Opinion
Case No. 5:02-CV-141
February 26, 2004
ORDER
In accordance with the Opinion filed on this date,
IT IS HEREBY ORDERED that Defendants Motion for Attorney's Fees (docket no. 30) is GRANTED. Defendants' counsel is entitled to attorney's fees and costs in the amount of $8,390.65.
OPINION
This is a dispute about whether a party's counsel should be awarded attorney's fees. On September 11, 2003, this Court entered judgment in favor of Defendant/Appellee M.K., on behalf of his son, J.K. (together, "Defendants"), in a case arising under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400-1405. Now before the Court is Defendants' Motion for Attorney's Fees. Plaintiffs, the Lewis Cass Intermediate School District and the Edwardsburg Public Schools, object to the motion, arguing that it is untimely and, in the alternative, that Defendants' fee request is unreasonable. For the reasons stated below, the Court will grant Defendants' motion because its tardiness was due to excusable neglect and because the fee amount is reasonable.I. Background
J.K., the son of M.K., is a hearing-impaired minor student eligible for special education programs and related services under federal and state law. While residing in the Lewis Cass Intermediate School District ("ISD"), J.K. attended the Edwardsburg Public Schools and received special education services. On May 11 and 15, 2001, M.K. filed letters of complaint with ISD and the Michigan Department of Education ("MDE") alleging that ISD failed to provide J.K. a teacher endorsed in hearing impairments, necessary speech and language services, and an interpreter, and requesting compensatory education for the alleged violations. There followed a series of reports and hearings ultimately resulting in an administrative decision favoring M.K. and J.K. ISD and Edwardsburg Public Schools filed a motion with this Court seeking reversal of the administrative decision. On September 11, 2003, the Court issued an opinion denying the motion, entering judgment on a closed record for Defendants/Appellees, and affirming the administrative decision. The case is now on appeal before the Sixth Circuit.
On October 3, 2003, Defendants counsel, Mr. Kary Love, filed the now-disputed motion for attorney's fees. The IDEA authorizes an award of attorney's fees to prevailing parties. In this case, as in most IDEA cases involving prospective educational programming and relief, there is no right to monetary damages out of which an attorney can expect to collect a fee. Moreover, Defendants could not afford to pay attorney's fees. Mr. Love therefore represented them with the expectation of recovering his fees under the statute should they prevail. As required by Fed.R.Civ.P. 54(d)(2)(B), the motion states the fee amount requested, $8,226.00, plus costs and expenses of $164.65, for a total of $8,390.65. Mr. Love arrived at these figures based on 41.13 hours billed at a rate of $200.00 per hour. The motion goes on to argue the reasonableness of the time spent and the rate billed.
Plaintiffs object to Mr. Love's request for attorney's fees, contending first that he filed the motion late and has not shown excusable neglect for doing so, and second that the fee amount is unreasonably high. Mr. Love filed a brief in reply to Plaintiffs' objections on October 26, 2003, in which he argues that he filed his motion late due to excusable neglect and provides billing records to support the fees he seeks.
With respect to the issue of excusable neglect, Mr. Love sets forth the following chronology and account of events. On September 2, 2003, Mr. Love closed on a new building in Holland, Michigan, into which to move his Michigan office. In preparation for moving, which was to occur later in the month, Mr. Love packed up all files for which no hearings or deadlines were known to be set. Immediately following the closing, he departed for the Chicago area, where he maintains another office. He and his wife left Chicago on September 8 for a previously planned trip to Ireland. Mr. Love had contracted with a firm to receive his mail, and to which he could telephone from Ireland to review his mail. However, the couple spent the second week of the Ireland trip in a remote area with no telephone, making it impossible for Mr. Love to contact the mail handling firm during that time.
Plaintiffs point out that in addition to hiring a firm to handle his mail while on vacation, Mr. Love utilizes a contracted "advocate/legal assistant" in many of his cases, including this one. Plaintiffs assert that the "advocate/legal assistant" acted on Mr. Love's behalf in at least one other matter while he was on vacation, including making filings in an administrative proceeding, authoring and signing a letter on Mr. Love's behalf, sending a FOIA request, and seeking production of other documents. Mr. Love does not deny that the "advocate/legal assistant" worked for him during his vacation, although it appears that this assistant did not review his mail and thus would not have known about the Opinion in the IDEA case.
Mr. Love maintains that he attempted to contact the mail handling firm from Ireland on September 20 after returning from the remote area, but due to the time zone difference he could not get in touch with anyone. Mr. Love arrived back in Chicago on Saturday, September 20, after the firm's 1:00 p.m. closing time. While returning to Michigan on Sunday, September 21, he spoke with opposing counsel in this case, who also happened to be opposing counsel in another case scheduled for a hearing on Monday, September 22. During that conversation, Mr. Love learned for the first time of this Court's September 11, 2003, ruling in the IDEA case. He spent September 22 at the hearing, preventing him from retrieving his mail that day. The hearing resulted in a settlement so that Mr. Love was finally able to read his mail, including this Court's opinion, on September 23.
