N.G., individually and on behalf of M.F., a child with a disability, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION (2024)

REPORT & RECOMMENDATION

To the Honorable Paul G. Gardephe, United States District Judge:

Before the Court is a motion by N.G. on behalf of M.F., pursuant to the fee-shifting provisions of the Individuals with Disabilities Education Act, for attorneys’ fees and costs for work performed by attorneys and paralegals at the Cuddy Law Firm. The New York City Department of Education (“DOE”) opposes the motion, arguing that both the requested hourly rates and the number of hours expended are excessive and unreasonable. For the reasons set forth below, I recommend that the motion be granted to the extent that plaintiffs be awarded attorneys’ fees and costs in the amount of $25,004.92 (less than half of what they seek) plus post-judgment interest.

I. BACKGROUND

A. Factual Background

Plaintiff N.G. is the parent of plaintiff M.F. (together, “plaintiffs”), a child classified as a student with a disability as defined by the Individuals with Disabilities Act (“IDEA”), 20 U.S.C. § 1415(i)(3). Complaint (“Compl.”) ¶¶ 2–4, Dkt. No. 1. On October 30, 2019, the Cuddy Law Firm (“CLF”), a law firm specializing in IDEA cases, filed a Due Process Complaint (“DPC”) on behalf of plaintiffs, alleging that M.F. was denied a Free Appropriate Public Education (“FAPE”) during the 2017–2018 and 2018–2019 school years in violation of the IDEA. Id. ¶ 8. The DPC requested that the DOE (1) provide N.G. with copies of M.F.’s individual education programs (“IEP”) that were active during the 2017–2018, 2018–2019, and 2019–2020 school years; (2) provide N.G. with copies of M.F.’s encounter attendance records from the 2017–2018 and 2018–2019 school years; (3) fund an independent neuropsychological evaluation; (4) fund an independent functional behavior assessment and, if warranted, behavior intervention plan; (5) provide M.F. make-up related services for all sessions not provided during the 2017–2018 and 2018–2019 school years; (6) provide M.F. compensatory academic services; (7) have the IEP team develop a new program for M.F.; and (8) pay attorney's fees. Id.

The parties held a pre-hearing conference on May 8, 2020. Declaration of Andrew K. Cuddy dated February 16, 2023 (“Cuddy Decl.”) ¶ 84, Dkt. No. 52. At the conference, plaintiffs effectively withdrew their requests other than for independent evaluations and fees. Id. ¶ 83. The pre-hearing conference took approximately six minutes. Declaration of Michael Pantalony dated March 1, 2023 (“Pantalony Decl.”) ¶ 9, Dkt. No. 56. Status hearings occurred on July 15, August 24, and September 21, 2020. Id. ¶¶ 10–12. Counsel for plaintiffs did not appear at the latter two hearings. Id. ¶¶ 11–12. An administrative hearing before an Impartial Hearing Officer (“IHO”) was held on October 6, 2020. Cuddy Decl., Ex. X. The hearing lasted approximately ten minutes and was conducted virtually. Id. Justin Coretti of CLF appeared for plaintiffs and introduced six exhibits into evidence. Cuddy Decl., Ex. X at 2. The DOE submitted two exhibits. Id.

On November 18, 2020, the IHO issued his Findings of Fact and Decision, awarding plaintiffs the requested independent evaluation funding. Cuddy Decl., Ex. Y. On April 2, 2021, CLF submitted a request to the DOE for attorneys’ fees and costs for work performed in connection with the administrative proceeding in the amount of $26,724.54. Compl. ¶ 19; Pantalony Decl., Ex. 1. On September 27, 2021, DOE made a written offer to settle the fees for $12,000. Id. On February 28, 2022, DOE made a second written offer to settle the fees for $14,907.54. Declaration of Thomas Lindeman dated March 2, 2023 (“Lindeman Decl.”) ¶ 29, Dkt. No. 55. Plaintiffs did not accept either offer. Pantalony Decl. ¶ 22; Lindeman Decl. ¶ 31.

B. Procedural History

On October 14, 2021, plaintiffs commenced this action pursuant to 20 U.S.C. § 1415 seeking attorneys’ fees and costs incurred in connection with the administrative proceeding. Compl. ¶ 1. On June 29, 2022, plaintiffs moved by letter-motion to consolidate this case with other IDEA fee cases that the CLF had filed in this District and to have the Court appoint an expert to determine appropriate billing rates for IDEA lawyers. Dkt. No. 29. The Court denied this motion on December 29, 2022. Dkt. No. 38.

Plaintiffs moved for attorneys’ fees on February 16, 2023.¹ Dkt. No. 51. In support of their motion, plaintiffs submitted a memorandum of law (“Pl. Mem.”), Dkt. No. 54, the Cuddy Declaration, and the Declaration of Benjamin M. Kopp dated February 16, 2023, Dkt. No. 53.

