2:14-cv-04010 #60

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PLAINTIFFS’ REPLY TO DEFENDANTS’ RETURN TO PLAINTIFFS’PETITION FOR ATTORNEYS’ FEES

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION Colleen Therese Condon and ) Civil Action No.: 2:14-cv-04010-RMG Anne Nichols Bleckley, )

) Plaintiffs, )

) v. )

) Alan Wilson, in his ) official capacity as Attorney General; ) and Irvin G. Condon, in his official ) capacity as Judge of Probate of ) Charleston County, )

) Defendants. )

)

INTRODUCTION

Plaintiffs respectfully submit this reply memorandum in support of their Petition for

Attorneys’ Fees and Costs (“Petition for Fees”) (Doc. 46). Defendants filed their responses on

January 16, 2015. (Docs. 54, 55) Judge Condon argues that it would be unjust for the Court to

impose attorneys’ fees upon him given that he took no position on the merits of Plaintiffs claim

and that he was expressly forbidden by the Supreme Court of South Carolina to issue a marriage

license to Plaintiffs. (Doc. 54). Defendant Wilson argues that the fee request should be denied in

its entirety or substantially reduced. (Doc. 55) Defendant Wilson’s arguments are contrary to

prevailing law. Indeed, his overarching argument – that no fees should be awarded because “the

law was settled in this jurisdiction” – is belied by his efforts and contrary to his professional

obligation. Were the law truly settled such that no prosecution, or a half-hearted prosecution,

was necessary, Defendant Wilson’s vigorous defense of the law would be groundless or

frivolous. Indeed, his claim is truly a case of a party seeking to “have it both ways.” Either his

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arguments and efforts to distinguish this case from controlling authority were meritless or they

required significant resources to craft an appropriate and effective response.

Plaintiffs do not disagree that the cost of this litigation should be borne solely by

Defendant Wilson who vigorously defended, and continues to defend, the marriage bans and

whose deliberate efforts impeded Judge Condon’s efforts to comply with Fourth Circuit law and

the United States Constitution.

As set forth below, the fees and costs requested by Plaintiffs are reasonable, supported,

and were necessary to achieve the exceptional results.1

ARGUMENT AND AUTHORITY

Whereas all parties appear to agree that the cost of this litigation should be borne by the

State of South Carolina, see Defendant Wilson’s Return at 16-21 (Doc. 55), and neither

Defendant challenges the reasonableness of the rates sought, the only issue to be addressed is

Defendant Wilson’s claim that the Court should deny or drastically reduce compensation to

Plaintiffs for the work expended in securing the freedom to marry for same-sex couples across

South Carolina.

I. Plaintiffs are entitled to compensation for their work on this case.

Defendant Wilson claims that Plaintiffs should be denied any compensation because they

were able to secure complete relief too quickly and because they worked too hard, or harder than

1 Defendant Wilson’s suggestion that this case was unnecessary because Bradacs v. Haley was pending is easily dismissed. As this Court noted in its Order on November 12, 2014, a resolution in Bradacs would not have afforded the relief that our clients, and thousands of similarly-situated couples, sought – the issuance of marriage licenses. (Order at 10, fn 6; Dkt. No. 37). Judge Childs previously had ruled in her Order and Opinion on Defendants’ Motion for Judgment on the Pleadings in Bradacs that “ . . . the court does not find that plaintiffs have sufficiently established standing to seek relief regarding the application and issuance of marriage licenses to same sex couples in South Carolina.” Bradacs v. Haley, No.3:13-cv-02351-JMC (Order at 13, fn 7; Dkt. No. 78)


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Defendant Wilson believes was necessary. This argument finds no basis in the law. Where a

plaintiff prevails on all claims and the full measure of relief sought is obtained, “the plaintiff’s

attorney should receive ‘a fully compensatory fee,’ and in cases of exceptional success, even an

enhancement.” Rum Creek Coal Sales v. Caperton, 31 F.3d 169, 174-75 (4th Cir. 1994) (citing

Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)).2 This is because “‘[t]he purpose of [Section]

1988 is to ensure effective access to the judicial process’ for persons with civil rights” so that

“Plaintiffs who prevail in suits to vindicate civil rights are entitled to attorneys’ fees unless

special circumstances make a fee award unjust.” Lefemine v. Wideman, 758 F.3d 551, 553 (4th

Cir. 2014) (quoting Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)). “Courts have universally

recognized that [the] special circumstances exception is very narrowly limited” and “[o]nly on

rare occasions does a case present such circumstances.” Doe v. Bd. of Educ., 165 F.3d 260, 264

(4th Cir. 1998). This is certainly not such a case.

