Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02582-RPM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2582-RPM-OES NICHOLAS SYTSEMA, a minor, by and through his parents, JACK AND REBECCA SYTSEMA, Plaintiff, v. COLORADO SPRINGS SCHOOL DISTRICT 20, Defendant. ______________________________________________________________________________ DEFENDANT'S BRIEF IN OPPOSITION TO PLAINTIFFS' MOTION FOR ATTORNEY FEES ______________________________________________________________________________ Defendant Academy School District Number 20 submits this brief in opposition to plaintiffs' Motion for Attorney Fees (Document 38-1, Filed 6-30-06) for the reasons set forth below. Following briefing and oral argument, this Court ordered defendant to pay plaintiffs "the sum of $38,503.45 to reimburse them for their costs and expenses for the education of Nicholas during the 2001-02 school year" and denied plaintiffs' claim for reimbursement of costs and expenses for the 2002-03 school year. Judgment, Document 33, Filed 6-7-06. In its Judgment, this Court set a due date for plaintiffs' motion for attorney fees, rather pointedly characterizing the claim as "for attorney's fees for this partial recovery" (emphasis added). Nevertheless, plaintiffs submitted a motion that seeks to recover attorney fees for all work allegedly performed in this case. Plaintiffs' motion fails to account for the fact the recovery was only partial and the amount of the recovery was only half of the amount plaintiffs

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request as fees. Additionally, plaintiffs have submitted insufficient evidence to support their motion as required. In the motion, plaintiffs preemptively refused to produce supporting evidence for defendant's review, stating in the motion that "if necessary" and "if requested by the court to establish the reasonableness of his claim," counsel will submit time records but only for in camera inspection by the court and not for review by defendant. (Pl. Affidavit of Attorneys' Fees, Document 38-2, Filed 6-30-06, at ¶ 10). For these reasons, plaintiffs' motion must be denied. I. The motion must be denied for plaintiffs' failure and refusal to submit sufficient evidence in support of the claim. It is well established that "The fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (42 U.S.C. § 1988 case)1. See also Beard v. Teska, 31 F.3d 942, 950, 955 (10th Cir. 1994), overruled in part on other grounds, Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept of Health & Human Res., 532 U.S. 598 (2001) (§ 1415 case). Under Local Rule 54.3, a motion for fees shall be accompanied by an affidavit and shall include "a detailed description of the services rendered, the amount of time spent, the hourly rate, and the total amount claimed" plus "a summary of relevant qualifications and experience." D.C.COLO.LCivR 54.3. Plaintiffs submitted a motion and affidavit, but together they provide only the hourly rate and total hours and fees for each of three time keepers. The affidavit includes a non-exclusive,

Cases interpreting both 20 U.S.C. § 1415 and 42 U.S.C. § 1988 apply the same principles to determine a prevailing party's entitlement to attorneys' fees. Combs by Combs v. School Board, 15 F.3d 357 (4th Cir 1994) (IDEA); See also Beard, 31 F.3d at 950.

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generic list of types of activities but no description of services performed. No time records were produced. In fact, plaintiffs' attorney stated that if necessary, and if requested by the Court, counsel will submit his time records but only for in camera inspection by the Court and not for review by defendant because they "may contain privileged attorney-client communications." Further the affidavit does not offer to produce time records of the other two attorneys (assuming they exist) for even in camera review.2 The amount of attorney fees that may be awarded under the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et seq., is to be determined by a lodestar calculation: multiplying the number of hours reasonably spent on the litigation by a reasonable hourly rate. Beard, 31 F.3d at 955. "Counsel for the party claiming the fees has the burden of proving hours to the district court by submitting meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks." Case v. Unified School Dist. No. 233, 157 F.3d 1243, 1250 (10th Cir. 1998). "[O]opposing counsel should have access to this information as a matter of right." National Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1329 (D.C. Cir. 1982). It is not sufficient for the moving party to provide very broad summaries of work done and hours logged. Id. at 1328. The motion for fees must be sufficiently detailed to enable the court and the opposing party to determine the reasonableness of the fees requested based on considerations such as whether the work performed was appropriate, efficient, nonduplicative,

Plaintiffs' attorney further demonstrated his unwillingness to allow defendant any opportunity to question his fees by failing to confer with defendant before filing the motion as required by L.R.D.Colo.7.1A. "Ideally of course, litigants will settle the amount of a fee." Hensley, 461 U.S. at 437.