The DOE filed their opposition papers on March 2, 2023. Memorandum of Law in Opposition (“Def. Opp.”), Dkt. No. 59. In support of its opposition, the DOE filed the Declaration of Thomas Lindeman and the Declaration of Michael Pantalony.

Plaintiffs filed their reply papers on March 16, 2023. Reply Memorandum of Law (“Pl. Reply”), Dkt. No. 61. Along with their reply, plaintiffs filed the Reply Affirmation of Andrew K. Cuddy dated March 16, 2023 (“Cuddy Reply Aff.”). Dkt. No. 60.

With the Court's consent, the DOE filed a sur-reply on April 4, 2023. Dkt. No. 50; Reply Affidavit of Martha Nimmer (“Nimmer Reply Aff.”), Dkt. No. 62.²

In total, plaintiffs seek $50,426.04 in attorneys’ fees and costs, plus pre- and post-judgment interest. Cuddy Reply Decl. ¶ 31. The motion has been referred to me for a report and recommendation. Dkt. No. 64.

II. DISCUSSION

A. Applicable Law

The IDEA grants district courts the discretion to award “reasonable attorneys’ fees” and costs to a “prevailing party.” 20 U.S.C. § 1415(i)(3)(B)(I). Its fee-shifting provisions are interpreted in the same manner as other civil rights fee-shifting statutes. See A.R. ex rel. R.V. v. N.Y.C. Dep't of Educ., 407 F.3d 65, 73 (2d Cir. 2005). When determining whether to award attorneys’ fees under a federal fee-shifting statute such as the IDEA, a court must undertake a two-pronged inquiry. See, e.g., A.B. v. N.Y.C. Dep't of Educ., No. 20-CV-3129 (SDA), 2021 WL 951928, at *2 (S.D.N.Y. Mar. 13, 2021). First, “[t]he court ‘must determine whether the party seeking the award is in fact a prevailing party.’ ” Id. (quoting Mr. L. v. Sloan, 449 F.3d 405, 407 (2d Cir. 2006)). “If the party is a prevailing party, the court must then determine whether, under the appropriate standard, that party should be awarded attorney's fees.” Id. (quoting Mr. L, 449 F.3d at 407).

A district court may award attorneys’ fees if they are “reasonable” and “based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of the services furnished.” 20 U.S.C. §§ 1415(i)(3)(B)–(C); see also A.R., 407 F.3d at 79. To determine the amount of a prevailing party's fee award, a court calculates a “presumptively reasonable fee, reached by multiplying a reasonable hourly rate by the number of reasonably expended hours.” Bergerson v. N.Y. State Office of Mental Health, Cent. N.Y. Psychiatric Ctr., 652 F.3d 277, 289 (2d Cir. 2011) (citation omitted); see also Lilly v. City of New York, 934 F.3d 222, 229–30 (2d Cir. 2019).

Here, the DOE does not dispute that plaintiffs are “prevailing part[ies]” entitled to recover reasonable fees and costs under 20 U.S.C. § 1415(i)(3)(B) for the work performed in the administrative proceeding. Def. Opp. at 1. Accordingly, the Court turns to an analysis of the presumptively reasonable fee for plaintiffs’ counsel.

B. Analysis

1. Hourly Rates

When determining a reasonable hourly rate for an attorney or paralegal, courts consider both the prevailing market rates for such legal services as well as the case-specific factors articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 190 (2d Cir. 2008). The Johnson factors are:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 894 F. Supp. 2d 415, 428 (S.D.N.Y. 2012) (citation omitted). A court does not need to make specific findings as to each factor as long as it considers all of them when setting the fee award. See, e.g., E.F. ex rel. N.R. v. N.Y.C. Dep't of Educ., No. 11-CV-5243 (GBD) (FM), 2014 WL 1092847, at *3 (S.D.N.Y. Mar. 17, 2014) (citations omitted); see also Lochren v. County of Suffolk, 344 F. App'x 706, 709 (2d Cir. 2009) (“Arbor Hill did not hold that district courts must recite and make separate findings as to all twelve Johnson factors.”).

Plaintiffs request the following hourly rates:

• $600 per hour for Andrew Cuddy's work in 2023;

• $550 per hour for Andrew Cuddy's work prior to 2023, Michael Cuddy, and Jason Sterne;

• $450 per hour for Justin Coretti and Kevin Mendillo;

• $425 per hour for Benjamin Kopp in 2023;

• $400 per hour for Kopp's work prior to 2023;

• $375 an hour for Erin Murray; and

• $225 per hour for their paralegals and the newly-barred Raul Velez.

