M r . & M r s . S . v . Timberlane School CV-03-260-JD 03/15/04 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
M r . and M r s . S . v. Civil N o . 03-260-JD Opinion N o . 2004 DNH 046 Timberlane Regional School District
O R D E R
M r . and M r s . S . seek attorneys’ fees under the
Individuals with Disabilities Education Act (“IDEA”), 20
U.S.C. § 1415(i)(3)(B), asserting that they were the
prevailing parties in the administrative due process
proceeding brought by the Timberlane Regional School District
(“District”). In support of their claim, M r . and M r s . S . have
provided the declarations of their counsel, along with copies
of their billing records. The District objects to an award of
fees, contending that M r . and M r s . S . were not prevailing
parties and, alternatively, that the court should exercise its
discretion not to award fees in this case.
Background
M r . and M r s . S . are the parents of Johnathan S., who was
born in September of 1996 and was diagnosed in July of 1999
with autism spectrum disorder. In addition to autism, Johnathan has other medical conditions, including a suspected
mitochondrial disorder that affects his energy and motor
performance. Johnathan’s parents have sought opinions from
several experts, including pediatric neurologists, D r .
Margaret Bauman and D r . Mark Korson of the New England Medical
Center’s Floating Hospital for Children in Boston. 1
Johnathan attended a preschool program at the Timberlane Learning Center (“TLC”) during the school years 1999-2000 and
2000-2001. M r . and M r s . S., along with some of Johnathan’s
providers, noted that he regressed after being sick with
common childhood illnesses, particularly during the 2000-2001
school year. Johnathan has been non-verbal and uses a
communicative device known as a Dynamyte.
In the fall of 2001, Johnathan began kindergarten at the
TLC. M r . and M r s . S . notified the District about Johnathan’s
health needs, and at a team meeting in September, M r s . S . told the participants that Johnathan might have some type of
mitochondria disorder. She also raised the possibility that
Johnathan might have to stay at home during the winter months.
M r . and M r s . S . provided the District with a letter from D r .
Korson in November of 2001 who noted that Johnathan had
suffered from a number of infections during the winter of
1 The Hearing Officer also spells D r . Bauman’s name as “Bowman.”
2 2000-2001 and recommended that Johnathan be provided a home-
based program during the winter months to avoid exposure
during the cold and flu season. In December of 2001, D r .
Bauman concurred with D r . Korson’s recommendation.
At a team meeting on December 1 7 , 2001, the issue of
home-based services arose. The school nurse, Judy Morse,
R.N., asked for permission to speak with D r . Korson. Mrs. S. signed a medical release form but then rescinded her
permission the next day because she considered the release to
be too broad and because she wanted to be included in
communications between D r . Korson and school personnel. Mr.
and M r s . S . removed Johnathan from school on December 1 7 ,
2001. Thereafter, he continued to receive some services at
the school while the remainder of the program was provided at
home.
M r s . S . continued to meet with the team during the winter. The District required medical information about
Johnathan to evaluate his need to receive services at home.
M r s . S . agreed to provide the team with copies of letters from
D r . Korson. The issue of medical information arose at a March
meeting but was not resolved at that time. Johnathan returned
to school on May 2 , 2002.
In early July of 2002, the District proposed that a
medical evaluation of Johnathan be conducted by D r . Ellen Arch
3 of Massachusetts General Hospital, who had been retained by
the District. M r s . S . did not agree to the outside evaluation
by D r . Arch. When the District renewed its request for an
outside evaluation in September, M r s . S . again suggested that
the team contact D r . Korson. During these discussions the
parents were willing to permit the District to communicate
with D r . Korson but they wanted to be present or to have prior access to written questions. The District insisted on being
able to communicate with D r . Korson without the parents’
participation or control. The District’s Director of Pupil
Services recommended that the District record all
communication with D r . Korson, as had been done in another
case, but that option was not pursued.
In October of 2002, M r s . S . notified the District that
she and her husband would agree to an evaluation by D r . Arch
as long as M r s . S . was present during all communications with D r . Arch or that copies of all communications be provided to
the parents. The District took M r s . S.’s conditions on the
evaluation by D r . Arch as a refusal of consent and notified
M r s . S . that it would file for a due process hearing.
