Price, et al v. City of Fayetteville, North Carolina, et al

Filing 75

ORDER granting in part and denying in part 70 Motion for Attorney Fees - Pursuant to 42 U.S.C. § 1988, the court awards attorney's fees and expenses to plaintiffs in the amount of $156,379.60. Signed by District Judge Louise Wood Flanagan on 03/17/2015. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-150-FL

TOM PRICE and WILLIAM LEGG,
Plaintiffs,

v.

CITY OF FAYETTEVILLE, NORTH
CAROLINA; KATHERINE BRYANT, in
her official capacity as Chief of Police for
the Fayetteville Police Department; and
WILLIAM RANDOLPH SESSOMS,
individually and in his official capacity as
Police Officer for Fayetteville Police
Department,
Defendants.

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ORDER

This matter is before the court on plaintiffs’ motion for attorney’s fees, pursuant to 42 U.S.C.
§ 1988. (DE 70). Defendants responded in partial opposition, and plaintiffs replied. In this posture,
the issues raised are ripe for ruling. For the reasons that follow, the court grants in part and denies
in part plaintiffs’ motion.
STATEMENT OF THE CASE
Plaintiffs commenced this action on March 1, 2013, under 42 U.S.C. §§ 1983 and 1988,
seeking injunctive relief, declaratory relief, and nominal damages against defendants for asserted
deprivation of plaintiffs’ fundamental right to free speech under the First Amendment and right to
due process of law, in connection with plaintiffs’ interest in distributing religious literature at the

2012 Fayetteville Dogwood Festival (“Dogwood Festival”), and future annual Dogwood Festivals.
In particular, plaintiffs sought the following relief, as pertinent to the present order:
(1) Nominal damages arising from acts of defendants during the 2012 Dogwood
Festival.
(2) A declaratory judgment declaring that acts of defendants during the 2012
Dogwood Festival violated plaintiffs’ constitutional rights.
(3) A declaratory judgment declaring that a ban imposed on literature distribution
during the annual Dogwood Festival is unconstitutional on its face and as applied to
plaintiffs’ expression.
(4) A preliminary and permanent injunction enjoining defendants from applying a
ban on literature distribution so as to restrict constitutionally-protected speech of
speakers, including plaintiffs, as well as unnamed third parties, on the public ways
in Fayetteville, North Carolina, during the annual Dogwood Festival.
(5) Award plaintiffs their costs and expenses of this action, including reasonable
attorneys’ fees.
In conjunction with their original complaint, on March 1, 2013, plaintiffs filed a motion for
preliminary injunction in which they sought to enjoin defendants “from applying policy that
facilitates a ban on literature distribution, on its face and as-applied, so as to prevent [plaintiffs] and
third party individuals from engaging in literature distribution on public ways in downtown
Fayetteville during the 2013 Fayetteville Dogwood Festival [commencing April 26, 2013], future
Dogwood Festivals, and other festivals taking place in downtown Fayetteville.” (Mot. for Prelim.
Inj. 1).
On March 4, 2013, the court directed plaintiffs to notify defendants of the filing of the action,
and ordered response to the motion for preliminary injunction within twenty-one days of service,
and set hearing on the motion for April 19, 2013. On March 28, 2013, defendants filed a
memorandum in opposition to the motion for preliminary injunction, attaching affidavits and

