Raleigh Wake Citizens Association et al v. Barefoot et al

Filing 125

ORDER granting in part and denying in part 118 Motion for Bill of Costs; granting in part and denying in part 119 Motion for Attorney Fees. Signed by Chief Judge James C. Dever III on 9/29/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Consolidated Civil Action

)
)
)
Plaintiffs,
)
)
v.
)
)
WAKE COUNTY BOARD OF ELECTIONS, )
)
Defendant.
)

RALEIGH WAKE CITIZENS
ASSOCIATION, et al.,

CALLA WRIGHT, etal.,
Plaintiffs,

v.

)
)
)
)

)

STATE OF NORTH CAROLINA,
Defendant.

No. 5:15-CV-156-D

No. 5:13-CV-607-D

)
)
)
)

ORDER
In both cases in this consolidated action, plaintiffs move for attorneys' fees and litigation
expenses under42 U.S.C. § 1988, expert fees under 52 U.S.C. § 10310(e), and costs under Federal
\ Ru1e of Civil Procedure 54(d) and 28 U.S.C. § 1920. See [D.E. 118, 119] (No. 5:15-CV-156-D);
[D.E. 125, 126] (No. 5: 13-CV-607-D). 1 Defendant Wake County Board of Elections ("defendant")·
has responded in opposition [D.E. 123], and plaintiffs have replied [D.E. 124]. As explained below,
the court grants plaintiffs' motions in part and denies them in part.
1

Because the motions, responses, and replies are identical in both cases, the court considers
them together. Unless otherwis~ indicated, all subsequent citations to docket entries refer to Case
No. 5:15-CV-156-D.
'

I.
Plaintiffs challenged the North Carolina General Assembly's ("General Assembly") 2013
redistricting plan for electing the non-partisan Wake County School Board and the General
Assembly's 2015 redistricting plan for electing the parpsan Wake County Board of Commissioners.
The redistricting plan for the Wake County School Board is contained in Session Law 2013-110.
The redistricting plan for the Wake County Board of Commissioners is contained in Session Law
2015-4 and is identical to the plan in Session Law 2013-110. See Tr. Ex. 438 (S.L. 2013-110, § 5);
Tr. Ex. 439 (S.L. 2015-4, § l.(c}-.(d)). The court has discussed the intricacies of these plans, [D.E.
104] 5--6, and summarizes the essence of the litigation sufficiently to resolve the pending motions.

In these actions, plaintiffs contended that the redistricting plans in Session Law 2013-110 and
Session Law 2015-4 (collectively, "Session Laws") violate the one-person, one-vote principle in the
Equal Protection Clause ofthe Fourteenth Amendment ofthe United States Constitution and Article
I, § 19 of the North Carolina Constitution. As for the School Board redistricting plan, plaintiffs
contended that the plan resulted from the General Assembly's partisan desire'(1) to disadvantage
incumbents on the non-partisan Wake County Board of Education ("Wake County Board of
Education" or "Wake County School Board") who are registered Democrats who support
"progressive" education policies and (2) to favor suburban and rural voters over urban voters. As
for the Board of Commissioners redistricting plan, plaintiffs contended that the plan resulted from
the General Assembly's partisan desire (1) to favor suburban and rural voters over urban voters and
(2) to favor voters who favor Republican candidates over voters who favor Democratic candidates
on the Wake County Board of Commissioners. Plaintiffs also contended that the 2015 General
Assembly racially gerrymandered District 4 in the Board of Commissioners redistricting plan and
thereby violated the Equal Protection Clause of the Fourteenth Amendment of the United States

2

Constitution.
On March 17, 2014, United States District Judge Terrence W. Boyle dismissed the challenge
to the School Board redistricting plan for lack of subject-matter jurisdiction and for failure to state
a claim. See [D.E. 38] 9 (No. 5:13-CV-607-D). Plaintiffs appealed, and on May 27, 2015, the
United States Court of Appeals for the Fourth Circuit affirmed in part, reversed in part, and
remanded the case. See Wright v. North Carolin~ 787 F.3d 256 (4th Cir. 2015). The court upheld
dismissal of the State of North Carolina and several proposed state officials under the Eleventh
Amendment, but held that plaintiffs adequately pleaded that Session Law 2013-110 violated the oneperson, one-vote principle. See id.
In July 2015, both cases were reassigned to the undersigned. See [D.E. 27] (No. 5:15-CV156-D); [D.E. 49] (No. 5:13-CV-607-D). The court thereafter consolidated the cases. See [D.E. 36]
(No. 5:15-CV-156-D); [D.E. 53] (No. 5:13-CV-607-D).
On December 16-18, 2015, the court held a bench trial in this consolidated action. On
February 26, 2016, the court found that plaintiffs had not proven their case, entered judgment for the
Wake County Board ofElections, and declined to enjoin the Wake County Board ofElections from
administering elections under the challenged redistricting plans. See [D.E. 64, 65]. Plaintiffs
appealed. See [D.E. 66].
On July 1, 2016-after the Supreme Court's intervening decision in Harris v. Arizona
Independent Redistricting Commission, 136 S. Ct. 1301 (2016}--the Fourth Circuit, in a 2-1
decision, resolved the appeal in this case. The Fourth Circuit unanimously rejected plaintiffs' racial
gerrymandering claim. See Raleigh Wake Citizens Ass'n v. Wake Cty. Bd. of Elections, 827 F.3d
333, 352-53 (4th Cir. 2016). As for plaintiffs' one-person, one-vote claim, the Fourth ,Circuit
applied Harris and found that this case was the "rare[ ]" and ''unusual" case referenced in Harris.