The development of Johnathan’s Individual Education Plan
(“IEP”) for 2002-2003 began in July of 2002. M r . and M r s . S .
expressed concern about the level of training for Johnathan’s
aide, the use of the Dynamyte device, and techniques for motor
4 planning. At the September meeting, a team member indicated
that Johnathan would begin receiving services at the
recommended enhanced levels despite the lack of agreement on
the IEP. Soon after that meeting, however, M r s . S . was
informed that she would have to sign the IEP, with exceptions
if necessary, before the enhanced service hours would begin.
In October, M r s . S . signed the IEP but attached eight pages describing her exceptions to the IEP. The District treated
the exceptions as a rejection of the IEP and decided to
request due process on that issue.
The District filed for a due process hearing on October
2 6 , 2002. The New Hampshire Department of Education docketed
the proceeding and appointed Amy B . Davidson, Esquire, as the
Hearing Officer. A prehearing conference was held on November
1 8 , 2002, and the hearing was held on December 16-18, 2003.
Hearing Officer Davidson issued her decision on March 1 4 , 2003, in which she identified the following issues to have
been presented for decision: Whether the District is entitled to have unconditional access to Johnathan’s treating physician o r , in the alternative, whether it may conduct its own medical evaluation while placing certain limits on parental participation in the evaluation process;
The appropriateness of the proposed 2002-2003 IEP with respect to the following specific areas: a ) present levels of performance, annual goals and short-term objectives; b ) statements(s) regarding
5 services and classroom modifications; and c ) statement(s) regarding staff support and training;
Whether Johnathan was entitled to the provision of enhanced hours of related services and, if s o , whether there should be an award of compensatory education and/or reimbursement to Parents for private provider expenses; Procedural violations alleged by the Parents regarding the District’s premature due process request; failure to consider existing data prior to requesting outside evaluations; and failure to provide the Parents with sufficient information with which they could consent to disclosure of medical information or to an outside evaluation.
Ad. Rec. at 2659-60.
Davidson found that the District had not violated the
IDEA procedures summarized in the fourth issue, as M r . and
M r s . S . had charged. As to the first issue, addressing the
District’s access to Johnathan’s physicians, Davidson ruled
that the District could choose among three alternatives, two
of which provided for M r . and M r s . S.’s participation in the
District’s communication with the physicians, and the third
requiring the District to record its meeting with Johnathan’s
physician and provide the recording to M r . and M r s . S .
Davidson ruled that the IEP team could request a further
medical evaluation only after considering the information
gathered from communications with Johnathan’s physicians and
specifically finding that a further evaluation was necessary.
In discussing this issue, Davidson noted: “It is of some
6 concern that, what began as a legitimate quest on the District’s part for substantiation of medical information shared by the Parent and gleaned from three ( 3 ) pieces of correspondence prepared by D r . Korson, escalated into a struggle for control over the parameters of informational transmittal.” Ad. Rec. at 2668.
In resolving the second issue which addressed the 2002- 2003 IEP, Davidson ordered that the IEP be amended to add some, but not a l l , of the changes requested by M r . and M r s . S . As to the third issue, Davidson concluded that District should have provided services to Johnathan at the enhanced levels that M r . and M r s . S . and the team agreed were appropriate at the October 2002 meeting, despite their dispute over other aspects of the IEP. Davidson ruled that Johnathan was entitled to compensatory educational services to make up the hours missed since the October 2002 meeting. 2
2 The District argues that the third issue designated by the Hearing Officer resulted in an improper remedy and was not a claim at a l l . To the extent the District challenges the Hearing Officer’s designation and resolution of this issue, the court does not consider that argument because the District did not appeal the Hearing Officer’s decision.
7 Discussion
“In 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.” § 1415(i)(3)(B).
The court first must determine whether M r . and M r s . S . are
prevailing parties, and if s o , whether any exceptions apply and whether the fees they request are reasonable.
