United States District Court, M.D. North Carolina
MARCIE FISHER-BORNE, for herself and as guardian ad litem for M.F.-B., a minor, et al., Plaintiffs,
JOHN W. SMITH, in his official capacity as the Director of the North Carolina Administrative Office of the Courts, et al., Defendants. ELLEN W. GERBER, et al., Plaintiffs,
ROY COOPER, et al., Defendants.
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., DISTRICT JUDGE
matter comes before the court on Plaintiffs' motions for
attorneys' fees, (1:12CV589 (Doc. 155); 1:14CV299 (Doc.
108)), which have been fully briefed. Upon the filing of this
court's order granting partial relief on the issue of
attorneys' fees, (1:12CV589 (Doc. 165); 1:14CV299 (Doc.
118)), the motions were mistakenly terminated on the docket.
In March 2018, this court held a telephone conference with
the parties and subsequently set aside the termination of
those motions. (1:12CV589 (Doc. 169); 1:14CV299 (Doc. 122).)
Plaintiffs submitted amended motions on April 3, 2018,
relying on the same arguments put forward in the original
motions. (1:12CV589 (Doc. 171); 1:14CV299 (Doc. 124).) These
motions are ripe for adjudication, and for the reasons stated
herein, Plaintiffs' motions will be granted. In summary,
this court generally finds the fees reasonable but has
reduced the amounts based on its mathematical adjustments to
time and fees stemming from certain specific issues. Because
the adjustments differ somewhat from objections specifically
raised by the State, this court will stay the Order for ten
days to provide the parties an opportunity to file a written
objection should they wish to be heard further on the
court's interpretation of the described billing
in each of these cases filed Complaints alleging causes of
action pursuant to 42 U.S.C. § 1983, naming as
Defendants various government officials and challenging the
constitutionality of North Carolina's laws preventing
same-sex couples from marrying and prohibiting recognition of
same-sex couples' lawful out-of-state marriages. The
complete procedural history of these consolidated cases can
be seen in various previously docketed entries. (1:12CV589
(Docs. 97, 108, 114, 138, 139); 1:14CV299 (Docs. 49, 63, 71,
in October 2014, this court entered an Order and Judgment
declaring N.C. Const. art. XIV, § 6, N.C. Gen. Stat.
§ 51-1, and N.C. Gen. Stat. § 51-1.2
unconstitutional and enjoining the State of North Carolina
from implementing or enforcing these laws. (1:12CV589 (Docs.
138, 139); 1:14CV299 (Docs. 94, 95).) Plaintiffs' other
claims were dismissed without prejudice as moot and/or not
ripe. (1:12CV589 (Docs. 138, 139); 1:14CV299 (Docs. 94, 95).)
On October 9, 2014, certain legislative parties
(“Legislative Intervenors”) moved to intervene
and on October 14, 2014, were permitted to intervene on
behalf of Defendant the State of North Carolina
(“Defendant”) on a limited basis. (1:12CV589
(Docs. 119, 134); 1:14CV299 (Docs. 75, 90).)
October 13, 2015, after consulting with Legislative
Intervenors and Defendant in accordance with Local Rule 54.2,
Plaintiffs petitioned this court for an award of $311, 196 in
attorneys' fees (requesting $254, 720 from Defendant and
$56, 476 from Legislative Intervenors) for 1, 053 hours
expended, and for $6, 612.20 in expenses. (See Docs.
155, 157-1.) On October 21, 2015, Plaintiffs filed a
stipulation and settlement agreement, reached with
Legislative Intervenors for $44, 501.36. (Doc. 157-1.) On
November 20, 2015, Defendant responded to Plaintiffs'
motion, objecting to the requested attorneys' fees. (Doc.
161.) On December 4, 2015, Plaintiffs replied, subtracting
time based on two of Defendant's objections (but
disputing the rest) and submitting amended documentation.
(Docs. 163, 163-1.) The amended documentation did not exclude
the portion of the fee request that had been settled.
result of this court's direction to the parties to file a
statement as to the fees following the intervenor settlement,
Plaintiffs filed an Amended Motion for Fees. (Doc. 171.) All
parties continued to rely on the arguments and authorities
previously filed pertaining to the fee motions.
submitted the following updated chart - though not updated
documentation - with these totals:
Original Amount Sought
Adjustments in Reply Brief
Fees Subject to Intervenor Settlement
objects on several grounds to Plaintiffs' original
requested fee and argues that the fee should be reduced to an
amount between $80, 541 and $122, 032. (Doc. 161 at
prevailing party in a civil rights action to enforce
constitutional rights may recover attorneys' fees.