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related to the litigation and unavoidable and the attorney spent time familiarizing himself with general principles of law. Id. The records must also be sufficiently detailed to enable a court and opposing party to identify work performed on distinct claims. See Hensley, 461 U.S. at 437; Case, 157 F.3d at 1252. Without detailed time records, these determinations cannot be made and dismissal of the claim is proper. Instead of producing time records, plaintiffs' attorney states, without support, that his time records "may" contain privileged information. With the litigation concluded, time records are not likely to contain any information that requires protection in this context. See Wiser v. Geriatric Psychological Servs., Inc.., 2001 U.S. Dist. LEXIS 12930 at *5 (D. Md. 2001). Further, plaintiffs have waived any privilege by putting the matter in controversy. Id. Plaintiffs have elected to seek fees from defendant, so they must disclose their attorneys' billing statements and time records in their entirety. See Ideal Electric Sec. Co. v. Int'l Fidelity Ins. Co., 129 F.3d 143, 152 (D.C. Cir. 1997). "[A]s a practical matter, the reasonableness of any portion of the billing statement can only be determined by examining all billing statements pertaining to the legal services provided as a whole." Id. As stated by the court in Ideal, confidential information may be placed under seal, "but in camera review by the court alone is insufficient." Id. at 152. Plaintiffs' motion for fees is insufficient to support an award also because plaintiffs submitted no evidence of actual payment or of an agreement by plaintiffs to pay the fees of any of the three attorneys and failed to carry their burden to prove the reasonableness of the hourly rates. "[O]n the hourly rate issue, the applicant may meet that burden by way of `satisfactory evidence--in addition to the attorney's own affidavit--that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably compared skill,

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experience, and reputation.'" Beard, 31 F.3d at 955 (citation omitted). See also Ramos, 713 F.2d at 555. Plaintiffs submitted only an attorney's affidavit and the skeletal background information provided therein about the attorneys fails to establish reasonableness. The affidavit concludes that Michael Cook has experience in the field without supplying any facts. It provides no basis for comparing what lawyers of comparable skill and experience practicing in the area would charge for services like those involved in this case. Plaintiffs' attorney's speculation that his rate was lower than the rates charged by the School District's attorneys is not evidence, [and is false (counsel for the district's rate was $190/hour). The affidavit provides no facts that show the other two attorneys have any experience in the field. Plaintiffs have failed to support their motion with the required evidence, so their motion must be denied. II. The motion fails to account for the fact that plaintiffs were only partially successful on their claims. Plaintiffs' motion cannot be granted for plaintiffs have failed to factor into their fee request the fact that they prevailed on only part of their claims and obtained only a fraction of the relief sought. Where recovery of damages is the purpose of the litigation, a court, in fixing fees, is "obligated to give primary consideration to the amount of damages awarded as compared with the amount sought." Farrar v. Hobby, 506 U.S. 103, 104 (1992), quoting Riverside v. Rivera, 477 U. S. 561, 585 (Powell, J., concurring). "This factor is particularly crucial where a plaintiff is deemed `prevailing' even though he succeeded on only some of his claims for relief." Hensley v. Eckert, 425 U.S. 424, 434 (1983).

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In this situation, two questions must be addressed. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award? Id. A. The claims on which plaintiffs did not prevail were factually unrelated to the claim on which they did prevail. Plaintiffs' Complaint alleged that in both school years, the district failed to provide Nicholas with a Free and Appropriate Public Education under the Individuals with Disabilities Education Act, 20 U.S.C. §§1400 et seq., and the Colorado Exceptional Children's Education Act, C.R.S. §§ 22-20-101 et seq. They alleged the district failed because it did not prepare and provide Nicholas an Individualized Educational Program (IEP) for either school year that was reasonably calculated to meet his educational needs (Compl. ¶¶ 102-106, 112-16). Plaintiffs also alleged the district failed because it did not follow the procedural requirements of those laws (Compl. ¶¶ 106, 116). For these alleged violations, plaintiffs sought a total award of $84,348.00 plus interest in reimbursement for educational services provided by the parents to Nicholas in both school years and attorney fees. (Compl. p. 28). Plaintiffs further alleged that in each school year, the district discriminated against Nicholas based on disability in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. (Compl. ¶¶ 120 - 134). Plaintiffs asked the Court to award them equitable and affirmative action remedies and attorney fees on their Rehabilitation Act claims. (Compl. pp. 27-29). During oral argument, plaintiffs withdrew their Rehabilitation Act claims. Following oral argument, the Court concluded that the district failed to comply with a procedural

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requirement for the 2001-02 school year (Mem. Opinion and Order, Document 32, Filed 6-7-06, at p. 7 ¶), but held there was no procedural defect in the 2002-03 IEP (Mem. Opinion at p. 9, ¶ 1) The Court upheld the administrative law judge's finding that the IEP for 2002-03 was reasonably calculated to enable Nicolas to receive educational benefits. (Mem. Opinion at p. 9 ¶ 1, p. 14 ¶ 1). The court did not find the content of the IEP offered for the 2001-02 school year to be inadequate. In essence, plaintiffs prevailed on one of their six claims. The question of relatedness of claims for purposes of attorney fee motions centers on whether counsel's work on one claim is related to his work on another claim. Plaintiffs here sought to recover damages for two distinct periods of time based on two distinct sets of facts under three different legal theories. For the 2001-2002 school year, Nicholas was schooled entirely at home, the district developed an IEP for that year, the IEP and plaintiff's challenge to it were based on certain assessments of Nicolas and certain individuals were involved in the process and the hearings. (Mem. Opinion at pp. 3-6). For the 2002-03 school year, Nicholas attended a private school accompanied by an aide and was also receiving 23 hours of individual home-based instruction. (Mem. Opinion at pp. 714). The Sytsemas incurred different expenses in each school year and thus, the claims for damages required separate proof. (See, e.g., Mem. Opinion at p.8 ¶3 (citing Ex. P pp 2-3)). New evaluations of Nicholas were obtained and considered for that school year. (Mem. Opinion at p. 7 ¶ 3). The district issued a new IEP. (Mem. Opinion at p. 7 ¶ 3). Meetings were held concerning the new IEP (Id.) that were not attended by all the same people who participated in the IEP and related proceedings for the 2001-02 school year. (Compare Mem. Opinion at p.4 ¶ 3

