Love et al v. Beshear

Filing 85

MEMORANDUM OPINION signed by Senior Judge John G. Heyburn, II on 05/13/2014 sustaining 60 Motion for Attorney Fees. IT IS HEREBY ORDERED that Plaintiffs' motion for attorney's fees and costs is SUSTAINED and Plaintiffs are awarded $70,325.00 for attorney's fees and $453.00 for costs. IT IS FURTHER ORDERED that this order is STAYED pending the resolution of Defendant's appeal before the Sixth Circuit Court of Appeals. cc: Counsel of Record (TJD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:13-CV-750-H

TIMOTHY LOVE, et al.

PLAINTIFFS

V.
STEVE BESHEAR

DEFENDANT
MEMORANDUM OPINION

Plaintiffs move for attorney’s fees in the amount of $66,235.00 and costs in the amount
of $453.00 in connection with their successful 42 U.S.C. § 1983 claim. Prevailing parties under
§ 1983 are entitled to an award of reasonable attorney’s fees. 42 U.S.C. § 1988. On February
26, 2014, the Court issued a final order declaring that K.R.S. 402.055, .020, .040, .045 and
Section 233A of the Kentucky Constitution violate the Equal Protection Clause of the Fourteenth
Amendment of the United States to the extent that they deny validly married same-sex couples
equal recognition and benefits under Kentucky and federal law. Consequently, Plaintiffs are
“prevailing parties” within the meaning of § 1988.1 See Hensley v. Eckerhart, 461 U.S. 424, 433
(1983) (“ ‘[P]laintiffs may be considered “prevailing parties” for attorney’s fees purposes if they
succeed on any significant issue in litigation which achieves some of the benefit the parties
sought in bringing suit.’ ” (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278−79 (1st Cir. 1978))).

1

The prevailing parties are Plaintiffs named in the Amended Complaint filed on November 15, 2013. ECF No. 31
(naming Gregory Bourke and Michael Deleon, and their minor children; Jimmy Lee Meade and Luther Barlowe;
Randell Johnson and Paul Campion, and their minor children; and Kimberly Franklin and Tamara Boyd). The
prevailing parties do not include Intervening Plaintiffs named in the Intervening Complaint filed on February 27,
2014. ECF No. 54 (naming Timothy Love, Lawrence Ysunza, Maurice Blanchard, and Dominique James). This case
was restyled on February 27, 2014. ECF No. 57.

Defendant2 argues that the motion should be denied without prejudice or held in
abeyance pending resolution of the appeal on the merits currently before the Sixth Circuit. He
also objects to certain expenses, including (1) fees related to media and public relations, (2) fees
related to the intervening plaintiffs, (3) unnecessary fees, and (4) redundant fees from
overstaffing. Finally, he argues that any award of fees and costs should be stayed pending
appeal.
This was a difficult, novel case in which Plaintiffs’ counsel showed considerable skill and
determination. Counsel’s hourly rate of approximately $250, and their total hours of 275.54, was
most certainly reasonable. In fact, the total seems quite modest. Because Plaintiffs undertook a
difficult, unpopular case and achieved remarkable success, the Court concludes that counsel is
entitled to a small bonus to account for this risk. The Court will now consider Defendant’s
specific objections.
First, the Court agrees that media and public relations expenses are not properly included
in the calculation of Plaintiffs’ attorney’s fees. See Halderman by Halderman v. Pennhurst State
Sch. & Hosp., 49 F.3d 939, 942 (3d Cir. 1995) (“[t]he legitimate goals of litigation are almost
always attained in a courtroom, not in the media.” (quoting Rum Creek Coal Sales, Inc. v.
Caperton, 31 F.3d 169, 176 (4th Cir. 1994))); Hopwood v. Texas, 999 F. Supp. 872, 912−13
(W.D. Tex. 1998) (denying requests for fees related to public and media relations), aff’d in part,
rev’d in part sub nom. 236 F.3d 256, 280−81 (5th Cir. 2000).3 Second, the Court agrees that fees

