United States District Court, D. Idaho
SUSAN LATTA and TRACI EHLERS, LORI WATSEN and SHARENE WATSEN, SHELIA ROBERTSON and ANDREA ALTMAYER, AMBER BEIERLE and RACHAEL ROBERTSON, Plaintiffs,
MEMORANDUM DECISION AND ORDER
CANDY W. DALE, Magistrate Judge.
Before the Court is Plaintiffs' Motion for Reasonable Attorneys' Fees and Expenses Through May 23, 2014 (Dkt. 113). Plaintiffs request $463, 480.00 in attorney fees and $4, 363.08 in litigation expenses. Defendant Christopher Rich and Defendant-Intervenor State of Idaho, joined by Defendant Governor Otter (Dkt. 120), oppose Plaintiffs' request in part, arguing for a reduced award of $203, 435.00 in fees and $614.36 in expenses (Dkt. 119, as amended by 121). For reasons explained below, the Court will order Defendants to pay to Plaintiffs $397, 300.00 in attorney fees and $4, 363.08 in expenses.
Filed under 42 U.S.C. § 1983, this action involved a facial constitutional challenge to Idaho laws that defined marriage as the legal union between a man and a woman and prohibited the recognition of out-of-state marriages between two persons of the same sex. The Plaintiffs-two same-sex couples desiring to marry in Idaho, and two same-sex couples desiring to have their existing marriages recognized in Idaho-filed their Complaint for Declaratory and Injunctive Relief on November 8, 2013. The Complaint named as Defendants the Governor of Idaho, C.L. "Butch" Otter, and the Ada County Recorder, Christopher Rich. On December 11, 2013, the State of Idaho moved to intervene in the case. After considering the parties' briefs and oral argument on the matter, the Court allowed the State to intervene on January 21, 2014.
The case proceeded quickly on a legal track. All parties filed dispositive motions, which were fully briefed by April 4, 2014. One month later, on May 5, 2014, the Court heard oral argument on the dispositive motions. On May 13, 2014, the Court issued a Memorandum Decision and Order granting summary judgment in favor of the Plaintiffs. Governor Otter immediately moved for a stay of the Court's Order pending appeal. On May 14, 2014, the Court denied that motion and entered a Judgment for Plaintiffs, declaring that the challenged laws violate the Fourteenth Amendment to the Constitution of the United States and permanently enjoining their enforcement. The Defendants immediately appealed and sought a stay of the Court's Judgment from the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit granted a stay, which it later lifted effective October 15, 2014.
On May 27, 2014, Plaintiffs filed the instant motion for attorney fees and costs. Recorder Rich and the State of Idaho responded on July 2, 2014, and Governor Otter joined their response on the same day. Plaintiffs filed their reply brief on July 28, 2014, and the matter is now ripe for a decision. Because the Court finds the facts and legal arguments are presented in the record and that the decisional process would not be significantly aided by oral argument, see Dist. Idaho Loc. Civ. R. 7.1, the Court enters the following disposition.
In actions under 42 U.S.C. § 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(b). Section 1988(b) also provides the Court discretion to award "those out-of-pocket expenses that would normally be charged to a fee paying client." Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (internal quotation omitted). "Congress enacted § 1988 specifically because it found that the private market for legal services failed to provide many victims of civil rights violations with effective access to the judicial process." City of Riverside v. Rivera, 477 U.S. 561, 576 (1986). "In order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances, Congress determined that it would be necessary to compensate lawyers for all time reasonably expended on a case." Id. at 578.
Here, Plaintiffs prevailed on the dispositive issues presented and obtained all the relief requested. There is no dispute that Plaintiffs are the prevailing parties and are therefore entitled to an award of reasonable attorney fees and litigation expenses. However, the Defendants dispute whether the amount of requested attorney fees and expenses is reasonable.
1. Reasonable Attorney Fees
"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). "The product of this computation-the lodestar figure'-is a presumptively reasonable' fee under 42 U.S.C. § 1988." Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013). The Court may adjust the loadstar figure upward or downward based on factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975),  that are not subsumed in the loadstar calculation.
But the critical factor in determining the reasonableness of the fee is "the degree of success obtained." Farrar v. Hobby, 506 U.S. 103, 114 (1992) (citing Hensley, 461 U.S. at 436). The lodestar figure may be "an excessive amount" for parties who achieve only limited success. Id. On the other hand, a party who achieves "excellent results" is entitled to "a fully compensatory fee." Hensley, 461 U.S. at 435.
The prevailing party has the burden of submitting evidence showing the claimed rates and hours expended on the litigation are reasonable. Blum v. Stenson, 465 U.S. 886, 897 (1984), accord Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992). "The party opposing the fee application has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits." Gates, 987 F.2d at 1397-98. With these principles in mind, the Court considers Plaintiffs' fee request.
A. Reasonable Hourly Rates
An hourly rate is reasonable if it is "in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum, 465 U.S. at 896 n.11; Welch v. Metro. Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007). "[N]ormally the relevant legal community for determining the prevailing market rates for attorneys' fees is the community in which the forum is situated." Gates, 987 F.2d at 1405. Although the Court may look to prevailing rates outside the forum in certain circumstances, id., Plaintiffs here request rates arguably consistent with those in the Boise, Idaho market.