The “special circumstances” warranting the complete denial of attorneys’ fees “are

narrowly circumscribed” and “few and far between.” DeJesus Nazario v. Rodriguez, 554 F.3d

196, 200 (1st Cir. 2009). Examples of those rare cases have been identified by the Fourth Circuit

as when a lawyer represents himself, because a “fee award would not further ‘the overriding

statutory concern . . . in obtaining independent counsel for victims of civil rights violations,’”

Lefemine, 758 F.3d at 555 (quoting Kay v. Ehrler, 499 U.S. 432 (1991)), and where the

plaintiffs’ suit did not vindicate civil rights. Id. (citing Chastang v. Flynn & Emrich Co., 541

F.2d 1040 (4th Cir. 1976)). Defendant Wilson’s reliance on Sun Pub. Co. v. Mecklenberg News,

Inc., 823 F.2d 818 (4th Cir. 1987), is misplaced. The facts in Sun Pub. Co are clearly

distinguishable. There, the court denied a request for $41,826 in additional fees in a second

2 This Court may, in its discretion, enhance the fee award for exceptional results. See Hensley v. Eckerhart, 461 U.S. 424 (1983); Blum v. Stenson, 465 U.S. 886 (1984).


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supplemental petition after Plaintiffs had already been awarded approximately $300,000 in

attorneys’ fees.

Defendant Wilson has failed to show that the amount of fees sought for the work

performed here is somehow “unjust or inappropriate” based only on his conclusory allegations

that the “hours claimed are grossly excessive,” “exorbitant,” and “patently unreasonable.” See

DeJesus Nazario, 554 F.3d at 200 (“[T]he burden is on the defendant to show that unusual

conditions would make an award unjust or inappropriate.”) (citing United States v. Cofield, 215

F.3d 164, 171 (1st Cir. 2000)); see also Lefemine, 758 F.3d at 555. Indeed, Defendant Wilson’s

arguments are duplicitous. He cannot simultaneously file more than one hundred pages of

arguments and affirmative motions; vehemently dispute that a preliminary injunction was

warranted; oppose Plaintiffs’ request for summary judgment; seek dismissal based on lack of

subject matter jurisdiction and failure to state a cause of action; and then appeal the decision and

seek stays in multiple appellate courts while also claiming that the issues are well-settled and that

Plaintiffs’ attorneys need not have expended much effort.

II. The hours claimed were reasonably expended.

Where Defendants do not object to hourly rates and there is no argument that the results

achieved are less than complete, the Court’s primary task is to determine whether the hours

claimed were “reasonably expended in pursuit of the ultimate result achieved.” Hensley, 461

U.S. at 431. Only when “a plaintiff has achieved only partial or limited success, the product of

hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an

excessive amount” however, “the most critical factor is the degree of success obtained.” Id. at

436. Although courts are tasked with ensuring that documentation of the hours is adequate and

the hours are not duplicative, excessive or otherwise unnecessary, “[b]y and large, the court


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should defer to the winning lawyer’s professional judgment as to how much time he was

required to spend on the case; after all, he won, and might not have, had he been more of a

slacker.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008).

Here, Plaintiffs obtained all of the relief they sought. Their lawyers worked long hours,

through nights and weekends, in order to litigate the case on an expedited basis. This work

included a well-pled Complaint; appropriate motions that were succinctly argued and

appropriately supported in order to aid the Court in a quick resolution; and thorough responses to

Defendant Wilson’s oppositions and affirmative motions. The work paid off. Plaintiffs achieved

their objective, which was to ensure that the State promptly ended the daily violation of

fundamental constitutional rights of its citizens. After more than 100 pages of argument, many

of which were not raised in Bostic or other marriage cases – including, but not limited to,

Federalism; Rooker-Feldman; Eleventh Amendment immunity; and lack of standing – and

separately claiming eight bases to show that this Court lacked subject matter jurisdiction and that

the Plaintiffs failed to state a claim, it is astounding that Defendant Wilson now argues that the

amount of work Plaintiffs undertook to respond to these arguments and motions was unnecessary

and so conscience-shocking that they should be denied any compensation.

As set forth below, and as supported in the record, the fees requested for the work

performed are reasonable and in line with the amount of work necessary to successfully litigate a

constitutional marriage challenge. The suggestion that the enormous amount of work Plaintiffs’

counsel undertook should be reduced because they worked long hours in order to achieve the

exceptional results in an expedited time is nonsensical. It is, of course, the volume of work and

the success obtained that matter – not the number of days between initial filing and final

decision.


