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Sd v. Portland Public Schools

United States District Court, D. Maine

December 11, 2014

SD, individually and as parent and legal guardian of HV, a minor, Plaintiff,


JON D. LEVY, District Judge.

The plaintiff, SD, has moved pursuant to Federal Rule of Civil Procedure 54(d) and the pertinent provision of the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C.A. § 1415(i)(3)(B)(i)(I) (2014), for an award of reasonable attorneys' fees and expenses which were incurred in an administrative due process hearing and in subsequent litigation in this court. The administrative hearing and the litigation concerned SD's objections to the individualized education plans ("IEPs") that the defendant, Portland Public Schools ("Portland"), developed for SD's minor son, HV, in his fifth, sixth, and seventh grade years.

In the court's September 19, 2014, Order (the "September 19 Order") (ECF No. 29), I concluded that Portland failed to provide HV with a free, appropriate public education for his sixth grade year (2011-2012) at Lincoln Middle School in Portland, Maine. Consequently, I also concluded that S.D. was "entitled to an award of compensatory education for the expenses she incurred in enrolling HV in the Aucocisco School during the 2012-2013 academic year, minus the amount the hearing officer already awarded for HV's attendance at Aucocisco's six-week summer program and for the two-week literacy tutoring and transportation costs." ECF No. 29 at 23.

Plaintiff's counsel seeks an award of $72, 307.80, representing (i) so-called "lodestar" fees of $69, 246.00 through the filing of the attorneys' fee motion, (ii) $1, 861.80 for compensable, out-of-pocket expenses, and (iii) additional lodestar fees of $1, 200.00 incurred in preparing SD's reply memorandum in support of the attorneys' fees motion.

Portland objects that the lodestar figure of $69, 246 is too high, and that it should be adjusted downward for two reasons. First, Portland argues certain work performed by plaintiff's counsel before and during the administrative hearing, and prior to the lawsuit in this court, totaling $3, 650, is not compensable and should be deducted from the lodestar figure, bringing the new total to $65, 596. Second, Portland argues that the new, lower lodestar figure should be reduced by 66%, "to reflect the fact that [SD] won on only one year out of the three school years that were in dispute." ECF No. 38.


The IDEA permits the award of reasonable attorneys' fees to a prevailing party who is the parent of a child with a disability. 20 U.S.C.A. § 1415(i)(3)(B)(i)(I) (2014). "In IDEA attorney fee disputes, the courts generally have applied prevailing party principles from § 1988 cases." Mr. & Mrs. C. v. Maine Sch. Admin. Dist. No. 6, 582 F.Supp.2d 65, 67 (D. Me. 2008).

Thus, to qualify as a "prevailing party, " an IDEA litigant must demonstrate that (1) she obtained relief on a significant claim in the litigation; (2) such relief effected a material alteration in the parties' legal relationship; and (3) the alteration is not merely technical or de minimis in nature. Kathleen H. v. Massachusetts Dept. of Educ., 154 F.3d 8, 14 (1st Cir. 1998); Regional Sch. Dist. Unit No. 51 v. Doe, 2013 WL 3781491, *2 (D. Me. July 18, 2013). Here, there is no dispute that S.D. is a prevailing party. Instead, the parties dispute the degree of success she obtained. ECF No. 38 at 4.

The starting point in setting an attorneys' fee award is determining the lodestar figure-that is, the product of the number of hours reasonably expended to prosecute the lawsuit multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st Cir. 2001). The fee applicant bears the burden of producing materials that support the request, which should include "counsel's contemporaneous time and billing records, suitably detailed, and information [about] the law firm's standard billing rates." Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1, 13 (1st Cir. 2011) (citation omitted). The party opposing the fee award may submit countervailing evidence. Id. (citing Foley v. City of Lowell, 948 F.2d 10, 20-21 (1st Cir. 1991)). The court, "usually after hearing arguments, will then calculate the time counsel spent on the case, subtract duplicative, unproductive, or excessive hours, and apply prevailing rates in the community (taking into account the qualifications, experience, and specialized competence of the attorneys involved.)" Id. (citing Gay Officers Action League, 247 F.3d at 295) (quotations and internal punctuation omitted).

After calculating the lodestar fee, the court should then proceed with an analysis of whether any portion of this fee should be adjusted upwards or downwards, based upon "the degree of success obtained." See Hensley, 461 U.S. at 435-36. See also Burke v. McDonald, 572 F.3d 51, 65 n.11 (1st Cir. 2009). If the prevailing party achieves only partial or limited success, then the attorneys' fee award may be adjusted downward. Id.


A. Hourly Rate

Plaintiff's counsel is Richard L. O'Meara, a partner in the Portland, Maine, law firm of Murray, Plumb & Murray, who has lengthy experience representing parties in IDEA cases. Attorney O'Meara began representing S.D. in August 2012, at which point he had practiced law for 25 years. Throughout the case, Attorney O'Meara's hourly rate was $300 per hour. Joining Attorney O'Meara was Nicole Bradick, Esq., a former associate at Murray, Plumb & Murray who had five years of experience at the beginning of the case; and Sara Hellstedt, Esq., an associate at Murray, Plumb & Murray who also had five years of experience at the beginning of the case. Attorney Bradick's and Attorney Hellstedt's hourly rates were $200 per hour.

Portland does not dispute the reasonableness of these hourly rates. This court has concluded in the recent past that a $300 hourly rate for experienced, Maine-based counsel such as Attorney O'Meara is reasonable, and I conclude that $300 per hour is reasonable and appropriate in this case. IMS Health Corp. v. Schneider, 901 F.Supp.2d 172, 195 (D. Me. 2012); see also Sabina, et. al. v. JP Morgan Chase Bank NA, et. al., 2014 WL 5489447, *3 (D. Me. Oct. 29, 2014). With regard to the $200 hourly rate for Attorney Bradick and Attorney Hellstedt, this court has previously found similar rates to be reasonable with regard to associate attorneys who had slightly more experience. Spooner v. EEN, Inc., 829 F.Supp.2d 3, 5-8 (D. Me. 2010) (finding that an hourly rate of $210 for an associate with 9 years' experience was ...

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