GERBER et al v. COOPER et al

Filing 125

MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 07/25/2018, that the Motions for Attorneys' Fees (1:12CV589; 155,171) (1:14CV299; 108 , 124 ) are GRANTED. This order is STAYED for a period of ten (10) days to allow the parties an opportunity to review and file a written objection should they wish to be heard further on the court's interpretation of specifically raised billing adjustments. (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARCIE FISHER-BORNE, for
herself and as guardian ad
litem for M.F.-B., a minor,
et al.,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
JOHN W. SMITH, in his official )
capacity as the Director of the )
North Carolina Administrative
)
Office of the Courts, et al.,
)
)
Defendants.
)
)
)
ELLEN W. GERBER, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
ROY COOPER, et al.,
)
)
Defendants.
)

1:12CV589

1:14CV299

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
This matter comes before the court on Plaintiffs’ motions
for attorneys’ fees, (1:12CV589 (Doc. 155); 1:14CV299 (Doc.
108)), which have been fully briefed. Upon the filing of this
court’s order granting partial relief on the issue of attorneys’
fees, (1:12CV589 (Doc. 165); 1:14CV299 (Doc. 118)), the motions

were mistakenly terminated on the docket. In March 2018, this
court held a telephone conference with the parties and
subsequently set aside the termination of those motions.
(1:12CV589 (Doc. 169); 1:14CV299 (Doc. 122).) Plaintiffs
submitted amended motions on April 3, 2018, relying on the same
arguments put forward in the original motions. (1:12CV589 (Doc.
171); 1:14CV299 (Doc. 124).) These motions are ripe for
adjudication, and for the reasons stated herein, Plaintiffs’
motions will be granted. In summary, this court generally finds
the fees reasonable but has reduced the amounts based on its
mathematical adjustments to time and fees stemming from certain
specific issues. Because the adjustments differ somewhat from
objections specifically raised by the State, this court will
stay the Order for ten days to provide the parties an
opportunity to file a written objection should they wish to be
heard further on the court’s interpretation of the described
billing adjustments.
I.

BACKGROUND
Plaintiffs in each of these cases filed Complaints alleging

causes of action pursuant to 42 U.S.C. § 1983, naming as
Defendants various government officials and challenging the
constitutionality of North Carolina’s laws preventing same-sex
couples from marrying and prohibiting recognition of same-sex

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couples’ lawful out-of-state marriages. The complete procedural
history of these consolidated cases can be seen in various
previously docketed entries. (1:12CV589 (Docs. 97, 108, 114,
138, 139); 1:14CV299 (Docs. 49, 63, 71, 94, 95).)
Ultimately, in October 2014, this court entered an Order
and Judgment declaring N.C. Const. art. XIV, § 6, N.C. Gen.
Stat. § 51-1, and N.C. Gen. Stat. § 51-1.2 unconstitutional and
enjoining the State of North Carolina from implementing or
enforcing these laws. (1:12CV589 (Docs. 138, 139); 1:14CV299
(Docs. 94, 95).) Plaintiffs’ other claims were dismissed without
prejudice as moot and/or not ripe. (1:12CV589 (Docs. 138, 139);
1:14CV299 (Docs. 94, 95).) On October 9, 2014, certain
legislative parties (“Legislative Intervenors”) moved to
intervene and on October 14, 2014, were permitted to intervene
on behalf of Defendant the State of North Carolina (“Defendant”)
on a limited basis. (1:12CV589 (Docs. 119, 134); 1:14CV299
(Docs. 75, 90).)
On October 13, 2015, after consulting with Legislative
Intervenors and Defendant in accordance with Local Rule 54.2,
Plaintiffs petitioned this court for an award of $311,196 in
attorneys’ fees (requesting $254,720 from Defendant and $56,476
from Legislative Intervenors) for 1,053 hours expended, and for

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$6,612.20 in expenses. (See Docs. 155, 157-1.) 1 On October 21,
2015, Plaintiffs filed a stipulation and settlement agreement,
reached with Legislative Intervenors for $44,501.36. (Doc.
157-1.) On November 20, 2015, Defendant responded to Plaintiffs’
motion, objecting to the requested attorneys’ fees. (Doc. 161.)
On December 4, 2015, Plaintiffs replied, subtracting time based
on two of Defendant’s objections (but disputing the rest) and
submitting amended documentation. (Docs. 163, 163-1.) The
amended documentation did not exclude the portion of the fee
request that had been settled.
As a result of this court’s direction to the parties to
file a statement as to the fees following the intervenor
settlement, Plaintiffs filed an Amended Motion for Fees. (Doc.
171.) All parties continued to rely on the arguments and
authorities previously filed pertaining to the fee motions.
Plaintiffs submitted the following updated chart — though not
updated documentation — with these totals:
Original Amount Sought
Adjustments in Reply Brief
Fees Subject to Intervenor Settlement
TOTAL

1

$311,196
($44,023)
($56,476)
$209,819

Counsel for Fisher-Borne Plaintiffs and Gerber Plaintiffs
submitted identical briefs and documentation in support of their
fee motions. Unless otherwise noted, this court cites to docket
entries in the Fisher-Borne case number 1:12CV589 throughout
this Memorandum Opinion and Order.
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Defendant objects on several grounds to Plaintiffs’
original requested fee and argues that the fee should be reduced
to an amount between $80,541 and $122,032. (Doc. 161 at 20.) 2
II.