2

Former Defendant Attorney General Jack Conway also filed a response to Plaintiff’s motion but was previously
dismissed as a Defendant in this case by the Court’s March 24, 2014 Order. The Court therefore cannot consider
Defendant Conway’s response.
3
Even if the Court were to consider allowing media-related expenses, the interactions with the media in this case
were not “reasonably necessary for the proper prosecution of the lawsuit.” Gratz v. Bollinger, 353 F. Supp. 2d 929,
941 (E.D. Mich. 2005) (quoting Keyes v. Sch. Dist. No. 1, Denver, Colorado, 439 F. Supp. 393, 408 (D. Colo.
1977)) (internal quotation marks omitted). Plaintiffs’ counsel contend that their efforts were aimed to “educate the
public.” Counsel have not shown that these efforts assisted in the litigation. Compare Davis v. City & County of San
Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992) (finding attorney’s fees for lobbying the San Francisco Board of

related to the Intervening Plaintiffs, who have not yet been successful on the merits, are not
properly included. See Hanrahan v. Hampton, 446 U.S. 754, 756 (1980).4
However, some of the entries cited by Defendant in its Response include both
objectionable and unobjectionable activities. The February 26, 2014 media and public relations
entry reads: “Prep hearing for prelim inj/intervention; attend hearing; media contact.” To the
extent that the four hours billed relate to the Intervening Plaintiffs or to media contact, they
should be excluded. For ease, the Court will award half of the billed amount, or $500, instead of
$1000. Similarly, the February 28, 20145 entry reads: “Prep/research & telephonic hearing on
Motion to Stay; corresp w/ counsel; media contact.” To the extent the three hours billed relate to
media contact, they should be excluded. Again for ease, the Court will award two thirds of the
billed amount, or $500, instead of $750.
As to Defendant’s third objection, Plaintiffs’ counsel properly included expenses incurred
while traveling to observe proceedings in related cases. With a case such as this one that
presents novel issues, and in which many plaintiffs are involved, the Court does not find staffing
multiple attorneys on a single telephonic hearing deciding the important issue of whether the
Court would grant a stay of its final order in the case objectionable.

Supervisors was vital to the ultimate employment discrimination consent decree and thus compensable), vacated in
part on other grounds, 984 F.2d 345 (9th Cir. 1993); Keyes, 439 F. Supp. at 408 (finding in a public school
desegregation case that time spent using the news media to reach some hard-to-reach segments of the plaintiff class
was compensable).
4
Should the Intervening Plaintiffs succeed on their claims, counsel may request attorney’s fees and costs related to
Intervening Plaintiffs occurring prior to the Court’s February 26, 2014 Order.
5
The entry provided by Plaintiffs’ counsel and cited by Defendant is dated 2013 instead of 2014. The Court assumes
this is a scrivener’s error.

Therefore, the award of attorney’s fees and costs to Plaintiffs’ counsel will be reduced by
$3,600, the amount attributable to media and public relations,6 and by a further $2,310, the
amount attributable to work performed on behalf of the Intervening Plaintiffs.
The Court will award a $10,000 bonus to account for Plaintiffs’ risk and success in this
litigation. In the interest of judicial economy, execution on this order will be stayed until the
Sixth Circuit appeal is resolved.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Plaintiffs’ motion for attorney’s fees and costs is
SUSTAINED and Plaintiffs are awarded $70,325.00 for attorney’s fees and $453.00 for costs.
IT IS FURTHER ORDERED that this order is STAYED pending the resolution of
Defendant’s appeal before the Sixth Circuit Court of Appeals.
Date:

May 13, 2014

cc:

6

Counsel of Record

This amount is the total amount objected to by Defendant, $4,350, minus the Court’s disallowances, $750, for a
total of $3,600 to be deducted from Plaintiffs’ award of attorney’s fees.