United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This matter is before the court on plaintiffs' motion for attorney's fees, pursuant to 42 U.S.C. § 1988. (DE 70). Defendants responded in partial opposition, and plaintiffs replied. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court grants in part and denies in part plaintiffs' motion.
STATEMENT OF THE CASE
Plaintiffs commenced this action on March 1, 2013, under 42 U.S.C. §§ 1983 and 1988, seeking injunctive relief, declaratory relief, and nominal damages against defendants for asserted deprivation of plaintiffs' fundamental right to free speech under the First Amendment and right to due process of law, in connection with plaintiffs' interest in distributing religious literature at the 2012 Fayetteville Dogwood Festival ("Dogwood Festival"), and future annual Dogwood Festivals. In particular, plaintiffs sought the following relief, as pertinent to the present order:
(1) Nominal damages arising from acts of defendants during the 2012 Dogwood Festival.
(2) A declaratory judgment declaring that acts of defendants during the 2012 Dogwood Festival violated plaintiffs' constitutional rights.
(3) A declaratory judgment declaring that a ban imposed on literature distribution during the annual Dogwood Festival is unconstitutional on its face and as applied to plaintiffs' expression.
(4) A preliminary and permanent injunction enjoining defendants from applying a ban on literature distribution so as to restrict constitutionally-protected speech of speakers, including plaintiffs, as well as unnamed third parties, on the public ways in Fayetteville, North Carolina, during the annual Dogwood Festival.
(5) Award plaintiffs their costs and expenses of this action, including reasonable attorneys' fees.
In conjunction with their original complaint, on March 1, 2013, plaintiffs filed a motion for preliminary injunction in which they sought to enjoin defendants "from applying policy that facilitates a ban on literature distribution, on its face and as-applied, so as to prevent [plaintiffs] and third party individuals from engaging in literature distribution on public ways in downtown Fayetteville during the 2013 Fayetteville Dogwood Festival [commencing April 26, 2013], future Dogwood Festivals, and other festivals taking place in downtown Fayetteville." (Mot. for Prelim. Inj. 1).
On March 4, 2013, the court directed plaintiffs to notify defendants of the filing of the action, and ordered response to the motion for preliminary injunction within twenty-one days of service, and set hearing on the motion for April 19, 2013. On March 28, 2013, defendants filed a memorandum in opposition to the motion for preliminary injunction, attaching affidavits and documentary exhibits about the Dogwood Festival. At hearing on April 19, 2013, the court heard argument on the motion by counsel and took the matter under advisement.
On April 23, 2013, the court entered an order denying the preliminary injunction motion, holding that plaintiffs had failed to establish a likelihood of success on the merits on the basis of findings of facts on the record then before the court. The next day, the court entered an initial order regarding planning and scheduling, directing the parties to file a discovery plan by May 29, 2013.
On April 30, 2013, plaintiffs filed a notice of appeal of the court's denial of their preliminary injunction motion. On May 2, 2013, plaintiffs moved to stay discovery and all proceedings in the district court pending appeal, and the court granted the motion to stay the next day.
In the court of appeals, the appeal proceeded to oral argument on December 11, 2013. That same day, the court of appeals dismissed the appeal, stating "[f]or the reasons expressed in open court, the appeal in this case is dismissed as moot. This order is in no way intended to address plaintiffs' remaining claims for relief in this action." (DE 34).
Plaintiffs then filed a second motion for preliminary injunction on January 2, 2014, including new factual assertions and exhibits based upon the 2013 and upcoming 2014 Dogwood Festivals. The second motion for preliminary injunction sought to enjoin defendants from "applying and/or enforcing policy that bans literature distribution, on its face and as-applied, so as to prevent Price, Legg and third party individuals from engaging in literature distribution on public ways in downtown Fayetteville during the 2014 Dogwood Festival... or any future Dogwood Festival." (Second Mot. for Prelim. Inj. 1).
On January 15, 2014, the court lifted the stay and held a Rule 16 status hearing at which the parties agreed to attend a court-hosted settlement conference during the first two weeks of February 2014. Meanwhile, defendants filed on January 30, 2014, an initial response in opposition to plaintiffs' motion, in which defendants asserted as previewed at hearing that the motion is moot because the city is not, and would not be, enforcing the restriction plaintiffs seek to enjoin.
Following court-hosted settlement conference held on February 11, 2014, the parties tendered a proposed consent order stating that the parties resolved between themselves plaintiffs' second motion for preliminary injunction. In particular, the consent order states that the parties agreed that defendants "will not enforce the current literature distribution rule promulgated by Dogwood Festival, Inc." (DE 47). The court retained jurisdiction to enforce the parties' agreement and to resolve the remaining claims set out in plaintiffs' complaint.
The court directed the parties to confer and develop a joint report and plan for remaining case deadlines and disposition. The court then entered a case management order that included a period of discovery running from May 31, 2014, to September 30, 2014, and set a dispositive motions deadline for October 31, 2014. In the meantime, on March 11, 2014, defendants filed motions for judgment on the pleadings and to dismiss. Plaintiffs also filed a first amended complaint by stipulation, on March 20, 2014, which was identical to the original complaint, except that it added the identity of an original "John Doe" defendant. The court denied defendants' motions on May 21, 2014, allowing all claims to proceed.
Plaintiffs filed a motion for leave to file a second amended complaint on June 23, 2014. Before that motion ripened, the parties filed a joint motion to approve consent judgment on behalf of all parties. The court entered a consent order and judgment in accordance thereof, which provided as follows:
judgment is hereby entered in favor of plaintiffs on their claims for permanent injunctive and declaratory relief from restrictions on their distribution of religious literature at private festivals that are free open to the public, and held on public ways with the City of Fayetteville, North Carolina. Defendants shall pay each plaintiff the amount of $1.00 as nominal damages. By stipulation of the parties, the plaintiffs shall be permitted to distribute religious literature at private festivals that are free, open to the public, and held on public ways within the City of Fayetteville, including the annual Dogwood Festival and the Independence Day Concert held in downtown Fayetteville, North Carolina.
(DE 68). Plaintiffs filed a motion for bill of costs on August 19, 2014, which motion was granted by the court on December 1, 2014. In the meantime, plaintiffs filed the instant motion for an award of attorney's fees and non-taxable expenses in the amount of $218, 222.43.
In support of their motion for attorney's fees, plaintiffs submitted the following materials: (A) a declaration of counsel Nathan W. Kellum, (B) counsel's task-based time fee statement, reflecting his exercise of billing judgment and itemization of expenses, (C) a declaration of local counsel Deborah J. Dewart, (D) local counsel's task based time fee statement, reflecting her exercise of billing judgment and itemization of expenses, and (E) the declaration of Robert D. Potter, Jr., a North Carolina attorney, regarding the reasonableness of time expended and hourly rates in this case.
Defendants oppose the motion insofar as it seeks attorney's fees and non-taxable expenses for time spent pursuing interlocutory appeal. Plaintiffs replied in support of their motion, seeking a revised sum total of $227, 392.43, to reflect time spent in preparing their reply, accompanied by supporting declarations.
A. Standard for Attorney's Fees
"The Civil Rights Attorney's Fees Awards Act of 1976 authorizes the award of a reasonable attorney's fee' to the prevailing party' in certain civil rights actions, including suits brought under Section 1983." Lefemine v. Wideman, 758 F.3d 551, 555 (4th Cir. 2014) (quoting 42 U.S.C. § 1988(b)). Section 1988 "contemplates reimbursement not only for attorney's fees but also litigation expenses such as secretarial costs, ...