A. Prevailing Party
“[A] prevailing party is any party who ‘succeed[s] on any
significant issue which achieves some of the benefits . . .
sought,’” and that success “materially alter[s] the litigants’
legal relationship by modifying one party’s behavior in a way
that directly benefits the other.” M e . Sch. Admin. Dist. N o .
35 v . M r . & M r s . R., 321 F.3d 9, 14 (1st Cir. 2003) (quoting
Hensley v . Eckerhart, 461 U.S. 4 2 4 , 433 (1983)). A technical
or de minimis victory is an insufficient basis for awarding
fees; instead the outcome must accomplish something
substantive for the successful party. Id. 15-17. When the
school district, rather than the parents, initiates a
proceeding, the parents nevertheless may be entitled to fees
if they qualify as prevailing parties. Id. at 1 6 .
M r . and M r s . S . contend that they are prevailing parties,
8 arguing that they achieved “overwhelming success” in the
administrative proceeding. The District argues that M r . and
M r s . S . are not prevailing parties because the Hearing Officer
found that it did not violate IDEA procedural requirements and
that Johnathan’s IEP was reasonably calculated to enable him
to benefit from his education and that he has benefited. The
District contends that the Hearing Officer found that an independent medical evaluation was not necessary only because
the decision provided access to information that was not
previously available, ordered only non-substantive changes in
the IEP, and that the award of compensatory education was
necessary only because the parents refused to sign the IEP
without exceptions.
The District is correct that Hearing Officer Davidson
found in its favor on the issue of procedural violations.
With respect to the medical information and evaluation, however, Davidson concluded that both sides had been
intransigent in their fight to control the process. While
Davidson did not require M r . and M r s . S . to accede immediately
to an evaluation of Johnathan by the District’s medical
consultant, that result was reached only because sufficient
information was expected to be available from Johnathan’s
treating physicians through the means specified in the
decision. Davidson implied that the information from D r .
9 Korson could and should have been provided previously.
Therefore, on the first issue, neither the parents nor the
District entirely prevailed.
As to the issue of Johnathan’s IEP, Davidson ordered some
of the changes M r . and M r s . S . sought, which required the
District to modify Johnathan’s IEP. In contrast to the
current District’s characterization, the changes ordered in the IEP are sufficiently “substantive” that the District
previously refused M r . and M r s . S.’s requests to make those
changes. M r . and M r s . S . were successful on the third issue
since Davidson ordered the District to provide compensatory
services to Johnathan for the time he missed when the District
refused to provide enhanced services after October 8 , 2002.
Therefore, although M r . and M r s . S . achieved something less
than “overwhelming success,” they are prevailing parties for
purposes of § 1415(i)(3)(B) on at least some of the issues decided in the due process proceeding.
B. Exceptions
The authorization for attorneys’ fees is modified by
other provisions, including a limit on the award based on a
settlement offer, § 1415(i)(3)(D)(i), and a reduction in the
award if the parents unnecessarily delayed the resolution of
the proceedings, § 1415(i)(3)(F). Doe v . Boston Pub. Schs.,
10 358 F.3d 2 0 , 23 (1st Cir. 2 0 0 4 ) . The District argues both
that it offered to settle and that the parents unnecessarily
protracted the proceedings.
In the case of a settlement offer: Attorneys’ fees may not be awarded and related costs may not be reimbursed in any action or proceeding under this section for services performed subsequent to the time of a written offer of settlement to a parent if--
( I ) the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure o r , in the case of an administrative proceeding, at any time more than 10 days before the proceeding begins;
(II) the offer is not accepted within 10 days; and
(III) the court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.
§ 1415(i)(3)(D)(i). Nevertheless, attorneys’ fees may be
awarded if the parents were substantially justified in
rejecting the settlement offer. § 1415(i)(3)(E).
In this case, M r . and M r s . S . offered to settle the
question of attorneys’ fees before they brought suit to
recover their fees, demanding $18,000 of the $19,216.85 in
fees incurred at that time. The District responded that it
disputed the parents’ status as prevailing parties and offered
$3,500 to settle the parents’ claim for fees. M r . and M r s . S .
rejected the offer.
The District’s offer of settlement would bar M r . and M r s .