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documentary exhibits about the Dogwood Festival. At hearing on April 19, 2013, the court heard
argument on the motion by counsel and took the matter under advisement.
On April 23, 2013, the court entered an order denying the preliminary injunction motion,
holding that plaintiffs had failed to establish a likelihood of success on the merits on the basis of
findings of facts on the record then before the court. The next day, the court entered an initial order
regarding planning and scheduling, directing the parties to file a discovery plan by May 29, 2013.
On April 30, 2013, plaintiffs filed a notice of appeal of the court’s denial of their preliminary
injunction motion. On May 2, 2013, plaintiffs moved to stay discovery and all proceedings in the
district court pending appeal, and the court granted the motion to stay the next day.
In the court of appeals, the appeal proceeded to oral argument on December 11, 2013. That
same day, the court of appeals dismissed the appeal, stating “[f]or the reasons expressed in open
court, the appeal in this case is dismissed as moot. This order is in no way intended to address
plaintiffs’ remaining claims for relief in this action.” (DE 34).
Plaintiffs then filed a second motion for preliminary injunction on January 2, 2014, including
new factual assertions and exhibits based upon the 2013 and upcoming 2014 Dogwood Festivals.
The second motion for preliminary injunction sought to enjoin defendants from “applying and/or
enforcing policy that bans literature distribution, on its face and as-applied, so as to prevent Price,
Legg and third party individuals from engaging in literature distribution on public ways in
downtown Fayetteville during the 2014 Dogwood Festival . . . or any future Dogwood Festival.”
(Second Mot. for Prelim. Inj. 1).
On January 15, 2014, the court lifted the stay and held a Rule 16 status hearing at which the
parties agreed to attend a court-hosted settlement conference during the first two weeks of February

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2014. Meanwhile, defendants filed on January 30, 2014, an initial response in opposition to
plaintiffs’ motion, in which defendants asserted as previewed at hearing that the motion is moot
because the city is not, and would not be, enforcing the restriction plaintiffs seek to enjoin.
Following court-hosted settlement conference held on February 11, 2014, the parties
tendered a proposed consent order stating that the parties resolved between themselves plaintiffs’
second motion for preliminary injunction. In particular, the consent order states that the parties
agreed that defendants “will not enforce the current literature distribution rule promulgated by
Dogwood Festival, Inc.” (DE 47). The court retained jurisdiction to enforce the parties’ agreement
and to resolve the remaining claims set out in plaintiffs’ complaint.
The court directed the parties to confer and develop a joint report and plan for remaining case
deadlines and disposition. The court then entered a case management order that included a period
of discovery running from May 31, 2014, to September 30, 2014, and set a dispositive motions
deadline for October 31, 2014. In the meantime, on March 11, 2014, defendants filed motions for
judgment on the pleadings and to dismiss. Plaintiffs also filed a first amended complaint by
stipulation, on March 20, 2014, which was identical to the original complaint, except that it added
the identity of an original “John Doe” defendant. The court denied defendants’ motions on May 21,
2014, allowing all claims to proceed.
Plaintiffs filed a motion for leave to file a second amended complaint on June 23, 2014.
Before that motion ripened, the parties filed a joint motion to approve consent judgment on behalf
of all parties. The court entered a consent order and judgment in accordance thereof, which
provided as follows:
judgment is hereby entered in favor of plaintiffs on their claims for permanent
injunctive and declaratory relief from restrictions on their distribution of religious
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literature at private festivals that are free open to the public, and held on public ways
with the City of Fayetteville, North Carolina. Defendants shall pay each plaintiff the
amount of $1.00 as nominal damages. By stipulation of the parties, the plaintiffs
shall be permitted to distribute religious literature at private festivals that are free,
open to the public, and held on public ways within the City of Fayetteville, including
the annual Dogwood Festival and the Independence Day Concert held in downtown
Fayetteville, North Carolina.
(DE 68). Plaintiffs filed a motion for bill of costs on August 19, 2014, which motion was granted
by the court on December 1, 2014. In the meantime, plaintiffs filed the instant motion for an award
of attorney’s fees and non-taxable expenses in the amount of $218,222.43.
In support of their motion for attorney’s fees, plaintiffs submitted the following materials:
(A) a declaration of counsel Nathan W. Kellum, (B) counsel’s task-based time fee statement,
reflecting his exercise of billing judgment and itemization of expenses, (C) a declaration of local
counsel Deborah J. Dewart, (D) local counsel’s task based time fee statement, reflecting her exercise
of billing judgment and itemization of expenses, and (E) the declaration of Robert D. Potter, Jr., a
North Carolina attorney, regarding the reasonableness of time expended and hourly rates in this case.
Defendants oppose the motion insofar as it seeks attorney’s fees and non-taxable expenses
for time spent pursuing interlocutory appeal. Plaintiffs replied in support of their motion, seeking
a revised sum total of $227,392.43, to reflect time spent in preparing their reply, accompanied by
supporting declarations.
COURT’S DISCUSSION
A.

