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L.J. v. Audubon Board of Education

April 13, 2009


The opinion of the court was delivered by: Simandle, District Judge



This dispute arises out of Plaintiff L.J.'s allegations that Defendant Audubon Board of Education ("Audubon" or the "Board") failed to provide him a free and appropriate public education in violation of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400, et seq. Plaintiffs received a favorable final determination on their IDEA claim in an administrative proceeding held before Administrative Law Judge Joseph F. Martone ("ALJ Martone"), to whom the matter was assigned by the New Jersey Office of Special Education ("NJOSE"), and filed suit before this Court seeking an award of attorney's fees and, subsequently, an order from this Court enjoining Audubon to comply with the terms of ALJ Martone's final order.

Presently before the Court are two motions: Audubon's motion for leave to file an untimely appeal of the Court's Order denying its motion for summary judgment on its counterclaim [Docket Item 95], and Plaintiffs' motion seeking an award of counsel fees and costs for their attorney, Jamie Epstein, Esq. [Docket Item 92]. For the reasons discussed below, the Court will deny Audubon's motion, and will grant Plaintiffs' motion for attorney's fees, although, as the Court explains in detail herein, the award of attorney's fees will be significantly adjusted in order to reflect a reasonable hourly rate for the services Mr. Epstein rendered and a reasonable quantum of hours that Mr. Epstein should have expended in litigating this case.


A. Administrative Proceedings

The underlying facts in this matter were summarized in detail in the Court's November 5, 2007 Opinion, see L.J. ex rel. V.J. v. Audubon Bd. of Educ., No. 06-5350, 2007 WL 3252240 (D.N.J. Nov. 5, 2007), and are reviewed herein only to the extent necessary to resolve the motions presently under consideration. L.J., a student in the Audubon School System, has received special education and related services since he was diagnosed with autism. Id. at *1. On July 10, 2006, L.J.'s parents, V.J. and Z.J., filed a due process petition pursuant to 20 U.S.C. § 1415(f) with the NJOSE on behalf of their son, alleging that L.J.'s individualized education program ("IEP") for the 2005-2006 school year failed to address his educational needs. (Am. Compl. ¶ 8.) The petition identified various shortcomings in L.J.'s IEP, including the IEP's failure to provide an effective behavior intervention plan to address the behaviors that were interfering with L.J.'s ability to learn; the absence of clear benchmarks, communication methodologies, and parental training strategies in the IEP; and Defendant's failure to employ qualified staff to provide L.J. with particular educational services. (Id.) Plaintiffs' due process petition was assigned to ALJ Martone. (Schwerin Aff. ¶ 3.)

ALJ Martone set a schedule for argument on Plaintiffs' due process petition, scheduling hearings for August 18 and 29, 2006. See Z.J. v. Audubon Bd. of Educ., No. 2007-11386, 2006 WL 3075735, at *1 (N.J. Adm. Oct. 23, 2006). At the second of these hearings, on August 29, 2006, Plaintiffs

raised an evidentiary objection to certain documents offered for identification by [Audubon] on the basis that [Audubon] had not provided any discovery pursuant to the requirements of N.J.A.C. 1:6A-10.1(a) and (b). [The] [a]attorney for [Audubon] did not dispute this, representing that he had made an unsuccessful attempt to provide discovery to the [Plaintiffs] but he acknowledged that such discovery had not been provided.

Id. Pursuant to N.J.A.C. 1:6A-10.1(c), which provides in relevant part that "[u]pon application of a party, the judge shall exclude any evidence at [a] hearing that has not been disclosed to that party at least five business days before the hearing," Plaintiffs moved to exclude from the administrative proceedings the evidence that Audubon conceded it had failed to disclose. N.J.A.C. 1:6A-10.1(c) (emphasis added).

The ALJ addressed Plaintiffs' motion in an "order excluding evidence pursuant to N.J.A.C 1:6A-10.1." Z.J. v. Audubon Bd. of Educ., No. 2007-11386, 2006 WL 3075736, at *1 (N.J. Adm. Oct. 23, 2006) (capitalization omitted). The ALJ found that the lone exception contained within N.J.A.C 1:6A-10.1(c) -- for cases in which "the evidence could not reasonably have been disclosed [five days before the hearing]" -- was inapplicable to the proceedings before him, noting that "[t]here [was] no information in the record . . . to support that determination in this matter." Z.J., 2006 WL 3075736, at *1. In light of Audubon's acknowledged failure to disclose evidence that was available for disclosure in accordance with the five-day rule, the ALJ excluded "any evidence that has not been[] disclosed by [Audubon] to the [Plaintiffs] at least five business days before the hearing, unless I determine that the evidence could not reasonably have been disclosed within that time." Id. at *3.