11 S.’s claim for fees incurred after the offer only if the court
finds that the parents are not entitled to fees in excess of
the amount offered and that they were not substantially
justified in rejecting the offer. As is discussed above,
contrary to the District’s position, the court has determined
that M r . and M r s . S . were prevailing parties for purposes of §
1415(i)(3)(D). Given that determination, the parents were substantially justified in rejecting an offer that was only
one third of the fees and costs they had incurred at that
time.
The District also contends that any award of fees should
be reduced because M r . and M r s . S . unreasonably protracted the
dispute. “[W]henever the court finds that--(i) the parent,
during the course of the action or proceeding, unreasonably
protracted the final resolution of the controversy; . . . the
court shall reduce, accordingly, the amount of the attorneys’ fees awarded under this section.” § 1415(i)(3)(F). However,
“[t]he provisions of subparagraph ( F ) shall not apply in any
action or proceeding if the court finds that the [District]
unreasonably protracted the final resolution of the action or
proceeding or there was a violation of this section.” §
1415(i)(3)(G).
Based on the Hearing Officer’s decision, it appears that
both sides contributed to the stalemate that led to the due
12 process hearing. M r . and M r s . S . refused to provide
appropriate medical authorizations and may have been overly
critical of the IEP. The District failed to pursue reasonable
alternatives for obtaining medical information and
unilaterally and mistakenly construed M r s . S.’s exceptions to
the IEP as a rejection. Therefore, no reduction under §
1415(i)(3)(F) is appropriate.
C. Reasonable Fees and Costs
1. Attorneys’ fees.
Reasonable attorneys’ fees are determined for purposes of
the IDEA, as in other cases, by beginning with the lodestar
calculation and then applying other considerations to assess
the reasonableness of the fees demanded. S e e , e.g., I.B. v .
N.Y. City Dep’t of Educ., 336 F.3d 7 9 , 80-81 (2d Cir. 2 0 0 3 ) ;
M r . R. v . M e . Sch. Admin. Dist. N o . 3 5 , 295 F. Supp. 2d 1 2 0 ,
121 ( D . M e . 2 0 0 3 ) ; Brillon v . Klein Indep. Sch. Dist., 274 F.
Supp. 2d 8 6 4 , 867-68 (S.D. Tex. 2 0 0 3 ) . The lodestar is
calculated by multiplying the number of hours reasonably spent
on the proceedings by a reasonable hourly rate. Hensley, 461
U.S. at 4 3 3 ; Gay Officers Action League v . Puerto Rico, 247
F.3d 2 8 8 , 295-96 (1st Cir. 2 0 0 1 ) . Once the lodestar amount is
calculated, the court must consider the award in light of the
results obtained in the litigation. Tex. State Teachers Ass’n
13 v . Garland Indep. Sch. Dist., 489 U.S. 7 8 2 , 789-90 (1989);
Hensley, 461 U.S. at 4 3 4 ; Rodriguez-Hernandez v . Miranda-
Velez, 132 F.3d 8 4 8 , 858-59 (1st Cir. 1 9 9 8 ) .
In this case, M r . and M r s . S . were primarily represented
by Richard O’Meara, a partner at the Portland, Maine, firm of
Murray Plumb & Murray, along with other attorneys and staff in
that firm. Gregory Swope, of Swope & Nicolosi, P.L.L.C., in Concord, New Hampshire, has represented M r . and M r s . S . as
local counsel in the proceedings in this court. Both O’Meara
and Swope have provided declarations with contemporaneous
billing records to support the attorneys’ fees and costs
requested by M r . and M r s . S . They have also provided the
declaration of Emily Gray Rice, Esquire, of Orr & Reno in
Concord, New Hampshire, to address the reasonableness of the
hourly rate charged by O’Meara.
Murray Plumb & Murray charged $185 per hour for O’Meara’s services from October of 2002 until January of 2004, when the
rate increased to $200 per hour. Two associates in the Murray
Plumb & Murray firm worked on the case. The firm charged $145
per hour for Amy Snierson’s time until January of 2004 when
her rate was increased to $150 per hour and charged $150 per
hour for Barbara Goodwin’s time. The firm charged $70 per
hour for the time spent on the case by a legal assistant,
Maria Bowden. Gregory Swope has charged $150 per hour for his
14 time.