Standard for Attorney’s Fees
“The Civil Rights Attorney’s Fees Awards Act of 1976 authorizes the award of ‘a reasonable

attorney’s fee’ to ‘the prevailing party’ in certain civil rights actions, including suits brought under
Section 1983.” Lefemine v. Wideman, 758 F.3d 551, 555 (4th Cir. 2014) (quoting 42 U.S.C. §

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1988(b)). Section 1988 “contemplates reimbursement not only for attorney’s fees but also litigation
expenses such as secretarial costs, copying, telephone costs and necessary travel.” Trimper v. City
of Norfolk, Va., 58 F.3d 68, 75 (4th Cir. 1995).
“The proper calculation of an attorney’s fee award involves a three-step process.” McAfee
v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013), as amended (Jan. 23, 2014). “First, the court must
‘determine the lodestar figure by multiplying the number of reasonable hours expended times a
reasonable rate.’” Id. (quoting Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th
Cir.2009)). “To ascertain what is reasonable in terms of hours expended and the rate charged, the
court is bound to apply the factors set forth” below. Id. These factors are:
(1) The time and labor expended; (2) the novelty and difficulty of the questions
raised; (3) the skill required to properly perform the legal services rendered; (4) the
attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee
for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the
time limitations imposed by the client or circumstances; (8) the amount in
controversy and the results obtained; (9) the experience, reputation, and ability of the
attorney; (10) the undesirability of the case within the legal community in which the
suit arose; (11) the nature and length of the professional relationship between
attorney and client; and (12) attorneys’ fees awards in similar cases.
Id. at 88 n. 5. There is a “strong presumption” that the “lodestar number represents a reasonable
attorney’s fee,” and “this presumption can only be overcome ‘in those rare circumstances where the
lodestar does not adequately take into account a factor that may properly be considered in
determining a reasonable fee.” Id. at 88-89 (quoting Perdue v. Kenny, 130 S.Ct. 1662, 1673 (2010)).
Second, “the court must ‘subtract fees for hours spent on unsuccessful claims unrelated to
successful ones.’” Id. at 88 (quoting Robinson, 560 F.3d at 244). In this context, “there is no certain
method of determining when claims are ‘related’ or ‘unrelated.’” Hensley v. Eckerhart, 461 U.S.
424, 437 (1983). “The congressional intent to limit awards to prevailing parties requires that these

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unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may
be awarded for services on the unsuccessful claim.” Id. at 434. “The reason for not subtracting
hours spent on unsuccessful claims that are related to successful ones is that when successful and
unsuccessful claims are related, ‘[m]uch of counsel’s time will be devoted generally to the litigation
as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.’” Johnson
v. City of Aiken, 278 F.3d 333, 337 (4th Cir. 2002) (quoting Hensley, 461 U.S. at 435).
Third, and finally, “the court should award ‘some percentage of the remaining amount,
depending on the degree of success enjoyed by the plaintiff.’” McAfee, 738 F.3d at 88 (quoting
Robinson, 560 F.3d at 244). At this step, the court must “consider the relationship between the
extent of success and the amount of the fee award.” McAfee, 738 F.3d at 92. The court should
reduce the award at this step only if “the relief, however significant, is limited in comparison to the
scope of the litigation as a whole.” Hensley, 461 U.S. at 439-40.
The court will address each step of the analysis in turn below.
B.

Application
1.