LEGAL STANDARD
A prevailing party in a civil rights action to enforce

constitutional rights may recover attorneys’ fees. See 42 U.S.C.
§ 1988(b). A plaintiff prevails “when actual relief on the
merits of his claim materially alters the legal relationship
between the parties by modifying the defendant’s behavior in a
way that directly benefits the plaintiff.” Lefemine v. Wideman,
568 U.S. 1, 4 (2012) (per curiam) (quoting Farrar v. Hobby, 506
U.S. 103, 111–12 (1992)). “[A]n injunction or declaratory
judgment, like a damages award, will usually satisfy that test.”
Id. (citation omitted). Defendant does not dispute that
Plaintiffs prevailed in these cases.
As the Fourth Circuit has explained:
The proper calculation of an attorney’s fee award
involves a three-step process. First, the court must
“determine the lodestar figure by multiplying the
number of reasonable hours expended times a reasonable
rate.” 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
2

All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
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forth in Johnson v. Georgia Highway Express Inc., 488
F.2d 714, 717–19 (5th Cir. 1974). Id. at 243–44. Next,
the court must “subtract fees for hours spent on
unsuccessful claims unrelated to successful
ones.” Id. at 244. Finally, the court should award
“some percentage of the remaining amount, depending on
the degree of success enjoyed by the plaintiff.” Id.
McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013) (footnote
omitted). While “[t]he Supreme Court has indulged a ‘strong
presumption’ that the lodestar number represents a reasonable
attorney’s fee[,]” the Johnson factors 3 influence the calculation
and ultimate determination. See id. at 88-90. Counsel is
expected to exercise “billing judgment,” and district courts
should exclude hours that are “excessive, redundant, or

3

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.
McAfee v. Boczar, 738 F.3d 81, 88 n.5 (4th Cir. 2013) (citation
omitted).
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otherwise unnecessary[.]” See Hensley v. Eckerhart, 461 U.S.
424, 434 (1983).
Regarding expenses, “[a] prevailing plaintiff in a civil
rights action is entitled, under § 1988, to recover ‘those
reasonable out-of-pocket expenses incurred by the attorney which
are normally charged to a fee-paying client, in the course of
providing legal services.’” Spell v. McDaniel, 852 F.2d 762, 771
(4th Cir. 1988) (citations omitted).
III. ANALYSIS
Defendant agrees that the hourly rates Plaintiffs seek are
reasonable, but raises several objections to the time reasonably
expended and also asks for “step two” reductions. (Doc. 161 at
11-20.) Because this court is obliged “to provide a concise but
clear explanation of its reasons” for awarding a certain amount
of fees, Hensley, 461 U.S. at 437, it will address both the
unchallenged reasonableness of the requested hourly rates and
the challenged reasonableness of the hours expended.
A.

Lodestar Calculation — Reasonable Hourly Rates

The fee applicant bears “the burden of establishing the
reasonableness” of their rates and “is obliged to show that the
requested hourly rates are consistent with ‘the prevailing
market rates in the relevant community for the type of work for
which [s]he seeks an award.’” McAfee, 738 F.3d at 91 (alteration

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in original) (citation omitted). “The relevant market for
determining the prevailing rate is ordinarily the community in
which the court where the action is prosecuted sits.” Rum Creek
Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994)
(citation omitted). In certain circumstances, such as when the
complexity of the case is such that no attorney with the
required skills is available locally, it may be reasonable to
retain attorneys from other communities and to consider those
higher, out-of-town rates. Id. at 175, 178-79.
Typically, courts look to affidavits 4 submitted from “other
local lawyers who are familiar both with the skills of the fee
applicants and more generally with the type of work in the
relevant community.” Robinson, 560 F.3d at 245 (citation
omitted). Affidavits attesting to the applicants’ “own rates,
experience, and skills” in addition to those of North Carolina
lawyers “familiar both with the skills of some of the applicants
and more generally with civil rights litigation” in the state is
“sufficient evidence of the prevailing market rates[.]” Id.
(citation omitted).

4

Plaintiffs submitted unsworn declarations, made under
penalty of perjury, which are permissible in lieu of affidavits.
See 28 U.S.C. § 1746; see also Willard v. Internal Revenue
Serv., 776 F.2d 100, 102 n.3 (4th Cir. 1985) (citing § 1746 in
the context of declarations attached to a motion for summary
judgment).
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Plaintiffs submitted six declarations from attorneys who
worked on one or both of the cases: Christopher Brook, legal
director of the ACLU of North Carolina (“ACLU-NC”); Jeremy
Falcone and Jonathan D. Sasser, both partners at Ellis & Winters
LLP; Garrard R. Beeney, a partner at Sullivan & Cromwell LLP
(“S&C”) (Beeney’s declaration also provides information for S&C
associates W. Rudolph Kleysteuber and Kerri-Ann Limbeek); and
Patrick O’Donnell and Amy E. Richardson, both partners at
Harris, Wiltshire & Grannis, LLP. (Docs. 156-5, 156-6, 156-7,
156-8, 156-9, 156-10.) Plaintiffs seek the following hourly
rates: $250 for Mr. Brook, $287.50 for Mr. Falcone, $430 for Mr.
Sasser, $440 for Mr. Beeney, $290 for Mr. Kleysteuber, $220 for
Ms. Limbeek, $370 for Mr. O’Donnell, and $287 for Ms.
Richardson. (Pls.’ Mem. of Law in Supp. of Mot. For Attorneys’
Fees (Doc. 156) at 17 & n.7.)
Each declaration thoroughly described the attorney’s own
qualifications and experience. Of the attorneys based in North
Carolina, Mr. Brook declared the reasonableness of his own
requested rate based on consulting “with attorneys who practice
in the Middle District of North Carolina and the Fourth
Circuit.” (Doc. 156-7 ¶ 7.) Mr. Falcone and Mr. Sasser, based in
Raleigh, North Carolina, both declared that their requested rate
here is below their normally charged rate and that they maintain

