Searcy et al v. Bentley et al

Filing 82

ORDER GRANTING in part & DENYING in part Plfs' 76 Motion for Attorney Fees & Costs as set out. Plfs are awarded attorneys' fees in the amount of $126,206.66. Plfs are to file, on or before 6/10/16, an accounting of the costs claimed w/sufficient detail to permit meaningful review. Any response from Dft due NLT 6/17/16. Signed by Senior Judge Callie V. S. Granade on 5/27/2016. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARI D. SEARCY and KIMBERLY
MCKEAND,
Plaintiffs,
vs.
LUTHER STRANGE, III, in his
official capacity as Attorney General
of the State of Alabama,
Defendant.

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) CIVIL ACTION NO. 14-208-CG-N
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ORDER

This matter is before the Court on Plaintiffs’ motion for attorneys’ fees and
costs (Doc. 76), Defendants’ opposition (Doc. 80), and Plaintiffs’ reply (Doc. 81).
Plaintiffs request attorneys’ fees in the amount of $189,310.00, plus costs in the
amount of $8,400.00, for a total award of $197,710.00. For the reasons explained
below, the Court finds that Plaintiffs’ motion is due to be granted in part and denied
in part to the extent that Plaintiff will be awarded attorneys’ fees in the amount of
$126,206.66. Additionally, the Court will allow Plaintiffs to file documentation to
support their claimed costs.
Congress passed the Civil Rights Attorneys' Fee Awards Act of 1976 (“Act”) in
order to ensure “effective access to the judicial process,” recognizing that a “civil
rights litigant acts as a ‘private attorney general’ who furthers important national
policy objectives.” Cooper v. Singer, 719 F.2d 1496, 1498 (10th Cir.1983) (citation
omitted), overruled on other grounds by Venegas v. Mitchell, 495 U.S. 82 (1990).
“[C]ivil rights laws ‘depend heavily upon private enforcement, and fee awards have

proved an essential remedy if private citizens are to have a meaningful opportunity
to vindicate the important Congressional policies which these laws contain.’ ” Id.
(citation omitted). The Act provides that “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.” 42 U.S.C. § 1988(b). In the instant action, the parties do not dispute that
Plaintiffs are the prevailing party; however, they disagree whether the amount of
fees and costs requested by Plaintiffs are reasonable.
Generally, the determination of reasonable attorneys’ fees begins with a
determination of the reasonable hourly rate multiplied by the “hours reasonably
expended.” Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008). “The
product of these two figures is the lodestar and there is a strong presumption that
the lodestar is the reasonable sum the attorneys deserve.” Id. (internal citations and
quotation omitted). When making this “lodestar” determination, the Court may
consider the twelve factors identified in Pharmacia Corp. v. McGowan, 915 So.2d
549, 552–53 (Ala. 2004). These factors are:
(1) [T]he nature and value of the subject matter of the employment; (2)
the learning, skill, and labor requisite to its proper discharge; (3) the
time consumed; (4) the professional experience and reputation of the
attorney; (5) the weight of his responsibilities; (6) the measure of
success achieved; (7) the reasonable expenses incurred; (8) whether a
fee is fixed or contingent; (9) the nature and length of a professional
relationship; (10) the fee customarily charged in the locality for similar
legal services; (11) the likelihood that a particular employment may
preclude other employment; and (12) the time limitations imposed by
the client or by the circumstances.
Id. (quoting Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740, 749 (Ala. 1988)).