See 42 U.S.C. § 1988(b). A plaintiff prevails
“when actual relief on the merits of his claim
materially alters the legal relationship between the parties
by modifying the defendant's behavior in a way that
directly benefits the plaintiff.” Lefemine v.
Wideman, 568 U.S. 1, 4 (2012) (per curiam) (quoting
Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)).
“[A]n injunction or declaratory judgment, like a
damages award, will usually satisfy that test.”
Id. (citation omitted). Defendant does not dispute
that Plaintiffs prevailed in these cases.
Fourth Circuit has explained:
The proper calculation of an attorney's fee award
involves a three-step process. First, the court must
“determine the lodestar figure by multiplying the
number of reasonable hours expended times a reasonable
rate.” Robinson v. Equifax Info. Servs., LLC,
560 F.3d 235, 243 (4th Cir. 2009). To ascertain what is
reasonable in terms of hours expended and the rate charged,
the court is bound to apply the factors set forth in
Johnson v. Georgia Highway Express Inc., 488 F.2d
714, 717-19 (5th Cir. 1974). Id. at 243-44. Next,
the court must “subtract fees for hours spent on
unsuccessful claims unrelated to successful ones.”
Id. at 244. Finally, the court should award
“some percentage of the remaining amount, depending on
the degree of success enjoyed by the plaintiff.”
McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013)
(footnote omitted). While “[t]he Supreme Court has
indulged a ‘strong presumption' that the lodestar
number represents a reasonable attorney's fee[, ]”
the Johnson factors influence the calculation and
ultimate determination. See id. at 88-90. Counsel is
expected to exercise “billing judgment, ” and
district courts should exclude hours that are
“excessive, redundant, or otherwise
unnecessary[.]” See Hensley v. Eckerhart, 461
U.S. 424, 434 (1983).
expenses, “[a] prevailing plaintiff in a civil rights
action is entitled, under § 1988, to recover
‘those reasonable out-of-pocket expenses incurred by
the attorney which are normally charged to a fee-paying
client, in the course of providing legal
services.'” Spell v. McDaniel, 852 F.2d
762, 771 (4th Cir. 1988) (citations omitted).
agrees that the hourly rates Plaintiffs seek are reasonable,
but raises several objections to the time reasonably expended
and also asks for “step two” reductions. (Doc.
161 at 11-20.) Because this court is obliged “to
provide a concise but clear explanation of its reasons”
for awarding a certain amount of fees, Hensley, 461
U.S. at 437, it will address both the unchallenged
reasonableness of the requested hourly rates and the
challenged reasonableness of the hours expended.
Lodestar Calculation - Reasonable Hourly
applicant bears “the burden of establishing the
reasonableness” of their rates and “is obliged to
show that the requested hourly rates are consistent with
‘the prevailing market rates in the relevant community
for the type of work for which [s]he seeks an
award.'” McAfee, 738 F.3d at 91
(alteration in original) (citation omitted). “The
relevant market for determining the prevailing rate is
ordinarily the community in which the court where the action
is prosecuted sits.” Rum Creek Coal Sales, Inc. v.
Caperton, 31 F.3d 169, 175 (4th Cir. 1994) (citation
omitted). In certain circumstances, such as when the
complexity of the case is such that no attorney with the
required skills is available locally, it may be reasonable to
retain attorneys from other communities and to consider those
higher, out-of-town rates. Id. at 175, 178-79.
courts look to affidavits submitted from “other local
lawyers who are familiar both with the skills of the fee
applicants and more generally with the type of work in the
relevant community.” Robinson, 560 F.3d at 245
(citation omitted). Affidavits attesting to the
applicants' “own rates, experience, and
skills” in addition to those of North Carolina lawyers
“familiar both with the skills of some of the
applicants and more generally with civil rights
litigation” in the state is “sufficient evidence
of the prevailing market rates[.]” Id.
