N.C. Right to Life Political Action Comm. v. Leake

• Decision Date: 29 March 2013
• Docket Number: No. 5:11–CV–472–FL.,5:11–CV–472–FL.
• Citation: 939 F.Supp.2d 526
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: NORTH CAROLINA RIGHT TO LIFE POLITICAL ACTION COMMITTEE, et al., Plaintiffs, v. Larry LEAKE, et al., Defendants.

939 F.Supp.2d 526

NORTH CAROLINA RIGHT TO LIFE POLITICAL ACTION COMMITTEE, et al., Plaintiffs,

v.Larry LEAKE, et al., Defendants.

No. 5:11–CV–472–FL.

United States District Court,

E.D. North Carolina,

Western Division.

March 29, 2013.

James Bopp, Jr., Jeffrey P. Gallant, Anita Y. Woudenberg, Bopp, Coleson & Bostrom, Terre Haute, IN, Thomas J. Ashcraft, Thomas J. Ashcraft, Attorney at Law, Charlotte, NC, for Plaintiffs.

Alexander McClure Peters, Susan Kelly Nichols, N.C. Department of Justice, Raleigh, NC, for Defendants.

ORDER

JAMES E. GATES, United States Magistrate Judge.

This case comes before the court on the motion (D.E. 48) by plaintiffs North Carolina Right to Life Political Action Committee and North Carolina Right to Life Committee Fund for Independent Political Expenditures (“plaintiffs”), pursuant to 42 U.S.C. § 1988, for the recovery of attorney's fees and costs from defendants Larry Leake, Charles Winfree, Robert Cordle, Ronald G. Penny, and John Hemphill, who are members of the North Carolina State Board of Elections, all sued in their official capacities (collectively “defendants”). The motion has been fully briefed ¹ and referred to the undersigned for disposition pursuant to 28 U.S.C. § 636(b)(1)(A). ( See Minute Entry after D.E. 59). For the reasons set forth below, the motion will be allowed in the amount of $52,426.91.

BACKGROUND

I. PROCEDURAL HISTORY

In this action, brought pursuant to 42 U.S.C. § 1983, plaintiffs challenged the North Carolina matching funds scheme in elections provided for under N.C. Gen.Stat. §§ 163–278.66 and 163–278.67 as violative of the First and Fourteenth Amendments to the United States Constitution. On 18 May 2012, the court entered an order (D.E. 41) allowing plaintiffs' motion for summary judgment (D.E. 29) and denying defendants' motion to dismiss and alternative motion for summary judgment (D.E. 21). (18 May 2012 Ord. 2, 16). The court found that the North Carolina scheme was comparable to the Arizona matching funds scheme the United States Supreme Court held unconstitutional in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, ––– U.S. ––––, 131 S.Ct. 2806, 180 L.Ed.2d 664 (2011) and, based on Bennett, ruled that the North Carolina matching funds scheme violated the First Amendment, as plaintiffs alleged. ( Id. at 9–13). This court both declared the North Carolina scheme unconstitutional and enjoined its enforcement.² ( Id. at 13).

As noted in the 18 May 2012 order, plaintiffs had in 2006 brought a suit (“Jackson”) seeking, among other relief, to have these same statutory provisions declared unconstitutional, Barbara Jackson, et al. v. Lorraine G. Shinn, et al., No. 5:06–CV–324–BR (E.D.N.C.)(“Jackson”).³ (18 May 2012 Ord. 5). This court dismissed the case, the Fourth Circuit affirmed,and the Supreme Court denied review. Jackson v. Leake, 476 F.Supp.2d 515 (E.D.N.C.2006), aff'd sub nom N.C. Right to Life Comm. Fund for Ind. Political Expend. v. Leake, 524 F.3d 427 (4th Cir.), cert. denied sub nom Duke v. Leake, 555 U.S. 994, 129 S.Ct. 490, 172 L.Ed.2d 357 (2008).

II. ATTORNEY'S FEES AND COSTS CLAIMED

In their motion and initial memorandum, plaintiffs requested a total of $75,162.91 in fees and costs. ( See Mot. ¶ 7). This total includes $49,689.41 for the present litigation, comprising $41,125.66 for the firm of lead counsel James Bopp, Jr., The Bopp Law Firm ($39,814.00 in fees and $1,311.66 in costs) and $8,563.75 for local counsel Thomas J. Ashcraft, all fees. ( See id. ¶ 5). The total sought also includes a portion of the fees and costs for work done by The Bopp Law Firm at the district court and Fourth Circuit levels in Jackson—namely, $25,473.50 ($24,969.50 in fees and $504.00 in costs). ( See id. ¶ 6; Bopp Dec. (D.E. 49) ¶ 9). This brings the total request for that firm to $66,599.16. In support of their motion, plaintiffs submitted: the declaration of Attorney Bopp, along with his resume (D.E. 49–1), law firm biography (D.E. 49–2), and itemized time sheets providing the hourly rate and aggregate fee amount for each timekeeper at his firm, for both the work in this litigation (D.E. 49–3) and certain work in Jackson (D.E. 49–4); the declaration of Anita Y. Woudenberg (D.E. 50), an associate at The Bopp Law Firm, describing her as performing most of the work in both this litigation and Jackson; the declaration of Attorney Ashcraft (D.E. 52) describing his background, along with itemized time sheets for him for this litigation (D.E. 52–1); and the declaration of an attorney in this district, Steven B. Long (D.E. 51), who did not appear in the current or Jackson litigation, opining about the reasonableness of the fees sought in the instant market, along with his biography (D.E. 51–1) and an excerpt from a survey of North Carolina legal rates (D.E. 51–2).