Cuddy Decl. ¶ 125.³ The DOE objects to the hourly rates sought by plaintiffs and seeks to reduce them based on the Johnson factors. Def. Opp. at 5–14.

In light of the Johnson factors, the Court concludes that plaintiffs’ proposed hourly rates should be reduced. The underlying case here was not “novel or difficult,” and the proceeding was “a fairly straightforward administrative matter.” Y.S. v. N.Y.C. Dep't of Educ., No. 21-CV-2159 (RA), 2022 WL 4096071, at *3 (S.D.N.Y. Sept. 6, 2022). The hearing lasted only ten minutes, plaintiffs entered six documents into evidence, and, while the DOE did enter two of its own documents as exhibits, it did not contest plaintiffs’ arguments. Cuddy Decl. Exhibit X. Plaintiffs’ witnesses were not examined or cross-examined but presented by affidavit. Id. at 14.

“The relevant community for the purposes of determining a reasonable rate is the Southern District of New York, where both this litigation and the underlying administrative proceeding are centered.” H.A. v. N.Y.C. Dep't of Educ., No. 20-CV-10785 (PAE), 2022 WL 580772, at *5 (S.D.N.Y. Feb. 25, 2022). CLF has been extraordinarily persistent in pursuing its fees in this District, to the point that there is now a substantial body of case law concerning the appropriate hourly rates for all of its individual attorneys (including in decisions by Judge Gardephe and the undersigned). See, e.g., V.W. v. N.Y.C. Dep't of Educ., No. 21-CV-6495 (PGG) (KHP), 2023 WL 2609358, at *12 (S.D.N.Y. Mar. 23, 2023) (assigning rates of $425 to Andrew Cuddy; $325 to Coretti and Mendillo; $225 to Kopp; and $125 to paralegals); N.A. v. N.Y.C. Dep't of Educ., No. 21-CV-2643 (PGG) (SLC), 2022 WL 17581774, at *4 (S.D.N.Y. Dec. 12, 2022) ($375 to Andrew Cuddy and Sterne; $300 to Coretti and Mendillo; $200 to Murray; $125 to S. Cuddy; and $100 to other paralegals); T.H. v. N.Y.C. Dep't of Educ., No. 21-CV-10962 (JMF) (JLC), 2022 WL 16945703, at *4 (S.D.N.Y. Nov. 15, 2022), adopted by 2022 WL 17991623 (Dec. 29, 2022) ($400 to Andrew Cuddy and Sterne; $300 to Mendillo and Coretti; $125 to S. Cuddy; and $100 to other paralegals); M.R. v. N.Y.C. Dep't of Educ., No. 21-CV-5503 (VEC), 2022 WL 4396835, at *2 (S.D.N.Y. Sept. 23, 2022) ($367 to Cuddy, $210 to Mendillo, $183.75 to Coretti, and $100 to junior paralegals), on reconsideration 2022 WL 16575767 (Oct. 31, 2022); Y.S., 2022 WL 4096071, at *3 ($400 to Cuddy, $300 to Mendillo, $125 to S. Cuddy, and $100 to junior paralegals); F.N. v. N.Y.C. Dep't of Educ., No. 21-CV-3379 (JPO), 2022 WL 3544128, at *4 (S.D.N.Y. Aug. 18, 2022) ($375 to Cuddy, $300 to Mendillo, $120 to senior paralegals, and $100 to junior paralegals); R.P. v. N.Y.C. Dep't of Educ., No. 21-CV-4054 (JMF), 2022 WL 1239860, at *3 (S.D.N.Y. Apr. 27, 2022) ($375 to Cuddy and Sterne, $300 to Mendillo, $200 to Coretti, $125 to senior paralegals, and $100 to junior paralegals); H.A., 2022 WL 580772, at *6 ($375 to Andrew Cuddy and Michael Cuddy; $250 to Kopp; $275 to Coretti; $100 to paralegals); H.W. v. N.Y.C. Dep't of Educ., No. 20-CV-10591 (RA), 2022 WL 541347, at *3 (S.D.N.Y. Feb. 23, 2022) ($400 to Cuddy and Sterne, $300 to Mendillo, $125 to S. Cuddy, and $100 to junior paralegals); V.W. v. N.Y.C. Dep't of Educ., No. 20-CV-2376 (RA), 2022 WL 37052, at *5–6 (S.D.N.Y. Jan. 4, 2022) ($400 to Cuddy, $300 to Mendillo and Coretti, $125 to S. Cuddy, and $100 to junior paralegals); M.D. v. N.Y. Dep't of Educ., No. 20-CV-6060 (LGS), 2021 WL 3030053, at *6 (S.D.N.Y. July 16, 2021), aff'd in part, rev'd in part and remanded sub nom. H.C. v. N.Y.C. Dep't of Educ., 71 F.4th 120 (2d Cir. 2023) ($375 to Andrew Cuddy and Michael Cuddy, $100 to paralegals). Cf. Y.G. v. N.Y.C. Dep't of Educ., No. 21-CV-641 (AKH), 2022 WL 1046465, at *2 (S.D.N.Y. Apr. 7, 2022) (outlier decision in which administrative hearing “heavily contested” and therefore CLF awarded requested rates).