Lodestar Figure

Plaintiffs assert that their counsel reasonably have expended 605.80 hours for work in this
case, including time spent on the motion for attorney’s fees. Plaintiffs seek an hourly rate of $350
for Kellum and $250 for Dewart. Considered together, this yields $223,855 in attorney’s fees.
Along with $3,537.43 in non-taxable expenses, plaintiffs seek a total sum of $227,392 with their
motion. Defendants do not dispute that the hourly rate is reasonable. Nor do they dispute the
reasonableness of the time expenditures for purposes of the lodestar figure, with exception of the
limited points discussed below. At this first step of the attorney’s fee calculation, the court finds the

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hourly rate and time spent to be reasonable based upon application of the following factors.
(1) Time and labor expended. The time records of Kellum and Dewart provide a detailed,
descriptive, record of time expended in this case, and the nature of the work performed. Kellum
further has notated his time records to show instances where time claimed was reduced for purposes
of the motion, where excessive, clerical, not germane, travel time, or duplication.
(2) Novelty and difficulty of the questions raised. This case presented both novel and
difficult questions of fact and law, justifying considerable time spent researching, briefing, and
arguing points of fact and law before this court.
(3) Skill required to properly perform the legal services rendered. The nature of First
Amendment litigation and the claims raised in this case support a finding of particular legal skill
required to properly perform the legal services rendered.
(4) The attorney’s opportunity costs in pressing the instant litigation. The nature of the
permanent and preliminary injunctive relief sought, and the complexity of the issues involved,
imposed considerable costs on counsel, particularly Kellum, who was required to devote
considerable time to the litigation in order to present a successful case.
(5) The customary fee for like work. The rates sought ($350 for Kellum and $250 for
Dewart) are in line with, if not below, the rates of attorneys with comparable skill and experience
in civil litigation who regularly practice in the Eastern District of North Carolina. (See Declaration
of Robert Potter).
(6) The attorneys’ expectations at the outset of the litigation. Counsel understood that they
would not charge plaintiffs for the legal services they incurred, but rather that plaintiffs would

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pursue attorney’s fees and expenses, under 42 U.S.C. § 1988, as set forth in the complaint and in the
instant motion.
(7) The time limitations imposed by the client or circumstances. Much of the timing of the
work in this case was influenced by the timing of the annual Dogwood Festivals. The court has
noted defendants’ argument that the total amount of time spent preparing a complaint in this matter,
approximately 80 hours, was not warranted. Upon review of Kellum’s itemized time description,
in light of the claims raised and the factual predicate for such claims, the court finds the amount of
time expended in this respect to be reasonable. Although defendants also question the efficacy of
filing of the complaint and first preliminary injunction motion only shortly before the 2013
Dogwood Festival, the court finds that such considerations do not render unreasonable the total time
actually spent in preparation of such filings.
(8) The amount in controversy and the results obtained. Although plaintiffs sought only
nominal damages, they also sought significant injunctive relief. The reasonable hours expended in
this court and the reasonable hourly rate are justified by the results obtained in this court.
(9) The experience, reputation, and ability of the attorney. The hourly rates of Kellum and
Dewart are commensurate with their experience, reputation, and ability, as demonstrated through
their respective declarations detailing their experience and accomplishments.
(10) The undesirability of the case within the legal community in which the suit arose. In
light of the difficult First Amendment legal issues presented by this case, in addition to challenges
in development of the factual record, without guarantee of success or attorney fees, plaintiffs have
demonstrated the undesirability of the case within the Fayetteville, North Carolina, legal community
in which the suit arose.

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(11) The nature and length of the professional relationship between attorney and client.
Plaintiffs’ attorneys have not attested to any prior professional relationship with their clients.
Neither party proposes consideration of this factor as bearing on the lodestar figure in this case.
Accordingly, the court finds this factor to be inconsequential.
(12) Attorneys’ fees awards in similar cases. The court has considered the examples raised
by plaintiffs in their memorandum in support of attorney’s fees. The fees sought in this case are
within the range of fees awarded in similar cases.
In sum, based upon the foregoing factors, the applicable lodestar figure in this case, resulting
from multiplying the number of reasonable hours expended times a reasonable rate, plus reasonable
litigation expenses, is $227,392.43.
2.