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busy practices for which the hours devoted to these cases
reduced time that would otherwise be spent on clients paying
their customary fees. (Docs. 156-5, 156-8.) Ms. Richardson is
based in Raleigh, North Carolina, and shared responsibility for
preparing Plaintiffs’ fee motion. She declared that she is
“familiar with the market rate” for attorneys litigating civil
rights issues in North Carolina and that counsel’s rates are
reasonable. (Doc. 156-9.) She also declared that her requested
rate is “substantially below” her normal rate and that the hours
devoted to this case would otherwise have been spent on clients
paying her customary fee. (Id.)
Plaintiffs also submitted a declaration and an affidavit,
respectively, from two North Carolina licensed attorneys, Robert
M. Elliot and Mark Sigmon, who have litigated complex civil
rights cases in this district and are familiar with the work of
Mr. Brook and Mr. Sasser. (Docs. 156-3, 156-4.) Mr. Elliot and
Mr. Sigmon attested to the reasonableness of all of counsel’s
rates, including those based in North Carolina and those outside
North Carolina. Both opined that the ACLU-NC, having typically
only one and never more than two attorneys practicing in North
Carolina during this litigation, “could not have handled” this
complex litigation without engaging additional litigation
assistance. (Id.) Plaintiffs have demonstrated with this

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uncontested evidence that the North Carolina attorneys’ rates
are reasonable.
As to the out-of-state attorneys, Mr. Beeney, a New York
attorney who represented Plaintiffs pro bono, declared that the
requested rates for himself and two associates, Mr. Kleysteuber
and Ms. Limbeek, are substantially below the “effective hourly
rate paid by [his firm’s] clients” for his and his associates’
time. (Doc. 156-6.) Mr. Beeney also declared that he and the
associates maintain a busy practice and that the hours devoted
to this case would otherwise have been spent on other, paying
clients. Mr. O’Donnell, based in the District of Columbia,
shared with Ms. Richardson responsibility for preparing
Plaintiffs’ fee motion and declared that his requested rate is
substantially below his normal rate and that the hours worked in
these cases would have otherwise been spent on clients paying
his customary fee. (Doc. 156-10.)
These cases presented complex constitutional issues in a
quickly evolving area of law, justifying the services of
skilled, experienced counsel. Plaintiffs’ declarations show
their North Carolina-based counsel were amply qualified, so it
is not true that no qualified attorney was available locally.
Nonetheless, the declarations support and this court finds that
the out-of-state attorneys were reasonably engaged as necessary

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additional resources to help prosecute the case and that their
requested rates are reasonable in this community for the type of
civil rights litigation undertaken here.
Therefore, this court adopts the unchallenged rates without
adjustment. This determination satisfies the “reasonable hourly
rate” component of the lodestar analysis and considers the skill
required to properly perform the legal services rendered, the
attorney’s opportunity costs in pressing the instant litigation,
the customary fee for like work, the attorney’s expectations at
the outset of the litigation, and the experience, reputation,
and ability of each attorney.
B.

Lodestar Calculation — Reasonable Time Spent

This court now turns to “the number of hours reasonably
expended by [the movant’s] lawyers.”

McAfee, 738 F.3d at 89.

In an exercise of billing judgment, Plaintiffs state that
although additional attorneys worked on these cases, they
submitted fee requests for hours from only six “core
timekeepers” plus the two attorneys who worked on the fee
motion. (See Doc. 156 at 18.) Documentation was submitted in the
form of line item entries, each labeled by timekeeper and
including a date, hours spent, rate, a total amount equaling the
hours spent times the rate, a narrative description, and a time
period/category label. The starting point for Plaintiffs’

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original fee petition is $311,011.70 for 1,052.6 hours expended
and $6,612.20 in expenses. 5 From this starting point, the
following several adjustments must be made before the
reasonableness of the hours is assessed.
First, Plaintiffs voluntarily “opted to write off all of
their counsels’ time prior to July 19, 2013,” the date of the
filing of the Fisher-Borne Amended Complaint. (See Doc. 156 at
18.) In response to Defendant pointing out that Plaintiffs
included time prior to this date, 6 Plaintiffs conceded the error
and provided an amended submission, withdrawing fees before
July 19, 2013, and stating that $44,023 worth 170.50 hours was
subtracted for this reason. (See Doc. 163 at 10, Doc. 163-1 at
3, 7.) However, the amended submission still contains line items

5

Plaintiffs listed their original request as $311,196.00 or
$311,196.20 for 1,053 hours expended and $6,612.20 in expenses.
(See Docs. 155, 156.) The slight difference between this court’s
starting point and Plaintiffs’ is due to rounding and several
instances where a line item total does not equal the actual
total of the hours logged multiplied by the hourly rate. For
example, an entry from Mr. Sasser dated October 10, 2014, lists
4.90 hours at a rate of $430, which equals $2,107, but the
entry’s total is listed as $2,143.75. (Doc. 163-1 at 29.) All of
these entries will ultimately be excluded for other reasons
described herein.
6

