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E.R.K v. Department of Education

United States District Court, D. Hawaii

December 16, 2019

E.R.K, through his legal guardian, R.K., et al., Plaintiffs,
DEPARTMENT OF EDUCATION, State of Hawaii, Defendant.




         This certified class action, originally filed in 2010, concerns whether the State of Hawaii Department of Education (“DOE”) wrongfully denied services under the Individuals with Disabilities Education Act (“IDEA”) to individuals that the DOE viewed as having “aged out” of being eligible to receive services. This matter was settled, with the DOE agreeing to deposit $8, 750, 000.00 into an interest bearing bank account (“Services Fund”) and to pay class counsel $1, 500, 000 in attorneys fees and costs. See ECF No. 480-3. The settlement agreement provided that “an additional $250, 000.00 may be awarded to Class Counsel out of the [S]ervices [F]und upon application to and approval by the court.” Id.

         Plaintiffs now seek an interim award of $152, 404.13 in fees including the general excise tax out of the Services Fund. See ECF No. 532. The DOE did not oppose the motion. On November 26, 2019, the Magistrate Judge issued his Findings and Recommendation to Deny Without Prejudice Plaintiff Class's Application for Interim Attorneys' Fees (“F&R”). See ECF No. 543. The Magistrate Judge reasoned that Plaintiffs had not established that they had met and conferred before filing the motion, as required by Local Rule 54.2. The Magistrate Judge also declined to review Plaintiffs' attorneys' fees requests on a piecemeal basis, noting that “judicial economy and the administration of justice will be best served by addressing Plaintiffs' fee requests at the conclusion of this action.” See ECF No. 543.

         Plaintiffs have objected to the F&R. After reviewing Plaintiffs' fee request de novo, this court adopts the F&R in part and modifies it in part.


         A district judge reviews de novo those portions of a magistrate judge's findings and recommendation to which an objection is made and may accept, reject, or modify, in whole or in part, the findings and recommendation made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Local Rule 74.2. Kealoha v. Totto, 2017 WL 1839280, *2 (D. Haw. May 8, 2017); Paco v. Meyers, 2013 WL 6843057, *1 (D. Haw. Dec. 26, 2013). In other words, a district judge “review[s] the matter anew, the same as if it had not been heard before, and as if no decision previously had been rendered.” Freeman v. DirectTV, Inc., 457 F.3d 1001, 1005 (9th Cir. 2006). While the district judge must arrive at independent conclusions about those portions of the magistrate judge's report to which objections are made, a de novo hearing is not required. United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); Kealoha, 2017 WL 1839280, *2; Local Rule 74.2.

         The district judge may accept those portions of the findings and recommendation that are not objected to if the district judge is satisfied that there is no clear error on the face of the record. United States v. Bright, 2009 WL 5064355, *3 (D. Haw. Dec. 23, 2009); Stow v. Murashige, 288 F.Supp.2d 1122, 1127 (D. Haw. 2003).

         III. ANALYSIS.

         In seeking attorneys' fees, Plaintiffs argue that the settlement agreement does not require them to meet and confer with opposing counsel before filing a fee application. Plaintiffs are ignoring this court's order of March 1, 2016, in which this court stated that Plaintiffs “should limit any request to reasonable attorneys' fees incurred and must meet and confer with the DOE to explore settlement of the fees. This court hopes [Plaintiffs] will exclude from any future motion instances of ‘overzealous and overreaching' work.” ECF No. 345, PageID # 6347 (emphasis added). This court clearly requires Plaintiffs to meet and confer with the DOE before filing any motion for fees or costs and to attempt to work out issues and problems with fee requests. The Magistrate Judge correctly recommended denial of the motion based on Plaintiffs' failure to establish that they had met and conferred.

         This court disagrees with Plaintiffs' contention that the DOE “has no voice” in whether Plaintiffs are entitled to fees under the settlement agreement. Admittedly, the settlement agreement does not provide for the exact procedure to be used when Plaintiffs seek any portion of the $250, 000 in fees provided for in the settlement agreement, and the DOE filed no opposition to the motion, having agreed that $250, 000 in additional fees may be paid. But this court has never modified the meet-and-confer requirement expressly noted in its order of March 1, 2016. If the parties must meet and confer, it stands to reason that both sides may be heard as to a fee request.

         Plaintiffs argue that denying an interim fee award creates an inappropriate financial burden on class counsel. Plaintiffs' failure to meet and confer is Plaintiffs' own fault. Additionally, this court has already awarded Plaintiffs significant fees in this case. See ECF No. 345 (Mar. 1, 2016) (awarding $100, 000.00 in fees); ECF Nos. 491-92 (Dec. 27, 2017) (awarding $1, 570, 650.00 in fees and GET); ECF No. 510 (Nov. 8, 2018) (awarding $35, 032.45 in post-settlement fees).

         Plaintiffs also argue that they have proven their entitlement to fees, stating:

Plaintiffs documented reasonable hourly rates and expenditures of time. See Ex. 2. Furthermore, Plaintiffs' first interim fee application for $35, 032.45 (ECF No. 509), which included the ...

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