Unsuccessful Claims

As noted above, defendants urge the court to reduce the lodestar figure to account for the
amount of time spent on the unsuccessful interlocutory appeal of the court’s order denying the first
motion for preliminary injunction. Plaintiffs argue that the interlocutory appeal was not unrelated
to the successful claims in this lawsuit, and therefore is not appropriate for exclusion. Contrary to
plaintiffs’ argument, in light of the unique circumstances of this case, the court finds that the time
spent on the interlocutory appeal properly is characterized as time spent on an unsuccessful claim
unrelated to the successful ones in this case.
Recognizing plaintiffs had brought this action on “the eve of” the 2013 Dogwood Festival,
the court, in scheduling hearing on plaintiffs’ first motion for preliminary injunction, noted that
“plaintiffs seek preliminary injunction to prevent [an] alleged violation during the 2013 Fayetteville
Dogwood Festival, scheduled to commence April 26, 2013.” (DE 12). The court set hearing on the

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motion April 19, 2013. At the hearing, plaintiffs made clear that their motion for preliminary
injunctive relief was directed at the 2013 Dogwood Festival. Indeed, neither the 2014 festival, nor
any other future festival, was discussed, nor would they have been proper subject of preliminary
injunctive relief expedited for consideration at that time. Despite the language on the face of the
motion, seeking injunctive relief for “future Dogwood Festivals,” (DE 10), plaintiffs’ arguments,
and the court’s consideration thereof, were directed to the imminent April 26, 2013, start of the 2013
Dogwood Festival.
The court’s expedited order denying plaintiffs’ motion, entered only days before the 2013
festival, made clear it was directed at the 2013 festival. The court noted in its opening paragraph
that “plaintiffs seek preliminary injunction to prevent a similar alleged violation during the 2013
Fayetteville Dogwood Festival, scheduled to commence April 26, 2013.” (DE 25). Considering the
limited record available at that time, containing facts only with respect to the 2012 festival and
upcoming 2013 festival, the court determined that plaintiffs had not demonstrated a likelihood of
success on the merits of their claims.
The court immediately thereafter directed the parties to develop a discovery plan for the case.
Under a normal case schedule, the case could then have proceeded to discovery to take into account
new developments at the 2013 festival, and any further injunctive relief could have been considered
well in advance of the 2014 festival, then one year away.
Plaintiffs, however, noticed their appeal of the court’s order denying their motion for
preliminary injunction on April 30, 2013, after the 2013 festival had already completed. Plaintiffs
also sought a stay of case proceedings in the district court, which, when granted, brought to a halt

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all case activity towards an ultimate judgment in this case. At that point, time records of plaintiffs’
counsel reflect that they commenced work exclusively on their appeal.
For purposes of the present analysis, the court considers time spent directly on the
interlocutory appeal, after the stay order was filed in district court on May 3, 2013, to be unrelated
to the claims remaining in the district court. Up to that point, counsel’s time spent determining
whether an appeal was warranted and filing of the motion in the district court, could have been
related to the ongoing litigation in the district court had plaintiffs decided to continue in the district
court.1 The first time entry after the May 3, 2013, district court stay order was on May 8, 2013, and
the last time entry for purposes of the interlocutory appeal only was on the date of the Fourth Circuit
dismissal order on December 11, 2013. The total amount of fees and expenses claimed during this
period is $71,012.83 (Kellum: 193 hours @ $350 per hour = $67,550; Dewart: 11.9 hours @ $250
per hour = $2,975; Total attorney’s fees = $70,525; expenses = $487.83).
With respect to the nature and merits of the proceedings on appeal, the court defers to the
assessment by the Fourth Circuit Court of Appeals. The Fourth Circuit dismissal order states that
the appeal was dismissed as moot “[f]or the reasons expressed in open court.” (DE 34). At oral
argument, the panel expressed the following reasoning regarding the mootness of the appeal:
“Why do you say that this is capable of repetition yet evading review?” (Argument
recording ending 1:51)2

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The court disagrees in this respect with defendants’ suggestion to include for deduction time spent on April
25, 2013, analyzing propriety of appeal (3.2 hours), and time spent between April 29, 2013 and May 2, 2013, preparing
notice of appeal and motion for stay (3.3 hours). The court includes, however, for deduction, 2 hours of time spent by
Dewart noted in a time entry spanning without differentiation May 1, 2013 to May 9, 2013, reported to be spent
researching and drafting a memorandum of law for submission to Kellum.
2
See http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments#audiocurrent, for the oral argument
recording.