In their reply, plaintiffs made several changes in their request for fees and costs in the current litigation. The Bopp Law Firm deducted $737.50 and Attorney Ashcraft $425.00 in fees for correction of a filing error; and The Bopp Law Firm added $3,825.00 in fees and $75.00 in costs for work on the motion for fees and costs. ( See Reply (D.E. 58) 7; see also Supp. Bopp Dec. (D.E. 59) ¶¶ 3, 4, 5). These changes bring the total sought by plaintiffs for the current litigation to $52,426.91, comprising $44,288.16 for The Bopp Law Firm ($42,901.50 in fees and $1,386.66 in costs) and $8,138.75 for Attorney Ashcraft. Plaintiffs make no change in the claim for Jackson, $25,473.50. The revised overall total fees and costs claimed is $77,900.41, an increase of $2,737.50. ( See Reply ¶ 7). Of this, The Bopp Law Firm claims $69,761.66.

DISCUSSION

I. APPLICABLE LEGAL PRINCIPLES

Section 1988 allows for the recovery of attorney's fees for prevailing parties:

In any action or proceeding to enforce a provision of sections ... 42 U.S.C. §§ 1981–1983 ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs.

42 U.S.C. § 1988. “A party ‘prevails' within the meaning of § 1988(b) ‘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.’ ”

Cherry v. Mayor and City Council of Baltimore, No. MJG–10–1447, 2012 WL 6019234, at *1 (D.Md. Nov. 30, 2012) (quoting Lefemine v. Wideman, ––– U.S. ––––, ––––, 133 S.Ct. 9, 11, 184 L.Ed.2d 313 (2012)); see also Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (stating that to qualify as prevailing, “[t]he plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought”). A prevailing party “should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (citations omitted).

Following a determination that a party is a prevailing party, the court must determine the reasonable amount to award in fees and costs. Banks v. Allied Crawford Greenville, Inc., No. 6:09–cv–01337–JMC, 2011 WL 2418666, at *1 (D.S.C. June 13, 2011) (“Upon a finding that an award of attorneys' fees is appropriate, the court is charged with determining the reasonable amount of fees to award to the petitioning party.”). To determine the reasonable amount, courts calculate a “lodestar” amount. Grissom v. Mills Corp., 549 F.3d 313, 320 (4th Cir.2008). The lodestar amount is determined by multiplying the number of reasonable hours by a reasonable rate. Id.;McAfee v. Boczar, 906 F.Supp.2d 484, 489–90 (E.D.Va.2012) (“The ‘initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’ ” (quoting Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984))). “The lodestar amount is presumptively reasonable, but may be adjusted based on the circumstances of the case.” Coles v. Land's Towing and Recovery, Inc., No. 3:10–CV–00025, 2010 WL 5300892, at *2 (E.D.Va. Dec. 22, 2010); see also Dodeka, LLC v. AmrolDavis, No. 7:10–CV–17–D, 2010 WL 3239117, at *1 (E.D.N.C. Aug. 16, 2010) (“This lodestar figure ‘provides an objective basis on which to make an initial estimate of the value of a lawyer's services.’ ” (quoting Hensley, 461 U.S. at 433, 103 S.Ct. 1933)).

More specifically, the lodestar amount should be evaluated with guidance from the factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–719 (5th Cir.1974) and adopted by the Fourth Circuit in Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n. 28 (4th Cir.1978). Jackson v. Estelle's Place, LLC, 391 Fed.Appx. 239, 243 (4th Cir.2010) ( “[W]e have directed that in deciding what constitutes a reasonable number of hours and the appropriate hourly rates (i.e., in calculating the lodestar fee), a district court looks to the .. twelve factors” set forth in Johnson);Assoc'd General Contractors of Am. v. Stokes, No. 1:11cv795, 2012 WL 7782745, at *8 (E.D.Va. Nov. 20, 2012) (mag. judge's rep. & recommendation) (noting that court must calculate lodestar in light of Johnson factors and then consider whether time spent on unsuccessful claims needs to be subtracted from award), adopted2013 WL 1155512 (Mar. 19, 2013). These factors are: “(1) the time and labor required; (2) whether there are any novel or difficult legal issues; (3) the skill required to properly perform the legal service; (4) the preclusion of other employment by the attorney due to an acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstance; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case in the community; (11) the nature and length of the professional relationship with the client; and (12) attorney's...