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SABATINI v. CORNING-PAINTED POST AREA SCHL. DIST.
September 26, 2001
AARON SABATINI, SHARON SABATINI, INDIVIDUALLY AND AS PARENT OF AARON SABATINI, PLAINTIFFS,
CORNING-PAINTED POST AREA SCHOOL DISTRICT, DEFENDANT.
The opinion of the court was delivered by: David G. Larimer, Cheif United States District Judge.
On December 29, 1999, this court issued a Decision and Order granting a
preliminary injunction in favor of the plaintiffs in this action under the
Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400
et seq., directing defendant, Corning-Painted Post Area School District
("the District"), to provide plaintiff Aaron Sabatini ("Aaron") with a
free appropriate public education ("FAPE"), as required by IDEA. Sabatini
v. Corning-Painted Post Area Sch. Dist., 78 F. Supp.2d 138 (W.D.N.Y.
1999). The parties subsequently entered into a settlement agreement,
which provided, inter alia, that the District would remit $22,000 on
Aaron's behalf to Mitchell College ("Mitchell") for tuition and costs
during the 2000-01 academic year, and that upon Aaron's successful
completion of the Fall 2000 and Spring 2001 semesters at Mitchell, the
District would issue him a high school diploma. The settlement agreement
was incorporated into a Consent Order dismissing the action on June 21,
Pursuant to the terms of the settlement agreement, which reserved to
plaintiffs (Aaron and his mother Sharon Sabatini) the right to seek
reasonable attorney's fees, plaintiffs have now moved for an award of
attorney's fees and costs in the amount of $58,937.65, under
20 U.S.C. § 1415(i)(3)(B), which provides that "[i]n any action or
proceeding brought under this section, the court, in its discretion, may
award reasonable attorneys' fees as part of the costs to the parents of a
child with a disability who is the prevailing party." The District
acknowledges that as prevailing parties, plaintiffs are entitled to an
award of fees, but opposes certain aspects and portions of plaintiffs'
I. "Rates Prevailing in the Community"
The first area of dispute concerns the hourly rates sought by
plaintiffs' attorneys. The attorneys in question, all of whom are or at
the relevant times were with the law firm of Bouvier, O'Connor, in
Buffalo, New York, are: Bruce A. Goldstein, Esq., a partner; Arthur H.
Ackerhalt, Esq., also a partner; Jay C. Pletcher, an associate; and Linda
Hassberg, Esq.*fn1 The hourly rates requested are as follows:
In addition, plaintiffs seek fees for work performed by a paralegal, at
$65 per hour in 1998 and 1999, and $70 per hour in 2000. Rates for travel
time are roughly half of those for legal work.
Defendant contends that plaintiffs have failed to provide any
evidence, other than their own bills for services, of the reasonableness
of the rates sought. In the absence of such evidence, defendant requests
that the court calculate plaintiffs' fee award based on the rates
customarily charged by defendant's counsel's firm, Sayles & Evans of
Elmira, New York, for education-related work in the Southern Tier region
of New York State. Those rates range from $85 per hour for associates to
$150 per hour for partners.
In determining a proper fee award under IDEA, courts should follow the
"lodestar" approach, whereby the fee is derived "by multiplying the
number of hours reasonably expended on the litigation times a reasonable
hourly rate." G.M. ex rel. R.F. v. New Britain Bd. of Educ., 173 F.3d 77,
84 (2d Cir. 1999) (quoting Blanchard v. Bergeron, 489 U.S. 87, 94
(1989)). What constitutes a reasonable rate is addressed in
20 U.S.C. § 1415(i)(3)(C), which provides that "[f]ees awarded under
this paragraph shall be based on rates prevailing in the community in
which the action or proceeding arose for the kind and quality of services
furnished. No bonus or multiplier may be used in calculating the fees
awarded under this subsection." The fee applicant bears the burden of
establishing that the requested rates meet this standard. Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983) (applying fee-shifting statute under
Civil Rights Act, 42 U.S.C. § 1988)*fn2; P.G. v. Brick Township Bd.
of Educ., 124 F. Supp.2d 251, 261 (D.N.J. 2000); S.D. v. Manville Bd. of
Educ., 989 F. Supp. 649, 656 (D.N.J. 1998).
A threshold matter that must be addressed here is what constitutes the
"community" referred to in the statute. Defendant suggests that the
relevant community in this case is "Corning or the Southern Tier of New
York," the geographical area in which this action arose. Defendant's
Memorandum of Law at 5. Plaintiffs contend that the relevant community
for determining a reasonable rate is the judicial district in which the
trial court is located.
Case law from this circuit supports plaintiffs' position. The Second
Circuit has stated that ordinarily, "the `prevailing community' the
district court should consider is `the district in which the court sits'
. . . ." Cruz v. Local Union No. 3 of Intern. Broth. of Elec. Workers,
34 F.3d 1148, 1159 (2d Cir. 1994) (quoting Polk v. New York State Dep't
of Correctional Services, 722 F.2d 23, 25 (2d Cir. 1983)); accord Luciano
v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997); Marisol A. ex rel.