3

ld. at 351. Accordingly, the Fourth Circuit held that the plans violated the one-person, one-vote
principle in the United States Constitution and the North Carolina Constitution. Id. at 3 51-52. The
Fourth Circuit remanded ''with instructions to enter immediately judgment for Plaintiffs, granting
both declaratory relief and a permanent injunction, as to the one person, one vote claims." Id. at
353-54 (footnote omitted). The Fourth Circuit added that it saw "no reason why the November 2016
elections should proceed under the unconstitutional plans we strike down today." Id. at 354 n.l3.
Rather than issue its mandate immediately, the Fourth Circuit scheduled the mandate to issue
on July 22, 2016. See [D.E. 104] 9. In anticipation of that date and in order to facilitate prompt
remedial proceedings so that theNovember 2016 elections could take place as scneduled, this court
issued an order on July 8, 2016, requesting certain information from the parties, the legislative
leaders of the General Assembly, and the North Carolina State Board of Elections. See [D.E. 78].
Specifically, this court asked the parties and the legislative leaders to address the mandate rule, the
principles governing any court-ordered remedial plan, and a schedule for devising, considering, and
adopting any court-ordered remedial plan. See id. at 8.
On July 14, 2016, the Wake County Board ofElections petitioned for rehearing en bane. On
that same date, the Fourth Circuit stayed the mandate pending a ruling on the petition.
I

In plaintiffs' response to the court's July 8, 2016 order· requesting views concerning a
remedy, plaintiffs contended that once the mandate issues, the court should enjoin the use of the
statutes. See [D.E. 82] 2. Plaintiffs also contended that once the mandate issues, ''unless and until
the North Carolina General Assembly enacts other redistricting plans or methods of election, the
State Board of Elections and the ... Wake County Board of Elections[] are legally obligated to
enforce the election system previously in place." ld.
On July 26,2016, the Fourth Circuit denied the petition for rehearing en bane. On July 27,
4

2016, this court notified the parties, the North Carolina State Board of Elections, and the legislative
leaders that this court would hold a status conference on August 2, 2016, to discuss the remedy. See
[D .E. 86]. On August 2, 2016, this court held a status conference. On August 3, 2016, the mandate
issued. See [D.E. 89].
On August 4, 2016, in accordance with the Fourth Circuit's mandate, the court declared that
the population deviations in the redistricting plans in Session Law 2013-110 and Session Law 2015-

'

4 violate the one-person, one-vote-principle in the equal protection clauses of the Fourteenth
·Amendment and Article I,§ 19 of the North Carolina Constitution. See [D.E. 93].
On August 9, 2016, this court issued its remedial order. Cf. Raleigh Wake Citizens Ass'n,
827 F.3d at 354 n.13. The court's remedial order enjoined the use of the population deviations in
the BOE and BOCC districts in the Session Laws. See [D.E. 104] 6. The court did not declare any
other provisions of the Session Laws to be unconstitutional.
The court's remedial order imposed a court-ordered interim election plan for 2016, but did
not reinstate the entire 2011 redistricting plan and election scheme that preceded the Session Laws,
despite plaintiffs' insistence to the contrary. See [D.E. 104] 36-3 7. The court's remedial order used
the districts from the 2011 plan, but included an overall interim system of election for 2016 that
largely tracked the policy decisions reflected in the Session Laws. See id. .
The court's remedial order prohibited use of the population deviations and imposed a
temporary, court-ordered redistricting plan that was far more limited than the relief plaintiffs sought.
Plaintiffs sought an injunction that declared the Session Laws unconstitutional in their entirety and
reverted to the method of election for the BOE and BOCC under t4e 2011 plan. See [D.E. 1] 22 (the
"Wright Compl."); [D.E. 22] 17 (the "RWCA Compl."). Plaintiffs also sought a declaration that,

ifthe General Assembly failed to promulgate a lawful election method, the BOE and the BOCC each