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with Mem. Opinion at p.7 ¶ 3). Plaintiffs submitted different information in support of their request for the 2002-03 school year than they had for 2001-02. Granted, some legal research may have been useful on more than one claim, and some witnesses had knowledge regarding both IEPs, but substantial time had to have been spent investigating, conducting discovery, collecting and analyzing evidence, briefing and arguing the claims on which plaintiffs did not prevail that would not have been spent had the case consisted only of the single, procedural claim regarding the 2001-02 school year on which plaintiffs did prevail. See Hensley, 461 at 435 ("The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded on the unsuccessful claim.") The generic description of legal work performed concludes by saying these activities were performed "at all stages of the proceedings." Thus, one can only conclude that plaintiffs' total fees include fees related to nonprevailing claims and the claim plaintiffs withdrew. Plaintiffs should not be awarded fees for pursuing a claim, and forcing the district to defend against it, only to abandon it at the eleventh hour, at oral argument. Accord Beard, 31 F.3d at 951 ("No plaintiff can ever be entitled to fees against an entity against which plaintiff did not even attempt to prevail"). Plaintiffs' motion for fees must be denied for insufficient evidence. But even if plaintiffs had submitted the required evidence for the Court and defendant's consideration and it actually supported the request, the amount of fees would have to be reduced to reflect plaintiffs' limited success.

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B.

The motion fails to account for the small size of the judgment.

Plaintiffs' motion also fails to account for the fact that they were awarded less than half of the amount they sought and no equitable relief. The amount they now ask the Court to award them as attorney fees is almost double the amount that they recovered in their lawsuit. As a consequence of prevailing on only one claim, plaintiffs were awarded only a fraction of the relief they sought. Instead of the $84,348.00 plus equitable relief that plaintiffs sought, the Court awarded plaintiffs only $38,503.45 to reimburse them their expenses for the education of Nicholas during the 2001-02 school year. The Court denied the claim for reimbursement of expenses for the 2002-03 school year and did not award equitable relief. (Mem. Opinion at p. 14). The amount awarded, $38,503.45, constitutes only 46 percent of the total sought in damages ($84,348.00) and only 51 percent of the amount sought as attorney fees. "Where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained." Hensley, 461 at 440. See also Berry v. Stevinson Chevrolet, 74 F.3d 980, 990 (10th Cir. 1996), where the court reduced the lodestar by twenty percent to reflect the fact that monetary damages fell far short of the amount sought. Of course, without the time records, the school district cannot identify what fees are attributable to the claims on which plaintiffs did not prevail or what accounts for the fees being more than double the amount awarded as damages. Plaintiffs' refusal to produce those records for review by defendant as well as the Court requires denial of the motion. "Where a fee submission is manifestly inadequate, the District Court has no obligation to proceed further and

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denial is appropriate." See Concerned Veterans , 675 F.2d at 1331; Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980). Defendant respectfully requests the Court deny plaintiffs' motion. Should the Court not deny the motion in its entirety, Defendant requests the Court compel plaintiffs to serve defendant with unredacted copies of his billing records and fee agreements and allow defendant an opportunity to respond to any additional submissions.

Respectfully submitted this 24th day of July, 2006

s/ Bruce Anderson___________________ Robert I. Cohn Bruce C. Anderson Susan M. Schaecher STETTNER, MILLER AND COHN, P.C. 1050 17th Street, Suite 700 Denver, CO 80265-2008 (303) 534-0273 (303) 534-5046 fax [email protected] Attorneys for Academy School District 20

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CERTIFICATE OF SERVICE

I certify that on July 24, 2006, I electronically filed the foregoing DEFENDANT'S BRIEF IN OPPOSITION TO PLAINTIFFS' MOTION FOR ATTORNEY FEES with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Michael C. Cook, Esq. [email protected]

s/ Kimberly Hanson Kimberly Hanson Stettner, Miller and Cohn, P.C. 1050 17th Street, Suite 700 Denver, Colorado 80265-2008 303-534-0273 303.532.5036 (facsimile) e-mail: [email protected]

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