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a. The fee request is in line with requests and awards in similar cases.

Defendant Wilson complains that because Plaintiffs succeeded in getting state-wide relief

in a short time, they should be denied all compensation for their audacity in working around the

clock to accomplish their goals so efficiently. Such an argument is absurd. It is the amount of

work that is at issue, not the timetable within which it was completed.

The request for attorneys’ fees involved reasonable time spent litigating this case, which

involved, among other necessary efforts:

• Pre-litigation matters;

• Researching, drafting and revising the Complaint;

• Researching, drafting and revising a Preliminary Injunction Motion and brief;

• Researching, drafting and revising a Summary Judgment Motion and brief;

• Researching, drafting and revising a brief responsive to Defendant’s 58-page opposition to the preliminary injunction3;

• Researching, drafting and revising a brief responsive to Defendant’s opposition to summary judgment;

• Researching and drafting a brief responsive to Defendant’s Motion to Dismiss; and

• Researching, drafting and revising briefs responsive to Motions to Stay in the Fourth Circuit and the United States Supreme Court.

As set out in the chart below, of eleven cases in which marriage bans were struck down

and fee petitions are pending, only two cases seek compensation for less hours than are requested

3 The suggestion that Plaintiffs expended an unreasonable amount of time responding to Defendant Wilson’s 58-page brief because they were able to edit their brief to comply with the Local Rules fails to appreciate the time-consuming difficulty in succinctly responding with fewer words, rather than more, to such a lengthy brief brimming with so many issues. Researching the numerous kitchen-sink arguments that Defendant threw into his brief was time-consuming in itself. Paring a brief responsive to 58 pages of arguments down to 15 pages, while retaining cogent arguments and persuasive responses, took far more time than it would have to draft a much longer brief.


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here. See Exh. A, summarized below. However, unlike here, neither of those cases involved

both preliminary injunction and summary judgment motion practice.

While every case is fact and attorney dependent, and a review of the pleadings hardly

tells the full picture, the information contained in the chart above and Exhibit A (which provides

more substantive detail) shows that the time and effort Plaintiffs’ counsel expended is in line

with similar lawsuits. Indeed, the Plaintiffs in Burns v. Hickenlooper, Civil Action No. 14-cv-

01817-RM-KLM, 2014 U.S. Dist. LEXIS 148123 (D. Colo. Oct. 17, 2014) filed a Complaint and


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Motion for Preliminary Injunction July 1, 2014. On July 18, the Tenth Circuit ruled that

marriage bans were unconstitutional. Five days later, the district court granted Plaintiffs’

preliminary injunction and stayed the order pending the Supreme Court ruling on petitions for

certiorari. Id. On October 6, 2014, the Supreme Court denied certiorari. Nine days later, the

parties filed a Joint Motion for a Permanent Injunction. Accordingly, Plaintiffs in Burns – who

filed only one opposed motion – seek fees for only $18,144.55 less than Plaintiffs’ seek here,

where Plaintiffs filed two opposed motions and where the Defendant also filed a motion to

dismiss and appellate motions to stay the orders.

b. Plaintiffs’ efforts were neither “riding coattails” nor “aping” other work.

Defendant Wilson’s argument that Plaintiffs should be denied compensation because they

were “riding the coattails of Bostic” (Doc. 55 at 3, 5-7) misreads or misstates the law. There is a

vast difference between the few “coattail” cases in which the litigants’ “‘efforts did not

contribute to achieving those results,’” Donnell v. United States, 682 F.2d 240, 247-48 (D.C. Cir.

1982) (quoting Connor v. Winter, 519 F. Supp. 1337, 1343 (S.D. Miss. 1981)), and a case where

Plaintiffs rely on recent precedent. The circumstances in which a court denies fees based on

riding the “coattails” of another case “is limited to cases involving intervenors who essentially

just rode the coattails of another party, such as the United States Department of Justice, and

contributed little or no work to the outcome of the case.” Cushing v. McKee, 853 F. Supp. 2d

163, 172 (D. Me. 2012). Defendant Wilson relies on Gerena-Valentin v. Koch, 739 F.2d 755,

759 (2d Cir. 1984), which is easily distinguishable. There, the court denied fees where a

litigant’s “role was limited to the bringing of a repetitive action and the offering of

inconsequential legal arguments.” Gerena-Valentin, 739 F.2d at 759. Here, by contrast,

Plaintiffs were solely responsible for bringing the case and successfully litigating this case to


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achieve the full measure of their requested relief.