There have been no significant developments that would justify a departure from the robust body of law cited above.⁴ Accordingly, the Court recommends hourly rates consistent with S.D.N.Y. precedent: Andrew Cuddy should be awarded an hourly rate of $425 for all work. Jason Sterne and Michael Cuddy, two senior CLF attorneys, should be awarded an hourly rate of $400. Lead counsel on the case, Justin Coretti, should be awarded an hourly rate of $300. Kevin Mendillo should also be awarded a rate of $300. Benjamin Kopp and Erin Murray should be awarded rates of $200 an hour.⁵ Shobna Cuddy, as the senior paralegal, should be awarded a rate of $125 an hour. Raul Velez, a law school graduate who was admitted to the bar during the course of the administrative hearing process, should also be awarded a rate of $125 an hour. Cuddy Reply Aff. Ex. 1 at 29. The remaining paralegals should be awarded a rate of $100 an hour.

The Court must ““step[ ] into the shoes of the reasonable, paying client, who wishes to pay the least amount necessary to litigate the case effectively.” O.R. v. N.Y.C. Dep't of Educ., 340 F. Supp. 3d 357, 364 (S.D.N.Y. 2018) (quoting Arbor Hill, 522 F. 3d at 184). While plaintiffs affirm that they charge and receive the high hourly rates they request in this instance, see Cuddy Decl. ¶¶ 17–23; Cuddy Decl. Ex. F, Declaration of Adrienne Arkontaky dated March 31, 2021, “whether the attorneys on this case properly command the rates they seek in the marketplace is not dispositive of the rate they are to be awarded.” O.R., 340 F. Supp. 3d at 364. This Court therefore has determined, like many before it, the least expensive hourly rate an effective attorney would have charged to litigate the case.

2. Hours Reasonably Expended

Having determined the hourly rates for each timekeeper, the Court will now analyze the number of hours reasonably expended.

A fee award should compensate only those hours that were “reasonably expended” by the attorneys on the case. See, e.g., McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006). “In determining the number of hours reasonably expended for purposes of calculating the lodestar, the district court should exclude excessive, redundant or otherwise unnecessary hours.” Quarantino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999) (citation omitted). Whether a case was “particularly complicated” or involved any “significant” legal issues may be considered in determining the reasonable number of hours a case requires. See, e.g., Millea v. Metro-N. R.R. Co., 658 F.3d 154, 167 (2d Cir. 2011). District courts have “ample discretion” in assessing the “amount of work that was necessary to achieve the results in a particular case.” K.L. v. Warwick Valley Cent. Sch. Dist., No. 12-CV-6313 (DLC), 2013 WL 4766339, at *10 (S.D.N.Y. Sept. 5, 2013) (quoting Ortiz v. Regan, 980 F.2d 138, 141 (2d Cir. 1992)), aff'd, 584 F. App'x 17 (2d Cir. 2014).

Ultimately, “ ‘trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees ․ is to do rough justice, not to achieve auditing perfection.’ ” C.B. v. N.Y.C. Dep't of Educ., No. 18-CV-7337 (CM), 2019 WL 3162177, at *5 (S.D.N.Y. July 2, 2019) (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)). To calibrate an appropriate award, “[t]he district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award” by a reasonable percentage. Hensley v. Eckerhart, 461 U.S. 424, 436–37 (1983); see also McDonald, 450 F.3d at 96 (“A district court may exercise its discretion and use a percentage deduction as a practical means of trimming fat from a fee application.” (internal quotation marks and citation omitted)); see also K.E. v. N.Y.C. Dep't of Educ., No. 21-CV-2815 (KPF), 2022 WL 4448655, at *14 (S.D.N.Y. Sept. 23, 2022). With this background in mind, the Court first considers the hours expended in connection with the administrative proceeding and then the hours expended in connection with this action.