Defendant framed this objection as objecting to time spent
on unsuccessful claims unrelated to successful claims. (Doc. 161
at 18-20.) Because Plaintiffs concede their error, which
substantially affects Defendant’s argument, this court will
address the adjustment as an initial matter and consider
Defendant’s argument as to what remains in section III.C.
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for work undertaken prior to July 19, 2013. (See, e.g., Table 5
Total Time included in Amended Fee Petition, Doc. 163-1 at 10
(including but not limited to line items for timekeeper Mr.
Brook dated 6/30/2013, 7/1/2013, 7/2/2013, 7/3/2013, 7/4/2013,
7/8/2013, 7/9/2013, 7/10/2013, 7/11/2013, 7/11/2013, and
7/12/2013).) Totaling these line items (and not counting three
hours of media-related work falling pre-July 19, 2013, that will
be excluded as described below), work undertaken prior to
July 19, 2013, totals 233.5 hours and $66,895.25 in fees, and
Plaintiffs’ amended submission should have reflected as much.
Second, Plaintiffs seek to add 14.5 hours and $6,294 for
time spent on the fee motion. (Id. at 9.) However, these new
entries are billed at higher rates than what was requested in
Plaintiffs’ motion, brief, and supporting documentation — $540
per hour for Mr. O’Donnell instead of the requested $370 and
$300 per hour for Ms. Richardson instead of the requested $287.
The court concludes this is another error; if not, Plaintiffs
have submitted no evidence as to the reasonableness of these
higher rates. Therefore, these entries have been corrected to
reflect the originally requested rates. Once corrected, the
total of requested fees for the additional fee petition work is
$4,667.80.

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Third, Plaintiffs divided their records as of October 9,
2014, the date Legislative Intervenors intervened, to show
litigation efforts against the State by and through the Attorney
General and those against the Legislative Intervenors.
Plaintiffs suggested that the “fee liability be apportioned
among individual defendants on that basis.” (See Doc. 156 at
25.) Therefore, Plaintiffs’ settlement with Legislative
Intervenors covers all time spent from October 9, 2014, until
the settlement was submitted on October 13, 2015. This timeframe
includes counsel’s initial work on the fee petition and excludes
the fee work added in Plaintiffs’ response. Because Plaintiffs’
amended submission does not reflect the exclusion of this time,
(Doc. 163-1), this court has manually subtracted these hours.
While Plaintiffs state that the value of the settlement is
$56,476, (Docs. 157-1, 171 at 2), Plaintiffs did not provide
documentation showing the hours making up this value. This court
finds the actual total of entries submitted from October 9,
2014, until October 13, 2015, is 227.15 hours and $68,582.45.
These totals are what will be subtracted from Plaintiffs’ fee
request.
Finally, Defendant asks for between ten and twenty hours of
media-related endeavors to be subtracted. (Doc. 161 at 15.)

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Plaintiffs agreed to exclude 20.7 hours of media-related work
for a total of $7,172.25. (Doc. 163 at 10.)
To reiterate, Plaintiffs’ amended fee request is for
$209,819. (Doc. 171.) Based on the review described above, this
court determines that the total amount Plaintiffs seek after all
agreed-upon adjustments is actually $173,029.55 for 585.75 hours
and $6,612.20 in expenses.

Initial Request
(-) Pre-July 19, 2013
(-) Settlement (October 9,
2014 - October 13, 2015)
(+) Work on Fee Motion (Work
Since October 13, 2015)
(-) Media
Total Adjusted Request

Hours
1,052.6
233.5

Fee Requested
$311,011.70
$66,895.25

Expenses
$6,612.20
N/A

227.15

$68,582.45

N/A

14.5

$4,667.80

N/A

20.7
585.75

$7,172.25
$173,029.55

N/A
$6,612.20

Defendant lodges several additional objections to
Plaintiffs’ requested hours, which are discussed below.
1.

Block Billing, Large Billing Increments, and
Vague Billing

Defendant objects to Plaintiffs’ use of block-billing and
billing increments of fifteen minutes, which it contends should
result in an unspecified “significant reduction of fees
awarded.” (Docs. 161 at 12-13; 161-1; 161-2.)
Defendant points to 235.20 hours’ worth of entries by
Mr. Beeney, Mr. Falcone, Mr. Kleysteuber, Ms. Limbeek, and
Mr. Sasser as problematically block billed. (Doc. 161-1.) After
removing entries already withdrawn by Plaintiffs and five
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entries from Defendant’s exhibit not found in Plaintiffs’
submissions, fifty-five allegedly block-billed entries remain,
totaling 148.95 hours and $47,728.75.
“Block billing” occurs when “multiple tasks are put
together in the same billing entry.” Supler v. FKAACS, Inc., No.
5:11-CV-229-FL, 2013 WL 6713120, at *4 (E.D.N.C. Dec. 19, 2013).
Block billing, while not prohibited, is “disfavored by federal
courts.” Lamonaca v. Tread Corp., 157 F. Supp. 3d 507, 519 (W.D.
Va. 2016) (citation omitted). The practice may inhibit a court’s
effort to “discern with precision how . . . hours were billed
and precisely why those hours were needed.” See Dyer v. City of
Gastonia, DOCKET NO. 3:15-cv-00033-MOC-DCK, 2016 WL 4443190, at
*5 (W.D.N.C. Aug. 19, 2016). In the presence of block billing,
district courts may exercise their discretion to determine
whether to reduce a fee award, typically by a fixed percentage.
See, e.g., Jones v. Southpeak Interactive Corp. of Delaware,
Civil Action No. 3:12cv443, 2014 WL 2993443, at *9 (E.D. Va.
July 2, 2014), aff’d, 777 F.3d 658 (4th Cir. 2015). However,
“[t]he relevant question is whether the documentation of hours
is adequate.” Supler, 2013 WL 6713120, at *4 (citing Hensley,
461 U.S. at 433). “Block-billing . . . does not necessarily
require denial or reduction of fees." Id. (collecting cases);
see also Stuart v. Walker-McGill, 1:11-CV-804, 2016 WL 320154,