Because the September 22 hearing had originally been scheduled to go on for a week, Mr. Love had scheduled the move into his new office for Saturday, September 27. Consequently, the office equipment and files — including the file for this case — remained packed up until that date. The move took place as planned on September 27, but the office was not operational nor were the files accessible until late on Sunday, September 28. The phone lines were not fully installed until Monday, September 29. Mr. Love was able to get his computer functioning on that day as well, enabling him to begin reviewing his time records in order to prepare his motion for attorney's fees. Some additional delay occurred due to a leasing company's failure to deliver Mr. Love's copy machine on time. Finally, Mr. Love was able to complete and mail the motion for attorneys fees on October 2, 2003.
II. Discussion
In response to Mr. Love's motion for attorney's fees, Plaintiffs lodge several objections. First, Plaintiffs contend that the motion is untimely because it was not filed and served within 14 days of the Court's September 11, 2003, Judgment, as required by Fed.R.Civ.P. 54(d)(2). Next, Plaintiffs argue that Mr. Love failed to request any enlargement of the 14 day filing requirement before it expired, and thereafter failed to submit a motion requesting enlargement based upon excusable neglect pursuant to Fed.R.Civ.P. 6(b). By failing to seek enlargement of the time within which to file an attorneys fee motion, Plaintiffs contend that Mr. Love has waived such a claim. Finally, Plaintiffs argue that even if the motion for attorneys fees is timely, the fee request is unreasonable.
Although Mr. Love has now submitted time records to rebut Plaintiff's contention that he failed to support the fee amount with documentation, Plaintiffs continue to assert that the billing rate of $200.00 per hour is too high, and that the number of hours are excessive or duplicative. Therefore, Plaintiffs ask the Court to deny the motion for attorney's fees as untimely, or in the alternative, to deny the requested fees as unreasonable. The Court addresses these arguments in turn, finding first that Mr. Love filed the motion for attorney's fees late due to excusable neglect, and second that the fees requested are reasonable.
A. Excusable Neglect for Late Filing of Motion for Attorney's Fees
"Prevailing parties" in an IDEA case are entitled to seek an award of reasonable attorney's fees. 20 U.S.C. § 1415. There is no dispute that Defendants were "prevailing parties" in the underlying action adjudicated in this Court's Opinion of September 11, 2003. The dispute instead centers on whether Defendants' counsel followed proper procedures in moving for attorneys fees.
Claims for attorneys fees following a federal court's judgment are governed by Fed.R.Civ.P. 54(d)(2). This rule requires that a motion for attorney's fees "must be filed no later than 14 days after entry of judgment." Fed.R.Civ.P. 6(e) permits an additional 3 days for service. In this case, the Court entered judgment on September 11, 2003, and a motion for attorneys fees was due on September 28 (i.e., 14 days later, plus 3 days for service). Because Defendants did not file their motion until October 3, 2003, it was not timely filed.
At least in his initial motion, Mr. Love incorrectly contended that the IDEA gives him 60 days to file for attorney's fees in this case. The 60 day period applies where a party prevails in an administrative hearing, there is no appeal of the administrative decision, and the prevailing party then seeks attorney's fees through an original action filed in federal district court. In such situations, the state time limit for appeals of administrative decisions governs motions for attorney's fees. See King v. Floyd County Bd. of Educ., 228 F.3d 622, 624 (6th Cir. 2000). Michigan's Administrative Procedures Act, M.C.L. § 24.304, provides that the review of an administrative decision must be filed within 60 calendar days of the date the decision is mailed to the parties. Thus, the time in which to file an original action seeking attorney fees is within 60 days of the date the administrative decision was mailed. The 60 day limit does not apply in this case, however, because the motion comes on the heels of a federal court adjudication, not an administrative decision. Instead, the Federal Rules of Civil Procedure govern.
Parties who are unable to meet the 14 day time limit may request an enlargement of time, either before or after the deadline. Fed.R.Civ.P. 6(b). Whether to permit enlargement is a matter within the Court's discretion. Id. Mr. Love made no request for enlargement before the deadline. When a party requests enlargement after the 14 day limit has passed, it must file a motion showing cause why "the failure to act was the result of excusable neglect." Id. The Court reads Mr. Love's October 26, 2003, brief titled "Verified Reply Showing Excusable Neglect for Filing of Attorney's Fee Motion and Factors Supporting Reasonableness of Fees" to be a motion for enlargement of time pursuant to Fed.R.Civ.P. 6(b), filed after the expiration of the 14 day deadline. Thus, the question for the Court to decide is whether Mr. Love has shown excusable neglect for the late filing of his motion for attorney's fees.
