                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0570n.06

                                           No. 17-1261

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                                Oct 06, 2017
UTICA COMMUNITY SCHOOLS,                                )                  DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiff-Appellant,                             )
                                                        )   ON APPEAL FROM THE UNITED
v.                                                      )   STATES DISTRICT COURT FOR
                                                        )   THE EASTERN DISTRICT OF
RICHARD ALEF,                                           )   MICHIGAN
                                                        )
       Defendant-Appellee.                              )
                                                        )
                                                        )


       BEFORE: GIBBONS, COOK, and THAPAR, Circuit Judges.

       PER CURIAM. Utica Community Schools (UCS) appeals the district court’s judgment

dismissing its third-party complaint against attorney Richard Alef for costs and attorneys’ fees

pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415. As set

forth below, we affirm the district court’s judgment.

       In September 2012, Alef filed a due process complaint with the Michigan Department of

Education on behalf of Jeannine Somberg and her son Dylan, an eighteen-year-old student with

autism spectrum disorder, alleging that UCS had denied Dylan a free appropriate public

education (FAPE) in violation of the IDEA. An administrative law judge (ALJ) held several

prehearing conferences and preliminary motions. At one hearing, the ALJ went through an

amended version of the due process complaint “paragraph by paragraph” with the parties to

narrow the number of issues raised and requests for relief sought. Eventually, the the ALJ

conducted a hearing on the alleged FAPE violations. The ALJ’s decision concluded that Dylan
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Utica Cmty. Sch. v. Alef

was denied a FAPE for the 2012-2013 school year because his individualized education program

(IEP) lacked measurable goals and failed to provide an appropriate transition plan. The ALJ

further determined that, to the extent that UCS admitted that Dylan’s schedule was not in

compliance with his IEP at the beginning of the school year, he was denied a FAPE, but that the

issue had since been resolved. Dismissing the complaint in part, the ALJ rejected the Sombergs’

claims that procedural errors resulted in the denial of a FAPE and that Dylan was not being

educated in the least restrictive environment. Specifically, the ALJ concluded that, contrary to

the Sombergs’ allegation, there was no secret meeting about Dylan’s IEP to which they were not

a party. As relief, the ALJ ordered UCS to reconvene the IEP team to develop a transition plan

and establish measurable academic and functional goals for Dylan and to complete an assistive

technology assessment. The ALJ denied any compensatory relief.

       The Sombergs subsequently brought an action under the IDEA for attorney’s fees and

judicial review of the ALJ’s decision. Somberg v. Utica Cmty. Sch., No. 2:13-cv-11810 (E.D.

Mich. filed Apr. 23, 2013) (Somberg). UCS filed a counterclaim against Jeannine Somberg and

a third-party complaint against Alef for costs and attorneys’ fees under the IDEA, alleging that

they brought the administrative complaint for an improper purpose and made frivolous

allegations.

       Upon the parties’ stipulation, the district court severed UCS’s third-party complaint

against Alef, which proceeded as a separate civil action. Utica Cmty. Sch. v. Alef, No. 2:13-cv-

14022 (E.D. Mich. filed Sept. 19, 2013) (Alef). In the severed case, Alef filed a motion for

summary judgment.      On March 13, 2015, the district court denied Alef’s motion without

prejudice and deferred ruling on attorneys’ fees in both cases until it resolved the cross-motions

for judgment on the administrative record that had been filed in Somberg.


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Utica Cmty. Sch. v. Alef

       On March 30, 2016, the district court issued a decision granting the Sombergs’ motion

for judgment on the administrative record and denying UCS’s motion.             The district court

determined that Dylan was entitled to some measure of compensatory education but reserved

ruling on the “quality and quantity” of such education pending a bench trial. The district court

further found that UCS’s counterclaim against Jeannine Somberg for costs and attorneys’ fees

was without merit, concluding that UCS failed to prove by a preponderance of the evidence that

the administrative complaint was frivolous or brought for an improper purpose. The Sombergs

then filed a motion for costs and attorney’s fees against UCS, which the district court granted.

After a bench trial, the district court ordered UCS to pay for 1200 hours of compensatory

education and one year of transition planning for Dylan.

       On January 18, 2017, the district court ordered UCS to show cause why the Alef case

should not be dismissed for failure to prosecute. The district court noted the lack of any action in

Alef since its order deferring a determination on attorneys’ fees and questioned the viability of

the case against Alef given his clients’ success on the merits in Somberg. In response, UCS

asserted that the parties’ stipulation and the district court’s severance order contemplated a delay

before the district court disposed of Somberg and considered the third-party complaint.