Forbes v. Giuliani, 111 F. Supp.2d 381, 386 (S.D.N.Y.
2000); Ragin v. Harry Macklowe Real Estate Co., 870 F. Supp. 510, 518
(S.D.N.Y. 1994); Catlin v. Sobol, No. 86-CV-222, 1995 WL 363730 *2
(N.D.N.Y. June 7, 1995); see also Stewart v. Barclay's Bus. Credit,
Inc., 860 F. Supp. 150, 150 (S.D.N.Y. 1994) ("our Court has traditionally
applied the hourly rates of New York City practitioners in these matters,
recognizing that the relevant community served is the entire Southern
District of New York, and if a lawyer chooses to live and work within
that district in a more salubrious place, or a cheaper one, that is his
or her own personal choice") (citation omitted), aff'd, 54 F.3d 766 (2d
Cir. 1995). In this action, then, the court will deem the appropriate
"community" for purposes of § 1415(i)(3)(C) to be the Western
District of New York, and not simply the Corning area.
In addition, the Second Circuit has stated that if "special expertise
of counsel from a . . . [different] district [was] required," the court
may take into consideration rates prevailing from that other district.
Cruz, 34 F.3d at 1159. In some cases, then, due to the complexity of the
case or the specialized nature of the legal services required, it may
have been reasonably necessary for the fee applicant to seek out-of-town
counsel because there were no available attorneys possessing the
requisite degree of experience or expertise in the plaintiff's own area.
In such cases, the term "community" should be construed more broadly, and
rates may be based on those prevailing in the attorney's own geographical
area for lawyers of similar skill performing work of similar complexity.
See, e.g., Mr. & Mrs. W v. Malito, No. 92-1102, 1993 WL 764591 *2
(C.D.Ill. Apr. 20, 1993) (since it was "clear that private special
education lawyers are not generally available in this region or closer
than Chicago, Illinois to advocate on behalf of the parents' position,"
plaintiffs were "not bound by local hourly rates when there is no
suggestion that the choice of counsel [from Chicago] was improvident or
counsels' billing rates were out of line with those charged by available
counsel of similar expertise, otherwise similarly situated").
In the case at bar, plaintiff Sharon Sabatini states in an affidavit
that prior to securing representation by Bouvier, O'Connor, she
"contacted numerous attorneys in Corning, Elmira and their surrounding
areas, but was unable to secure an attorney with experience in the area
of special education law." Affidavit of Sharon M. Sabatini (Ex. M to
Affidavit of Bruce A. Goldstein (Docket Item 31)) ¶ 4. She states
that she also contacted an attorney in Rochester, but he told her that he
no longer practiced special education law and that he knew of no one in
the Rochester area who did. Id. ¶ 7. Mrs. Sabatini eventually
contacted Bouvier, O'Connor, some of whose attorneys, including
Goldstein, Ackerhalt and Pletcher, concentrate in the area of disability
rights, including special education for children with disabilities.
Sabatini Aff. ¶¶ 10, 11; Goldstein Aff. ¶ 3. Thus, even if the
court were otherwise inclined to consider Corning and its environs to be
the relevant community, plaintiff's inability to locate an attorney in
that area with a suitable background in special education law would make
it inappropriate to base an hourly rate on the rates prevailing in and
In their reply, plaintiffs have submitted affidavits of three attorneys
(in addition to the affidavits of plaintiffs' attorneys themselves) in
support of their motion. These affidavits are by: Melinda R. Saran,
Esq., the Acting Associate Dean for Student Services at the University at
Buffalo ("UB") Law School and a former clinical instructor and
Supervising Attorney of the Special Education Law Clinic of the Legal
Assistance Program at that school; Ronald M. Hager, Esq., a staff
attorney in the Disability Rights Unit of Neighborhood Legal Services,
Inc. in Buffalo; and H. Jeffrey Marcus, Esq., the current Supervising
Attorney of the Special Education Law Clinic in Buffalo. Goldstein Aff.
Exs. C, D and E. All of them state that they are familiar with Bouvier,
O'Connor, and with the particular attorneys who represented plaintiffs in
this action. All three also opine that the rates billed by plaintiffs'
attorneys in this case are fair and reasonable in their community for the
types of services performed here.
The affidavits of plaintiffs' attorneys, and their curricula vitae,
indicate (and defendant does not appear to dispute) that they possess
considerable experience and knowledge in the area of special education
law. Goldstein has been an attorney since 1972, and has extensive
experience litigating cases involving special education law and the
rights of disabled persons. He is also the co-author of a treatise
entitled Legal Rights of Persons with Disabilities — An Analysis of
Federal Law, and for over a decade has taught a course at UB Law School
entitled "Legal Rights of Persons with Disabilities." Goldstein Aff. Ex.
Ackerhalt obtained his Juris Doctor degree in 1973, and like
Goldstein, he concentrates in special education law and related areas
concerning the rights of persons with disabilities. Goldstein opines, and
defendant has presented no evidence to the contrary, that he and
Ackerhalt are "the two most experienced attorneys who concentrate in the
private practice of special education law and the ...