Murray Plumb & Murray has submitted bills for 182.1 hours
and $27,468.00 in attorneys’ fees. 3 Swope has submitted bills
for 3.9 hours for a total of $585 in attorneys’ fees.
The District has not objected to or challenged any of the
amounts requested. Instead, in the event the court were to
find that M r . and M r s . S . were prevailing parties, the District asks the court to exercise its discretion not to
award fees at a l l , asserting that the parents’ success was
minimal. Given the parents’ status as prevailing parties, as
is discussed above, the court will award reasonable fees and
costs. 4 Having failed to address the reasonableness of the
amounts requested in fees and costs, the District has not
provided any assistance to the court in undertaking its
analysis.
Based on the declarations submitted by O’Meara and Swope and the declaration submitted by Emily Gray Rice, the hourly
rates charged by the attorneys who worked on this case appear
to be generally reasonable. See also M r . R., 295 F. Supp. 2d
3 That amount includes fees charged for the time spent by paralegal Maria Bowden. 4 M r . and M r s . S . did not achieve a merely de minimis victory nor is the relief ordered in the decision simply to maintain the status quo. See M e . Sch. Admin. Unit N o . 3 5 , 321 F.3d at 1 5 .
15 at 121-22 (examining fees billed by Murray Plumb & Murray and
Richard O’Meara in an IDEA c a s e ) . In general, the time
expended also appears to be reasonable.
Certain activities, however, may not be appropriately
reimbursed at an attorney’s full hourly rate because those
activities, such as time spent traveling, meeting or
communicating with co-counsel, and compiling billing records, do not require the “core” skills of an attorney. S e e , e.g.,
Brewster v . Dukakis, 3 F.3d 4 8 8 , 494 (1st Cir. 1 9 9 3 ) ; Furtado
v . Bishop, 635 F.2d 9 1 5 , 922 (1st Cir. 1 9 8 0 ) ; LaPlante v .
Pepe, 2004 WL 371832, at *5 ( D . Mass. Jan. 2 9 , 2 0 0 4 ) ;
Weinberger v . Great N . Nekoosa Corp., 801 F. Supp. 8 0 4 , 817-25
(D. Me. 1992). In addition, if a prevailing party was
successful on some but not all claims, the court must consider
whether the fee award is proportional to the degree of the
party’s success. Gay Officers, 247 F.3d at 2 9 6 . After reviewing the billing records submitted, the court
notes several billing amounts that require adjustment.
O’Meara charged half of his billing rate for travel to Concord
on November 1 8 , 2002, but did not indicate a similar reduction
in the hourly rate for time he spent traveling on other days.
Therefore, the court will reduce the rate charged for two
hours of O’Meara’s time on each day from December 16 through
December 1 8 , 2002, to $92.50 for travel time, and the amount
16 of attorneys’ fees will be reduced by $555 to reflect that
change. O’Meara and his associates, Snierson and Goodwin,
billed their full rates for time spent on activities that
would appear not to require the “core” skills of an attorney
such as sending email to each other, indexing exhibits, and
reviewing billing records and declarations in support of a fee
award. The time spent on these activities, however, is not
easily separated from their other activities so that the court
will discount the amount billed by 2% to account for those
amounts. Both the time and hourly rate charged by Swope, as
local counsel, appear to be reasonable.
Although M r . and M r s . S . achieved something less than
complete success on the issues addressed by the Hearing
Officer, they were successful, in part, as to the first two
issues, and the third issue was resolved entirely in their
favor. See M e . Sch. Admin. Unit N o . 3 5 , 321 F.3d at 1 6 . The
issues on which they were partially successful are intertwined
with the parts in which they were not successful, so that it
is not possible or necessary to parse their attorneys’ efforts
between successful and unsuccessful claims. C f . Gay Officers,
247 F.3d at 2 9 6 ; Bandera v . City of Quincy, 220 F. Supp. 2d
2 6 , 50-51 ( D . Mass 2 0 0 2 ) . M r . and M r s . S.’s degree of success
is sufficient to support an award of attorneys’ fees as
requested, with the adjustments described above, without
17 further reduction.
