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J.T., By and Through His Parents Renee and Floyd T v. Department of Education

January 30, 2013

J.T., BY AND THROUGH HIS PARENTS RENEE AND FLOYD T., PLAINTIFFS,
v.
DEPARTMENT OF EDUCATION, STATE OF HAWAII, DEFENDANT.



The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S OBJECTIONS TO MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION GRANTING IN PART PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND ORDER ADOPTING THE FINDINGS AND RECOMMENDATION AS MODIFIED

On October 31, 2012, the magistrate judge filed his Findings and Recommendation Granting in Part Plaintiffs' Motion for Attorneys' Fees ("F&R"). [Dkt. no. 43.] On November 14, 2012, Defendant Department of Education, State of Hawai'i ("DOE" or "Defendant") filed objections to the F&R ("Objections"). Plaintiffs J.T., Renee T., and Floyd T. ("Plaintiffs") filed their response to Defendant's Objections ("Response") on December 3, 2012. The Court finds this matter suitable for disposition without a hearing pursuant to Rules LR7.2(d) and LR74.2 of the Local Rules of Practice of the United States District Court for the District of Hawai`i ("Local Rules"). After careful consideration of the parties' submissions and the relevant legal authority, the Court HEREBY GRANTS IN PART AND DENIES IN PART Defendant's Objections and MODIFIES the magistrate judge's F&R for the reasons set forth below. The Court also GRANTS Plaintiffs' request for additional fees incurred responding to the Objections.

BACKGROUND

On May 31, 2012, this Court issued its Order Reversing in Part and Remanding in Part the Hearings Officer's Order Dated September 12, 2011 ("5/31/12 Order"). [Dkt. no. 27.] In the 5/31/12 Order, the Court partially reversed the Hearings Officer's decision, finding that:

* the DOE denied J.T. a Free Appropriate Public Education ("FAPE") by not allowing Renee T. a reasonable opportunity to attend the March 3, 2010 Individualized Education Program ("IEP") meeting [5/31/12 Order at 50-55;]

* the DOE denied J.T. a FAPE by disregarding Dr. Murphy-Hazzard's Report and Renee T.'s observations of J.T. outside of the classroom [id. at 55-58].

The Court concluded, however, that Plaintiffs were not entitled to reimbursement for tuition and expenses at Loveland Academy because they failed to establish that it was an appropriate placement. [Id. at 58-65.] The Court rejected Plaintiffs' request for an award of two years of compensatory education at Loveland, and instead ordered an evaluation of J.T. to determine whether and to what extent an award of compensatory education is appropriate. [Id. at 65-68.] In this regard, the Court stated: on the one hand, J.T. was procedurally denied a FAPE; on the other hand, there has been no determination as to the extent of injury, if any, that he suffered as a result of that denial of a FAPE. The record is devoid of sufficient facts with which this Court could craft an appropriate award of compensatory education. [Id. at 67.]

With respect to attorneys' fees, the Court found as follows:

Plaintiffs meet the prevailing-party threshold. The Hearings Officer determined that J.T. was denied a FAPE due to the DOE's exclusion of Renee

T. from the May 29, 2009 IEP meeting, and this Court further determines that J.T. was denied a FAPE due to the DOE's exclusion of Renee T. from the March 3, 2010 IEP meeting and its failure to consider the Murphy-Hazzard Report and Renee

T.'s concerns. Plaintiffs' success is not purely technical or de minimis, because this obligation materially alters the legal relationship between the parties. Accordingly, the Court awards Plaintiffs reasonable attorneys' fees and costs associated with the administrative hearing and the present appeal. The Court refers this matter to the magistrate judge to prepare findings and recommendations regarding the amount of the award. [Id. at 70.]

I. Motion For Attorneys' Fees

On June 14, 2012, Plaintiffs filed a Motion for Attorneys' Fees and Related Nontaxable Expenses ("Motion"). [Dkt. no. 28.] The parties reached a partial agreement on the Motion, resulting in an award of $17,833.50 in attorneys' fees and $840.31 in general excise tax ("GET") (4.712%) for the fees sought by Jerel Fonseca, Esq. and Denise Wong, Esq. [Dkt. no. 40.] The magistrate judge found and recommended that Plaintiffs be awarded attorneys' fees for John Dellera, Esq., in the amount of $40,210.46, which he calculated as follows:

[142.4 hours * .85 (fifteen percent reduction)

18.6 (fees billed for reply brief and statement of consultation)] * $275 per hour = $38,401. After adding general excise tax (4.712%), the Court FINDS and RECOMMENDS that Plaintiffs are entitled to $40,210.46 in attorneys' fees. [F&R at 3.] The magistrate judge imposed a 15% reduction on the fees charged by Mr. Dellera due to inadequate billing entries that did not "describe the activities associated with his preparation of pleadings." ...


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