GRETCHEN S. STUART, M.D., et al., Plaintiffs,
v.
CHERYL WALKER-MCGILL, M.D., et al., Defendants.
1:11-CV-804
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
January 25, 2016
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
In 2011, North Carolina imposed new requirements on health care providers who treat patients seeking abortions. The plaintiffs brought this lawsuit challenging the constitutionality of a number of provisions of the Act, and they prevailed. The plaintiffs now seek their attorneys' fees and expenses pursuant to 42 U.S.C. § 1988(b), which authorizes district courts to award reasonable attorneys' fees to prevailing parties in certain civil rights litigation. While there is no dispute over the reasonableness of the expenses, the defendants do dispute the amount of attorneys' fees, contending that the evidence is insufficient to support the fee request, the hourly rates sought are not reasonable, and the time spent was excessive.
The plaintiffs submitted extensive documentation supporting their fee requests, as well as affidavits by several attorneys involved in the litigation and three experienced attorneys who were not involved. The defendants submitted no evidence to the contrary. Plaintiffs' counsel provided excellent legal services in a complicated case that required
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work before every level of the federal courts. The Court finds that, with a few small exceptions, the plaintiffs have met their burden to show that the number of hours expended and the hourly rates requested are reasonable in light of the complexity of the case and the prevailing market rates and in its discretion will award almost all the requested fees.
I. ATTORNEYS' FEES GENERALLY
Plaintiffs who prevail in suits to vindicate civil rights are entitled to recover reasonable attorneys' fees unless special circumstances make a fee award unjust. Lefemine v. Wideman, 758 F.3d 551, 553 (4th Cir. 2014); see also Hensley v. Eckerhart, 461 U.S. 424, 429 (1983).1 A "reasonable attorney's fee is one that is adequate to attract competent counsel, but . . . [that does] not produce windfalls to attorneys." Blum v. Stenson, 465 U.S. 886, 897 (1984) (citations and internal quotations omitted); see also Daly v. Hill, 790 F.2d 1071, 1077 (4th Cir. 1986). There are a number of factors relevant in determining an appropriate attorney's fee, see E. Assoc. Coal Corp. v. Dir., Office of Workers' Comp. Programs, 724 F.3d 561, 570 n.5 (4th Cir. 2013), but the "critical inquiry" in determining reasonableness of a fee award is "the appropriate hourly rate." Blum, 465 U.S. at 895 n.11. If the hourly rate is properly calculated, "the 'product of reasonable hours times [the] reasonable rate' normally provides a 'reasonable' attorney's
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fee within the meaning of [§ 1988]." Id. at 897 (quoting Hensley, 461 U.S. at 434). "This figure, commonly referred to as the 'lodestar,' is presumed to be the reasonable fee contemplated by § 1988." City of Riverside v. Rivera, 477 U.S. 561, 568 (1986) (plurality opinion). "A fee based upon reasonable rates and hours is presumed to be fully compensatory without producing a windfall." Daly, 790 F.2d at 1078.
"[R]easonable fees under § 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether [the] plaintiff is represented by private or nonprofit counsel." Blum, 465 U.S. at 895 (quotations omitted); see also McGee v. Cole, No. 3:13-24068, 2015 WL 4366161, at *3 (S.D. W.Va. July 16, 2015) (same). The fact that "a nonprofit legal services organization may contractually have agreed not to charge any fee of a civil rights plaintiff does not preclude the award of a reasonable fee to a prevailing party . . . calculated in the usual way." Blanchard v. Bergeron, 489 U.S. 87, 95 (1989) (emphasis in original).
Counsel for a prevailing party has a duty to exercise "billing judgment" to "exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. . . . Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Hensley, 461 U.S. at 434 (quotation marks omitted).
II. 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
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charged to a fee-paying client, in the course of providing legal services." Spell v. McDaniel, 852 F.2d 762, 771 (4th Cir. 1988) (quotations and citation omitted). The plaintiffs here seek total expenses of $16,226.47. (Doc. 178 at 16).2 Supporting this request, the plaintiffs have submitted records indicating the dates, amounts, and purposes of each expense. (See exhibits to Doc. 178). The Court has reviewed the requested expenses, which cover such things as travel costs associated with court hearings and depositions, copies, and printing, and finds that they were reasonably incurred in preparing the case. The defendants do not object to reimbursement of the plaintiffs' litigation expenses. The Court finds that the plaintiffs are entitled to reimbursement for the full amount of their submitted expenses.
