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Fisher-Borne v. Smith

United States District Court, M.D. North Carolina

July 25, 2018

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.



         This 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 adjustments.

         I. BACKGROUND

         Plaintiffs 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, 94, 95).)

         Ultimately, 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).)

         On 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.)[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.

         As a 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.

         Plaintiffs submitted the following updated chart - though not updated documentation - with these totals:

Original Amount Sought

$311, 196

Adjustments in Reply Brief

($44, 023)

Fees Subject to Intervenor Settlement

($56, 476)


$209, 819

         Defendant 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 20.)[2]


         A 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.

         As the 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.” Id.

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[3] 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).

         Regarding 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).

         III. ANALYSIS

         Defendant 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.

         A. Lodestar Calculation - Reasonable Hourly Rates

         The fee 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.

         Typically, courts look to affidavits[4] 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. (citation omitted).

         Plaintiffs 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.)

         Each 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.)

         Plaintiffs 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.

         As to 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. 156-10.)

         These 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.

         Therefore, 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.

         B. Lodestar Calculation - Reasonable Time Spent

         This court now turns to “the number of hours reasonably expended by [the movant's] ...

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