Asserting that the district court could now consider the third-party complaint, UCS argued that it

was entitled to costs and attorneys’ fees because Alef made frivolous allegations during the

administrative case. The district court dismissed UCS’s third-party complaint. It concluded that

UCS’s allegations neither supported a finding that it was a prevailing party nor rose to the level

of “an egregious case of misconduct.” The district court went on to find that UCS had failed to

show cause why the case should not be dismissed for failure to prosecute, pointing out that

UCS’s response did not provide an explanation for the “long inertia totaling nearly nine months”


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after the district court ruled on the cross-motions for judgment on the administrative record in

Somberg.

       This timely appeal followed. UCS moves this court to hold this appeal in abeyance until

the district court enters a final order in Somberg, asserting that the issue on appeal requires this

court to analyze Alef’s conduct during both the administrative case and Somberg and that

presentation of both cases at the same time serves judicial economy because the two cases

involve the same parties, the same attorneys, and the same facts. Given that the allegations in

UCS’s third-party complaint involve Alef’s conduct only during the long-closed administrative

case, however, we see no need to hold this appeal in abeyance.

       We review for abuse of discretion the district court’s decision regarding whether to award

costs and attorneys’ fees. Wikol ex rel. Wikol v. Birmingham Pub. Sch. Bd. of Educ., 360 F.3d

604, 611 (6th Cir. 2004). “A district court abuses its discretion when it relies upon clearly

erroneous factual findings, applies the law improperly, or uses an erroneous legal standard.” Id.

       UCS sought costs and attorney fees against Alef pursuant to the IDEA’s fee-shifting

provision, which states in relevant part:

       In any action or proceeding brought under this section, the court, in its discretion,
       may award reasonable attorneys’ fees as part of the costs—

       ...

       (II) to a prevailing party who is a State educational agency or local educational
       agency against the attorney of a parent who files a complaint or subsequent cause
       of action that is frivolous, unreasonable, or without foundation, or against the
       attorney of a parent who continued to litigate after the litigation clearly became
       frivolous, unreasonable, or without foundation . . . .

20 U.S.C. § 1415(i)(3)(B)(i)(III). In its third-party complaint, UCS alleged that the amended

complaints filed by Alef in the administrative case made various false assertions, including that

UCS conducted a secret meeting to amend Dylan’s IEP. The complaint also identified other

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Utica Cmty. Sch. v. Alef

allegations that the ALJ found to be legally insufficient or outside the jurisdiction of the

administrative proceedings.

       In support of its claim for costs and attorney fees, UCS relies on Fox v. Vice, 563 U.S.

826 (2011), in which the Supreme Court held that a court may grant reasonable fees to the

defendant where the plaintiff asserted both frivolous and non-frivolous claims, “but only for

costs that the defendant would not have incurred but for the frivolous claims.” Id. at 829. This

case, however, is not a situation where a plaintiff “present[ed] in one lawsuit distinctly different

claims for relief that are based on different facts and legal theories.” Hensley v. Eckerhart,

461 U.S. 424, 434 (1983). UCS has not cited any cases awarding fees to a defendant where, as

here, a plaintiff made purportedly frivolous allegations in support of one overarching claim—i.e.,

whether UCS denied Dylan a FAPE in violation of the IDEA—upon which the plaintiff

prevailed at least in part. UCS would have the court parse each and every allegation in a

complaint to determine whether the allegation had a legal or factual basis. A fee request does not

require such an exhaustive analysis. See id. at 437 (“A request for attorney’s fees should not

result in a second major litigation.”).

       Furthermore, as the district court held in rejecting UCS’s counterclaim against Jeannine

Somberg for costs and attorneys’ fees, the allegation that UCS conducted a “secret” IEP meeting

without parental involvement was not frivolous. Although the record showed that there was no

meeting, administrative mistakes made by UCS led the Sombergs to believe that UCS had

changed Dylan’s IEP without their involvement. And as for the allegations stricken by the ALJ

prior to the hearing, the district court found in dismissing UCS’s third-party complaint against

Alef that there was not a “serious divide in the body of facts or issues of law which supported a

finding of liability against [UCS] and those which were stricken by the ALJ.” In addition,


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Utica Cmty. Sch. v. Alef

because the ALJ struck the offending allegations shortly after they were filed and before the

hearing, leaving numerous allegations that were not stricken, UCS would be hard-pressed to

show that it incurred attorney fees that it would not have incurred but for the stricken allegations.

Nor has UCS demonstrated that it would not have incurred fees at the administrative hearing but

for Alef’s purportedly spurious arguments at the hearing, when the ALJ took care to limit the

issues prior to the hearing, and the Sombergs prevailed on some of those issues. Under these

circumstances, the district court did not abuse its “wide discretion” in dismissing UCS’s third-

party complaint against Alef for costs and attorneys’ fees. Fox, 563 U.S. at 829

       Because we affirm the district court’s decision dismissing UCS’s third-party complaint

on the merits, we need not reach the additional issue of whether dismissal was proper for failure

to prosecute.

       For these reasons, we DENY UCS’s motion to hold this appeal in abeyance and

AFFIRM the district court’s judgment dismissing UCS’s third-party complaint against Alef.




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