Plaintiffs request fees for the work of six attorneys: Deborah Ferguson, Shannon Minter, Craig Durham, Christopher Stoll, Amy Whelan, and Jaime Huling Delaye. Each attorney agreed to represent Plaintiffs at no charge, and, in turn, Plaintiffs agreed that any awarded attorney fees would be paid to their counsel. In support of their request, Plaintiffs submitted the Declarations of Ferguson, Minter, Durham, attorney Lauren Scholnick, and attorney Debora Kristensen (Dkt. 113-3; 113-7; 113-12; 113-14; 113-15). Each declarant opines that the hourly rates requested for Plaintiffs' attorneys are reasonable for similar work performed by attorneys of comparable skill and experience in the Boise market. Defendants object to the hourly rates requested for all of Plaintiffs' attorneys, except Huling Delaye. They argue-but present no evidence to show-the remaining five attorneys' rates are inflated relative to Boise market rates for similarly experienced attorneys.
(1) Deborah Ferguson
Deborah Ferguson was Plaintiffs' lead counsel in this matter. She coordinated Plaintiffs' legal team; communicated extensively with Plaintiffs; contributed to pleadings, briefs, and supporting factual materials; and presented all oral arguments on Plaintiffs' behalf. Ferguson has 28 years of civil litigation experience, ranging from constitutional torts to environmental matters and medical malpractice defense. She has practiced law in Illinois and Idaho as both a private attorney and as a civil litigator for the United States Department of Justice. In addition to several other leadership positions in the Idaho legal community, Ferguson is a former President and Commissioner of the Idaho State Bar. Although her hourly rate is $250 to $300 in non-contingency cases, Plaintiffs seek $400 per hour for Ferguson's work in this contingent fee case. Noting the fast pace of this litigation and the consequent need to turn away other fee paying matters, Ferguson opines that the higher "rate is reasonable given the exceptionally rare congruence of complexity, risk, and time demands of the case, as well as the degree of success achieved." (Dkt. 113-3 at 9.)
Defendants argue the "only justification for [Ferguson's requested $400 per hour rate] is that she worked on a contingent basis." (Dkt. 121 at 13.) Defendants quote the Ninth Circuit's decision in Welch for the proposition that "contingency cannot be used to justify a fee enhancement... or an inflated hourly rate." 480 F.3d at 947. But Plaintiffs expressly state that they "do not seek" an enhancement for Ferguson's or any other attorney's services. (Dkt. 113-1 at 11.) Rather, Plaintiffs' evidence demonstrates that they seek "fees that private attorneys of an ability and reputation comparable to that of prevailing counsel charge their paying clients for legal work of similar complexity." Davis v. City & County of San Francisco, 976 F.2d 1536, 1549 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993).
Debora Kristensen, a Boise attorney with 24 years of experience, notes "there is little encouragement for the private bar to prosecute these complex and demanding constitutional claims." (Dkt. 113-14 at 4.) According to Kristensen, "$400 per hour is similar to what attorneys in Boise doing similar specialized litigation charge and is reasonable for prosecuting an action of this complexity and difficulty, dealing with civil rights claims under the United States Constitution and the Idaho State Constitution." ( Id. at 3-4.) In fact, earlier this year, the Court approved a $400 hourly rate for Boise-based lead counsel in a complex case involving claims under the Fair Housing Act and the Idaho and United States Constitutions. Community House, Inc. v. City of Boise, No. 1:05-cv-283-CWD, 2014 WL 1247758, at *6 (D. Idaho Mar. 25, 2014).
Additional factors support Ferguson's requested rate. Welch recognizes that "delay in payment" is "properly considered in arriving at a reasonable hourly rate." 480 F.3d at 947. In cases like this, prevailing counsel are not paid as legal services are performed, yet "their expenses of doing business continue and must be met." Missouri v. Jenkins by Agyei, 491 U.S. 274, 283 (1989). Due to the demands of this case, Ferguson attests that she turned away other fee-paying matters and had less time available to develop her practice. (Dkt. 113-3 at 7.) These opportunity costs, coupled with the reality of delayed payment, underscore the undesirability of cases like this one-particularly for a small firm like Ferguson's.
Defendants do not address any of these considerations. Rather, they simply presume Ferguson's usual hourly rate should apply to the unique circumstances of this case. The Court disagrees. While Ferguson's requested rate is at the high end of the range for experienced complex litigation attorneys in the Boise market, the factors discussed above establish that $400 per hour is a reasonable hourly rate for her time in this matter.
(2) Shannon Minter
San Francisco-based attorney Shannon Minter served as co-counsel, assisting with Plaintiffs' overall case strategy as well as drafting pleadings and briefs. Minter has worked at the National Center for Lesbian Rights (NCLR) for 21 years, serving as NCLR's Legal Director since 2000. He has litigated high-profile LGBT rights cases across the country, authored treatises and publications on legal issues related to the LGBT community, and received a long list of honors for his efforts. Plaintiffs request $400 per hour for Minter's services, "consistent with ...