5

had the authority to adopt its own redistricting plan. See Wright Compl. at 22; RWCA Compl. at
17.
After the Fourth Circuit's decision in July 2016, plaintiffs argued that merely enjoining the
population deviations did not provide them the full scope of their requested relief. Plaintiffs
repeatedly insisted that they were entitled to relief enjoining the Session Laws in their entirety. See
[D.E. 82] 5, 20; [D.E. 87] 2; [D.E. 96] 3. Plaintiffs also sought relief that reinstated the entire
election system contained within the 2011 redistricting plan-including the type of districts, length
of terms, and timing of elections. Plaintiffs consistently argued that the court lacked authority to
implement a court-ordered election plan for 2016 and could instead only give effect to the 2011 plan
by operation oflaw because, according to plaintiffs, that was the last legally enforceable plan. See
[D.E. 82] 7-8; [D.E. 96] 5-6.
This court rejected the scope of injunctive relief plaintiffs sought. The court also rejected
plaintiffs' arguments that the Fourth Circuit invalidated the Session Laws in their entirety and that
the provisions of the Session Laws were not severable. [D.E. 104] 23-27. The court also rejected
plaintiffs' arguments that the court lacked the authority to impose an interim election plan for 2016
and that the court was required to give effect to the 2011 plan and electoral scheme. ld. at 18-23.
Rather, the court held that the Session Laws rendered the 2011 plan a "legal nullity'' and that
"[w]hen the,Fourth Circuit invalidated the redistricting plan in Session Law 2013-110 and Session
Law 2015-4 in Raleigh Wake Citizens Associatio!l, it did not state or intimate that it was reviving
the 2011 plans and electoral scheme." ld. at 19. The court also rejected plaintiffs' request that any
plan for 20 16-including a court-ordered remedial plan-reflect the election scheme contained in
the 2011 plan. The court also declined plaintiffs' demand to (1) delay the election of the 2013 BOE
seats until2017, (2) impose four-year terms for those seats, (3) impose three-year terms for BOE

6

seats up for election in 2016---returning the BOE to 5-4 staggered terms and odd-year elections in
contravention of the Session Laws, and (4) have four-year terms for BOCC districts 4, 5, and 6,
which were up for election in 2016.
Instead, the court followed many of the policy judgments in the Session Laws, including
holding elections for all BOE members in 2016 (avoiding staggered terms), imposing evennumbered terms (avoiding odd-year elections), and keeping the two-year terms for BOCC districts
4, 5, and 6 to "comport[] with the expectations of those candidates who filed to run in 2016." [D.E.
104] 35-3 7. The court departed from the Session Laws and shortened the term of election for BOE
members in 2016 from four years to two years.
During the remedial phase, plaintiffs filed an emergency petition for a writ of mandamus and
suggested that the Fourth Circuit remand the case to another United States District Judge in the
district. See Pet. Writ Mandamus, In re: Raleigh Wake Citizens Ass'n. et al., No. 16-1898, [D.E.
3] (Aug. 8, 20 16). Plaintiffs filed their original petition the day before the court entered its remedial
order and then amended the petition in response to the remedial order. See Am. Pet. Writ
Mandamus, In re: Raleigh Wake Citizens Ass'n. et al., No. 16-1898, [D.E. 8] (Aug. 9, 2016).
Plaintiffs argued that enjoining the population deviations was not enough. See Pet. Writ Mandamus,

In re: Raleigh Wake Citizens Ass'n. et al., No. 16-1898, [D.E. 3-1] 12 (Aug. 8, 2016). Rather,
plaintiffs sought "complete relief ... including relief from the clearly 'pretextual' fruits of the
unconstitutional tree." Id.
Plaintiffs repeated their arguments that this court lacked the "power or authority to order any
remedial districts," id. at 17, and that ''the trial court should have ordered a remedy reverting back
to [the 2011] plan in its entirety without any changes." Am. Pet. Writ Mandamus, In re: Raleigh
Wake Citizens Ass'n. et al., No. 16-1898, [D.E. 8-1] 6 (Aug. 9, 2016). Plaintiffs also argued that

7

the court-imposed interim election plan for 2016 "significantly differs" from the election system
under the 2011 plan because it imposes different term lengths for the BOE and BOCC seats, allows
for non-staggered terms, allows all BOE and BOCC seats to be vacant in 2018, and has no method
of election in place after 2016. ld. at 4. Plaintiffs called staggered terms "an_important feature,"
argued that having all of the BOE and BOCC seats up for election in 2018 "directly conflicts with
the prior constitutional election methods," and declared that "[a]ll of these problems should be
avoided." Id at 4-5. Plaintiffs argued that the "only remedy" was to enjoin the Session Laws in
their entirety and that the emergency petition was "necessary to assure a proper implementation of
[the Fourth Circuit's] prior rulings." Id. at 6. On August 10, 2016, before defendant responded, the
Fourth Circuit summarily dismissed plaintiffs' petition for a writ of mandamus.

II.
Plaintiffs are prevailing parties and request $681,373.95 in attorneys' fees. The court has
discretion whether to award a reasonable attorneys' fee to a prevailing party under 42 U .S.C. § 1988.
See 42 U.S.C. § 1988(b). A prevailing plaintiff"should ordinarily recover an attorney's fee unless
special circumstances would render such an award unjust." Hensley v. Eckerhml, 461 U.S. 424,429
(1983) (quotation omitted).
Defendant argues that special circumstances warrant denying a fee award. See [D.E. 123]
8-13. The special-circumstances exception, however, is "narrowD" and

~pplies

only on ''rare"

occasions. Lefemine v. Widemm 758 F.3d 551,555-56 (4th Cir. 2014). Having considered the
entire record, the court declines to apply the special-circumstances exception. See id. at 555-59.
Awarding a reasonable attorneys' fee involves a three-step process. See McAfee v. Boczar,
738 F.3d 81, 88 (4th Cir. 2013), as amended (Jan. 23, 2014). First, the court calculates the lodestar
amount (reasonable hourly rate multiplied by hours reasonably expended). Id. In making the

8

lodestar determination, the court "appl[ies] the Johnson/Barber factors." Grissom v. The Mills
~

549 F.3d 313,320 (4th Cir. 2008) (citing Johnson v. Ga. Highway Express. Inc., 488 F.2d

714,717-19 (5th Cir. 1974), and Barberv. Kimbrell's. Inc., 577 F.2d216, 226 (4th Cir. 1978)). The
Johnson/Barber factors are:
(1) the time and labor expended; (2) the novelty and difficulty ofthe 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 ofthe
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.
ld. at 321 (quotation omitted). Second, the court must then subtract fees for time spent on any
unsuccessful claims unrelated to successful claims. See id. Finally, the court "awards some
percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff."