Any inference that Plaintiffs “aped” the Complaint filed in Bradacs or Bostic is

unsupported and inaccurate. To the extent Defendant Wilson accuses Plaintiffs’ attorneys of

expending no independent effort based on their work on other cases, his suggestion is likewise

erroneous. Defendant provides only conclusory allegations that Plaintiffs work “could have

included much ‘cut and paste’ work.” (Doc. 55 at 13) (emphasis added) A recent decision in the

District of Idaho also undercuts this unsupported argument. Latta v. Otter, 2014 U.S. Dist.

LEXIS 176103, *23-24 (D. Idaho Dec. 19, 2014). There, unlike here, Defendants provided the

court evidence to show that several paragraphs in the pleadings were virtually identical to

paragraphs in similar cases. Yet, the court rejected the defendants’ argument that “Plaintiffs’

counsel had significant experience in similar cases such that they could simply ‘recycle’ their old

work” because “[i]t may have demanded little time to recycle a few pages of old language, but

that does not mean the remainder of Plaintiffs’ four briefs were ready-made. Counsel’s decision

to copy-paste a relatively small part of one brief does not, by itself, justify” a reduction. Id.

Finally, “[t]here is nothing inherently unreasonable about a client having multiple

attorneys” especially in a fast-moving, complex civil case in a quickly evolving area of

constitutional law. See Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1302 (11th Cir.

1988). One sister district court counseled that “the court must focus on the reasonableness of the

division of responsibility between counsel. Reduction of hours is warranted only if counsel

unreasonably duplicate each other’s work.” Sky Cable, L.L.C. v. Coley, Civil Action No.: 5:11-

cv-48, 2014 U.S. Dist. LEXIS 125134, *17-18 (W.D. Va. Aug. 15, 2014) (citations omitted).

Plaintiffs’ attorneys devoted a significant amount of time to this case, worked efficiently by

dividing tasks amongst various counsel, assigned one attorney as the primary drafter of each


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pleading and other attorneys performed supportive and supervisory roles such as researching and

editing. Although this case proceeded swiftly, it involved considerable motion practice and,

perhaps, more work than similar cases seeking much higher fees. Defendant Wilson’s arguments

that Plaintiffs’ request should be denied in full or significantly reduced should be denied.4

c. The time spent on each litigation task was reasonable and the tasks are compensable.

Defendant Wilson raises various arguments concerning particular work that he claims is

not compensable. (Doc. 55, Sec. V) The work performed speaks for itself as reasonable efforts

undertaken in connection with the litigation. For example, Defendant complains about 2.5 hours

“related” to a status conference. Yet, there is nothing unreasonable about three attorneys from

different firms needing to confer for an hour and a quarter to discuss the issues raised by this

Court in order to agree on substance and adequately prepare for a status conference in which they

were required to provide responses to specific questions identified by this Court, and to each

attend the 15-minute telephone conference.

Defendant also argues Attorney Littrell’s travel from Atlanta to Charleston to meet with

the Plaintiffs is not a reasonable litigation cost. This argument is unsupported in law. See Daly,

790 F.2d at 1083-85 (reversing denial of fees for travel expenses); see also Trimper v. City of

Norfolk, 58 F.3d 68, 75 (4th Cir. 1995) (explaining that “the Daly Court specifically held §1988

4 Plaintiffs reserve the right to supplement this fee application with work performed on the fee petition. “[T]he Fourth Circuit has specifically held that fees-on-fees are available to prevailing parties under § 1988.” Mercer v. Duke Univ., 301 F. Supp. 2d 454, 469 (M.D.N.C. 2004) (citing Trimper v. City of Norfolk, 58 F.3d 68, 77 (4th Cir. 1995)); see also Daly v. Hill, 790 F.2d 1071, 1080 (4th Cir. 1986)) (“Time spent defending entitlement to attorney’s fees is properly compensable in a § 1988 fee award”); Martin v. Univ. of S. Ala., 911 F.2d 604, 610 (11th Cir. 1990) (“It is well settled that time expended litigating attorney fees is fully compensable”); Am. Canoe Ass'n v. EPA, 138 F. Supp. 2d 722, 746 (E.D. Va. 2001) (“It is well-settled that reasonable time and expenses spent preparing a fee petition are compensable. This is so because ‘the fee application is a necessary part of the award of attorney’s fees.’”).