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After the lodestar is determined by multiplication of a reasonable hourly rate
times hours reasonably expended, the court must next consider the necessity of an
adjustment for results obtained. If the party achieved an excellent result, then the
court should compensate for all hours reasonably expended. Popham v. City of
Kennesaw, 820 F.2d 1570, 1578 (11th Cir. 1987). If the party achieved limited
success, then the court may reduce the amount of fees that is reasonable in relation
to the results obtained. Hensley v. Eckerhart, 461 U.S. 424, 436–37 (1983). In doing
so, the court may attempt to identify specific hours spent in unsuccessful claims, or
it may simply reduce the award by some proportion. Id.
Plaintiffs have the burden of supplying the court with sufficient evidence
from which the court can determine the reasonable hourly rate for the attorneys
and staff who worked on the litigation. Norman v. Hous. Auth. of City of
Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). A reasonable hourly rate is
often “the prevailing market rate in the relevant legal community for similar
services by lawyers of reasonably comparable skills, experience, and reputation.”
Garrett Investments, LLC v. SE Prop. Holdings, LLC, 956 F. Supp. 2d 1330, 1339
(S.D. Ala. 2013). In that regard, “[s]atisfactory evidence at a minimum is more than
the affidavit of the attorney performing the work.” Norman, 836 F.2d at 1299
(citation omitted). When reviewing attorneys’ fees, the court may rely upon its own
“knowledge and experience” to form an “independent judgment” as to a reasonable
hourly rate. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (citing
Norman, 836 F.2d at 1303); see also Garrett Investments, LLC, 956 F. Supp. 2d at
1340-41 (compiling market rates for attorneys with varied amounts of experience).
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Plaintiffs also have the burden of establishing reasonable hours. Lee v.
Krystal Co., 918 F. Supp. 2d 1261, 1266 (S.D. Ala. 2013). Reasonable hours are
established through billing statements or invoices that state with sufficient
particularity the nature of the work performed and by whom so the court may
determine the reasonableness of the time expended. And if fee applicants do not
exercise billing judgment, courts are obligated to do it for them, to cut the amount of
hours for which payment is sought, pruning out those that are excessive,
redundant, or otherwise unnecessary. Norman, 836 F.2d at 1301. “Courts are not
authorized to be generous with the money of others.” ACLU of Ga. v. Barnes, 168
F.3d 423, 428 (11th Cir. 1999).
In the instant case, Plaintiffs submitted affidavits from the attorneys that
worked on this case, David Kennedy and Christine Hernandez (Docs. 76-3, 76-4),
timesheets of the work performed by each attorney (Docs. 76-5, 76-6), and the
affidavit of an attorney that works in the area, Edward Bowron – the managing
partner at Burr Forman, LLP’s Mobile, Alabama office (Doc. 76-7). Plaintiffs
request attorneys’ fees in the amount of $189,310.00, plus costs in the amount of
$8,400.00, for a total award of $197,710.00. The attorneys’ fees total represents 349
hours of work by Mr. Kennedy and 339.4 hours of work by Ms. Hernandez
multiplied by an hourly rate of $275. Kennedy and Hernandez both have about 8
years of litigation experience.
Mr. Bowron avers: 1) he is familiar with the hourly rates attorneys charge in
Mobile, 2) he has reviewed the time entries and declarations of Kennedy and
Hernandez and has generally followed the case, 3) the instant case was a complex,
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risky, difficult, and hard-fought case requiring a high degree of skill and effort from
Plaintiffs’ counsel, 4) he is familiar with the work of Kennedy and Hernandez, 5)
other lawyers in his office and lawyers of similar experience and ability in the
Mobile, Alabama community routinely charge $275-$375+ per hour where payment
is expected promptly, 6) the rate of $275 charged by Kennedy and Hernandez is on
the low range of market rates charged by attorneys of equivalent experience, skill,
and expertise for comparable work in this community, and 7) he believes the
amounts charged for fees and costs are more than reasonable.
Defendant contends that both the hourly rate of $275 and the number of
hours charged, a total of 688.4, are excessive. Defendant points out that in this case
there was no discovery, no hearing, and no trial. The case was resolved on
summary judgment and Defendant contends it was a simple case. Defendant also
argues that some of the work done by Plaintiffs’ counsel did not contribute to relief
against this Defendant. Plaintiffs originally named several other Defendants in
this action from which they were unable to obtain any relief. Defendants argue that
Plaintiffs’ counsel should not be compensated for preparing pleadings that were not
filed, for excessive time in some instances, for hearings that did not involve the
claims against the Attorney General, for a non-compliant expert report that did not
contribute to their relief, or for activity related to non-parties. Defendants also
argue that the rate charged is not commensurate with the Mobile market, especially
in light of the fact that Kennedy and Hernandez are not experienced in civil rights
litigation and do not work in large firms with high operating expenses.
While Defendant describes this as a simple case, Plaintiffs’ counsel point to
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the many hours they toiled attempting to overcome all the hurdles thrown at them
by the State of Alabama. The Court agrees with Defendant that although this case
was complicated by adoption issues, the claims relied on the recognition of
Plaintiffs’ right to marry which had been litigated in many Courts across the
country. Such claims are complex, but because of the vast prior litigation, there
were many cases from which Plaintiffs could model their pleadings and motions.
However, despite the clear roadmap for pursuing their claims and this Court’s grant
of summary judgment without a hearing or trial, Plaintiffs’ path to complete relief
was indeed obstructed at every turn thereafter. Plaintiffs’ counsel asserts that this
was a hard fought case that required substantial briefing on complex issues with
tight time deadlines necessitated by the intense opposition to this case. News
sources have reported that no other state has fought against a court ruling on the
recognition of same-sex marriage as hard as Alabama fought against the rulings in
this Court.1 The Governor of Alabama, numerous Probate Judges and at least one
prominent State Court Judge publicly opposed Plaintiffs’ claims. Some of these
individuals were originally parties in this case and some were or are parties to other
cases in this Court that sought to invalidate the same marriage laws in Alabama.
However, the only Defendant that remained in this case past the initial round of
motions to dismiss is Attorney General Strange. Probate Judge Don Davis and
Governor Robert Bentley were originally named as defendants in this case, but after

