as well as the combined years chart and matrix generated from the billing reports, we conclude a reasonable hourly rate for Berney is between $400 and $450.

Berney argues that four recent IDEA fee decisions demonstrate that his requested fee of $487 is reasonable. In Ida...