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at *11–12 (M.D.N.C. Jan. 25, 2016) (declining to reduce fee
award for “bundled” entries when the entry descriptions did not
make it difficult for the “reviewing court to identify excessive
hours” or group compensable and non-compensable tasks together).
Here, with a few small exceptions described infra, the
challenged entries, “viewed individually and in the context of
entries by the same attorney and by other attorneys within the
same time frame, do not reflect the expenditure of unreasonable
amounts of time, considering the specific tasks detailed.”
Stuart, 2016 WL 320154, at *12 (citing Aventis CropScience, N.V.
v. Pioneer Hi-Bred Int’l, Inc., No. 1:00CV463, 2010 WL 2306677,
at *7 (M.D.N.C. June 8, 2010)). For example, a July 26, 2013
entry accounting for 1.2 hours reads:
Review of memo from Chris Brook re legislation
granting House Speaker and Senate Pro Tem standing;
review of memo from Sarah Kaufman re service on Willie
Covington; memos to and from Sarah Kaufman re service
on Willie Covington; memo to TPA Team re service of
TPA complaint; review of memo from Elizabeth Gill re
service on Durham Register of Deeds; review of memo
from David Castleman re service; conference call re
service on Willie Covington; review of statement from
Ryan Kurtz re service on Willie Covington; review of
memos from Sarah Kaufman and Jeremy Falcone re service
on John Smith; call to Dixie Wells re amendment of
complaint; review of draft email from Chris Brook to
Mr. Siler re service on Willie Covington; review of
memo from Dixie Wells re amendment in Middle District.
(Doc. 163-1 at 22.) While block billing is disfavored by federal
courts generally and by this court specifically, these tasks and

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the time spent on them is reasonable in the context of the
litigation. Moreover, no specific facts prevent this court from
making such a determination regarding the reasonableness of the
time spent. Therefore, this court declines to apply a percentage
reduction to the total fee award in these cases.
Defendant also objects to the fifteen-minute billing
increments used by Mr. Beeney, Mr. Kleysteuber, and Ms. Limbeek,
claiming that the large billing increments “frequently overlap”
with the allegedly block-billed entries. (Docs. 161 at 13;
161-2.) While fifteen-minute increment billing may lead to
overbilling, courts have rejected the notion that merely billing
in fifteen-minute increments is a sufficient basis to reject
those entries. See, e.g., E. Associated Coal Corp. v. Dir.,
Office of Workers’ Comp. Programs, 724 F.3d 561, 576 (4th Cir.
2013); Md. Elec. Indus. Health Fund v. MESCO, Inc., Civil Action
No. ELH-12-505, 2014 WL 4660813, at *13 (D. Md. Sept. 16, 2014).
Here, after reviewing the challenged entries that were
attributed to the three attorneys who billed in fifteen-minute
increments, this court finds that these entries do not inhibit
the court’s ability to determine the reasonableness of the time
and labor expended. Therefore, no further reduction is warranted
on this ground.

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Defendant further objects to “vague billing,” for example,
entries for strategy calls or weekly calls, asking for an
unspecified percentage reduction. (Docs. 161 at 13-14; 161-3.)
Using “excessively vague time descriptions” is another
disfavored billing practice. Lamonaca, 157 F. Supp. 3d at 520.
The Fourth Circuit has “frequently exhorted counsel to describe
specifically” all performed tasks. Rum Creek, 31 F.3d at 180.
“Nonetheless, a prevailing party can recover fees for such time
if the hours were necessary to prosecute the case and a court
can be confident there was not unacceptable duplication.”
Stuart, 2016 WL 320154, at *12 (citing Rum Creek, 31 F.3d at
180).
Here, five challenged entries have been withdrawn as
falling before July 19, 2013. 7 Approximately fifty-nine hours’
worth of the remaining challenged entries pertain to litigation
strategy, team meetings, and calls relating to various stages of
the litigation, (see, e.g., Doc. 161-3 at 1), which this court
finds to be reasonable given the complexity of the cases. While
some of the remaining challenged entries, particularly those of

7

The court notes that Defendant’s vagueness objection also
contains discrepancies. For example, Defendant objects to an
entry by Mr. Beeney dated August 23, 2014, for 0.25 hours with
the description “Email DC[,]” (Doc. 161-3 at 4), but Plaintiffs
submitted no entry for Mr. Beeney on that date nor any entry on
any date with that description.
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Mr. Beeney, could certainly stand to be more detailed, this
court does not find them to reflect unreasonable amounts of
time, especially given that each entry is keyed to a specific
category such as “PI Mtn, Stay Mtns” or “Opp. State 2nd MTD.”
For example, an entry by Mr. Beeney dated March 31, 2014, for
one hour labeled “Edit affidavits, conf. Mr. Kleysteuber, emails
Ms. Limbeek” keyed to “PI Mtn, Stay Mtns[,]” (see id. at 6), is
reasonable, especially when compared to surrounding entries by
Ms. Limbeek, who seems to have taken the lead on drafting
affidavits during this stage of the litigation, (see Doc. 163-1
at 30-31). One entry by Mr. Falcone dated April 15, 2014,
relating to “efforts regarding representation generally; revise
amicus brief” will be excluded (1.5 hours total) as the court is
unable to determine the reasonableness of this entry and
declines to apply a percentage reduction here. (See Doc. 161-3
at 3.) Otherwise, this court finds the challenged hours were
reasonably expended.
2.