At the third step, a foundational link must exist between the degree of success and the
amount of an attorneys' fee award:
The touchstone of an attorney's fee award "is the degree of success obtained." See
Farrar v. Hobby, 506 U.S. 103, 114, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992)
(quotation omitted); Hensley, 461 U.S. at 436. Although strict proportionality
between attorney's fees and the amount of plaintiffs recovered damages is not
required, see Yohay v. City of Alexandria Employees Credit Union. Inc., 827 F.2d
967, 974 (4th Cir. 1987), the court is to award "some percentage of the [requested
attorney's fees], depending on the degree of success enjoyed by the plaintiff." See
City of Aiken 278 F.3d at 337.
O'Fay v. Sessoms & Rogers. P.A., No. 5:08-CV-615-D, 2010 U.S. Dist. LEXIS 80128, at *8-9
(E.D.N.C. Aug. 9, 2010) (unpublished); see Farrar v. Hobby, 506 U.S. 103, 114 (1992); Hensley,
461 U.S. at 436; McAfee, 738 F.3d at 88.

9

I

Defendant asks the court to reduce the requested fee award because the requested hourly rates
and the hours expended are not reasonable. Defendant also asks the court to exclude the time
plaintiffs spent on the unsuccessful racial gerrymandering claim and litigation concerning the
legislative leaders. Finally, defendant asks the court to reduce the fees requested to account for
plaintiffs' failure to obtain the expansive relief they sought.

A.
First, the court must calculate the lodestar amount. This inquiry focuses on two things:
(1) the reasonable hourly rate for the work performed and (2) whether the hours expended were
reasonable.
1.
"[T]he burden rests with the fee applicant to establish the reasonableness ofa requested rate"
by "produc[ing] satisfactory specific evidence of the prevailing market rates in the relevant
community for the type ofwork for which he seeks an award." Grissom, 549 F .3d at 321 (quotation
omitted). To determine the reasonableness of the hourly rate claimed the court looks to ''the
prevailing market rates in the relevant community," McMee, 73 8 F .3d at 91 (citation and quotation
omitted), for similar work performed by attorneys of"reasonably comparable skill, experience, and
reputation." Blum v. Stenso!l, 465 U.S. 886, 895 n.11 (1984); see McMee, 738 F.3d at 91. "The
community in which the court sitS is the first place to look to in evaluating the prevailing market
rate." Grissom, 549 F.3d at 321 (alteration and quotation omitted); see Rum Creek Coal Sales. Inc.
v. Caperto!l, 31 F.3d 169, 179 (4th Cir. 1994).
Plaintiffs seek hourly rates of$550 per hour for Ms. Earls, $400 for Ms. Riggs, $225 per hour
for contracted analysts, $200 per hour for unlicensed legal fellows, and $150 per hour for unlicensed
legal intems/extems. See [D.E. 119-1], 29. Plaintiffs support their proposed rates by citing to
10

declarations of three attorneys who practice or have practiced election law. Essentially, these
declarationsassertthatthehourlyrates ofMs. Earls and Ms. Riggs are reasonable. See [D.E. 119-3]
~~ 6-7;

[D.E. 119-4] ~~ 19-23; [D.E. 119-5] ~ 7.
The court has reviewed the declarations and finds that they fail to provide "satisfactory

specific evidence" of local market rates for the attorneys and non-attorneys in this case. See
Grissom, 549 F.3d at 321. Thus, the court declines to adopt the proposed rates.
To support the proposed rates, plaintiffs also cite the litigation experience of Ms. Earls and
Ms. Riggs and the "specialized expertise" of two staff attorneys billed at $250 and $300 per hour.
-~

[D.E. 120] 16-17. Ms. Earls and Ms. Riggs are excellent lawyers and are well versed in election
and constitutional law. Nonetheless, their rates contrast sharply both with the local rates charged by
the excellent counsel for defendant in this action and with the rates of other local counsel that have
represented defendant in cases involving constitutional issues. See Warren Decl. [D.E. 123-1] ~~ 8,
11. Defendant's lead counsel's hourly rate of$360 per hour was less than the hourly rates of both
Ms. Earls and Ms. Riggs, and defendant's second chair counsel-who conducted several witness
examinations at trial (including an expert witness)-billed at $210 per hour, almost $200 less than
Ms. Riggs and only $10 more than unlicensed attorneys for plaintiffs who did not appear as counsel
of record. See id.

~

8.

