United States District Court, D. New Jersey, Camden Vicinage
August 2, 2005.
CLARISSA RIGGINS, Plaintiff,
MILLVILLE BOARD OF EDUCATION, Defendant.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
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.
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
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
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
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 this
significant role requirement when an administrative official
adopts an expert's recommendation at the administrative hearing.
P.G. v. Brick Twp. Bd. of Educ., 124 F. Supp. 2d 251, 267
(D.N.J. 2000). A plaintiff may not, however, recoup expert or lay
advocate fees for "services that constitute the practice of law."
Arons, 842 F.2d at 63.
The Arons opinion dictates that, in determining the
appropriate fee for an expert, it is necessary to separate fees
attributable to the practice of law and those more appropriately
performed by a lay advocate. In Arons, the plaintiff hired a
lay advocate to represent her during administrative hearings.
Id. The advocate charged the plaintiff for time and
expenditures relating to legal research and materials. Id. The
court held that, though a lay advocate may charge for
expert-related services, such as testifying, consulting, etc.,
the lay advocate may not charge for services related to legal
representation. Id. at 62. The court noted that the lay
advocate's hours should be classified as legal or non-legal
services and that the lay advocate should be compensated for the
non-legal services, despite the "difficulty of trying to allocate
between compensable time spent in consultation and noncompensable
time spent in legal representation." Id.
After the fees are appropriately categorized, the plaintiff
must still show that the expert's fees are reasonable. A
reasonable fee is one that prevails in the community. S.D. v. Manville Bd. of Educ., 989 F. Supp. 649, 656
n. 3 (D.N.J. 1998). Both the hourly rate for attorneys and the
hourly rate for experts must be established through affidavits by
members of the community with skill and experience that is
comparable to the expert in question. Id.; but see P.G.,
124 F. Supp. 2d at 267 (noting that when the school board against
whom the plaintiff sought fees had previously agreed to pay the
hourly rate of the expert, the hourly rate was reasonable even
absent affidavits from the community); Murphy v. Arlington Cent.
Sch. Dist. Bd. of Educ., 402 F.3d 332, 339 (2d Cir. 2003)
(upholding an award of expert fees to Marilyn Arons in the amount
of $200 per hour, but holding that compensation in future
hearings must be based on detailed billing statements).
Applying the above principles to this case, Plaintiff, to
recover the requested fees, must establish that the services on
which the fee request is based (1) were essential to her
obtaining relief from the school board; (2) are compensable,
i.e., based on services for which the expert can be appropriately
compensated not the practice of law; and (3) are reasonable
based on community norms. Plaintiff has failed to do so. The
Court will address Collingsru before turning to Arons.
A. Maura Collinsgru
The school board does not contest that Plaintiff should be
compensated for some of Collinsgru's hours; it merely contests
the number of hours and the reasonableness of the rate charged. The school board asserts that
Collinsgru has charged at least forty hours for services
constituting legal representation, including time for preparation
of pleadings filed in the Office of Administrative Law,
preparation for hearings, and the preparation of a summary
judgment motion. Finally, the school board asserts that Plaintiff
has failed to demonstrate that Collingsgru's rate is reasonable.
Plaintiff contends that Collinsgru provided only consulting
services and that because a lawyer could not have described the
educational requirements of the twins, Collinsgru's services, by
their nature, could not be legal. Furthermore, Plaintiff asserts
that none of Collinsgru's billing statements included time in the
courtroom or time before the Office of Administrative Law.
Finally, Plaintiff rests on the assumption that Collinsgru's
statement that another school district agreed to pay her hourly
rate is an adequate representation of the prevailing rates in the
community. Accordingly, Plaintiff demands reimbursement of
$25,630.06 in fees for Collinsgru's services.
Summary judgment will be denied because a genuine issue of
material fact exists as to which hours were billed for consulting
and which were billed for the rendering of legal services.
Plaintiff asserts that preparing petitions for a Due Process
Hearing requires the skills of a consultant and not of an
attorney but fails to support this position through citation to
evidence that explains the process behind each disputed activity.
Furthermore, Collinsgru's billing statements contain hours of
activities frequently undertaken by attorneys in the practice of
law, such as "case preparation," preparing for summary judgment, etc. Nothing in the attached
exhibits or briefs clarifies Plaintiff's position that no hours
were billed for acts constituting the practice of law. Therefore,
Plaintiff has not established her right to the requested fees.
A genuine issue of material fact also exists over the
reasonableness of Collinsgru's rate. Although the school board
has not necessarily demonstrated that an hourly rate of $150 is
unreasonable for Collinsgru, it is Plaintiff's burden to
demonstrate that the fee is reasonable in light of community
norms. Thus, Collinsgru's affidavit, which fails to establish
community standards for billing but merely notes the willingness
of other courts to approve her rate, is unhelpful. Though this
Court may use its discretion to award fees in a case where it
believes the rate is reasonable on its face, this Court will
refuse to do so in light of the dearth of evidence regarding the
reasonableness of Collinsgru's rate.
Accordingly, Plaintiff's Motion for Summary Judgment will be
denied with respect to the fee for Collinsgru's services because
genuine issues of material fact exist regarding (1) which of Ms.
Collinsgru's hours can be reimbursed and (2) whether Collinsgru's
rate is reasonable in the Millville community.
B. Marilyn Arons
The school board contends that summary judgment with respect to
Arons's fees should be denied because a genuine issue of material
fact exists whether Arons's services played a significant role in the adjudication in
Plaintiff's favor. The school board also contests the
reasonableness of her rate.
Plaintiff counters that Arons's services were necessary because
she performed site visits at the children's school and was
"prepared to testify on plaintiff's behalf in a due process
hearing." Plaintiff asserts that Arons's testimony "would have
been instrumental in proving plaintiff's claims." Plaintiff
demands, therefore, reimbursement for $6,327 in fees for Arons's
Plaintiff's demand will be denied, for now, because Plaintiff
has not demonstrated how Arons's services led to the end-result
of having the twins placed in the Maryland School for the Blind.
Though it is clear that Arons provided Plaintiff a written and an
oral report, it is unclear how these reports were used to gain
appropriate placement for the twins. In that way, Plaintiff has
not demonstrated that Arons's services were essential to the
Even if Arons's services were necessary to the proceeding,
summary judgment is nonetheless unwarranted because a genuine
issue of material fact exists with regard to the reasonableness
of her rate. Plaintiff fails to demonstrate that the rate of $200
per hour is the prevailing rate in the Millville community.
Plaintiff's reliance on the Second Circuit ruling in Murphy, a
ruling that approved Arons's fee of $200 per hour, is misplaced
because it is not probative of the prevailing rate in the
Millville community. Additionally, Arons appears to have taken a
more active role in procuring the positive results for the Murphys than she did for Plaintiff in this case,
see generally, Murphy, 402 F.3d at 334-35, and Plaintiff
presents no evidence to support the conclusion that the services
provided the two families are sufficiently similar to warrant the
same billing rate.
Plaintiff's motion for summary judgment will therefore be
denied because a genuine issue of material fact exists (1)
whether Arons's services played a significant role in the outcome
of the case and (2) whether her rate is reasonable in the
For the foregoing reasons, the Court will deny Plaintiff's
motion for summary judgment.