a. CLF's Multiple Billing Statements

In support of the instant motion, CLF submitted its billing statements. Cuddy Decl. Exs. DD, EE. However, in response to the arguments raised by the DOE in its opposition papers, CLF then submitted a new set of annotated and modified billing statements. Pl. Reply Exs. 1, 2. In doing so, CLF has made a number of concessions to the DOE through its revised billing statements, by reducing hours billed and reclassifying attorney work to be billed at paralegal rates. Id. CLF has thus taken the opportunity to have a second bite at the apple, presenting a new set of billing documents with the advantage of knowing the DOE's arguments. At various points in the revised billing statements, CLF indicates that it would have removed these errant entries sooner “if DOE had noted this at any point before motion practice.” E.g., Pl. Reply Ex. 1 at 13. But CLF's lawyers, as they have often affirmed, are experienced fee litigators; they should be able to produce comprehensive and accurate billing statements without the assistance of opposing counsel. The Court will treat the fee requests contained in the reply papers as the accurate representations of CLF's requested relief. However, it will still identify inappropriate billing practices where they occurred in the original billing sheets, as CLF has been repeatedly admonished by courts in this District for these practices, see, e.g., Y.S., 2022 WL 4096071, at *5 (excessive hours drafting DPC); N.A., 2022 WL 17581774, at *10 (attorneys performing tasks appropriately done by paralegals), and they should have been addressed in CLF's initial motion papers, not its reply papers.

b. Administrative Proceeding

Plaintiffs seek $23,087.04 in fees and costs for 77.3 hours of attorney and paralegal time spent on the administrative proceeding. Cuddy Reply Aff. ¶ 31. The DOE argues that plaintiffs should be awarded no more than $8,473.25 for the administrative hearing because the underlying administrative matter was “extremely simple” and the hearing was uncontested. Def. Opp. at 21. Plaintiffs counter that the time spent was necessary. Pl. Mem. at 18. They also argue that a reduction of hours is inappropriate because the DOE unreasonably protracted the final resolution of the proceeding by: (1) failing to appoint an IHO within the first several months of filing; (2) using settlement and litigation as stall tactics; and (3) futilely opposing meritorious claims. Pl. Mem. at 5–6.

Plaintiffs fail to establish that any delay was “unreasonable.” While there was a delay in the assignment of an IHO, plaintiffs do not offer support that the five-month delay was unreasonable and, in fact, there is authority to suggest the opposite. See, e.g., F.N., 2022 WL 3544128, at *2–3 (six-month delay in appointment of IHO, lack of mandatory resolution session, and lack of communication of DOE's posture not unreasonable). Plaintiffs do not elaborate as to how the DOE allegedly used litigation and settlement as “stall tactics.” Nor do plaintiffs specify which “fully meritorious” claims DOE “firmly oppos[ed].” Pl. Mem. at 6.

Accordingly, the Court has reviewed the hours billed by plaintiffs’ counsel in connection with the administrative proceeding as well as the DOE's challenges, and concludes that a reduction of hours expended drafting the DPC is appropriate. The DPC consists of a brief introduction, an approximately one-page summary of the client's educational history, a one-page section that summarizes the alleged FAPE violations, and one page of requested relief. Cuddy Decl., Ex. R. According to the billing records, attorney Jason Coretti spent several hours reviewing an initial draft of the DPC, written by a paralegal. CLF removed this time from the second iteration of its billing statement. Pl. Reply Ex. 1 at 10–11. Raul Velez then billed for more than 14 hours to produce this final document. Pl. Reply App. 1 at 29–40.⁶ “Numerous courts in this district have reduced the time eligible for reimbursement in other fee applications involving the drafting of DPCs of similar length or complexity.” Y.S., 2022 WL 4096071, at *5 (total hours reduced by 20% where, inter alia, 13.1 hours spent drafting eight-page DPC, A. Cuddy spent 1.1 hours reviewing, and 4.1 hours were spent reviewing records in anticipation of drafting) (collecting cases); see also T.H., 2022 WL 16945703, at *6 (20% reduction in total billed hours appropriate because 14.4 hours drafting eight-page complaint was “excessive,”). The Court should similarly reduce by 25% the hours Velez billed drafting the DPC, reducing his hours billed drafting from 14 to 10.5.⁷

The DOE argues that the Court should not award fees for hours billed in 2017, long before the hearing. Def. Opp. at 21. However, simply because an initial review of the files occurred a significant time prior to the administrative hearing does not mean it was not necessary work completed for the client's benefit.

The DOE also objects to CLF's practice of billing 0.1-hour increments for tasks that “take no more than a few moments.” Def. Opp. at 21. However, CLF zeroed out billing for the majority of 0.1-hour increments in its request for fees. Cuddy Decl. Ex. DD; Pl. Reply Ex. 1. Hours billed should not be reduced for this reason.

