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.
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 ...