Having reviewed the record, the court finds that plaintiffs have not met their burden of
establishing the reasonableness of the requested rates. Instead, the court finds the following rates
to be reasonable:
•
•
•
•
•

Ms. Earls: $450 per hour (reduced from $550);
Ms. Riggs: $280 per hour (reduced from $400);
Staff attorneys: $210 per hour (reduced from $300 and $250);
Legal fellows: $150 per hour (reduced from $250 and $200);
Policy analysts: $175 per hour (reduced from $225).

11

See McMee, 738 F.3d at 91; Grissom, 549 F.3d at 321-23. The court declines to award plaintiffs
fees for the work billed to legal externs and interns because plaintiffs have not established the
reasonableness of charging fees in the local market for the work of legal externs and interns. See
McMee, 738 F.3d at 91; Grissom, 549 F.3d at 321-23.

2.
The next step in calculating the lodestar entails examining the reasonableness of the hours
expended. In doing so, the court can "exclude from a fee request hours that are excessive, redundant
or otherwise unnecessary" because "[h]ours that are not properly billed to one's client also are not
properly billed to one's adversary pursuant to statutory authority." Daly v. Hill, 790 F .2d 1071, 1079
(4th Cir. 1986) (alteration and quotation omitted). Trial courts also "may take into account their
overall sense of a suit, and may use estimates in calculating and allocating attorney's time." Fox v.
Vice, 563 U.S. 826, 838 (2011).
Plaintiffs conducted minimal discovery and had significant experience in election law.
Nonetheless, plaintiffs seek compensation for almost 1,400 billable hours and argue that these
actions required an "above-average outlay of hours" because plaintiffs had to "amass[] a large
volume ofdocumentary evidence and witness testimony on decades ofelectoral history'' and conduct
an extensive review of "redistricting data, documents, and case law." [D.E. 120] 12. Plaintiffs'
counsel also devoted a substantial amount of time to communicating with their clients and

oth~r

interested parties, drafting and receiving emails, and conducting intra-office meetings.
The court has reviewed the time sheets that plaintiffs provided. See [D.E. 119-1] 39-80. The
records reveal hours that "are excessive, redundant or otherwise unnecessary." Daly. 790 F.2d at
1079. Moreover, plaintiffs have failed to prove how ''the many hours ofclient conferences may have
aided [counsel's] preparation of the case." Id. Thus, the court reduces the hours expended, and
12

calculates the lodestar, as follows:
Hours Sought
659.45 ([D.E. 1191] ~ 30)
Riggs
455.13 (id. ~ 34)
Eppsteiner
110.3 (id. ~ 38)
Seawell (post-bar) 145.74 (id. ~ 42)
Seawell (pre-bar) 193.87 (id. ~ 46)
Collins
21.75 (id.)
44.3 (id.)
Ma:ffetore
Heaney
2.175 (id.)
McBride
108.2 (id. ~ 47)
90.25 (id.)
Ketchie

Earls

Deduction
25.2
16.76
15.3
19.54
0
3
44.3
0
0
0

Sum

Revised
Revised Rate
Hours
$450
634.25

$285,412.50

$280
$210
$210
$150
$150
$0
$150
$175
$175

$122,743.60
$19,950
$26,502
$29,080.50
$2,812.50
$0.00
$326.25
$18,935.00
$15,793.75

438.37
95
126.2
193.87
18.75
0
2.175
108.2
90.25

Revised total:

$521,556.10

In reaching this figure, the court has considered the Johnson/Barber factors relevant to this case,
including the time and labor expended, the difficulty of the questions raised, the customary fee for
like work, the skill required to properly perform the legal services rendered, and the experience,
reputation, and ability of the attorneys. The court also has considered its familiarity with the claims
and record in this case. See Fox, 563 U.S. at 838; McAfee, 738 F.3d at 88-91; Grissom, 549 F.3d
at 323-24.

B.
Once the initial lodestar amount is calculated, the court should make two separate reductions.
First, the court should "subtract fees for hours spent on unsuccessful claims unrelated to successful
ones." O'Fay, 2010 U.S. Dist. LEXIS 80128, at *5-6. Second, after subtracting the fees for hours
spent on unsuccessful claims, the court "awards some percentage of the remaining amount,
depending on the degree of success enjoyed by the plaintiff." Id.; see Grissom, 549 F.3d at 320--21;
Johnson v. City of Aiken,278 F.3d 333, 337 (4th Cir. 2002). In adjusting the lodestar calculation

13

to account both for unsuccessful claims and for the degree of relief obtained on the successful
claims, the court keeps in mind that
[i]n many cases, much 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. In such a case, the district court focuses on the significance ofthe overall relief
obtained by the plaintiff in relation to the hours reasonably expended on the
litigation. In any event, the most critical factor in determining a fee award is the
degree of success obtained. The court, in awarding attorney's fees, has discretion to
attempt to identify specific hours that should be eliminated, or it may simply reduce
the award to account for the limited success.
O'Fay, 2010 U.S. Dist. LEXIS 80128, at *6 (citations and quotations omitted).
1.
The court