See e.g.
http://www.al.com/news/index.ssf/2015/02/no_state_has_fought_harder_aga.html
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moving for dismissal, Judge Davis was dismissed by stipulation of the parties (Doc.
29) and Governor Bentley was dismissed by order of the Court on August 20, 2014
(Doc. 40). Attorney General Strange did not move to have the official capacity
claims against him dismissed and instead agreed to remain in the case to defend
the validity of Alabama’s marriage laws.
The Court agrees with Defendant’s assertion that when summary judgment
was granted, the effort required by Plaintiffs’ counsel up to that time should have
been relatively modest. However, after judgment was entered on January 23, 2015,
the case became more complicated. Defendant immediately moved to stay the
action (Doc. 55), the Alabama Probate Judges Association (“APJA”) moved to appear
as amicus curiae in support of the motion to stay (Doc. 58) and this Court granted
the APJA’s motion and stayed the action for 14 days to allow the Attorney General
time to present his arguments to the Eleventh Circuit. (Doc. 59). Additionally,
Plaintiffs filed a motion to clarify based on statements made to the press by the
APJA that despite this Court’s ruling, Probate Judges must follow Alabama law and
cannot issue marriage licenses to same-sex couples. (Doc. 56). The Attorney
General appealed the judgment and moved for a stay pending appeal, and the
Eleventh Circuit denied the motion to stay. (Doc. 70). Upon the Eleventh Circuit’s
denial of a stay, Plaintiffs moved for an early lift of this Court’s 14 day stay, but the
Attorney General sought a stay from the United States Supreme Court and this
Court continued the stay for the full 14 days, which expired on February 9, 2015.
(Doc. 69). On February 9, 2015, the United States Supreme Court denied
Defendant’s motion to stay and Plaintiffs moved for contempt against Judge Davis
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because he had refused to open the marriage license division of the Mobile County
Probate Court. (Doc. 71). This Court denied Plaintiffs’ motion for contempt because
Judge Davis was no longer a party to this case and had not been directed to do
anything by this Court. (Doc. 72). On February 24, 2015, Plaintiff Cari Searcy filed
a second lawsuit in this Court, seeking to enjoin Judge Davis from enforcing
Alabama’s marriage laws. Searcy v. Davis, Case No. 15-00104-CG-N. In the second
lawsuit, Davis moved for dismissal and then for a stay. The case was ultimately
dismissed on March 26, 2015, on Searcy’s motion, because Judge Davis had
complied. On June 26, 2015, the United States Supreme Court decided Obergefell
v. Hodges, 135 S.Ct. 2584, 2588, 192 L. Ed. 2d 609 (2015) and the Eleventh Circuit
Court of Appeals then summarily affirmed the judgment in this case based on that
decision. (Doc. 75).
After reviewing the above history, and the supporting briefs and other
related filings in the case, the Court finds that it was not the Attorney General who
overly complicated this case, but rather the actions of non-parties together with
Plaintiffs’ counsel’s inexperience and/or inability to use this action to obtain
complete relief. Most of the motions in this case involved parties who were
dismissed from this case. Many of the motions filed by Plaintiffs were unnecessary,
premature,2 or unfounded. Defendant Strange did not overly complicate the case.
Defendant Strange appropriately moved to dismiss the individual claims brought

