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E.C. v. School District of Philadelphia

United States District Court, E.D. Pennsylvania

March 4, 2015

E.C. and C.O. individually and on behalf of C.C.O.
v.
SCHOOL DISTRICT OF PHILADELPHIA

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For E. C., C. O., INDIVIDUALLY AND ON BEHALF OF C.C.O., Plaintiffs: DAVID J. BERNEY, LEAD ATTORNEY, VANITA KALRA, LAW OFFICES OF DAVID J. BERNEY, PHILADELPHIA, PA.

For SCHOOL DISTRICT OF PHILADELPHIA, Defendant: MILES H. SHORE, SCHOOL DISTRICT OF PHILA, OFFICE OF GENERAL COUNSEL, PHILADELPHIA, PA.

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MEMORANDUM

Hon. Petrese B. Tucker, C.J.

Before the Court is Plaintiffs E.C. and C.O.'s Motion for Attorney's Fees and Costs (Doc. 12), Defendant School District of Philadelphia's Response in Opposition thereto (Doc. 14), and Plaintiffs' Reply Brief in Further Support of Plaintiffs' Motion for Attorney's Fees and Costs (Doc. 15). For the reasons set forth herein, the Court will grant Plaintiffs' Motion for Attorney's Fees and Costs and award Plaintiffs $81,849.00 in attorney's fees and $900.00 in costs.

I. Factual Background

Plaintiffs E.C. and C.O. (collectively, " Plaintiff Parents" ) are the parents of C.C.O., a student in the School District of Philadelphia (" School District" ). On or about March 14, 2013, Plaintiff Parents filed an administrative due process complaint, alleging violations of the Individuals with Disabilities Education Improvement Act, 20 U.S.C. § 1400 et seq. (" IDEIA" ), [1] Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (" Section 504" ), and the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (" ADA" ). The complaint alleged that the School District violated the IDEIA by failing to provide an Individualized Education Program (" IEP" ) that afforded C.C.O. a free appropriate public education (" FAPE" ). Plaintiff Parents sought relief in the form of (a) compensatory education from September 21, 2012 through October 31, 2012 and (b) tuition reimbursement for private school tuition for the remainder of the 2012-2013 school year. Counsel for Plaintiff Parents throughout these administrative proceedings included Attorneys David J. Berney (" Attorney Berney" ), Vanita Kalra (" Attorney Kalra" ), and Jennifer Sang (" Attorney Sang" ).

Following an administrative hearing, an opinion was issued that awarded Plaintiff Parents all of the relief sought. The hearing officer concluded that C.C.O. was denied a FAPE in the areas of Reading, Math, Writing, and Supplementary Aids and Services. However, the hearing officer also determined that C.C.O. was not denied a FAPE in the areas of Speech and Language and Postsecondary Transition.

On October 16, 2013, Plaintiff Parents instituted this action to recover attorney's fees and costs under the IDEIA, Section 504, and the ADA. Defendant School District filed a Motion for a More Definite Statement, which this Court denied on January 13, 2014. Plaintiff Parents subsequently filed the instant Motion for Attorney's Fees and Costs, requesting fees and costs totaling $85,973.88. The School District filed a response in opposition to this motion, asserting that Plaintiff Parents are entitled to no more than $18,207.39 in fees and $400 in costs. Plaintiff Parents filed a

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reply in further support of their original motion, seeking additional reimbursement for hours incurred since the filing date of the instant motion in the amount of $5,906.50.

II. Legal Standard

The IDEIA 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 a prevailing party who is the parent of a child with a disability . . . ." 20 U.S.C. § 1415(i)(3)(B). " The party seeking attorney's fees has the burden to prove that its request for attorney's fees is reasonable." Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). The fee petitioner must provide evidence " supporting the hours worked and rates claimed." Id. Once the fee petitioner submits evidence supporting the hours worked and rates claimed, the party opposing the fee application has the burden of challenging the reasonableness of the requested fee. McKenna v. City of Philadelphia, 582 F.3d 447, 459 (3d Cir. 2009) (citing Rode, 892 F.2d at 1183). A district court should not " decrease a fee award based on factors not raised at all by the adverse party." McKenna, 582 F.3d at 459 (quoting Bell v. United Princeton Props., Inc., 884 F.2d 713, 720 (3d Cir. 1989)).