In sum, after careful consideration of the record and applying the relevant legal standards, the Court recommends awarding attorneys’ fees for the administrative hearing as follows:

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 ⁸

c. Federal Court Litigation

In their revised billing statements, Plaintiffs seek an award of $27,339.00 in fees for 68.6 hours billed for the federal court litigation by Andrew Cuddy, Justin Coretti, Benjamin Kopp, Erin Murray, Kevin Mendillo, and paralegals Shobna Cuddy, Cailin O'Donnell, and ChinaAnn Reeve.⁹ Cuddy Reply Aff. Ex. GG; Pl. Reply Ex. 2. The DOE argues that the hours billed in connection with the federal court litigation should be reduced by 50%. Def. Opp. at 16. The DOE contends that, as large portions of plaintiffs’ filings were identical to previous CLF cases, the time spent working on these papers was excessive. Id.

CLF billed 6.4 hours for the drafting of their memorandum of law. Pl. Reply Exhibit 2.¹⁰ However, this memorandum's legal arguments and indeed its verbiage are in large portions exactly identical to CLF's memorandum in R.M. v. N.Y.C. Dep't of Educ., No. 21-CV-11210 (PGG) (VF), Dkt. No. 52. Similarly, CLF billed 7.3 hours drafting the Cuddy Declaration, the vast majority of which is reused material from other CLF cases. Pl. Reply Ex. 2 (“Revised Federal Billing Statement”), Dkt. No 61-2.; Cuddy Decl. at 1 n.1.

CLF has repeatedly had its billing hours reduced by other courts in this District for exactly this practice. See, e.g., H.W. v. N.Y.C. Dep't of Educ., No. 21-CV-8604 (JLR), 2023 WL 5529932, at *11 (S.D.N.Y. Aug. 28, 2023) (reducing fees award because of “duplicative nature of CLF's filings”); T.H. v. N.Y.C. Dep't of Educ., 2022 WL 16945703, at *7 (reducing fees award because “CLF used the same template for its complaint and summary judgment motion papers as it has used in other cases”); C.B. v. N.Y.C. Dep't of Educ., 2019 WL 3162177, at *12 (reducing fees award because “the hours spent on this federal action include time spent on memoranda and declarations that look to be mostly (poorly) copy-and-pasted from those Cuddy Law Firm submitted in [another case]”).

CLF attorneys also billed for tasks more appropriately completed by paralegals, such as drafting a civil cover sheet and summons. Cuddy Decl. Ex. EE at 3. However, CLF then billed these tasks at a paralegal rate in its revised billing statement. Cuddy Reply Aff. ¶ 31.

The DOE also argues that CLF should not be awarded fees for the time it billed preparing its billing statements. It contends that reasonable clients would not pay for the time their lawyers spent, functionally, cleaning up their own paperwork. Def. Opp. at 20. In its opposition memorandum, the DOE predicted that “Plaintiff will no doubt file yet another invoice with reply papers, and again bill improperly for the cleanup of those invoices.” Id. Unfortunately, the DOE was entirely correct in this prediction.

Plaintiffs, in their reply papers, produced new, annotated billing statements with a number of entries removed or reduced in value. Pl. Reply Ex. 1 (“Revised Administrative Billing Statement”), Dkt. No. 61-1; Revised Federal Billing Statement. Included in these new statements were a number of instances where CLF concedes the point to the DOE, stating that it would have removed the entries earlier had it been made aware of the need to do so. E.g., Revised Federal Billing Statement at 1 (“Entry will be removed, as it would have been had DOE raised a concern at any time prior to its opposition papers.”). In total, CLF shaved 20.8 hours of billed time across the two new billing statements. Cuddy Reply Aff. ¶ 31. However, CLF then billed for 11.7 hours of work creating this new, revised timesheet. Cuddy Reply Aff. Ex. GG at 2–3. A “reasonable, paying client” would likely be incensed if her lawyers spent nearly a dozen hours tidying up and defending their own sloppy bookkeeping.

Moreover, CLF has been repeatedly admonished by courts for this practice. See, e.g., R.G. v. N.Y.C. Dep't of Educ., 2019 WL 4735050, at *4 (“DOE should not have to compensate Plaintiff's counsel for administrative clean-up of their own entries.”); B.B. v. N.Y.C. Dep't of Educ., No. 17-CV-4255 (VEC) (SDA), 2018 WL 1229732, at *3 (S.D.N.Y. Mar. 8, 2018) (describing work on fees application as “fees on fees” and reducing award for time spent on such by 50%). As the work on the revised fee invoice was excessive, should have been unnecessary, and ultimately confused more than it clarified, the Court recommends awarding fees for none of 11.7 hours spent on its creation.

Courts in this District have regularly reduced CLF's attorneys’ fees for hours spent litigating the fees themselves between 20%–50%. See, e.g., N.A., 2022 WL 17581774, at *11 (reducing hours spent on federal action by 50%); L.L., 2022 WL 392912, at *5 (reducing hours spent on similar motion by 50%); R.P., 2022 WL 1239860, at *7 (reducing hours spent on federal action by 30%); J.R., 2021 WL 3406370, at *5 (reducing hours spent litigating attorneys’ fees by 25%); M.D., 2021 WL 3030053, at *6 (reducing hours spent on federal court litigation by 50%); R.G., 2019 WL 4735050, at *5 (reducing hours spent litigating attorneys’ fees by 26%).