Therefore, M r . and M r s . S . are entitled to attorneys’
fees in the amount of $26,948.64.
2. Costs and expenses.
Section 1415(i)(3)(B) provides that the court may award “reasonable attorneys’ fees as part of the costs to the parents” who are prevailing parties in an IDEA case. The statute does not further define costs. The statutes provides no guidance on what, other than attorneys’ fees, should be included as costs.
Other courts have assessed costs in IDEA cases under 28 U.S.C. § 1920, governing the taxation of costs generally in federal litigation. 5 S e e , e.g., T.D. v . LaGrange Sch. Dist.
5 § 1920 provides: A judge or clerk of any court of the United States may tax as costs the following:
( 1 ) Fees of the clerk and marshal;
( 2 ) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
( 3 ) Fees and disbursements for printing and witnesses;
( 4 ) Fees for exemplification and copies of papers necessarily obtained for use in the case;
18 N o . 1 0 2 , 349 F.3d 4 6 9 , 480 (7th Cir. 2 0 0 3 ) ; Neosho R-V Sch.
Dist. v . Clark, 315 F.3d 1 0 2 2 , 1031 (8th Cir. 2 0 0 3 ) ; P.G. v .
Brick Township Bd. of Educ., 124 F. Supp. 2d 2 5 1 , 266 (D.N.J.
2000). However, courts have reached mixed results as to
whether the recovery of costs under § 1415(i)(3)(B) is limited
to those costs provided in § 1920 or whether other expenses
such as postage, travel, telephone, internet research, and
expert witness fees may be recovered.
Some courts have allowed recovery of expenses outside
those listed in § 1920 in IDEA cases while others have found
such expenses to be part of the attorneys’ overhead that is
recouped through fees. S e e , e.g., id. at 2 6 7 ; B.K. v . Toms
River Bd. of Educ., 998 F. Supp. 4 6 2 , 476 (D.N.J. 1 9 9 8 ) ;
Verginia McC. v . Corrigan-Camden Indep. Sch. Dist., 909 F.
Supp. 1023, 1033 (E.D. Tex. 1 9 9 5 ) . The Seventh and Eighth
Circuits, the only circuit courts to have considered the
( 5 ) Docket fees under section 1923 of this title;
( 6 ) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.
19 issue, have ruled that 28 U.S.C. § 1821 limits the recovery of
expert witness fees in IDEA cases. 6 See LaGrange, 349 F.3d at
480-81; Neosho-R-V, 315 F.3d at 1031; but see Brillon, 274 F.
Supp. 2d at 871-72 (not following Eighth Circuit, based on
intent expressed in legislative history); R.E. v . N.Y.C. Bd.
of Educ., 2003 WL 42017, at *3 (S.D.N.Y. Jan. 6, 2003) (expert witness fees available as costs in IDEA cases); Pasik v .
Gateway Reg’l Sch. Dist., 130 F. Supp. 2d 2 1 7 , 220-22 ( D .
Mass. 2001) (same); Brick Township, 124 F. Supp. at 267
(same).
Cases construing other fee-shifting statutes are
persuasive authority for construing § 1415(i)(3)(B). M e . Sch.
Admin. Unit 3 5 , 321 F.3d at 1 4 . The First Circuit and
district courts in this circuit have generally not found
expenses outside of § 1920 to be recoverable as costs pursuant to other fee-shifting statutes. S e e , e.g., In re San Juan
Dupont Plaza Hotel Fire Litig., 994 F.2d 9 5 6 , 964 (1st Cir.
1993) (interpreting scope of Fed. R. Civ. P. 54(b));
Rodriguez-Garcia v . Davila, 904 F.2d 9 0 , 100 (1st Cir. 1990)
(applying § 1920 in civil rights c a s e ) ; Denny v . Westfield
State Coll., 880 F.2d 1465, 1470-72 (1st Cir. 1989) (following
6 § 1821(b) allows $40 per day for each day of a witness’s attendance at trial.