~ubtracts

for time spent on the unsuccessful racial gerrymandering claim and

motion practice concerning adding the legislative leaders as defendants. See Hensley, 461 U.S. at
436-3 7. Although plaintiffs argue that they accounted for the unsuccessful racial gerrymandering
claim by subtracting 10% of their hours billed to this matter since drafting the RWCA complaint,
[D.E. 120] 14,2 this reduction fails to sufficiently account for the substantial amount of time spent
on this unsuccessful claim.
At trial, plaintiffs called several witnesses (both lay and expert) concerning their racial
gerrymandering claim. Of the thirteen lay witnesses, six testified on direct examination about the
relationship betWeen race and the districts, including but not limited to whether African-American
voters were able to elect the candidate of their choice. This testimony included the testimony of
Senator Blue, Reverend Johnson, Commissioner West, Representative Gill, Janet Barnes, and
Commissioner Burns. Plaintiffs' two expert witnesses also presented data and opinions concerning

2

This 10% deduction already factored into plaintiffs' request for $681,373.95 in attorneys'
fees by including a reduction for the hours billed.
14

the racial gerrymandering claim.
Although plaintiffs only made the racial gerrymandering claim in the RWCA case, the court
consolidated the case for trial. There was a single presentation of evidence for all claims in both
cases during a single non-bifurcated proceeding. Essentially, the two claims in the consolidated case
were a one-person, one-vote claim and a racial gerrymandering claim. Because there were no
depositions or any motion practice concerning the claims in this case, the trial transcript fairly
represents the proportional time spent on presenting evidence regarding each claim. See Fox, 563
U.S. at 838.
Plaintiffs' proposed reduction of 10% also fails to account for the time they spent
unsuccessfully pursuing a motion to amend concerning the legislative leaders. This time included
time spent in proceedings both before the district court and in the court of appeals. Accordingly, the
court subtracts time spent on (a) plaintiffs' unsuccessful racial gerrymandering claim, and (b) the
unsuccessful motion practice concerning the inclusion of the legislative leaders as defendants. The
court concludes that a reasonable estimate of time spent on these issues calls for an additional
reduction of20%, bringing the revised fee total to $417,244.88. See Fox, 563 U.S. at 838. 3

2.
After subtracting the fees attributable to the unsuccessful racial gerrymandering claim and
the unsuccessful motion practice concerning the inclusion ofthe legislative leaders, the court reduces
the remaining fees attributable to the one-person, one-vote claim because plaintiffs did not obtain
the complete success thattheysoughton that claim. See Hensley, 461 U.S. at436; O'Fay, 2010 U.S.
Dist. LEXIS 80128, at *6. As discussed, plaintiffs' submissions to this court and the Fourth Circuit

A reducti~n of 20% from the lodestar total of $521,556.10, which already accounts for
plaintiffs' own 10% reduction.
3

15

demonstrate that they obtained relief far more narrow than they desired. Thus, the court reduces the
fee award attributable to the one-person, one-vote claim to reflect that plaintiffs failed to achieve all
the relief they sought. The court concludes that a further reduction of 10% is reasonable and
necessary to reflect plaintiffs' more-limited success, bringing the revised fee total to $375,520.39.
See Fox, 563 U.S. at 838.

c.
In sum, after adjusting the claimed hourly rate to accord with the rate_typically charged for
like work in the locality, reducing the hours expended to disallow time spent on redundant,
excessive, or unnecessary work, applying the relevant Johnson/Barber factors, subttacting time spent
on plaintiffs' unsuccessful claim and motion practice, and reducing the remaining fees in light of
plaintiffs' more-limited success, the court awards plaintiffs attorneys' fees in the amoUn.t of
$375,520.39.

m.
Plaintiffs request $14,960.24 in non-taxable litigation expenses. Plaintiffs may recover
litigation expenses under section 1988 if the expenses are "reasonable." See Trimper v. City of
Norfolk, 58 F.3d 68, 75 (4th Cir. 1995); Daly. 790 F.2d at 1083. A prevailing party is not entitled
to reimbursement for "questionable litigation expenses." Jones v. Dancel, 792 F.3d 395,404 (4th
Cir. 20 15). Moreover, "[a]s with attorney's fees, the [c]ourt may also consider the degree of success
in awarding ~itigation expenses under fee-shifting statutes" and reduce the expenses accordingly.
Pierce v. Cty. of Orange, 905 F. Supp. 2d 1017, 1048 (C.D. Cal. 2012); see Wa. All. of Tech.
Workersv. U.S. Dep'tofHomelandSec.,202F. Supp. 3d20,27-29&n.5 (D.D.C. 2016), aff'd, 857
F.3d 907 (D.C. Cir. 2017); Betancourt v. Giuliani, 325 F. Supp. 2d 330, 335 (S.D.N.Y. 2004); Rural
Water Sys. No.1 v. City of Sioux Ctr., 38 F. Supp. 2d 1057, 1067--68 (N.D. Iowa 1999), aff'd, 202
16

F.3d 1035 (8th Cir. 2000).
Plaintiffs seek reimbursements for, among other things, refreshments, maid service, valet
gratuity, and food for the entire trial team both before and during trial. [D.E. 119-2] 5-7. The
'

request is unreasonable and is denied. See Jones, 792 F.3d at 404. The court has reviewed the
supporting documentation and concludes that a reduction of $615 accounts for thes~ expenses. As
it did with attorneys' fees, the court further reduces the amount claimed by 40% to reflect plaintiffs'
limited success (30% for not succeeding on their racial gerrymandering claim and motion practice
to add the legislative leaders, and 10% for the more-narrow relief ultimately obtained). Thus, the
court awards expenses in the amount of $8,607.14.