Preliminary Injunction and Stay

As Defendants note, Fisher-Borne Plaintiffs moved for a
preliminary injunction on April 9, 2014. (Doc. 75.) Gerber
Plaintiffs filed their Complaint as well as a motion for a
preliminary injunction that same day. (1:14CV299 (Docs. 1, 3).)
In response to motions for expedited consideration, Magistrate

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Judge Joi Peake, on April 11, directed the parties to address
whether consideration of the motions “should be stayed pending
the Fourth Circuit’s resolution of Bostic v. Schaefer, Case No.
14-1167 (4th Cir.) (set for oral argument on May 13, 2014).”
(Doc. 83.) Defendant moved to stay the Fisher-Borne proceedings
that same day and the Gerber proceedings on April 17. (1:12CV589
(Doc. 84) at 14-15; 1:14CV299 (Doc. 23).) Defendant objects to
the time entries relating to the preliminary injunction sought
by Plaintiffs and Plaintiffs’ opposition to the motions to stay.
Specifically, Defendant claims that “the precedential value of
Bostic facilitated an expedient and successful outcome for
Plaintiffs” and seeks a 50% reduction of the approximately 400
hours logged in these two categories. (Doc. 161 at 14-15.)
While Defendant correctly notes that the resolution of
Bostic indeed facilitated Plaintiffs’ eventual success in these
cases, this court finds the time expended on filing the
preliminary injunction motions and opposing the stay motions was
not unreasonable. Defendant’s cited authority, Latta v. Otter,
No. 1:13-cv-00482-CWD, 2014 WL 7245631 (D. Idaho Dec. 19, 2014),
does not compel a different conclusion. There, the stay was on
appeal, not in proceedings before the district court, and the
plaintiffs conceded that the fees were not recoverable. Latta,
2014 WL 7245631, at *6.

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Given the context of the entire litigation and the fact
that the cases presented evolving and unsettled complex
questions of constitutional law, Plaintiffs will not be
penalized for their reasonable efforts to secure preliminary
relief for their clients. Counsel’s time is still compensable
though it was unsuccessful at securing the preliminary
injunctions and at opposing the stays. See Air Transp. Ass’n of
Can. v. Fed. Aviation Admin., 156 F.3d 1329, 1335 (D.C. Cir.
1998) (citation omitted) (noting that a plaintiff “who is
unsuccessful at a stage of litigation that was a necessary step
to her ultimate victory is entitled to attorney’s fees even for
the unsuccessful stage”). The court therefore declines to apply
Defendant’s suggested percentage reduction to these hours.
3.

Excessive and Duplicative Hours

Defendant argues that Plaintiffs submitted excessive hours
given the scope of the litigation (with “only a limited
substantive briefing round on the State’s motions to dismiss and
Plaintiffs’ motions for preliminary injunction”). (See Doc. 161
at 17.) The excessive hours, Defendant claims, is the result of
Plaintiffs “working by committee,” i.e., billing duplicative
hours. (Id. at 16-17.)
Defendant asserts that the litigation here is analogous to
McGee v. Cole, 115 F. Supp. 3d 765 (S.D.W. Va. 2015), where the

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district court awarded attorneys’ fees of less than one-third of
the requested amount. The court in McGee noted that “[t]here was
no discovery, only one brief hearing, and only two rounds of
substantial briefing for early motions to dismiss and later
cross-motions for summary judgment.” McGee, 115 F. Supp. 3d at
776. There, attorneys from each of the three involved firms
billed “for a large number of hours with respect to each major
activity. Apparently, each firm undertook a supervisory role in
most aspects of the Plaintiffs’ case, though all of the
substantive work of subordinates was already reviewed by a
senior attorney.” Id. at 774, 776. The court reduced the hours
because of the lawyers’ failure to delegate the workload.
“[D]uplicative, excessive, or redundant hours should not be
compensated under § 1988.”

Trimper v. City of Norfolk, 58 F.3d

68, 76 (4th Cir. 1995). But, “the work of more than one attorney
on the same litigation task does not automatically mean
overstaffing has occurred.” Abusamhadaneh v. Taylor, No.
1:11cv939 (JCC/TCB), 2013 WL 193778, at *22 (E.D. Va. Jan. 17,
2013). Defendant points to no specific examples of Plaintiffs’
counsel “working by committee” and points only to the similar
procedural posture of this case and McGee.
After review of the submitted billing entries, the court
finds that, unlike in McGee, each firm involved did not bill

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“for a large number of hours with respect to each major
activity.” McGee, 115 F. Supp. 3d at 776. For example,
Plaintiffs requested approximately 134.95 hours of fees for work
related to two motions to dismiss in Fisher-Borne. (See Doc.
163-1 at 11-16, 18-19, 23-24, 27, 29, 33-34.) Over three
quarters of the hours logged come from the three S&C
timekeepers, including drafting and cite checking the briefs.
Fee requests from the remaining attorneys logging time on these
tasks were limited mostly to reviewing changes and edits to the
briefing or other discrete tasks related to this stage of the
litigation. Moreover, Plaintiffs argue, and this court finds,
that Plaintiffs have already shown billing judgment and
discretion by excluding collateral timekeepers from their
request. (Doc. 163 at 8.) Therefore, this court declines to
exercise its discretion to apply a percentage reduction to these
hours as suggested by Defendant.
4.

Miscellaneous Exclusions

In a footnote, Defendant raises several additional
objections to Plaintiffs’ “insufficient documentation” for tasks
such as work related to discovery and summary judgment, work
related to amicus briefing, out-of-state counsel’s travel to
North Carolina, work related to “clerical and secretarial
tasks[,]” and miscellaneous “seemingly unrelated entries[.]”