The calculation of the appropriate amount of attorney's fees begins with the lodestar, which is the product of " the appropriate billing rate for the party's attorneys" multiplied by " the number of hours those attorneys reasonably expended on the action." See Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d 694, 703 n.5 (3d Cir. 2005). The reasonable hourly rate is calculated according to the prevailing market rates in the relevant community. See Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 726 F.3d 403, 413 (3d Cir. 2013). To determine the prevailing market rate, " a court must 'assess the experience and skill of the prevailing party's attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'" Interfaith Cmty. Org., 426 F.3d at 708 (quoting Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001)).

" The best evidence of a prevailing market rate is counsel's customary billing rate . . . ." Mitchell v. City of Philadelphia, No. 99-6306, 2010 WL 1370863, at *14 (E.D. Pa. Apr. 5, 2010).

Where the fee movant has no customary rate and will not be charging the movant any fee, the prevailing market rate can be established from several sources, including: (1) affidavits of counsel with similar experience as to what they would charge for a similar case; (2) bar surveys of customary rates; (3) the amount charged by counsel for the opposition in the particular case or similar litigation; (4) the amounts awarded counsel with similar experience in similar litigation; and (5) the amounts awarded for the services of counsel in prior litigation.

Id. (internal quotation marks omitted) (quoting 10 James Wm.Moore et al., Moore's Federal Practice ¶ 54.190 (3d ed. 2009)). In addition to determining the reasonable hourly rate, the court must examine the hours requested and exclude those which were not reasonably expended. Interfaith Cmty. Org., 726 F.3d at 416 (quoting Interfaith Cmty. Org., 426 F.3d at 711). Hours are not reasonably expended if they " are excessive, redundant, or otherwise unnecessary." See Interfaith Cmty. Org., 726 F.3d at 416 (quoting Interfaith Cmty. Org., 426 F.3d at 711). A district court must reduce the hours requested by the number of hours spent litigating distinct, unsuccessful

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claims. Dee v. Borough of Dunmore, 548 F.App'x 58, 64 (3d Cir. 2013) (citing Hensley v. Eckerhart, 461 U.S. 424, 434-35, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). A district court may also deduct hours that are inadequately documented. See Dee, 548 F.App'x at 64. Finally, once the lodestar has been calculated, a court may adjust the lodestar downward if the prevailing party is only partially successful. Id.

III. Discussion

a. Reasonable Hourly Rates

The parties do not dispute Attorney Berney's hourly rate of $350 per hour. (Def.'s Resp. in Opp'n to Mot. for Att'y Fees 2--3). The parties, however, dispute the rates of Attorneys Kalra and Sang.

Plaintiff Parents request hourly rates that they contend are the customary hourly rates for Attorneys Kalra and Sang in special education cases: $265 and $225, respectively. In support, they provided the declarations of Attorneys Berney, Kalra, and Sang, which state that these hourly rates are their customary rates for such cases. (Pls.' Mot. for Att'y Fees, Ex. A at ¶ ¶ 21-27, Ex. I at ¶ 9, Ex. J at ¶ 14). Plaintiff Parents also provided the declarations of various attorneys whom they contend are " leaders in the special education and/or civil rights field and have contemporary knowledge of the prevailing market rates for attorneys in this practice area." (Pls.' Mot. for Att'y Fees 5).