N.
Plaintiffs also seek an award of expert fees totaling $32,813.42 under 52 U .S.C. § 1031 0(e).
Section 1031 0(e) provides that "[i]n any action or proceeding to enforce the voting guarantees ofthe
fourteenth or fifteenth amendment, the court, in its discretion, may allow the prevailing party, other
than the United States, ... reasonable expert fees." 52 U.S.C. § 10310(e). Plaintiffs claim
$32,813.42 in expert fees for expert witnesses Anthony Fairfax and Dr. J owei Chen. See [D.E. 1191] ~52. Of this total, plaintiffs attribute $5,400 to Mr. Fairfax and $27,413.42 to Dr. Chen. See id.
~~52-54;

[D.E. 119-2] 8-22.

Plaintiffs' requested reimbursement for all expert fees is unreasonable. Plaintiffs were only
partially successful and cannot recoup the full amount of their expenses where those expenses were
not necessary to the outcome. See Daly, 790 F.2d at 1083-85. Thus, the court reduces the expert
fees by 40% to reflect the partial success achieved by plaintiffs (30% for not succeeding on their
racial gerrymandering claim and motion practice to add the legislative leaders, and 10% for the
more-narrow relief ultimately obtained). See id.; Favors v. Cuomo, 39 F. Supp. 3d 276, 309
17

(E.D.N. Y. 20 14) (collecting cases for the proposition that courts have discretion to reduce expert fees
by the same percentage as attorneys' fees on the basis of more-limited success). Thus, the court
reduces the expert fees to $19,688.05.
The court further reduces the fees due to unreasonableness. See Favors, 39 F. Supp. 3d at
310. As in Favors v. Cuomo, 39 F. Supp. 3d 276 (E.D.N.Y. 2014), the court declines to award the
full amount of expert fees requested because the experts' time records tracked time in one-hour
increments with only vague descriptions of the work done. See id. at 309-12. Plaintiffs submitted
invoices that fail to provide specific information concerning how Dr. Chen and Mr. Fairfax spent
their time. Plaintiffs "have not supported their request with contemporaneous time records, thereby
preventing this [c]ourt from determining the reasonableness of the claimed hours." ld. at 312. For
example, plaintiffs state that Mr. Fairfax "expended in excess of 11 hours at an hourly rate of$185,"
[D.E. 120] 22, yet the only documentation submitted is Mr. Fairfax's retainer agreement and a bill
for his attendance at trial. Moreover, neither Dr. Chen nor Mr. Fairfax provide any breakdown for
the bills submitted to plaintiffs. [D.E. 119-2] at 9 (billing for "40 Hours" worked by Dr. Chen), 10
(billing flat daily rates for "On-location services" before and during trial by Dr. Chen), 19-22
(reflecting flat daily rates for report preparation and travel of Mr. Fairfax). These vague entries lack
details ofthe experts' specific contributions. Thus, the court reduces the expert fees by an additional
10%. See Favors, 39 F. Supp 3d at 310-11. Accordingly, the total amount of recoverable expert
fees is $17,719.24.

v.
Finally, plaintiffs claim taxable costs under Federal Rule of Civil Procedure 54(d), Local
Civil Rule 54.1, and 28 U.S.C. § 1920 in the amount of$9,057.68. See [D.E. 118]. Federal Rule
of Civil Procedure 54(d)(1) governs a post-judgment motion for an award of costs. See Fed. R. Civ.
18

P. 54(d)(l ). Rule 54(d)(l) provides that "costs-other than attorney's fees-should be allowed to
the prevailing party." Id. A "prevailing party" is "a party in whose favor a judgment is rendered"
or "one who has been awarded some reliefby the court." Buckhannon Bd. & Care Home. Inc. v. W.
Va. Dep't of Health & Human Res., 532 U.S. 598, 603 (2001) (quotation and alteration omitted).
"[T]he rule gives rise to a presumption-in favor of an award of costs to the prevailing party." Teague
v. Bakker, 35 F.3d 978,996 (4th Cir. 1994); see Delta Air Lines. Inc. v. August, 450 U.S. 346,352
(1981 ). However, a district court has discretion to award or deny costs to the prevailing party. See
Marx v. Gen. Revenue Corp., 568 U.S. 371,377 (2013); Crawford Fitting Co. v. J.T. Gibbons. Inc.,
482 U.S. 437,441-42 (1987), superseded on other grounds by statute, 42 U.S.C. § 1988. A court
"must justify its decision to deny costs by articulating some good reason for doing so." Chercy v.
Champion Int'l Corp., 186 F.3d 442, 446 (4th Cir. 1999) (quotation, alteration, and citations
omitted); see Teague, 35 F.3d at 996. One reason for denying or reducing an award of costs arises
when ''the prevailing party has been only partially successful." Barber v. T .D. Williamson. Inc., 254
F.3d 1223, 1234 (lOth Cir. 2001); see Pierce, 905 F. Supp. 2d at 1049 ("[L]ike non-taxable litigation
expenses, the [c]ourt may reduce an award of taxable costs to reflect only partial success.").
When an award of costs to the prevailing party is appropriate, the court looks to federal law
to determine the scope of the award. See Crawford Fitting. 482 U.S. at 441-43. Section 1920 of
Title 28 of the United States Code lists taxable costs. 28 U.S.C. § 1920; see Taniguchi v. KanPac.
Saipan. Ltd., 566 U.S. 560, 565 (2012) ("[Section] 1920 defmes the term 'costs' as used in Rule
54(d)." (quoting Crawford ·Fitting, 482 U.S. at 441)).4 Section 1920's list of recoverable costs is

