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RIGGINS v. MILLVILLE BOARD OF EDUCATION

August 2, 2005.

CLARISSA RIGGINS, Plaintiff,
v.
MILLVILLE BOARD OF EDUCATION, Defendant.



The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge

OPINION

Presently before the Court in this action to recover expert fees under the Individuals with Disabilities Education Act, 20 U.S.C. § 1415 ("IDEA"), is a motion for summary judgment filed by Plaintiff, Clarissa Riggins. For the reasons set forth below, the Court will deny Plaintiff's motion.

I. INTRODUCTION

  Plaintiff is the mother of blind and disabled twins, C.O. and A.O. After several unsuccessful attempts to have the Millville Board of Education ("school board") place her children in an appropriate special education environment, Plaintiff hired two educational consultants — Maura Collingsru and Marilyn Arons — to assist in traversing the administrative process.

  Starting in May of 2003, Collinsgru served as a "non-attorney representative" for Plaintiff over the course of sixteen months. In this capacity, Collinsgru corresponded with members of the school board on behalf of Plaintiff, assessed the twins' educational abilities, and prepared for and attended administrative hearings.

  Pursuant to their contract, Collinsgru has billed Plaintiff in the amount of $25,630. This amount reflects charges for 162.49 hours at a rate of $150 per hour, plus $1,256.50 in expenses. In specific, Collinsgru's bill includes time preparing for and attending Independent Educational Plan ("IEP") meetings; phone conversations with the school board's attorney; "case research;" emergent relief filing preparation; negotiations with the school board; letters to judges and the attorney for the school board; phone consultations with Plaintiff; preparation of summary judgment papers; case research and preparation; and expenses related to travel and materials. Plaintiff asserts that Collinsgru's rate is reasonable for two reasons: (1) in a prior proceeding, a different school board agreed to pay her fees, and (2) all of her non-pro bono clients pay $150 per hour.

  Plaintiff retained the services of Marilyn Arons to aid in the development of educational programs for the twins. Arons has billed Plaintiff in the amount of $6,327.40, reflecting $4,200 attributable to work on behalf of C.O. and $2,100 attributable to work on behalf of A.O. — plus $27.40 in costs.*fn1 The total amount sought includes time billed for consulting, visiting the children's school and alternative schools, preparing a certification, and writing a report containing educational recommendations for the twins. Plaintiff asserts that Arons's rate is reasonable based on a prior proceeding in the Second Circuit, wherein that court approved her rate of $200 per hour for her services as a lay advocate.

  In June of 2004, the Office of Administrative Law ordered the school board to place A.O., with an amended education plan, at the Maryland School for the Blind. In July of 2004, Defendant agreed to place both C.O. and A.O. at the Maryland School for the Blind.

  Plaintiff now moves for summary judgment on her complaint seeking reimbursement of fees as provided for by the IDEA. Plaintiff's total request is $31,957.46, reflecting reimbursement for the fees and expenses of Arons and Collinsgru. The school board does not contest that Plaintiff is the prevailing party, but it does contest forty of the hours for Collinsgru's bill as well as the hourly rates charged by both Collinsgru and Arons.

  II. SUMMARY JUDGMENT

  Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). In deciding whether there is a disputed issue of material fact, a court must view the facts and all reasonable inferences in a light most favorable to the nonmoving party. Id. at 250; Anderson v. Consol. Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002).

  The moving party always "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the `pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party bears the burden of persuasion at trial, however, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325. The non-moving party "may not rest upon the mere allegations or denials of" its pleadings and must present more than just "bare assertions, conclusory allegations or suspicions" to establish the existence of a genuine issue of material of fact. FED. R. CIV. P. 56(e); Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir. 1989) (citation omitted). "A party's failure to make a showing that is `sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial' mandates the entry of summary judgment." Watson v. Eastman Kodak Co., 235 F.3d 851, 857 (3d Cir. 2000) (quoting Celotex, 477 U.S. at 322). III. DISCUSSION

  Plaintiff has failed to establish her entitlement to summary judgment because she has failed to demonstrate that the requested fees for Collinsgru are attributable solely to services that do not constitute the practice of law, has failed to demonstrate that the services of Arons were essential to obtaining relief, and has failed to demonstrate that the fee for either expert is reasonable.

  Under the IDEA, a prevailing plaintiff may recover both attorney's fees and costs related to the litigation. To recover costs related to experts, the plaintiff must show that (1) the expert's services were essential to the proceeding and to obtaining the relief gained, (2) the fees for services are recoverable under the IDEA, and (3) the expert's hourly rate is reasonable. Field v. Haddonfield Bd. of Educ., 769 F. Supp. 1313, 1323 (D.N.J. 1991) (quoting H.R. Conf. Rep. No. 687, 99th Cong., 2d Sess. 5, reprinted in, 1986 U.S. Code Cong. & Admin. News 1798, 1808)). A plaintiff may recover fees for "lay advocates"*fn2 who perform such services as testifying, consulting, writing reports, advising parents on their educational decisions, and attending hearings. Arons v. N.J. State Bd. of Educ., 842 F.2d 58, 63 (3d Cir. 1988); see also, B.K. v. Toms River Bd. of Educ., 988 F. Supp. 462, 476 (D.N.J. 1998) (noting that travel, phone calls, postage, and photocopying may also be awarded to a prevailing plaintiff as part of costs under the IDEA). A prevailing plaintiff is entitled to expert fees only when the expert's services played a significant role in the adjudication in plaintiff's favor. E.M. v. Millville Bd. of Educ., 849 F. Supp. 312, 317-18 (D.N.J. 1994). For instance, an expert's services satisfy ...


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