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contemplates reimbursement not only for attorney’s fees but also litigation expenses such as

secretarial costs, copying, telephone costs and necessary travel.”). Whereas Lambda Legal is a

non-profit legal organization which was preparing to devote considerable resources to this

lawsuit, it necessarily needed to have its lead counsel travel to meet with the potential clients

prior to bringing the lawsuit in order to have a face-to-face meeting with those seeking

representation; ask and answer client questions; explain and execute retainer agreements; and

otherwise assure itself that the lawsuit should proceed with these clients as Plaintiffs. Lawyers

from different firms simply could not serve as proxies for Lambda Legal’s necessarily prudent

exercise in meeting with their prospective clients. Furthermore, hours expended prior to the

actual filing of litigation are compensable. Mammano v. Pittston Co., 792 F.2d 1242, 1245 (4th

Cir. 1986) (citing N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980)).

Defendant Wilson also argues that because his application for a stay in the Supreme

Court was denied before Plaintiffs were able to file their response (despite their informing the

Supreme Court clerk that they intended to do so), the work performed is not compensable. This

argument is likewise contrary to law. As one federal court recognized in response to a similar

argument objecting to work performed but not filed “[t]his argument in unavailing. In

determining whether hours are to be excluded as unnecessary, the inquiry ‘is not whether

hindsight vindicates an attorney’s time expenditures,’ but rather whether, at the time the work

was performed, a reasonable attorney would have engaged in similar time expenditures.”

Imbeault v. Rick's Cabaret Int’l Inc., 2009 U.S. Dist. LEXIS 71562, *16-17 (S.D.N.Y. Aug. 13,

2009) (citing Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992). The Imbeault court went on to

note that “the mere fact that the motion was not filed is not dispositive. Rather, work performed

in furtherance of claims ultimately withdrawn or not pursued – If reasonably undertaken at the


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time – ‘is not compensable only if it is “wholly unrelated” in fact or law to successful claims., ”

supra (citing Hnot v. Willis Group Holdings, Ltd., 2008 U.S. Dist. LEXIS 28312 (S.D.N.Y. Apr.

7, 2008), quoting Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994)); see also, e.g., Pure

Wafer, Inc. v. City of Prescott, 2014 U.S. Dist. LEXIS 103228, *33-34 (D. Ariz. July 29, 2014)

(holding that work on a motion for summary judgment that was never filed “was a reasonable, if

not expected, step in the litigation process that became moot only due to an unforeseen change in

the course of litigation.”); Post v. St. Paul Travelers Ins. Co., 752 F. Supp. 2d 499, 515 (E.D. Pa.

2010) (“The fact that the draft complaint was never filed, and that the collateral lawsuit filed

against Mercy was not in Luzerne County, do not change the fact that the work done drafting the

complaint was done in defense of the impending legal malpractice claim.”). Application of these

principles here show that it was reasonable, if not required, for Plaintiffs’ attorneys to have

worked on briefs that were responsive to Defendant’s affirmative motions and they should not be

penalized as a result of courts’ denying Defendants’ motions prior to Plaintiffs’ filing deadlines.

Defendant Wilson’s similar objections to reasonable time spent on necessary litigation

efforts are equally unavailing and unsupported.

CONCLUSION

For all of the foregoing reasons, Plaintiffs respectfully request this Court grant

their petition for attorneys’ fees and costs.

Respectfully submitted,

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.

/s Elizabeth L. Littrell Elizabeth L. Littrell (GA Bar No. 454949) 730 Peachtree Street, NE, Suite 1070 Atlanta, Georgia 30308


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Phone: (404) 897-1880 Fax: (404) 897-1884 [email protected] Admitted Pro Hac Vice

SOUTH CAROLINA EQUALITY COALITION, INC.

s/M. Malissa Burnette M. Malissa Burnette (Fed. I.D. No.:1616) Nekki Shutt (Fed. I.D. No.: 6530) CALLISON TIGHE & ROBINSON, LLC 1812 Lincoln Street (29201) Post Office Box 1390 Columbia, South Carolina 29202 Telephone: 803-404-6900 Facsimile: 803-404-6901 [email protected] [email protected]

Victoria L. Eslinger (Fed. I.D. No.:738) NEXSEN PRUET, LLC Post Office Drawer 2426 Columbia, South Carolina 29202-2426 Telephone: 803-253-8249 Facsimile: 803-253-8228 [email protected] ATTORNEYS FOR PLAINTIFFS.


mailto:[email protected]




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