Plaintiffs’ motion for summary judgment, filed on June 12, 2014, was found to be
premature as there were three motions to dismiss (Docs. 10, 14, 17) pending at the
time. (Doc. 25). The Court did not take up the motion for summary judgment until
the motions to dismiss had been decided.
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against him, but agreed to defend the claims brought against him in his official
capacity as the Attorney General of Alabama. Strange filed the required response
to Plaintiffs’ motion for summary judgment and he appealed the judgment and
requested a stay pending the appeal, as any prudent defendant might. While
Plaintiffs were successful in their claim against Defendant Strange in this action,
the Court believes it was the success of plaintiffs in other cases, such as Strawser v.
Strange, Case No. 14-424-CG-C ,3 that ultimately lead to Plaintiffs in this case
obtaining complete satisfaction.
In the Court’s view, the amount of work required by Plaintiffs’ counsel in this
case was not the product of the Attorney General’s actions, but the result of the
inexperience of Plaintiffs’ counsel and the tactics of non-parties. With that in mind,
the Court finds that the attorneys’ fees should not be adjusted upward or found
reasonable because of any unjust actions by the Defendant, but instead should be
reduced to some extent to account for the excessive hours caused by plaintiffs’
counsel’s inexperience. The Court, however, agrees with Plaintiffs’ counsel that the
nature and value of the subject matter of this case, the time and labor required, the
time limitations imposed by the circumstances and the fact that the fee was
contingent with no guarantee of success, all tend to support the reasonableness of
the requested fee award. The case provided a meaningful opportunity for the

The Court notes that the original plaintiffs in Strawser v. Strange filed their
action pro se and were successful in obtaining a preliminary injunction without the
help of counsel. The Strawser plaintiffs eventually obtained very capable counsel
that helped them obtain class action status and succeed against all of the probate
judges in the State of Alabama as well as the Attorney General of Alabama.
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individual Plaintiffs to vindicate important constitutional policies of Due Process
and Equal Protection and this Court finds a reasonable attorneys’ fee award should
be granted. The question is what rate, hours, or total award is reasonable.
Defendant points to certain line items in Plaintiffs’ billing records as
excessive. Defendant contends that at least 218.2 hours should be cut because of the
following:
1) 20.5 hours for background research prior to filing the Complaint is not
compensable,
2) 3 hours for basic administrative tasks (such as initial file setup, review
of basic administrative documents and forwarding pleadings to clients)
is excessive,
3) 16.8 hours for preparation of documents that were never filed should
be stricken,
4) 66.7 hours for general research throughout the case is excessive,
5) 52.7 hours of daily billing is improbable or impossible (such as entries
for: 7.3 hours before 10:30 a.m. on a Sunday, 17.2 hours in one day,
28.2 hours in one day),
6) 21.1 hours working with an expert witness where the initial report did
not provide grounds for his opinion, the report cited studies that
supported Defendant’s position, and the expert was not a factor in the
determination of this case,
7) 37.1 hours for work dated after it possibly could have occurred (such as
for drafting pleadings that had already been filed),
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8) 37.5 hours for work unrelated to the claims against the Attorney
General, and
9) 4.2 hours for entries with vague descriptions that cannot be assessed.
Plaintiffs’ counsel concedes that the reported 28.2 hours in a single day was a
mistake. According to Plaintiffs’ counsel that error and the other two date errors
are merely clerical mistakes in compiling the bill, with the date column being the
source of the error. As stated above, Plaintiffs have the duty of supplying the Court
with sufficient evidence from which the Court can determine both the reasonable
hourly rate and the reasonable number of hours. In light of counsel’s concession,
Plaintiffs have clearly not provided sufficient support for the 52.5 hours objected to
in subsection 5 above. Some of the other objections listed above also appear to be
valid. Plaintiffs’ counsel argues that audit-proof perfection is not required, because
courts may take into account their overall sense of a suit without going line by line
to achieve auditing perfection. Defendant agrees that the Court may choose to
simply cut the fee award by a percentage rather than conduct a detailed hour-by
hour analysis of the billing records. Defendant contends that the fee award should
be cut to approximately $50,000.00.
Plaintiffs contend the fee award should not be reduced and point to the
amount of fees that have been awarded in other same-sex marriage cases. See
Bishop v. Smith, 112 F. Supp. 3d 1231, 1253 (N.D. Okla. 2015) (awarding
$296,847.50 in fees and $1,895.27 in costs); Latta v. Otter, 2014 WL 7245631 (D.
Idaho Dec. 19, 2014) (awarding $397,300.00 in attorney fees and $4,363.08 in