In this case, a 25% reduction in time billed for the federal case is appropriate. CLF has once again excessively billed for boilerplate and/or recycled pleadings and tasks more appropriately done by paralegals. However, CLF did perform research and draft a letter brief, and its time billed is not as egregious as in other cases. N.A., 2022 WL 17581774 at *10 (billing 117.2 hours for similar fees complaint and motion); M.D. WL 3030053, at *6 (billing 76.2 hours for same); H.A. 2022 WL 580772 at *11 (billing nearly 70 hours for same).

The DOE also argues that if the Court recommends an award of less than it's settlement offers of $12,000, on September 27, 2021, or $14,907.54, on February 28, 2022, for work performed up to either of those dates, then CLF is barred from recovering for any work beyond those dates. Def. Opp. at 5–6. The IDEA's fee-shifting provisions prohibit an award of fees and costs for work performed after a written offer of settlement is made within 14 days before the date set for trial but not accepted within 10 days if “the court ․ finds that the relief finally obtained by the parents is not more favorable to the parents than the offer.” 20 U.S.C. § 1415(i)(3)(D)(i). In O.R., the court declined to award fees and costs incurred after the Offer of Settlement date because, after applying reductions to the attorneys’ hourly rates and hours expended, the fees and costs plaintiff was entitled to through the Offer of Settlement date were less than the offered settlement amount. 340 F. Supp. 3d at 371; see also H.C., 2021 WL2471195, at *10–11. Conversely, in C.B., the court found that the fees and costs plaintiff was entitled to through the DOE's Offer of Settlement date exceeded the offered settlement amount, and therefore awarded fees for work performed after that date (though at a significantly reduced rate). 2019 WL 3162177, at *11–12.

Here, based on the Court's own rate calculations and applying the hours calculations discussed above, CLF was entitled to $14,266.88 in attorneys’ fees and costs through September 27, 2021, a number greater than the $12,000 that had been offered.¹¹ Similarly, the amount CLF was entitled to on February 28, 2022, was greater than $14,907.54, at $15,382.50.¹² Because these amounts are greater than these settlement offers (albeit marginally so), fees and costs incurred after those respective dates should be awarded.

In sum, after careful consideration of the record and applying the relevant legal standards, the Court recommends awarding attorneys’ fees for the federal action as follows:

Tabular or graphical material not displayable at this time.

 ¹³

3. Costs/Expenses

“A district court may award reasonable costs to the prevailing party in IDEA cases.” C.D. v. Miniskink Valley Cent. Sch. Dist., No. 17-CV-7632 (PAE), 2018 WL 3769972, at *12 (S.D.N.Y. Aug. 9, 2018) (citing 20 U.S.C. § 1415(i)(3)(B)(i)(1)). Here, plaintiffs request $504.04 in costs. Cuddy Decl. ¶ 125. This includes the $402 filing fee in the federal action, as well as printing, postage, and fax for the administrative hearing. Id. Reimbursement for the filing fee, printing, and postage appears reasonable, and Defendants do not object. See, e.g., R.P., 2022 WL 1239860, at *7 (reimbursement granted for postage and filing fee). However, the $86.00 requested for fax costs is not reasonable, and should not be awarded. J.R. v. New York City Dep't of Educ., No. 19-CV-11783 (RA), 2021 WL 3406370, at *6 (S.D.N.Y. Aug. 4, 2021) (“Given [the ubiquity of scanning machines], the Court concludes that ‘no rational client would pay to fax documents’ when those documents can be transmitted via email for free.” (quoting R.G. v. N.Y.C. Dep't of Educ., aff'd sub nom. H.C. v. N.Y.C. Dep't of Educ., 71 F.4th 120 (2d Cir. 2023))). CLF should therefore be awarded $418.04 in costs.

4. Pre- and Post-Judgement Interest

Lastly, plaintiffs seek pre- and post-judgment interest on the award granted. Pl. Mem. at 18–20. Plaintiffs contend that they are due pre-judgment interest because of the DOE's unreasonable delay. Pl. Mem. at 19. However, as discussed above, the Court does not find any delay on the DOE's part to rise to the level of “unreasonable.” Therefore, the Court, in line with other cases in this District, recommends denying plaintiffs’ request for pre-judgment interest. See, e.g., R.P., 2022 WL 1239860, at *7 (collecting cases). Plaintiffs’ request for post-judgment interest, on the other hand, should be granted. See id.; S.J., 2021 WL 100501, at *5 (pursuant to 28 U.S.C. § 1961, “the award of post-judgment interest is mandatory on awards in civil cases as of the date judgment is entered” (citation omitted)).

