Ams. for Prosperity v. Grewal

• Decision Date: 26 March 2021
• Docket Number: Case No. 3:19-cv-14228-BRM-LHG
• Parties: AMERICANS FOR PROSPERITY, Plaintiff, v. GURBIR GREWAL, in his official capacity As Attorney General of New Jersey, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

AMERICANS FOR PROSPERITY, Plaintiff,
v.
GURBIR GREWAL, in his official capacity As Attorney General of New Jersey, et al., Defendants.

Case No. 3:19-cv-14228-BRM-LHG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

March 26, 2021

NOT FOR PUBLICATION

OPINION

MARTINOTTI, DISTRICT JUDGE

Before this Court is Plaintiff Americans for Prosperity's ("AFP") Motion for Attorney's Fees in the amount of $1,429,134.59. (ECF No. 65.) Defendants Gurbir Grewal, Attorney General of New Jersey, Eric H. Jaso, Chairman of New Jersey Election Law Enforcement Commission (or "ELEC"), and two ELEC Commissioners, Stephen M. Holden and Marguerite T. Simon, (collectively, "Defendants") opposed the Motion. (ECF No. 66.) AFP filed a Reply. (ECF No. 68.) Having reviewed the submissions filed in connection with the Motion and having declined to hold oral argument pursuant to Federal Rule of Civil Procedure 78(b), for the reasons set forth below and for good cause appearing, AFP's Motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

At issue before the Court is whether AFP is entitled to attorney's fees pursuant the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988. The facts and procedural history of

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this matter are set forth in the Court's October 2, 2019 Opinion (ECF No. 39),¹ and need not be repeated here. The following procedural background is pertinent to this Motion.

On June 25, 2019, AFP filed a Motion for a Preliminary Injunction to enjoin Defendants from enforcing New Jersey Senate Bill No. 150 ("S150"). (ECF No. 3.) Defendants opposed the Motion on August 20, 2019. (ECF No. 29.) On October 2, 2019, the Court granted AFP's Motion for a Preliminary Injunction. (ECF No. 40.) On March 17, 2020, the Court converted the preliminary injunction into a permanent injunction. (ECF No. 59.) As a result, on July 15, 2020, AFP, as the prevailing party, filed this Motion for Attorneys' Fees. (ECF No. 65.) On August 12, 2020, Defendants opposed the Motion. (ECF No. 66.) On August 25, 2020, AFP filed a Reply.² (ECF No. 68.)

II. LEGAL STANDARD

Under 42 U.S.C. § 1988(b), in proceedings involving the alleged violation of federal constitutional or civil rights, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Child Evangelism Fellowship of N.J., Inc. v. Stafford Twp. Sch. Dist., No. 02-4549, 2006 U.S. Dist. LEXIS 62966, at *15 (D.N.J. Sept. 5, 2006) (citing 42 U.S.C. § 1988(b)). Section 1988 applies to First Amendment claims. See id. at *2; Glass v. Snellbaker, No. 05-1971, 2008 U.S. Dist. LEXIS 73012, at *2 (D.N.J. Sept. 23, 2008).

Parties are considered "prevailing parties" if "they succeed on any significant issue in litigation which achieves some of the benefits the parties sought in bringing suit." J.O. ex rel. C.O.

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v. Orange Twp. Bd. of Educ., 287 F.3d 267, 271 (3d Cir. 2002) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), superseded by the Prison Litigation Reform Act on other grounds). To "succeed" under this standard, a party must achieve a "court-ordered 'change in the legal relationship between the AFP and the defendant.'" Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep't. of Health and Human Resources, 532 U.S. 598, 604 (2001) (citing Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989)).

In general, a prevailing plaintiff should ordinarily be awarded attorney's fees, "unless special circumstances would render such an award unjust." Hensley, 461 U.S. at 429 (citations omitted). "[A] reasonable fee is one which is adequate to attract competent counsel, but which do[es] not produce windfalls to attorneys." Scanno v. F.H. Cann & Assocs., 794 F. App'x 220, 222 n.7 (3d Cir. 2019) (citing Pub. Interest Research Grp. of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995)). "The most useful starting point for determining the amount of a reasonable fee . . . is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 434. The resulting product of this calculation is called the "lodestar." City of Burlington v. Dague, 505 U.S. 557, 559 (1992) (citing Pa. v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986)). "There is a 'strong' presumption that the lodestar is the 'reasonable' fee." Id. at 562 (citing Del. Valley, 478 U.S. at 565).

The party seeking an award of attorney's fees bears the burden of establishing the reasonableness of the hours spent and the rates charged. Hensley, 461 U.S. at 437. "The fee petition must be 'specific enough to allow the district court to determine if the hours claimed are unreasonable for the work performed.'" Abdi Jama v. Esmor Corr. Servs., 549 F. Supp. 2d 602, 611 (D.N.J. 2008) (citing Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1037 (3d Cir. 1996)). Once the applicant produces satisfactory evidence, the burden shifts

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to "the party opposing the fee to contest the reasonableness of the hourly rate requested or the reasonableness of the hours expended." Apple Corps. v. International Collectors Soc'y, 25 F. Supp. 2d 480, 485 (D.N.J. 1998) (citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)).