The Supreme Court has characterized excusable neglect as a "somewhat elastic concept" which is "not limited strictly to omissions caused by circumstances beyond the control of the movant." Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 391,113 S.Ct. 1489, 1496 (1993). The word "neglect" takes on its ordinary meaning, "encompass[ing] both simple, faultless omissions to act and, more commonly, omissions caused by carelessness." Id. at 388,113 So. Ct. at 1495. Deciding whether a party has shown excusable neglect "is at bottom an equitable [determination], taking account of all relevant circumstances surrounding the party's omission." Id. at 395,113 S.Ct. at 1498. The Pioneer Court identified four factors to consider in this analysis: (1) the danger of prejudice to the [opponent]; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith. Id.
Application of the first, second, and fourth Pioneer factors weighs in favor of concluding that the neglect in this case was excusable. Plaintiffs suffer no appreciable prejudice from the tardiness of the motion. The several day delay causes little impact on the litigation before this Court or the Sixth Circuit's subsequent appellate review. Moreover, the Court has no reason to believe that Mr. Love acted with anything other than good faith.
The third Pioneer factor — whether the delay was within Mr. Love's reasonable control presents a closer question, but it too ultimately falls in favor of finding excusable neglect. Most importantly, Mr. Love had no control over the date the Court entered its judgment, which triggered the 14 day period for seeking attorneys fees. The Court issued its decision at perhaps the worst possible time from Mr. Love's perspective. He had already departed for a 12 day vacation in Ireland. Presumably, he had arrived at the remote cabin and was outside of telephone contact by the time a copy of the Opinion reached his mail handling firm. It was not until September 21, 2003, that Mr. Love first learned of the decision. On top of that, he was in the midst of an office move upon returning home and was unable to access his files for this case until September 28. The deadline for filing an attorney's fees motion had by that time expired.
This is not to say that Mr. Love is blameless for the late filing. In retrospect, he would have been wise to stay in more frequent contact with the mail handling firm, to keep the file for this case accessible, and to have scheduled his office move at a different time. These shortcomings not altogether surprisingly resulted in disruption to Mr. Love's practice, and courts "give little weight to the fact that [an attorney] was experiencing upheaval in his law practice at the time of the [deadline] date." Pioneer, 507 U.S. at 398, 113 S.Ct. at 1499. Although he could not have predicted the precise date the Court would release its opinion in the underlying IDEA case, he knew a decision was pending. Also, he could have requested an enlargement of the filing deadline during the several days between when he found out about the opinion and when the deadline expired. Fed.R.Civ.P. 6(b) permits attorneys to make such a request "with or without motion or notice."
However, Mr. Love's conduct differs from that of the attorney inAllen v. Murph, 194 F.3d 722 (6th Cir. 1999), where the court refused to accept a late motion for attorney's fees. The attorney in that case "departed for the wilds of Canada" on a fishing trip, but only after the trial court entered its judgment. Id. at 724. The attorney knew or should have known that the 14 day clock for seeking attorney's fees had started ticking, but he nevertheless went on vacation without ascertaining his client's wishes, filing a motion for attorneys fees, or arranging for another attorney to make the filing in his absence. M., Moreover, when the client contacted the attorneys associate shortly after the judgment to ask about fees, the associate refused to file an appropriate motion, saying he would not do so without the vacationing attorney's "authorization, guidance, and assistance."Id. at 723. By the time the attorney returned, it was too late. Under these circumstances, the untimely filing was held not due to excusable neglect.
In comparison, this case involves much less egregious conduct. Mr. Love did not brazenly flout a deadline known to be approaching. As a solo practitioner, he had no partners or associates who could or should have acted on his behalf in his absence. Moreover, Mr. Love apparently took several measures to ensure the fulfillment of his professional obligations during his vacation and subsequent office move. For example, he contracted with a mail handling firm and maintained telephone contact with it until he went to the remote Irish cabin. He also separated files for cases with known deadlines from those he packed up in preparation for the office move. And it appears that he finally filed the motion in this case as soon as reasonably possible under the circumstances.
The Court, having considered all the equities in this matter and exercising its discretion, finds Mr. Love's neglect excusable, even though he bears some of the blame. See Pioneer. 507 U.S. at 388, 113 S.Ct. at 1495 (explaining that a party may show excusable neglect despite its own "inadvertence, mistake, or carelessness"). Therefore, the Court will retroactively enlarge the deadline for filing the motion for attorney's fees pursuant to Fed.R.Civ.P. 6(b) and consider the motion timely.