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expenses); Wolf v. Walker, Case No. 14-cv-00064-bbc, doc 194 (W.D. Wisc. March 27,
2015) (stipulation by parties that Defendants shall pay Plaintiffs $1,055,000.00 in
attorneys fees and costs), see also Hamby v. Walker, 2015 WL 1712634, at *9 (D.
Alaska Apr. 15, 2015) (awarding a total of $127,720.90 in attorneys’ fees and costs);
McGee v. Cole, 115 F. Supp. 3d 765, 779 (S.D. W.Va. 2015) (awarding $92,125 in
attorneys' fees and $7,679.64 in costs); Aguero v. Calvo, 2016 WL 1050251 (D.
Guam Mar. 16, 2016) (awarding a total of $82,842.50 in fees and $ 2,575.17 in
expenses). The Court notes that the above fee awards range from $82,842.50 to
$1,055,000.00. However, none of the cases cited by Plaintiffs or found by this Court
proceeded in the state of Alabama or under the same circumstances as this case.
After reviewing all of the above, the Court finds that the requested fee award
of $189,310.00 should be reduced, but not to the extent advanced by Defendant.
Although it is the Court’s opinion that Plaintiffs’ counsel demonstrated a clear lack
of experience in this matter, they undeniably obtained a successful result that
served the public interest by vindicating significant constitutional rights.
Defendant contends that both the rates and the hours charged are excessive, but to
the extent counsel expended more hours due to their lack of knowledge or
experience, a reduction in both rate and hours is not justified. An inexperienced
attorney is expected to work longer hours to accomplish the same task as an
experienced attorney and an attorney’s hourly rate should reflect that difference. In
the instant case, the Court finds that a reasonable fee results by reducing the
claimed amount by 1/3 to $126,206.66.

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As to the requested costs in the amount of $8,400.00, Plaintiffs have not
offered any accounting or description of what the total cost figure encompasses.
Plaintiffs have failed to provide adequate documentation to support their claimed
expenses. “The party seeking costs must not only show that the costs claimed are
recoverable, but must also provide sufficient detail and sufficient documentation
regarding those costs in order to permit challenges by opposing counsel and
meaningful review by the Court.” Doria v. Class Action Servs., LLC, 261 F.R.D. 678,
685 (S.D. Fla. 2009) (citation omitted). However, the Court will allow Plaintiffs to
submit an amended motion for costs with the appropriate documentation.
CONCLUSION
For the reasons stated above, Plaintiffs’ motion for attorneys’ fees and costs
(Doc. 76), is GRANTED in part and DENIED in part to the extent that Plaintiffs
are awarded attorneys’ fees in the amount of $126,206.66. Plaintiffs are
ORDERED to file on or before June 10, 2016, an accounting of the costs claimed
with sufficient detail to permit meaningful review. Any response from Defendant is
due no later than June 17, 2016.
DONE and ORDERED this 27th day of May, 2016.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

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