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“I was wondering how it would have evaded review if you had promptly filed
everything” (id. 3:12)
“You do agree the [district] judge only ruled as to 2013?” (id. 3:49)
“Show us where in Judge Flanagan’s order that she referred to future festivals.” (id.
3:59)
“Right, she did not refer, and unless you can show me someplace that I didn’t see it,
and so we really only have the 2013 Festival in front of us.” (id. 4:10)
“You are not appealing from the motion, you’re appealing from the court’s judgment
. . . and that’s what we look at.” (id. 4:26)
“You wanted to enjoin the City of Fayetteville for the 2013 Festival from enforcing
this restriction, and the festival is already over.” (id. 6:07)
“The question right now is what we do with this appeal, and hypothetically were we
to dismiss this appeal as moot, that does not mean the whole case is dismissed . . .
wouldn’t you continue to have your claims for permanent injunction or damages?”
(id. 7:04) (emphasis added)
“[Could] a preliminary injunction sweep so broadly as to cover all future events, as
opposed to a permanent injunction?” (id. 8:09)
“How do we even consider what you’re saying if the court didn’t address it?” (id.
8:41)
“Did you ever ask the court to expand the scope of its judgment order?” (id. 9:07)
“You won’t give us a straightforward answer as to whether the same policy is in
place for the 2014 festival.” (id. 11:48)
“I’m actually sympathetic to your position on the merits . . . . but the procedural
posture is a very difficult one . . . . the mootness thing is a real hurdle.” (id. 14:20)
“If you’re asking us to shave a Supreme Court decision on a moot case, that’s a tall
order, and that’s a lot of different hurdles.” (id. 14:49)
“If the rules are already in place . . . then go and get a judgment order from the
District Court that addresses a festival that has yet to occur other than one that is
already over.” (id. 15:45)

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“Did you ever alert the court after it entered its judgment that it failed to address a
substantial part of your motion?” (id. 16:28)
“I think you can get to the merits of this case, but it has to be set up right
procedurally, and its in a very awkward posture right now. . . . You must recognize
that, from an advisory opinion point of view, we’d be writing something at great
length about a festival that’s already occurred, not knowing what’s going to occur
in the future, with a judgment order that’s limited in its focus.” (id. 17:28)
“You’ve got to realize its in a problematic procedural posture right
now.” (id. 17:38)
“The complaint below actually requests several forms of relief . . . . [the appeal of
the preliminary injunction] is a narrow question.” (id. 21:05) (emphasis added)
“On the future point, is a request for injunction for all future festivals, is that a
request, in essence, for permanent injunction instead of preliminary injunction?” (id.
22:00)
“The problem with the procedural posture of the case is that it hasn’t been developed
as an evidentiary matter.” (id. 33:59)
“The whole thing is here on a very, very, limited narrow question, which is whether
this appeal should be dismissed as moot.” (id. 39:25) (emphasis added).
In sum, the Fourth Circuit characterized the district court’s order denying the preliminary
injunction motion as one addressing only the 2013 festival, and making no pronouncement regarding
the merits of the claim for permanent injunctive relief or nominal damages. The Fourth Circuit, in
turn, characterized the interlocutory appeal as presenting a narrow issue for review of the court’s
order on preliminary injunction for the 2013 festival. This issue was deemed moot, and the
appellants accordingly were unsuccessful in obtaining the relief sought on appeal. Further, after the
dismissal of the interlocutory appeal, plaintiffs’ separate claims for damages and permanent
injunctive relief remained for decision, and, on a more established record, proved to be successful.
The success of those claims did not depend upon, nor relate to, the narrow issue presented for review
to the Fourth Circuit upon interlocutory appeal.
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In sum, the interlocutory appeal was both unsuccessful and unrelated to the successful claims
in the case. This is not a case where counsel’s time on the interlocutory appeal was “devoted
generally to the litigation as a whole, making it difficult to divide the hours expended on a
claim-by-claim basis.” Johnson, 278 F.3d at 337 (quoting Hensley, 461 U.S. at 435). Indeed, the
litigation as a whole had been brought to a halt in the district court, and the time records during the
interlocutory appeal reflect no litigation efforts apart from the interlocutory appeal.