4

Taxable costs under section 1920 include:

(1) Fees of the clerk and marshal;

19

exhaustive as to "expenses that a federal court may tax under the discretionary authority found in
Rule 54(d)." Crawford Fitting, 482 U.S. at 441-42. Accordingly, "Rule 54(d) does not provide
authority to tax as costs those expenses not enumerated in [section] 1920." Herold v. Hajoca Corp.,
864 F.2d 317, 323 (4th Cir. 1988); see Crawford Fitting, 482 U.S. at 441-42. This court's Local
Civil Rule 54.1 "further refines the scope ofrecoverable costs." Silicon Knights. Inc. v. Epic Games.
Inc., 917 F. Supp. 2d 503, 510-11 (E.D.N.C. 2012), aff'd, 551 F. App'x 646 (4th Cir. 2014) (per
curiam) (unpublished).5

(2) Fees for printed or electronically recorded transcripts necessarily obtained for use
in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where
the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 ... ;
(6) Compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services ...."
28 u.s.c. § 1920.
5

Local Civil Rule 54.1 (c) provides a non-exhaustive list of normally recoverable costs:

(a) those items specifically listed on the bill of costs form. The costs incident to the
taking of depositions (when allowable as necessarily obtained for use in the
litigation) normally include only the reporter's fee and charge for the original
transcript of the deposition;
(b) premiums on required bonds;
(c) actual mileage, subsistence, and attendance allowances for necessary witnesses
at actual costs, but not to exceed th~ applicable statutory rates, whether they reside
in or out of the district;
(d) one copy of the trial transcript for each palty represented by counsel.

20

Plaintiffs' motion for costs obfuscates what costs plaintiffs seek to recover. The courtprovided form for bill of costs reflects a total of$9 ,057.68 sought [D.E. 118], as does the supporting
declaration. [D.E. 118-1] , 3. But that same declaration includes a chart "summariz[ing] Plaintiffs'
taxable costs," and those costs total $12,923.67. Id., 5. Rather than disavow some of these costs
to reach the amount claimed on the bill of costs, the declaration justifies why plaintiffs can recover
the total costs listed in the chart. See id. , 7; see also [D.E. 118-2]. Faced with this discrepancy, the
court determines plaintiffs' entitlement to costs with reference to the $9,057.68 claimed on the courtprovided form.
Defendant does not argue that plaintiffs' claimed taxable costs are not recoverable under the
governing standards. Instead, defendant asks the court to reduce the costs to the same extent the
court reduces the award of attorneys' fees. The court agrees with this approach. See Barber, 254
F.3d at 1234; Pierce, 905 F. Supp. 2d at 1049. The court reduces these costs by 40% to reflect
plaintiffs' limited success (30% for not succeeding on their racial gerrymandering claim and motion
practice to add the legislative leaders, and 10% for the more-narrow relief ultimately obtained).
Thus, the court awards plaintiffs $5,434.60 in taxable costs under Federal Rule of Civil Procedure
54(d).

Local Civil Rule 54.1(c)(1). Local Civil Rule 54.1(c) also identifies items "normally not taxed,
without limitation" as
(a) witness fees, subsistence, andmileage for individual parties, real parties in
interest, parties suing in representative capacities, and the officers and directors of
corporate parties;
(b) multiple copies of depositions;
(c) daily copy of trial transcripts, unless prior court approval has been obtained.
Local Civil Rule 54.1 (c)(2).
21

VI.
In sum, plaintiffs' motion for attorneys' fees, expert fees, and litigation expenses [D.E. 119]
andmotionforcosts [D.E. 118] are GRANTED IN PART and DENIED IN PART. It is ORDERED
that:
1.

Plaintiffs shall recover from defendant attorneys' fees in the amount of
$375,520.39;

2.

Plaintiffs shall recover from defendant litigation expenses in the amount of
$8,607.14;

3.

Plaintiffs shall recover from defendant expert fees in the amount of
$17,719.24;
'

4.

Plaintiffs shall recover taxable costs from defendant in the amount of
$5,434.60; and

5.

The Clerk is DIRECTED to enter judgment in both actions consistent with
this order and to note that motions [D.E. 125] and [D.E. 126] in Case No.
5:13-CV-607-D are RESOLVED in this order.

SO ORDERED. This _u day of September 2017.

22