20 Crawford Fitting C o . v . J. Gibbons, Inc., 482 U.S. 4 3 7 , 440-43
(1987)); Sepulveda v . Matos, 2004 WL 392736, at *4-6 (D.P.R.
Feb. 2 7 , 2 0 0 4 ) ; Billings v . Cape Cod Child Dev. Program, 270
F. Supp. 2d 1 7 5 , 178 ( D . Mass. 2 0 0 3 ) ; Shared Med. S y s . v .
Ashford Presbyterian Cmty Hosp., 212 F.R.D. 5 0 , 53-56 (D.P.R.
2002). Some district courts in this circuit, however, have decided that certain out-of-pocket expenses, which are not
recoverable under § 1920, may be recovered as part of
attorneys’ fees. S e e , e.g., Bandera, 220 F. Supp. 2d at 29
n.36; Pasik, 130 F. Supp. 2d at 220-22; Johnson v . State of
R.I., Dept. of Corrs., 2000 WL 303305, at *17 (D.R.I. 2 0 0 0 ) ;
Data Gen. v . Grumman S y s . Support Corp., 825 F. Supp. 3 6 1 ,
367-68 ( D . Mass. 1 9 9 3 ) ; Weinberger, 801 F. Supp. at 8 2 7 .
As is readily apparent, “[t]he law governing taxation of
‘costs’ is not entirely coherent.” Id. at 3 6 6 . In addition, it is not entirely clear which party bears the burden in a
request for costs. In general, the party seeking to recover
costs bears the burden of showing that the amounts sought are
necessary and reasonable. S e e , e.g., Allison v . Bank One-
Denver, 289 F.3d 1223, 1248-49 (10th Cir. 2 0 0 2 ) ; Pan Am. Grain
Mfg. C o . v . P.R. Ports Auth., 193 F.R.D. 2 6 , 37 (D.P.R. 2 0 0 0 ) ;
Weinberger, 801 F. Supp. at 8 2 7 . However, a presumption
exists in favor of awarding costs to a prevailing party,
21 requiring the non-prevailing party to overcome that presumption to avoid an award. S e e , e.g., San Juan Dupont Plaza Hotel Fire, 994 F.3d at 9 6 3 ; Billings, 270 F. Supp. 2d at 1 7 7 ; Neles-Jamesbury, Inc. v . Fisher Controls Int’l, Inc., 140 F. Supp. 2d 1 0 4 , 105 ( D . Mass. 2 0 0 1 ) .
The District has not objected to any of the costs or expenses requested by M r . and M r s . S . The District’s silence both fails to convince the court that an award of costs and expenses is not appropriate here and likely forfeits any opportunity the District might have had to challenge the amount of the award on appeal, see Rodriguez-Garcia, 904 F.2d at 1 0 0 , n.11.
Murray Plumb & Murray has submitted bills for $2102.16 in costs and expenses, which include amounts for Westlaw research, telephone, travel, and postage, and an expert witness fee of $825. Although the court might have been inclined to stay within follow the limitations imposed by § 1920, M r . and M r s . S . have provided legal support, albeit minimal, for their request to recover those costs except for the Westlaw charge. 7 The court will allow the costs and
7 Weinberger, 801 F. Supp. at 8 2 7 , cited by M r . and M r s . S . does not allow the recovery of computer assisted research expenses as part of costs.
22 expenses stated in Murray Plumb & Murray’s bill of costs
except for $72 charged for Westlaw research, for a total of
$2048.16. Swope has billed $178.60 in expenses for a filing
fee and service f e e , both of which are allowed under § 1920.
Conclusion
For the foregoing reasons, the plaintiff’s motion for
attorneys’ fees and costs (document n o . 2 1 ) is granted in the
following amounts:
Attorneys’ fees: $26,948.64.
Costs and expenses: $2226.76.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
Joseph A . DiClerico, J r . United States District Judge
March 1 5 , 2004
cc: Jeanne M . Kincaid, Esquire Richard L . O’Meara, Esquire Gregory W . Swope, Esquire