In addition to the lodestar figure, "[t]here remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the 'results obtained.'" Hensley, 461 U.S. at 434. However, a district court cannot "decrease a fee award based on factors not raised at all by the adverse party." Rode, 892 F.2d at 1183 (citing Bell v. United Princeton Properties, Inc., 884 F.2d 713, 720 (3d Cir. 1989)). Further, a district court "may not set attorney's fees based on a generalized sense of what is usual and proper but must rely upon the record." Smith v. Philadelphia Housing Authority, 107 F.3d 223, 225 (3d Cir. 1997) (citations omitted).

III. DECISION

Here, AFP achieved a preliminary injunction that prevents Defendants from enforcing S150 (ECF No. 40), which was later converted to a permanent injunction with the parties' consent (ECF No. 59). These achievements result in both a modification of Defendants' behavior, and a benefit for AFP. Therefore, AFP is the prevailing party, which Defendants do not dispute, and it is therefore entitled to recover the reasonable attorney's fees it incurred in successfully challenging S150 under § 1988. AFP seeks to recover $1,429,134.59 in costs and fees. (ECF No. 65-1 at 10.) This includes $1,381,276.59 billed by Quinn Emanuel Urquhart & Sullivan, LLP ("Quinn Emanuel") (ECF No. 65-2 at 8), $86,158.52 by Marino, Tortorella & Boyle, P.C. ("Marino Tortorella") (ECF No. 65-3 at 2), and $19,699.48 by Lowenstein Sandler LLP ("Lowenstein Sandler") (ECF No. 65-4 at 2). This court has undertaken a painstaking and thorough review of the certifications submitted in support of this application.

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A. Analysis of the Reasonableness of Hours Expended by Quinn Emanuel

"The first step in calculating the lodestar is determining whether the number of hours expended was reasonable." Abdi Jama, 549 F. Supp. 2d at 611. The hours a lawyer devotes to a matter are considered reasonably expended unless they are "excessive, redundant, or otherwise unnecessary." Rode, 892 F.2d at 1183 (citing Hensley, 461 U.S. at 433). Any "hours that were not reasonably expended" must be excluded from the fee calculation. Hensley, 461 U.S. at 434. "Hours that are not properly billed to one's client also are not properly billed to one's adversary." Id. (citing Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)).

1. Certain Billed Activities are Not Compensable

AFP seeks fees representing 1,873 hours that Quinn Emanuel attorneys and staff expended. (ECF No. 68-1 at 2.) Defendants argue certain activities of AFP's counsel are not compensable. (ECF No. 66 at 21.) Such activities include: (1) lobbying; (2) pre-litigation alternative strategies for relief; (3) work on earlier statutes; (3) routine law office work; (4) preparations for discovery that never occurred; (5) review of news articles and contact with media; (6) work related to the intervenors; and (7) research and preparation for appeals that never occurred. (Id.) Defendants maintain these activities are either unrelated to the actual litigation with Defendants, e.g., for lobbying efforts, or are unnecessary because they involve aspects of litigation that did not actually occur. (Id. at 22.) Therefore, Defendants contend the Court should remove the hours expended on these allegedly non-compensable activities. (Id. at 24.) The Court finds some of these hours were not reasonably expended.

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a. Lobbying Is Not Compensable

AFP seeks to bill for pre-litigation work on lobbying against S1500³ and S150, proposed redlining of the bills, as well as meeting with New Jersey Governor Phillip Murphy's (the "Governor") Office about the legislation. (ECF No. 65-2 Exs. 1-3 at 21-44.) Defendants maintain such efforts came well before AFP filed suit and, therefore, cannot reasonably be said to have been expended "on the litigation." (ECF No. 66 at 22 (citing Hensley, 461 U.S. at 433).) Defendants analogize the lobbying efforts to optional administrative remedies that are not compensable. (Id. (citing Webb v. County Bd. of Educ., 471 U.S. 234, 243 (1985)).)

The Court declines to award attorney's fees for AFP's counsel's lobbying efforts, for the following reasons. First, AFP has "not demonstrated that 'lobbying' on the issue could not have been done by non-lawyers." West v. AK Steel Corp. Ret. Accumulation Pension Plan, 657 F. Supp. 2d 914, 929 (S.D. Ohio 2009) (declining to award attorney's fees for the plaintiff's pre-suit lobbying activities). Second, "there is no objective manner by which to measure the effectiveness of counsels' [lobbying] efforts." Id. After all, AFP's counsel's lobbying efforts failed to prevent S100 from being...