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Genn v. New Haven Board of Education

United States District Court, D. Connecticut

May 15, 2017

NANCY GENN, on her behalf and on behalf of her daughter, SARAH ELIZABETH KATIE GENN, Plaintiffs,
v.
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 ATTORNEY FEES

          Charles S. Haight, Jr. Senior United States District Judge.

         Plaintiff's 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].

         I. PROCEDURAL BACKGROUND

         On 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.[1] 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.

         On 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.

         II. COMPLIANCE WITH THE CAREY INSTRUCTIONS

         This circuit has long followed the dictates of Judge Newman's opinion in Carey to evaluate a movant's proffered evidence supporting its attorneys' fees request:

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.

         A. Lack of Contemporaneous Records

         In this 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.

         B. Lack of ...


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