Doe v. Marshall
| Decision Date | 05 August 2019 |
| Docket Number | CASE NO. 2:15-CV-606-WKW [WO] |
| Parties | JOHN DOE 1, et al., Plaintiffs, v. STEVEN T. MARSHALL, et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
Before the court is Plaintiffs' motion for an award of attorney's fees and costs. (Doc. # 166.) For the reasons below, the court will award $362,200.41 in attorney's fees and $6,075.98 in costs.
This case involved a number of constitutional challenges to the Alabama Sex Offender Registration and Community Notification Act (ASORCNA). It started in August 2015 as a putative class action with eight plaintiffs (Does 1-8). (Doc. # 1.) The court denied a motion for a preliminary injunction (Docs. # 17, 32) and granted permission to amend the complaint (Doc. # 38). The November 2015 First Amended Complaint added Doe 9 as a Plaintiff and dropped the claims by Does 2, 4, 5, 6, and 8. (Doc. # 39.) Plaintiffs withdrew their motion for class certification. (Doc. # 40.)
Defendants moved to dismiss the First Amended Complaint for failure to state a claim (Doc. # 43), and in March 2016, the court granted that motion in part (Doc. # 51). In August 2016, Plaintiffs filed a Second Amended Complaint and added Doe 10 as a Plaintiff. (Doc. # 81.) Defendants moved to dismiss the Second Amended Complaint for failure to state a claim. (Doc. # 87.) While that motion was pending, ASORCNA was substantially amended, see Ala. Act No. 2017-414, and Plaintiffs sought leave to file a Third Amended Complaint. (Doc. # 119.) In March 2018, the court partially granted the motion to dismiss the Second Amended Complaint. (Doc. # 125.) At the same time, it denied the motion for leave to file the Third Amended Complaint. (Doc. # 125.) Plaintiffs later sought leave to "supplement" the claims in their Second Amended Complaint and to add more Plaintiffs. (Docs. # 132, 134.) That motion was largely denied. (Doc. # 137.)
Plaintiffs raised a number of unsuccessful claims in their various complaints. The court dismissed substantive due process challenges to the 2,000-foot residency exclusion zone (Doc. # 51, at 39; see Doc. # 1, at 37; Doc. # 39, at 32) and the 2,000-foot employment exclusion zone (Doc. # 51, at 43; see Doc. # 1, at 38; Doc. # 39, at 33). It dismissed claims by Does 1 and 9 that the minor-cohabitation rule violates their right to family association. (Doc. # 51, at 40; see Doc. # 1, at 37; Doc. # 39, at 32.) It dismissed vagueness challenges to reporting requirements (Doc. # 125, at 29-33; see Doc. # 81, at 48) and to the 2,000-foot residency exclusion zone (Doc. # 125, at 28; see Doc. # 81, at 48). It dismissed a claim that ASORCNA violates the"irrebuttable presumption" doctrine. (Doc. # 125, at 24; see Doc. # 81, at 45.) It dismissed individual-capacity claims. (Doc. # 125, at 50; see Doc. # 81, at 51.) And it denied leave to add "stigma plus" claims. (Doc. # 137, at 10-12; see Doc. # 134-1, at 25, 32.)
Thus, when the parties moved for summary judgment in the summer of 2018 (Docs. # 139, 147, 154), there were only four remaining claims (see Doc. # 138). Count One was a substantive due process claim by Does 3 and 7 against the minor-cohabitation rule. Count Two was a void-for-vagueness challenge to the residency and employment exclusion zones. Count Four was an as-applied compelled speech challenge to the branded-identification requirement. And Count Five was a First Amendment overbreadth challenge to the internet-use reporting requirements.
In February 2019, the court granted summary judgment for Defendants on Counts One and Two. At the same time, it granted summary judgment for Plaintiffs on Counts Four and Five, declaring:
(Doc. # 165, at 1-2.) See generally Doe 1 v. Marshall, 367 F. Supp. 3d 1310 (M.D. Ala. 2019). No party filed a timely appeal.
Plaintiffs now move for an award of attorney's fees and costs under 42 U.S.C. § 1988. (Doc. # 166.) Throughout this case, Plaintiffs have been represented by one attorney: Joseph McGuire. Mr. McGuire claims an hourly rate of $295 or $425, and he seeks compensation for 1,515.8 hours. Thus, Mr. McGuire seeks a fee of either $447,161 or $644,215. (Doc. # 175, at 33; Doc. # 179, at 4, 7.) In addition, Plaintiffs claim $17,041.02 on their Bill of Costs. (Doc. # 176.) Defendants respond that Mr. McGuire's hourly rate should be $225, that 339.9 of his hours are not compensable, and that the court should reduce the fee award by at least two-thirds. They also argue that only $2,077.80 in costs are taxable. (Doc. # 178, at 4, 8, 14-15.)