III. CONCLUSION

For the reasons set forth above, plaintiffs should be awarded a total of $25,004.92 ($14,235.00 for the administrative action, $10,351.88 for this action, and $418.04 in costs) in attorneys’ fees and costs, plus post-judgment interest.

PROCEDURE FOR FILING OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe, United States Courthouse, 40 Foley Square, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Gardephe.

FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).

FOOTNOTES

1.   The dates listed herein are from the signature dates on the submitted papers. The Electronic Case Filing system lists the submission dates of the motion, opposition, reply, and sur-reply uniformly as April 5, 2023, consistent with Judge Gardephe's individual rules. Dkt. Nos. 51–63.

2.   Since briefing closed, the parties have filed several letters bringing recent decisions of other judges in this District in CLF fee dispute cases, of which the numbers are legion at this point, to the Court's attention. See Dkt. Nos. 71–73, 75–80. The Court does not find it necessary to consider the decisions identified in this recent correspondence, as they are of a piece with the plethora of cases already decided involving these litigants cited in this Report.

3.   Notwithstanding his proposed $600 rate in 2023, Andrew Cuddy is billed at the rate of $550 per hour in the specific billing sheet for work done after 2/16/2023. Pl. Reply Ex. 2. Similarly, despite his proposed $425 rate, Benjamin Kopp is billed at $400 per hour on that billing sheet. Id. Both are billed at their higher rates for work done between 1/1/2023 and 2/16/2023. Declaration of Andrew Cuddy Ex. EE.

4.   Indeed, the Court had hoped that the Second Circuit's decision in H.C. would have discouraged CLF from continuing to litigate these fee disputes, but that appears to have been a pipe dream.

5.   The proposed rates for Coretti, Mendillo, and Kopp are marginally lower than in V.W., in which the CLF attorney cross-examined a DOE witness at the administrative hearing. 2023 WL 2698358, at *1.

6.   Plaintiffs argue that although Velez was a law school graduate during this process, he billed at CLF's blended paralegal rate due to his inexperience. Pl. Reply App. 1 at 40. Nevertheless, this decision does not justify billing more than 14 hours to draft a straightforward hearing request.

7.   Unlike in the above-cited cases, CLF's overbilling in this instance was limited to the DPC drafting, not the entire administrative hearing process. An across-the-board reduction in CLF's hours requested for the hearing is therefore not warranted. A slightly higher reduction in hours billed for the DPC itself, however, is appropriate, as even with CLF's reductions in its second set of timesheets, the time billed was excessive.

8.   R. Velez's hours working on the DPC are reduced by 25% to 15.3, as discussed supra.

9.   In his reply affirmation, Andrew Cuddy states that CLF seeks $27,339.00 for the federal component of this matter. Cuddy Reply Aff. ¶ 31. However, the billing statement submitted with that affirmation has a total requested amount of $32,204.50. Cuddy Reply Aff. Ex. GG (“Timesheets after 2/16/2023”), Dkt. No 60. This is likely because the post 2/16 timesheets carried over the unmodified requested fees of $25,054.50 (from Dkt. No 52, Ex. EE) not the modified requested fee of $20,189.00 (Cuddy Repl. Ex. EE, GG, Dkt. No 61). Because the annotated fee timesheets submitted with the reply papers did not include totals to verify and determine what billable hours for which CLF is actually seeking compensation for work in the federal case, the Court manually totaled the entries supplied in the timesheets produced as part of the reply papers (Dkt. No 60, Ex. 2,; Ex. 2, Dkt. No 61). CLF should not have presented these inconsistencies here, and they do not reflect well on the firm. Moreover, it should not require the Court to have to total the hours for which it seeks its fees.

10.   Plaintiff initially billed 8.1 hours for the draft and review of the memorandum of law. However, they removed 1.7 hours of review from their revised billing statement. Pl. Reply Ex. 2 at 14.

11.   To calculate this total, the Court added the one entry billed for the federal action prior to 9/27/2021 (.1 hours billed by A. Cuddy on 9/23/21, modified to .075 hours and billed at a rate of $425 per hour, for a total of $31.88) to the fees associated with the administrative action ($14,235.00) ($31.88+$14,235=$14,266.88).

12.   As above, the Court calculated earned fees for the 19 billing entries in the federal action prior to 2/28/2022 (totaling $1,147.50) and added that sum to the administrative hearing fees ($1,147.50+$14,235=$15,382.50).

13.   As discussed supra, none of the 12 hours Kopp spent working on the reply billing sheets, which CLF already reduced to a paralegal rate, should be awarded.

JAMES L. COTT United States Magistrate Judge