Several cases Plaintiffs cite in arguing against a finding of excusable neglect were decided before Pioneer. Some cases prior to Pioneer held that excusable neglect exists only when a party's tardiness in filing a motion is due to intervening circumstances beyond the party's control. Over the dissent of four justices who would preserve this approach, Pioneer clarified that excusable neglect may also include situations where the party bears some fault.
B. Reasonableness of Attorney's Fees
Courts have discretion to award "reasonable" attorney's fees to a prevailing party in an IDEA action. 20 U.S.C. § 1415(i)(3)(B). Plaintiffs concede that Defendants are prevailing parties but challenge the reasonableness of the fee Mr. Love seeks. First, Plaintiffs contend that Mr. Love's $200 hourly billing rate is too high and instead suggest calculating the fee using a $150 rate. Second, Plaintiffs at least initially argued that Mr. Love failed to justify the 41.13 hours billed. However, he has since provided detailed records supported by an affidavit to show the reasonableness of the time spent on the case, to which Plaintiffs have offered no objection. For the reasons stated below, the Court finds both the $200 rate and the 41.13 hours spent to be reasonable and thus will award Mr. Love the fees requested.
"'The primary concern in an attorney fee case is that the fee awarded be reasonable,' that is, one that is adequately compensatory to attract competent counsel yet which avoids producing a windfall for lawyers." Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (quoting Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999)). "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Henslev v. Eckerhart, 461 U.S. 424,433,103 S.Ct. 1933, 1939 (1983). Courts may then adjust this objective "lodestar" figure upward or downward to reflect relevant considerations peculiar to the subject litigation. Phelan v. Bell 8 F.3d 369, 374 (6th Cir. 1993). Factors courts may consider, both in determining the basic lodestar figure and in making adjustments to it, see Adcock at 349, include: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Henslev, 461 U.S. at 430 n. 3,103 S.Ct. at 1937 n. 3.
Under the IDEA, a reasonable hourly rate is "based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished." 20 U.S.C. § 1415(i)(3)(C). See also Blum v. Stenson, 465 U.S. 886,895 n. 11.104 S.Ct. 1541, 1547 n. 1 1 (1984) (stating that courts ordinarily should look to rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation). In support of their $150 per hour rate proposal, Plaintiffs proffer a 2000 State Bar of Michigan survey placing the average hourly rate for Michigan attorneys that year at $ 150. They also point to the attorneys fees awarded in two special education cases, one from 1999 using a $150 rate and one from 1995 using a $125 rate.
However, Mr. Love notes that he charges a customary rate of $200 per hour for work done out of his Holland, Michigan office and $300 for work done in Illinois. "In the case of private attorneys . . . where an attorney requesting fees has well-defined billing rates, those rates can be used to help calculate a reasonable rate for a fee award." Hadix v. Johnson, 65 F.3d 532, 536 (6th Cir. 1995). Normal billing rates usually "provide an efficient and fair short cut for determining the market rate." Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414, 422 (3d Cir. 1993). Accordingly, the Court presumes that $200 reflects the ordinary market rate for private attorneys of Mr. Love's reputation and experience in the local community, and therefore falls within the range of reasonableness. See Hadix, 65 F.3d at 536 (presuming that a local Lansing civil rights attorney's normal $150 hourly rate reflected the prevailing market rate in 1995).
Application of the twelve Hensley factors discussed above both buttresses the conclusion that $200 comprises a reasonable hourly rate and suggests that the total fee (i.e., the rate times the hours spent, or $8,226) Mr. Love seeks should neither be adjusted upward nor downward. Most importantly, and as the Court has already discussed, $200 represents Mr. Love's customary billing rate for this locale. Also, Mr. Love has significant experience in civil rights practice, having litigated such cases since 1979, and having represented IDEA clients in particular since 1985. The Court is satisfied — and Plaintiffs have offered no reason to believe otherwise — that Mr. Love's billing records fairly represent the time he needed to spend on this case. Moreover, this Court commonly awards attorney's fees calculated using a rate in the $200 per hour range. None of the other Hensley factors support a different conclusion.
III. Conclusion
For the reasons stated above, the Court will grant Defendants Motion for Attorneys Fees.
Defendants' counsel has shown excusable neglect for filing the motion late in accordance with Fed.R.Civ.P. 54(d)(2), and the fees are reasonable. Defendants counsel will therefore be awarded attorney's fees of $8,226.00, plus costs and expenses of $164.65, for a total of $8,390.65. The Court will not award interest or additional fees and costs associated with filing the motion and associated briefs because this dispute and the subsequent delay are due in part to counsel's shortcomings.
An Order consistent with this Opinion will be entered.