submitted six declarations from attorneys who worked on one
or both of the cases: Christopher Brook, legal director of
the ACLU of North Carolina (“ACLU-NC”); Jeremy
Falcone and Jonathan D. Sasser, both partners at Ellis &
Winters LLP; Garrard R. Beeney, a partner at Sullivan &
Cromwell LLP (“S&C”) (Beeney's
declaration also provides information for S&C associates
W. Rudolph Kleysteuber and Kerri-Ann Limbeek); and Patrick
O'Donnell and Amy E. Richardson, both partners at Harris,
Wiltshire & Grannis, LLP. (Docs. 156-5, 156-6, 156-7,
156-8, 156-9, 156-10.) Plaintiffs seek the following hourly
rates: $250 for Mr. Brook, $287.50 for Mr. Falcone, $430 for
Mr. Sasser, $440 for Mr. Beeney, $290 for Mr. Kleysteuber,
$220 for Ms. Limbeek, $370 for Mr. O'Donnell, and $287
for Ms. Richardson. (Pls.' Mem. of Law in Supp. of Mot.
For Attorneys' Fees (Doc. 156) at 17 & n.7.)
declaration thoroughly described the attorney's own
qualifications and experience. Of the attorneys based in
North Carolina, Mr. Brook declared the reasonableness of his
own requested rate based on consulting “with attorneys
who practice in the Middle District of North Carolina and the
Fourth Circuit.” (Doc. 156-7 ¶ 7.) Mr. Falcone and
Mr. Sasser, based in Raleigh, North Carolina, both declared
that their requested rate here is below their normally
charged rate and that they maintain busy practices for which
the hours devoted to these cases reduced time that would
otherwise be spent on clients paying their customary fees.
(Docs. 156-5, 156-8.) Ms. Richardson is based in Raleigh,
North Carolina, and shared responsibility for preparing
Plaintiffs' fee motion. She declared that she is
“familiar with the market rate” for attorneys
litigating civil rights issues in North Carolina and that
counsel's rates are reasonable. (Doc. 156-9.) She also
declared that her requested rate is “substantially
below” her normal rate and that the hours devoted to
this case would otherwise have been spent on clients paying
her customary fee. (Id.)
also submitted a declaration and an affidavit, respectively,
from two North Carolina licensed attorneys, Robert M. Elliot
and Mark Sigmon, who have litigated complex civil rights
cases in this district and are familiar with the work of Mr.
Brook and Mr. Sasser. (Docs. 156-3, 156-4.) Mr. Elliot and
Mr. Sigmon attested to the reasonableness of all of
counsel's rates, including those based in North Carolina
and those outside North Carolina. Both opined that the
ACLU-NC, having typically only one and never more than two
attorneys practicing in North Carolina during this
litigation, “could not have handled” this complex
litigation without engaging additional litigation assistance.
(Id.) Plaintiffs have demonstrated with this
uncontested evidence that the North Carolina attorneys'
rates are reasonable.
the out-of-state attorneys, Mr. Beeney, a New York attorney
who represented Plaintiffs pro bono, declared that the
requested rates for himself and two associates, Mr.
Kleysteuber and Ms. Limbeek, are substantially below the
“effective hourly rate paid by [his firm's]
clients” for his and his associates' time. (Doc.
156-6.) Mr. Beeney also declared that he and the associates
maintain a busy practice and that the hours devoted to this
case would otherwise have been spent on other, paying
clients. Mr. O'Donnell, based in the District of
Columbia, shared with Ms. Richardson responsibility for
preparing Plaintiffs' fee motion and declared that his
requested rate is substantially below his normal rate and
that the hours worked in these cases would have otherwise
been spent on clients paying his customary fee. (Doc.
cases presented complex constitutional issues in a quickly
evolving area of law, justifying the services of skilled,
experienced counsel. Plaintiffs' declarations show their
North Carolina-based counsel were amply qualified, so it is
not true that no qualified attorney was available locally.
Nonetheless, the declarations support and this court finds
that the out-of-state attorneys were reasonably engaged as
necessary additional resources to help prosecute the case and
that their requested rates are reasonable in this community
for the type of civil rights litigation undertaken here.
this court adopts the unchallenged rates without adjustment.
This determination satisfies the “reasonable hourly
rate” component of the lodestar analysis and considers
the skill required to properly perform the legal services
rendered, the attorney's opportunity costs in pressing
the instant litigation, the customary fee for like work, the
attorney's expectations at the outset of the litigation,
and the experience, reputation, and ability of each attorney.
Lodestar Calculation - Reasonable Time
court now turns to “the number of hours reasonably
expended by [the movant's] ...