After the August 18 and 29, 2006 hearings, and upon consideration of L.J.'s IEPs and the testimony of two witnesses for Plaintiffs, ALJ Martone determined in a decision issued on October 23, 2006 that L.J.'s 2005-2006 IEP failed to provide him with an appropriate education under the IDEA, and issued a four-part order calling upon Audubon to redress the failings in L.J.'s educational program. Z.J., 2006 WL 3075735, at *42-43. ALJ Martone designated his decision as final pursuant to 20 U.S.C. § 1415(i)(1)(A) and 34 C.F.R. § 300.510. Id. at *43.

B. Proceedings Before this Court

Plaintiffs filed the Complaint in this action on November 8, 2006, seeking an award of attorney's fees for having prevailed at the administrative level [Docket Item 1]. Given how straightforward the underlying claims and issues were, the litigation that ensued over the following two years was unnecessarily protracted and contentious, owing in large part to the failure of Defendant to file its submissions on a timely basis and to comply with court orders, and to the unproductive acrimony displayed by counsel on both sides, as the following summary makes clear.

After Defendant failed to timely plead or otherwise defend, the Clerk of the Court entered default against Defendant upon Plaintiffs' request [Docket Item 9], which the Court set aside pursuant to Defendant's motion in an August 22, 2007 Memorandum Opinion and Order [Docket Items 26 and 27]. In its Amended Answer, Defendant asserted a counterclaim against Plaintiffs, alleging that the matter should be remanded to the ALJ because the exclusion of Defendant's non-disclosed evidence was arbitrary and capricious.

Shortly after filing the Complaint, Plaintiffs moved for a preliminary injunction, arguing that Defendant had failed to comply with the ALJ's October 23, 2006 order and seeking a court order requiring Defendant to comply with the ALJ's order. Defendant opposed Plaintiffs' motion, arguing that this Court lacked jurisdiction to enforce the ALJ's order. In its December 22, 2006 Opinion and Order [Docket Items 15 and 16], the Court addressed and rejected Defendant's jurisdictional objections, holding that, under Jeremy H. v. Mount Lebanon School Dist., 95 F.3d 272, 278-279 (3d Cir. 1996), jurisdiction to enforce an IDEA administrative order with which a defendant has failed to comply lies under 42 U.S.C. § 1983.*fn1 In a subsequent Opinion and Order [Docket Items 41 and 42], the Court granted in part Plaintiffs' motion for a preliminary injunction, finding that Audubon had failed to comply with specific portions of the ALJ's order and requiring that Audubon bring itself into compliance with ALJ Martone's directives.

Shortly after the entry of the Court's injunctive Order, Plaintiffs filed an order to show cause in which they argued that Audubon had not timely complied with the Court's Order [Docket Item 45]. In their motion, Plaintiffs, through Mr. Epstein, urged the Court to order the incarceration of Don Borden, Superintendent of the Board of Education, and the payment of $10,000 per day of the Board's noncompliance, in order to compel the Board's compliance. (Docket Item 45 at 2.) After convening a telephone conference, at which it became clear that the parties had made little to no meaningful effort to resolve the matter before Mr. Epstein sought to have Mr. Borden incarcerated,*fn2 the Court entered an Order requiring that "counsel and clients . . . attend and participate in good faith in an effort to resolve this dispute about the required and provided services so that no Court intervention will be necessary." (Docket Item 49 at 1.) The parties did not resolve the dispute, and the Court subsequently adjudged Defendant to be in civil contempt and ordered Audubon to cease its noncompliance [Docket Items 65 and 66]. Audubon thereafter began providing L.J. with the educational services in question.

On September 11, 2007, Defendant moved for summary judgment as to its counterclaim against Plaintiffs. In a Letter Order dated October 16, 2007 [Docket Item 39], the Court observed that Defendant had failed to submit the record of the administrative proceedings with its motion, as 20 U.S.C. § 1415(i)(2)(C)(i)*fn3 requires. Because the Court was unable to address the merits of Defendant's motion in the absence of the administrative record, see id., it dismissed the motion without prejudice to renewal upon Defendant's filing the administrative record with the Court within twenty days.