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(Doc. 161 at 17 n.4.) Defendant does not point out specific
entries. After reviewing all of Plaintiffs’ submitted entries
within the agreed-upon window (excluding, for example, alreadywithdrawn travel-related entries prior to July 19, 2013) and
based on this court’s knowledge of the particular nature and
circumstances of this litigation, discussed supra, this court
finds these hours were reasonably expended and are compensable,
with the following exceptions described below.
First, “intervention-related fees and expenses . . . are
not recoverable under 42 U.S.C. § 1988 by a prevailing plaintiff
against a losing defendant.” Rum Creek, 31 F.3d at 178. While
most intervention-related entries were settled with Legislative
Intervenors, a few remain: Mr. Beeney logged 2.5 hours total for
intervention-related tasks dated 9/21/2013 and 5/9/2014. (Doc.
163-1 at 14-15.) Mr. Brook logged 0.6 hours on August 8, 2013.
(Id. at 11.) These hours will be excluded. Mr. Beeney on two
occasions (totaling 1.5 hours) and Mr. Sasser on two occasions
(totaling 3.5 hours) lumped compensable tasks with at least one
task pertaining to intervention. (Id. at 15, 22, 28.) This court
will exercise its discretion to reduce these entries by 20%. See
Design Res., Inc. v. Leather Indus. of Am., 1:10CV157, 2016 WL
5477611, at *11 (M.D.N.C. Sept. 29, 2016) (collecting cases
reducing fee awards on block billing grounds).

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Second, Plaintiffs submitted several entries relating to
amicus briefing. (Doc. 163-1 at 25-26, 31.) These hours appear
to relate to an amicus brief filed on behalf of the Fisher-Borne
Plaintiffs in the Bostic case. See Brief for Amici Curiae Marcie
and Chantelle Fisher-Borne et al., Bostic v. Schaefer, 760 F.3d
352 (4th Cir. 2014) (Nos. 14–1167, 14–1169, 14–1173).
The Fourth Circuit has upheld a district court’s exclusion
of time spent “on an amicus brief for clients who were not
prevailing parties in [the] litigation.” Rum Creek, 31 F.3d at
178. Unlike in Rum Creek, the Fisher-Borne Plaintiffs are
prevailing parties. Lacking on point precedent in the Fourth
Circuit, a district court in this circuit has noted that, when
the client is a prevailing party, “whether to allow attorneys’
fees for time spent dealing with amici appears to be a matter
committed to the sound discretion of the [district court].”
E.E.O.C. v. Freeman, 126 F. Supp. 3d 560, 577 (D. Md. 2015).
Moreover, the entries here present a somewhat different
situation: rather than consulting with external amici to
potentially file a supportive brief, Plaintiffs’ counsel acted
as amici in a pending case that could have potentially resulted
(and, in fact, did result) in a precedential ruling that
facilitated Plaintiffs’ victory. This court does not conclude
that such efforts were unreasonably expended.

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Third, Ms. Limbeek spent fifteen hours on tasks relating to
discovery, which never commenced in these cases, and several
attorneys spent a total of 24.7 hours on entries with tasks
relating to an unfiled summary judgment motion. (Doc. 163-1 at
12, 16, 27, 30-32.) Although the Fourth Circuit does not appear
to have squarely addressed the issue, courts have held that time
spent on unfiled motions may be compensable where a plaintiff
shows that the motion was prepared to advance the litigation.
See, e.g., Alvarez v. Haywood, 1:06-CV-745(FJS/DRH), 2011 WL
13130851, at *10-11 (N.D.N.Y. Aug. 29, 2011) (excluding time
spent on the unfiled motion because it did not advance the
litigation). The burden is on the plaintiff to show that the
time expended was reasonable “with the case in the posture it was
in[.]” Supler, 2013 WL 6713120, at *3.
Here, the work relating to discovery took place between
December 5, 2013, and January 2, 2014. No pretrial conference
was set nor is there evidence that the parties conferred under
Federal Rule of Civil Procedure 26(f)(1). The work relating to
summary judgment took place mainly in August 2014, after the
second round of motion to dismiss briefing had been completed —
but not yet ruled upon — and the parties were briefing motions
for a preliminary injunction and a motion to stay. These hours
may have been reasonably expended, but Plaintiffs have provided

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no basis or context to allow the court to make such a
determination in light of the procedural posture of the cases at
the time the work was performed. Therefore, the fifteen hours
for the discovery work will be excluded. For the summary
judgment work, 16.70 hours will be excluded completely. Five
entries totaling eight hours include block-billed entries with
summary judgment-related tasks and will be reduced by 20% as an
exercise of the court’s discretion.
Fourth, Mr. Beeney logged two entries related to moots and
moot court (1.25 hours total), when no oral arguments were
scheduled in these cases. (See Doc. 163-1 at 15.) These hours
were not reasonably expended and will be excluded.
After excluding hours for the reasons described in section
III.B.1-4 and considering the time and labor expended, novelty
and difficulty of the questions raised, and time limitations
imposed by the client or circumstances, the total time spent —
the “reasonable time spent” component of the lodestar analysis —
equals 548.95 hours in these cases.
C.

Potential Further Adjustments

This court must now “determine the lodestar figure by
multiplying the number of reasonable hours expended times a
reasonable rate.” McAfee, 738 F.3d at 88 (citation omitted). The

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“reasonable hours” multiplied by each “reasonable rate” is as
follows:
Attorney

Rate

Adjusted
Requested Hours

Mr.
Mr.
Mr.
Mr.
Ms.
Mr.
Ms.
Mr.

