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Pardini v. Allegheny Intermediate Unit

January 17, 2006

DAVID AND JENNIFER PARDINI, ON BEHALF OF THEMSELVES AND ON BEHALF OF THEIR MINOR CHILD, GEORGIA PARDINI, PLAINTIFFS,
v.
ALLEGHENY INTERMEDIATE UNIT AND BARBARA MINZENBERG, PROGRAM DIRECTOR, DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

Electronically Filed

Memorandum Opinion

By its Mandate and Order of October 13, 2005, the United States Court of Appeals for the Third Circuit remanded this case to this District Court with the following instructions:

For the reasons set forth above, we hold that the stay-put provision of the IDEA, 20 U.S.C. § 1415(j), required Georgia to continue to receive conductive education until the dispute over its appropriateness for inclusion in her IEP was resolved. Accordingly, the Pardinis are entitled to the cost of the conductive education that they purchased before the dispute was resolved by their agreement to an IEP that did not contain it. We will therefore reverse the decision of the District Court and remand for the court to determine the amount of reimbursement the Pardinis are entitled to as well as the amount of any attorneys fees. Pardini v. Allegheny Intermediate Unit, 420 F.3d 181, 192 (3d Cir. 2005).

Pursuant to the unambiguous instructions of the Court of Appeals, this Court promptly thereafter entered a Pretrial Order (non-jury) (doc. no. 42), dated November 28, 2005, scheduling a non-jury trial for December 19, 2005, with appropriate and expedited pretrial filing dates. That same day, this Court entered an Order of Court (doc. no. 43), scheduling a settlement conference on December 2, 2005, to discuss "settlement and alternative dispute resolution options in detail." Additionally, said Order provided as follows:

Chief trial counsel and parties shall attend in person and be prepared to discuss settlement and alternative dispute resolution options in detail. Additionally, any other necessary representative of the insurance carrier with full settlement authority of entire policy limits shall be physically present.

On or before December 1, 2005 the parties should submit brief confidential letters to the Court detailing the relative strengths and weaknesses of their case, as well as settlement postures including monetary amounts. The letters will not be filed nor shared with opposing counsel. Accordingly, candor is expected.

After reviewing the confidential position statements, the Court recognized that the case was not going to be settled on December 2, 2005, because, among other things, defendant Allegheny Intermediate Unit (AIU) stated its intention to file a petition for a writ of certiorari to the Supreme Court of the United States to resolve what it perceives as a split in the circuits. See defendant's response to plaintiffs' Motion for Recusal (Document No. 52) at ¶ 3.*fn1

At the December 2, 2005 settlement conference, David Pardini, plaintiff as well as attorney for plaintiffs, arrived late, and the Court waited until he arrived to commence the conference. At the outset of the scheduled conference, the Court stated that, based upon the parties' confidential position papers, it was "the Defendant's position that the likelihood of achieving settlement today is unlikely." Transcript ("Tr."), December 2, 2005, at 2. When counsel for AIU confirmed the unlikelihood of settlement, the Court indicated that it would use the scheduled time more wisely by discussing its pretrial order with counsel, to ensure everyone was on the "same page."

Mr. Pardini had not brought any documentation to the settlement conference to support plaintiffs' claim for reimbursement for the cost of the "conductive education," $25,000, and he brought no documentation to support his $100,000 attorneys fee demand. At the conference, Mr. Pardini admitted that he kept no simultaneous time records for the legal work that he performed, but indicated he might be able to reconstruct that time from the pleadings and documents he had prepared. The Court spent a substantial amount of time walking him through the issues and the documentation that is required by precedent within the Third Circuit relating to proving his damages, and justifying attorneys fees petitions; Mr. Pardini seemed to be unaware of the extensive body of Third Circuit case law on this matter or on a plaintiff's evidentiary burdens to support his or her monetary claims with actual evidence in the form of documents or affidavits. Tr. at 4-8, 10-16.

Although he was disorganized and apparently had not begun to gather any of the necessary documentation, it appeared to the Court (as confirmed in plaintiffs' Motion for Recusal, ¶ 3-5) that Mr. Pardini expected to engage in serious settlement discussions with AIU, and that AIU would open its checkbook, so to speak, and satisfy his demands even in the absence of documentation.

As the Court indicated at the conference, it had set an expedited trial schedule in order that plaintiffs would be able to receive whatever reimbursement and attorneys fees to which they might be entitled under the mandate of the United States Court of Appeals for the Third Circuit and its precedent concerning attorneys fees. However, Mr. Pardini strenuously objected to the expedited schedule, and verbally moved for a continuation of the trial. The Court immediately granted plaintiffs' motion. Tr., at 9 ("You can have as much time as you want. All I was trying to do was to get you reimbursed as quickly as I could . . . . So if you want two months, three months, a year, you can have as long as you want.") and 19 ("I was only accelerating this to help the plaintiff[s] move the case along, so I am happy to delay it as long as [plaintiffs] want it delayed. So I will grant the motion to continue. I am going to enter an amended pretrial.").

Plaintiff requested a 60 to 90 day extension which the Court granted, stating "I will push it out into the future sometime in '06 wherever I have an opening." Tr., at 10. See minute entry and subsequent written Order of December 2, 2005, confirming that continuance had been granted at plaintiffs' request, and that another Pretrial Order would be entered. (doc no. 44). At the conference, the Court consulted counsel about their vacation schedules and any other possible conflicts, and later the same day, entered a revised Pretrial Order (doc. no. 45) setting forth a new trial date of June 14, 2006, which date accommodated both counsel and the Court without conflict.

One of the reasons Mr. Pardini gave for seeking additional time was that he wanted to get affidavits as to what experienced practitioners would charge per hour in this specialty area, even though he admitted that he had to do much research and work in this ...


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