III. THE FEE REQUESTS AND DEFENDANTS' OBJECTIONS
A. SUMMARY OF PLAINTIFFS' FEE REQUESTS
The plaintiffs seek to recover hourly rates ranging from $250 for an associate with two years' experience to $550 for work done by a former United States Solicitor General. The plaintiffs seek total fees of $1,029,587.50, which covers the work of thirteen attorneys and one paralegal at five firms and organizations over the four-year course of this litigation. (See exhibits to Doc. 178).
In support of their fee application, the plaintiffs submitted affidavits, along with supporting documentation, from six attorneys who worked on this case: Julie Rikelman,
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an attorney with the Center for Reproductive Rights ("CRR"); Christopher Brook and Katherine Parker, the current and former legal directors of ACLU of North Carolina ("ACLU-NC"); Andrew Beck, an attorney with the Reproductive Freedom Project of the American Civil Liberties Union ("ACLU"); Diana Salgado, an attorney with Planned Parenthood Federation of America; and Anton Metlitsky, an attorney at O'Melveny & Myers LLP ("O'Melveny"). (See Docs. 178-17; 178-9; 178-16; 178-1; 178-8; 178-15). The plaintiffs also submitted affidavits from three attorneys unaffiliated with the lawsuit; each is experienced in constitutional litigation, and each opined that the hourly rates and fee requests were reasonable. (See Docs. 178-10; 178-18; 178-19).3
The plaintiffs seek the following in attorneys' fees:
CRR: $503,940.
- Bebe Anderson (lead counsel): 431.6 hours at $550 hourly (2011-12).4
- Julie Rikelman (lead counsel): 447.2 hours at $550 hourly (2012-15).5
- Jennifer Sokoler: 91.35 hours at $250 hourly (2012-14).6
- Hillary Schneller: 26.75 hours at $250 hourly (2014-15).7
ACLU-NC: $71,362.50.
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- Katherine Parker: 174.6 hours at $250 hourly (2011-12).8
- Christopher Brook: 98.1 hours at $250 hourly (2012-15).9
- Emily-Mary Brown (paralegal): 25.5 hours at $125 hourly (2011-14).10
ACLU Reproductive Freedom Project: $109,600.
- Andrew Beck: 274 hours at $400 hourly (2011-15).11
Planned Parenthood: $135,355.
- Helene Krasnoff: 89.1 hours at $550 hourly plus 18 travel hours at $275 hourly (2011-12).12
- Diane Salgado: 199.5 hours at $400 hourly plus 8 travel hours at $200 hourly (2012-15).13
O'Melveny: $212,110.
- Walter Dellinger: 61.2 hours at $550 hourly (2011-15).14
- Aaron Metlitsky: 262.5 hours at $400 hourly (2011-15).15
- Laura Conn: 152.5 hours at $250 hourly (2011-12).16
- Leah Godesky: 141.3 hours at $250 hourly (2012-15).17
B. DEFENDANTS' OBJECTIONS TO THE FEE REQUESTS
The defendants contend that the hours spent are unreasonable in light of an alleged lack of complexity of the case, the work performed, and the number of timekeepers.
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Additionally, the defendants contend that the hourly rates are unreasonable. They also challenge the documentation the plaintiffs provided in support of their fee request and make a number of objections to specific time entries. (See Doc. 179).
IV. ANALYSIS
There is no dispute that the plaintiffs were the "prevailing party." See § 1988(b); Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989); Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604 (2001) ("[E]nforceable judgments on the merits . . . create the material alteration of the legal relationship of the parties necessary to permit an award of attorneys' fees.") (internal quotations omitted); see also Stuart v. Huff, 834 F. Supp. 2d 424 (M.D.N.C. 2011) (granting preliminary injunction) (Doc. 39); Stuart v. Loomis, 992 F. Supp. 2d 585 (M.D.N.C. 2014) (granting summary judgment for the plaintiffs and permanent injunctive relief) (Docs. 163, 164); Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014) (affirming judgment) (Doc. 170); Walker-McGill v. Stuart, 135 S. Ct. 2838 (2015) (mem.) (denying certiorari).
Accordingly, the Court begins by calculating the "lodestar" figure: "In calculating a reasonable fee under § 1988, a court starts by multiplying the number of hours reasonably spent on the litigation times a reasonable hourly rate." Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990) (citing Hensley, 461 U.S. at 433); see discussion supra.
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A. NUMBER OF HOURS
1. Reasonableness of Hours Generally
The fee applicant bears the burden of documenting the appropriate hours expended. Hensley, 461 U.S. at 437. Here, the plaintiffs submitted six declarations along with nearly one-hundred pages of billing records. (See exhibits to Doc. 178). All records but those of NC-ACLU's paralegal were contemporaneously recorded. (Id.)18 The submissions credibly indicate that the attorneys excluded a number of...