In support of Attorney Kalra's hourly rate, Plaintiff Parents provided the declarations of attorneys Judith Gran,[2] Lorrie McKinley,[3] Jennifer Clarke,[4] and Jonathan Feinberg.[5] In support of Attorney Sang's hourly rate, Plaintiffs provided the declarations of attorneys Clarke, McKinley, Mary Catherine Roper,[6] Suzanne Young,[7]

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and Joshua Kershenbaum.[8] These attorneys state that the requested hourly rates are reasonable and consistent with the rates of Philadelphia-area attorneys in the field with similar experience. In fact, Attorneys Roper and Kershenbaum contend that the requested rate for Attorney Sang is below the prevailing market rate. ( See Pls.' Mot. for Att'y Fees, Ex. G at ¶ 9, Ex. F at ¶ 15).

Plaintiff Parents also provided National Law Journal survey data, which establishes the average and median hourly rates for comparably experienced associate attorneys in law firms with their principal office or largest office in the Philadelphia area. (Pls.' Mot. for Att'y Fees 9--10, Ex. N). The lowest reported average hourly rate for such an associate was $284, notably higher than the rates requested in the instant matter. The National Law Journal survey in conjunction with the declarations provided by the Plaintiff Parents constitute prima facie evidence of the prevailing market rate. See Evans v. Port Auth. of New York & New Jersey, 273 F.3d 346, 360 (3d Cir. 2001) (holding that the district court did not abuse its discretion in ruling that the affidavits of two attorneys with experience in the relevant field constituted prima facie evidence of the reasonable prevailing market rate); Trucksess v. Thompson Auto. Grp., Inc., No. 10-4313, 2011 WL 6415047, at *11 (E.D. Pa. Dec. 14, 2011) (finding that the affidavit of a single attorney regarding the reasonableness of the requested rates was prima facie evidence of the prevailing market rates for attorneys).

The School District contends that the affidavits of Attorneys Berney, Kalra, and Sang should be stricken and disregarded because these attorneys " are incompetent to testify about the prevailing rates in the community." (Def.'s Resp. in Opp'n to Mot. for Att'y Fees 9). In support, the School District cites Holmes v. Millcreek Twp. Sch. Dist., where the Third Circuit stated that " [a]n attorney's showing of reasonableness must rest on evidence other than the attorney's own affidavits." 205 F.3d 583, 595 (3d Cir. 2000). Here, however, Plaintiff Parents have provided additional affidavits of other attorneys regarding the prevailing market rate in the community. Thus, this Court need not consider whether Attorneys Berney, Kalra, and Sang are competent to testify about the reasonableness of their own requested rates because other competent evidence sufficiently supports the reasonableness of their requested rates.

The School District also contends that requested rates should be adjusted downward in light of a Community Legal Services (" CLS" ) fee schedule, dated June 23,

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2011. (Def.'s Resp. in Opp'n to Mot. for Att'y Fees 6). Courts in this circuit have used the CLS fee schedule as a guide when determining an appropriate hourly rate. See, e.g., Pelzer v. City of Philadelphia, 771 F.Supp.2d 465, 470 (E.D. Pa. 2011). " [T]he Third Circuit has accepted the CLS fee schedule in some circumstances, such as where the attorney seeking recoupment of fees was associated with CLS, or where limited evidence was submitted by the parties." Mitchell, 2010 WL 1370863, at *15 (citing Mary Courtney T. v. Sch. Dist. of Philadelphia, No. 06--2278, 2009 WL 185426, at *3 (E.D. Pa. Jan. 22, 2009)).

Courts have also rejected using the CLS fee schedule for various reasons. See, e.g., Mitchell, 2010 WL 1370863, at *15. For instance, in Mitchell, this Court declined to use the CLS fee schedule for the following reasons: (1) it did not reflect the prevailing rate at the time of the petition; (2) the attorneys were unaffiliated with CLS; (3) the parties had submitted sufficient evidence of the prevailing market rates; and (4) " the CLS schedule [did] not take into account any specialized skills or experience the attorneys bring to their practice," which is contrary to governing precedent. Id.; see also Davis v. Riddle & Assocs., P.C., 579 F.Supp.2d 692, 694 (E.D. Pa. ...


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