The

interlocutory appeal proceedings properly may be treated as if they had been raised as a “separate
lawsuit[,]” and no fee may be awarded for time spent in such proceedings. Hensley, 461 U.S. at 434.
Therefore, the court must deduct from the lodestar figure ($227,392.43) the fees and expenses for
time spent on the interlocutory appeal ($71,012.83), yielding an adjusted fees and expenses amount
of $156,379.60.
Plaintiffs contend that a reduction in this instance is precluded by Perry v. Bartlett, 231 F.3d
155, 163 (4th Cir. 2000). Perry, however, is distinguishable from the circumstances of this case.
In Perry a nonprofit advocacy organization filed suit in federal court challenging two provisions of
the North Carolina election and campaign finance law, N.C. Gen. Stat. §§ 163-278.12A (“Section
12A”) and 163-278.6(14) (“Section 14”). The plaintiffs sought a preliminary injunction against
enforcement of the laws, and the district court denied the preliminary injunction. The plaintiffs then
sought an interlocutory appeal of the preliminary injunction order. While the appeal was pending,
litigation on the claims continued in district court, and the Fourth Circuit, in another case, North
Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999) (“NCRL”), found that Section
14 was unconstitutionally vague and overbroad. The plaintiffs voluntarily withdrew their appeal as

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moot, (see DE 72-3), and, based on NCRL, the district court awarded a permanent injunction to the
plaintiffs.
Unlike in the present case, the interlocutory appeal in Perry was directly related to the claims
upon which the plaintiffs ultimately prevailed in Perry. But for the interceding NCRL decision, the
interlocutory appeal would not have been moot, because the challenged election and campaign
finance law would have still been in force and thus a basis for dispute. Indeed, the plaintiffs in Perry
only voluntarily dismissed their appeal because the Fourth Circuit had ruled in their favor in another
case on that same issue. In the present case, by contrast, the interlocutory appeal was moot from its
outset, because the 2013 Dogwood Festival had already passed when the appeal was commenced.
The issues raised in the interlocutory appeal – this court’s denial of a preliminary injunction motion
related to an event that had passed – were separate from the question of the ultimate merits of the
case. Further, the Fourth Circuit dismissed the appeal over plaintiffs’ vigorous argument to the
contrary, unlike in Perry where the appellants dismissed the appeal voluntarily due to the intervening
case on the merits. Finally, litigation did not continue in district court while the appeal was pending.
In sum, Perry does not dictate an award of attorneys fees for the unsuccessful interlocutory
appeal in this case. The lodestar figure shall be reduced by the fees and expenses for time spent on
the interlocutory appeal, yielding $156,379.60 as the remaining amount for consideration for award
of attorney’s fees.
3.

Percentage of Remaining Amount

Finally, the court considers whether “the court should award ‘some percentage of the
remaining amount, depending on the degree of success enjoyed by the plaintiff.’” McAfee, 738 F.3d
at 88 (quoting Robinson, 560 F.3d at 244). The court should reduce the award at this step only if

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“the relief, however significant, is limited in comparison to the scope of the litigation as a whole.”
Hensley, 461 U.S. at 439-40. Given that plaintiffs prevailed in obtaining a permanent injunction,
declaratory relief, and nominal damages, no further reduction is warranted.
Therefore, based on the lodestar figure, reduced by fees associated with the unsuccessful
interlocutory appeal, plaintiffs are entitled to attorney’s fees and expenses in the amount of
$156,379.60.
CONCLUSION
Based on the foregoing, plaintiffs’ motion for attorney’s fees (DE 70) is GRANTED IN
PART and DENIED IN PART. Pursuant to 42 U.S.C. § 1988, the court awards attorney’s fees and
expenses to plaintiffs in the amount of $156,379.60.
SO ORDERED this the 17th day of March, 2015.

____________________________
LOUISE W. FLANAGAN
United States District Judge

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