Though most of their claims were dismissed, Plaintiffs prevailed on their First Amendment challenges to ASORCNA's internet-use reporting requirements and its branded-identification requirement. See Farrar v. Hobby, 506 U.S. 103, 109 (1992) (defining "prevailing party"). The court will therefore award Plaintiffs "a reasonable attorney's fee" and "costs." 42 U.S.C. § 1988; Fed. R. Civ. P. 54(d). The question is what constitutes a "reasonable" fee and what "costs" can be taxed.
"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 v. Eckerhart, 461 U.S. 424, 433 (1983). Once this"lodestar" amount is calculated, other considerations may lead the court to lower the fee award. See id. at 434.
"A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Norman v. Housing Auth. of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). Under this standard, $295 is a reasonable hourly rate for Mr. McGuire.
The court assumes that the "relevant legal community" is the State of Alabama as a whole. See Gay Lesbian Bisexual Alliance v. Sessions, 930 F. Supp. 1492, 1495 (M.D. Ala. 1996). The relevant market is usually "the place where the case is filed," Cullens v. Ga. Dep't of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994), and Plaintiffs did not have to go outside Montgomery to find an attorney who was willing and able to take their case, see ACLU of Ga. v. Barnes, 168 F.3d 423, 437 (11th Cir. 1999). But Defendants do not object to using statewide rates, and the court will use them here.
Mr. McGuire claims an hourly rate of $295 — or, alternatively, up to $425. (Doc. # 175, at 15.) Plaintiffs "bear[] the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates." Norman, 836 F.2d at 1299. Either "direct evidence of charges by lawyers under similar circumstances"or "opinion evidence" will suffice. Id.; see Duckworth v. Whisenant, 97 F.3d 1393, 1396 (11th Cir. 1996) (per curiam). "The weight to be given to opinion evidence," however, "will be affected by the detail contained in the testimony on matters such as similarity of skill, reputation, experience, similarity of case and client, and breadth of the sample of which the expert has knowledge." Norman, 836 F.2d at 1299. Awards in similar cases are relevant evidence, but they do not control. Dillard v. City of Greensboro, 213 F.3d 1347, 1355 (11th Cir. 2000) (per curiam). Instead, the awarded rate must be "based on an analysis of the skills . . . which were exhibited by the attorney in the case at bar." Norman, 836 F.2d at 1301.
Mr. McGuire provides no evidence about the rates he charges paying clients. See Dillard, 213 F.3d at 1354 (). He instead relies on declarations from three attorneys: James Blacksher, Larry Menefee, and Bobby Segall. (Docs. # 175-4, 175-5, 175-6.) But those declarations do little to establish the market rate for attorneys with skills, experiences, and reputations "reasonably comparable" to Mr. McGuire's skill, experience, and reputation. Norman, 836 F.2d at 1299.
According to Mr. Blacksher, "the prevailing hourly rates of lawyers practicing in Alabama federal courts as of 2017 ranged from $300 to $550 per hour." (Doc. # 175-4, at 5.) He opines that Mr. McGuire should be awarded an hourly rate "nearer the top of the prevailing range" because of his "unique expertise" in this area of law.(Doc. # 175-4, at 5.) But Mr. Blacksher does not refer to the skills, experiences, or reputations of other lawyers. That is, he "fails to provide different rate structures for newly minted attorneys and seasoned advocates." Hart v. Guardian Credit Union, 870 F. Supp. 2d 1300, 1307 (M.D. Ala. 2012) (). In addition, Mr. Blacksher bases his "$300 to $550 per hour" range on declarations filed by other attorneys in Alabama Legislative Black Caucus v. Alabama. But declarations in that case asserted that the market rate starts at $250 an hour, not $300. No. 12-cv-691, Docs. # 358-7, 358-9, 358-12 (M.D. Ala. filed July 1, 2017). For these reasons, Mr. Blacksher's declaration does not support Mr. McGuire's claim to $425 an hour, which Mr. McGuire apparently calculated as the average of $300 and $550 an hour. (See Doc. # 179, at 3 & n.2.)
Mr. Menefee similarly opines that, for Mr. McGuire, $295 an hour is "on the low side of reasonable." (Doc. # 175-5, at 4.) He also asserts that "Mr. Blacksher's Declaration describes a range of hourly rates for federal civil litigation that is much closer to what I understand to...
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