$440
$250
$287.50
$290
$220
$370
$287
$430

76.5
41.2
35.7
66.5
267.75
6.1
8.4
83.6

Beeney
Brook
Falcone
Kleysteuber
Limbeek
O’Donnell
Richardson
Sasser

Total Hours
After
Exclusions
72.50
39.1
35.7
65.75
238
6.1
8.4
83.4
Lodestar:

Total 8

$31,746
$9,775
$10,263.75
$18,835.50
$52,195
$2,257
$2,410.80
$35,561
$163,044.05

Considering the remaining Johnson factors, this court finds
that the amount in controversy and results obtained and
attorneys’ fee awards in similar cases warrant further
discussion. Here, Plaintiffs achieved their desired result,
culminating in this court’s declaration that certain North
Carolina state laws were unconstitutional. Plaintiffs provide
several examples of fee awards (awarded by courts or reached by
settlement) in constitutional challenges to state same-sex
marriage bans, ranging from $298,742.77 to $1,055,000. (See
Docs. 156 at 19, 156-11, 156-12, 156-13, 156-14.)
Defendant cites to McGee v. Cole, 115 F. Supp. 3d 765
(S.D.W. Va. 2015), where the court awarded $92,125. (Doc. 161 at

8

These amounts include the minor block-billing reductions
previously described for specific entries by Mr. Beeney, Mr.
Kleysteuber, Ms. Limbeek, and Mr. Sasser.
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16.) As previously explained, the reductions applied in McGee
are not applicable here. Based on the procedural posture of
these cases when Plaintiffs ultimately prevailed, this court
finds the lodestar to be well within a reasonable range for
cases similarly situated. Therefore, considering all the
remaining Johnson factors, there is no reason to depart in this
case from the “strong presumption” that the lodestar is
reasonable. See McAfee, 738 F.3d at 88-89.
1.

Unsuccessful Claims Unrelated to Successful
Claims

Defendant next contends that the lodestar should be further
reduced for Plaintiffs’ work related to claims over the
constitutionality of North Carolina’s adoption laws, which were
mooted by this court’s declaration of the constitutionality of
the same-sex marriage ban. (Doc. 161 at 18.) Defendant notes
that Plaintiffs billed hours from 2012 and early 2013 prior to
the filing of the Amended Complaint, which presumably included
work on the adoption laws as these were raised in the initial
Complaint. (Id. at 18-19.) Defendant asks for at least a 10%
reduction in fees based on this issue. (Id. at 19-20.)
However, “[f]ederal courts . . . allow[] a prevailing party
to recover fees for unsuccessful claims where the entire case
‘involve[s] a common core of facts or . . . related legal
theories.’” Zoroastrian Ctr. & Darb-E-Mehr of Metro. Washington,
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D.C. v. Rustam Guiv Found. of N.Y., 822 F.3d 739, 754 n.8 (4th
Cir. 2016) (quoting Hensley, 461 U.S. at 435). Here, all hours
prior to July 19, 2013, have been excluded from the lodestar
calculation. As to the remaining disputed hours, in these cases,
this court agrees with Plaintiffs that the adoption claims were
based on “the same core set of facts: North Carolina’s exclusion
of same-sex couples from marriage, and the related and
consequent exclusion of same-sex couples from adoption.” (Doc.
163 at 4.) The claims in this litigation are not analogous to
those in Defendant’s cited authority, McGee v. Cole, 115 F.
Supp. 3d 765 (S.D.W. Va. 2015), where the plaintiffs’
unsuccessful claim was dismissed for lack of standing and
plaintiffs concurred that the hours should be excluded. McGee,
115 F. Supp. 3d at 770, 776. Therefore, this court declines to
apply a percentage reduction for the adoption claims because
they were based on the same core set of facts as Plaintiffs’
ultimately successful claims.
2.

Award Some Percentage of the Remaining Amount,
Depending on the Degree of Success Enjoyed

Finally, Defendant argues that no additional adjustment be
made under the third step of the calculation. (See Doc. 161 at
20.) The court should reduce the award “if the relief, however
significant, is limited in comparison to the scope of the
litigation as a whole.” Hensley, 461 U.S. at 440. The court may
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increase the award in the “rare circumstances in which the
lodestar does not adequately take into account a factor that may
properly be considered in determining a reasonable fee.” Perdue
v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010).
Here, Plaintiffs successfully obtained a declaration that
N.C. Const. art. XIV, § 6, N.C. Gen. Stat. § 51-1, and N.C. Gen.
Stat. § 51-1.2 are unconstitutional and an injunction against
enforcing or implementing these laws. This judgment affected not
only the specific Plaintiffs in these cases but many additional
same-sex couples as well. This court finds that this injunctive
and declaratory relief is not “limited in comparison to the
scope of the litigation as a whole,” nor is this the “rare
circumstance” where the lodestar does not equal a reasonable
fee. Therefore, no further adjustment will be made.
D.

Expenses

Plaintiffs seek $6,612.20 in expenses, (Doc. 156-6), which
Defendant does not challenge, for items such as courier
services, filing fees, printing, and travel. This court finds
the expenses were reasonably incurred and that Plaintiffs are
entitled to reimbursement for these expenses.
IV.

CONCLUSION
For the reasons set forth herein, IT IS HEREBY ORDERED that

the Motions for Attorneys’ Fees (1:12CV589 (Docs. 155, 171);

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1:14CV299 (Docs. 108, 124)) are GRANTED and Defendant shall pay
the following amounts to the following Plaintiffs’ counsel:
1. To ACLU-NC: $9,775 (for work by Christopher Brook);
2. To Sullivan & Cromwell LLP: $109,388.70 ($102,776.50 for
work by Garrard R. Beeney, W. Rudolph Kleysteuber, and Kerri-Ann
Limbeek, and $6,612.20 in expenses);
3. Ellis & Winters LLP: $45,824.75 (for work by Jeremy
Falcone and Jonathan Sasser); and
4. Harris, Wiltshire & Grannis, LLP: $4,667.80 (for work by
Patrick O’Donnell and Amy Richardson).
This order is STAYED for a period of ten (10) days to allow
the parties an opportunity to review and file a written
objection should they wish to be heard further on the court’s
interpretation of specifically raised billing adjustments.
This the 25th day of July, 2018.

____________________________________
United States District Judge

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