Forty-two days after the entry of the October 16, 2007 Order, on November 27, 2007, Defendant filed part, but not all, of the administrative record with the Court. On February 20, 2008, Defendant renewed its motion for summary judgment on its counterclaim [Docket Item 64], which Plaintiffs again opposed on § 1415(i)(2)(C)(i) grounds, noting that Defendant had still failed to file with the Court the complete record of the administrative proceedings. Defendant objected to Plaintiffs' opposition in a letter dated March 18, 2008, complaining that Plaintiffs had employed a "hyper-technical reading of the requirement of filing the administrative record" (Docket Item 76 at 1), but, finally, on April 2, 2008, Defendant filed the complete record of the administrative proceedings with the Court.*fn4

In its September 10, 2008 Opinion and Order [Docket Items 89 and 90], the Court denied Audubon's motion for summary judgment as to its counterclaim seeking remand to the ALJ. Unpersuaded by Audubon's argument that the ALJ had erred in applying N.J.A.C. 1:6A-10.1(c)'s "five-day rule" to exclude evidence that the Board had failed to timely disclose, the Court explained:

The five-day rule furthers the goal of "prompt resolution of questions involving the education of handicapped children," [Spiegler v. District of Columbia, 866 F.2d 461, 467 (D.C. Cir. 1989) (quoting 121 Cong. Rec. 37,416 (1975))], by providing unambiguous requirements and strong incentives for pre-hearing disclosures. See Pachl ex rel. Pachl v. School Bd. of Independent School Dist. No. 11, No. 02-4065, 2005 WL 428587, at *18 (D. Minn. Feb. 23, 2005). That is, the rule puts parties to IDEA administrative proceedings on notice as to precisely what must be disclosed ("any evidence at [a] hearing") and when ("at least five business days before the hearing"), and reduces the likelihood that a hearing would have to be delayed or adjourned on account of disputes or confusion over a party's disclosure obligations. N.J.A.C 1:6A-10.1(c). Notwithstanding Defendant's complaint about the ALJ's "hyper[-]technical" application of the five-day rule in this case, then, (Schwerin Aff. ¶ 5), it is precisely the categorical, unambiguous nature of the rule that serves "the IDEA's goal of prompt resolution of disputes . . . . concerning the disabled student's education." [Dell v. Board of Educ., Tp. High School Dist. 113, 32 F.3d 1053, 1061 (7th Cir. 1994)].

(Docket Item 90 at 11-13, footnote omitted.)

In light of the fact that the Court had rendered a final denial of relief as to the Defendant's counterclaim, the Court noted that "the only matter remaining in this case is Plaintiffs' motion for attorney's fees," and afforded Plaintiffs twenty days to file their motion for attorney's fees, (id. at 14 n.7), a period that was later enlarged upon Plaintiffs' request [Docket Item 91]. Fifty-eight days after the entry of the Court's September 10, 2008 Opinion and Order, Audubon filed a motion seeking leave to file an untimely appeal of that Order [Docket Item 95].

After Mr. Epstein filed his application for attorney's fees and Defendant filed its opposition thereto, the Court, observing that the parties were in dispute as to Mr. Epstein's hourly rate and that Mr. Epstein had not submitted evidence sufficient to support his assertion that a reasonable hourly rate for his services was $400, entered an Order seeking supplementation of the record [Docket Item 96]. Specifically, the Order provided:

Mr. Epstein [should] submit to the Court for in camera inspection copies of all billing statements from the last six months in which he has charged a fee-paying client at the rate of $400 per hour, and which the client has paid. If Mr. Epstein has no such records, he should submit copies of all billing statements in which he has charged fee-paying clients at a rate exceeding $250 per hour, which the client has paid, over the last six months.

(Docket Item 96 at 1.) In his response to this Order, Plaintiff indicated that he had no records that meet any of these criteria.

In a subsequent Order, the Court solicited the parties' input as to whether it should "convene an evidentiary hearing to hear testimonial evidence as to the reasonable market rate" for Mr. Epstein's services. (Docket Item 103 at 1.) Both parties indicated that the record was sufficient for the Court's determination without the need for an evidentiary hearing.*fn5


A. Defendant's Motion for Leave to File an Untimely Appeal

The Court first addresses Defendant's motion for leave to file an untimely appeal of the Court's September 10, 2008 Order. As the preceding summary of this case's history and the following discussion make plain, the Board's litigation of this case has been consistently undermined by its own repeated failure to adhere to deadlines established by the New Jersey Office of Administrative Law, by this Court's scheduling orders, and, now, by the Federal Rules of Appellate Procedure. For the reasons that follow, the Court finds that the Board has not shown "excusable neglect or good cause" for its failure to file a timely appeal, Fed. R. App. P. 4(a)(5)(A)(ii), and the Board's motion will accordingly be denied.

1. Standard of Review

Under the Federal Rules of Appellate Procedure, "[i]n a civil case . . . , the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered."*fn6 Fed. R. ...

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