United States District Court, D. Connecticut
NANCY GENN, on her behalf and on behalf of her daughter, SARAH ELIZABETH KATIE GENN, Plaintiffs,
NEW HAVEN BOARD OF EDUCATION; REGINALD MAYO, SUPERINTENDENT OF SCHOOLS; TYPHANIE JACKSON, DIRECTOR OF SPECIAL SERVICES; PATRICIA MOORE, SUPERVISOR OF SPECIAL SERVICES; and KATHRYN CARBONE, PUBLIC HEALTH NURSE DIRECTOR, Defendants.
ORDER REGARDING PLAINTIFF'S MOTION FOR AWARD OF
Charles S. Haight, Jr. Senior United States District Judge.
Motion for Award of Attorney Fees [Doc. 50] is DENIED,
WITHOUT PREJUDICE, because it does not comply with the law of
this circuit as to awards of attorney fees, nor with the
instructions of the prior Ruling of this Court [Doc. 49]. If
Plaintiff wishes to recover attorney's fees in this
matter, she is directed to file, on or before Friday, June 9,
2017, affidavits and submissions that comply with this
Court's previous Ruling [Doc. 49].
November 30, 2016, this Court issued a Ruling [Doc. 49]
granting in part and denying in part Plaintiff's Motion
for Summary Judgment [Doc. 36] and granting in part and
denying in part Defendant's Motion for Summary Judgment
[Doc. 37]. Familiarity with that decision is assumed. As part
of that ruling, the Court granted summary judgment to
Plaintiff on a single element of the complaint, namely that,
under the Individuals with Disabilities Education Act, 20
U.S.C. §§ 1400-1482 ("IDEA"), Plaintiff
parent Nancy Genn is entitled to reimbursement for the
Independent Educational Evaluation ("IEE")
performed by Miriam Cherkes-Julkowski, Ph.D. Doc. 49 at 31.
The IEE reimbursement claim was the only claim on which
Plaintiff prevailed. The Court found that, pursuant to the
IDEA, Plaintiff is a "prevailing party, " entitled
to attorney's fees, though those fees should be limited
to the hours spent on the successful claim. Id. at
44-45 (citing 20 U.S.C. § 1415(i)(3)(i); Hensley v.
Eckhart, 461 U.S. 424 (1983)). To conclude the fee issue
(and this litigation), the Court issued the following
conditional instruction to Plaintiff counsel:
I will consider the question of attorney's fees in the
present case if and when Plaintiff submits a quantified claim
in the proper form. "Proper form" requires that
Plaintiff's attorney (1) comply fully with the Second
Circuit's detailed instructions in New York Ass'n
of Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d
Cir 1983); and (2) limit the claim to the attorney hours
spent on the IEE issue, excluding all others.
Doc. 49, at 46.
December 7, 2016, Plaintiff counsel filed a timely Motion for
Attorney's Fees [Doc. 50] along with an affidavit and a
"work log" reflecting time expended on this action.
See Doc. 50, Exhibit A. Plaintiff's motion does
not conform with this Court's instruction, as quoted
above. The submission meets neither of the conditions
prerequisite to consideration of a fee award: it does not
comply with the instructions of Carey; nor does it
limit itself, in any meaningful way, to the hours expended on
the IEE issue.
COMPLIANCE WITH THE CAREY INSTRUCTIONS
circuit has long followed the dictates of Judge Newman's
opinion in Carey to evaluate a movant's
proffered evidence supporting its attorneys' fees
Hereafter, any attorney-whether a private practitioner or an
employee of a nonprofit law office-who applies for
court-ordered compensation in this Circuit . . . must
document the application with contemporaneous time records .
. . . All applications for attorney's fees . . . should
normally be disallowed unless accompanied by contemporaneous
time records indicating, for each attorney, the date, the
hours expended, and the nature of the work done.
711 F.2d at 1148. The Second Circuit subsequently clarified
its use of the word “normally” in Carey,
holding that while it “indicates that we intend to
leave the district courts with some limited discretion to
make exceptions to the hard-and-fast rule, ”
Carey nonetheless “sets out unequivocally that
absent unusual circumstances attorneys are required to submit
contemporaneous records with their fee applications.”
Scott v. City of New York, 626 F.3d 130, 133 (2d
Cir. 2010). “In other words, Carey establishes
a strict rule from which attorneys may deviate only in the
rarest of cases.” Id. Plaintiff counsel has
deviated from Carey, as described further below, and
has not provided any indication that hers is "the rarest
of cases" meriting such deviation.
Lack of Contemporaneous Records
case, Plaintiff counsel's work log, as filed, is not a
contemporaneous time record as prescribed by Carey.
In particular, the Court draws counsel's attention to the
requirement that movants provide records actually made at the
time the work was done or show that “they made
contemporaneous entries as the work was
completed.” Handschu v. Special Services
Div., 727 F.Supp. 2d, 239, 251 (S.D.N.Y. 2010) (emphasis
in original) (quoting Cruz v. Local Union No. 3 of the
Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1160 (2d
Cir. 1994)). Plaintiff counsel's work log does not, on
its face, show any sign that it was compiled with the
assistance of actual contemporaneous time records.
Counsel's affidavit does not state whether or not she
kept actual contemporaneous records or records created closer
to the time when the work was done, nor does the affidavit
describe the practice of counsel's office in maintaining
contemporaneous records, nor the method by which work logs
are derived from those records.
Lack of ...