REBECCA BEACH SMITH, Chief Judge.
The court lifted its stay of this case on July 20, 2012, which stay had been issued by Order of August 1, 2011. The court then directed the parties to file responses concerning the Consent Order entered by the court on August 10, 2011, staying consideration of Project Vote/Voting for America, Inc.'s ("Project Vote") August 3, 2011, Motion To Recover Attorneys' Fees and Costs ("Motion for Attorneys' Fees"). Project Vote filed its response ("Project Vote's Response") on July 23, 2012, requesting that the court lift the stay of its Motion for Attorneys' Fees and award a total of $349,317.05 in fees and $657.00 in costs. Defendants filed a Joint Motion for Extension of Time, also on July 23, 2012, requesting additional time to respond to Project Vote's motion. The court lifted its stay of the Motion for Attorney's Fees on July 26, 2012, and set new deadlines for Defendants' response and any reply by Project Vote. Defendants filed their Response in Opposition on August 3, 2012, and Project Vote filed its Reply on August 10, 2012. The matter is now ripe for review.
The relevant factual history is set forth in detail in the court's October 29, 2010,
Compl. ¶ 15 (internal quotation marks omitted). This request was made pursuant to the National Voter Registration Act's ("NVRA") Public Disclosure Provision, 42 U.S.C. § 1973gg-6(i)(1) (hereinafter referred to as the "Public Disclosure Provision"). The Defendants did not permit Project Vote to inspect or copy these records (collectively referred to as the "Requested Records"), purportedly because Virginia Code § 24.2-444 prohibited their disclosure, Compl. ¶ 17, and the Public Disclosure Provision did not require that they be made available for inspection and photocopying. Id. ¶ 22.
In the Complaint, Project Vote alleged that the NVRA's Public Disclosure Provision required that the Requested Records be available to the public for inspection because they are records "`concerning the implementation of programs or activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.'" Id. ¶ 29 (quoting 42 U.S.C. § 1973gg-6(i)(1)). Additionally, to the extent that the Virginia statute limited the availability of the Requested Records to the public for inspection and photocopying, Project Vote argued it was superseded by the NVRA, pursuant to the Supremacy Clause of the United States Constitution. Therefore, Project Vote asked the court to: 1) declare that Defendants were in violation of the NVRA; 2) declare that the NVRA preempted Virginia Code § 24.2-444, and any other Virginia law or regulation stating the same; 3) "[p]ermanently enjoin Defendants from refusing to permit access to any requesting party for copy and/or inspection of voter registration applications and related records, as sought by Project Vote in this matter"; and 4) award Project Vote the costs incurred in pursuing this action, as authorized by 42 U.S.C. § 1973gg-9(c). Id. at 11.
The court issued its Opinion granting in part Project Vote's Motion for Summary Judgment on July 20, 2011. See Project Vote/Voting for Am., Inc. v. Long, 813 F.Supp.2d 738 (E.D.Va.2011). The court found "that the NVRA's Public Disclosure Provision, 42 U.S.C. § 1973gg-6(i)(1), grants the plaintiff access to completed voter registration applications with the voters' SSNs redacted for inspection and photocopying." Id. at 743. The court issued a permanent injunction requiring disclosure of completed voter registration applications, but denied Project Vote's Motion for Summary Judgment insofar as Project Vote requested retrospective relief. Id. at 744-45. The court stayed its judgment on August 1, 2011, pending the outcome of Defendant's appeal of its decision. On June 15, 2012, the United States Court of Appeals for the Fourth Circuit affirmed this court's opinion. See Project Vote/Voting for Am., Inc. v. Long, 682 F.3d 331 (4th Cir.2012). The Fourth Circuit's mandate issued on July 9, 2012.
Pursuant to 42 U.S.C. § 1973gg-9(c), "[i]n a civil action under this section the court may allow the prevailing party (other than the United States) reasonable attorney fees, including litigation expenses, and costs." Courts apply the same standards
The decision to award attorneys' fees, and the extent of those fees, "rests, of course, within the sound discretion of the trial judge." Guidry v. Clare, 442 F.Supp.2d 282, 294 (E.D.Va.2006) (Ellis, J.) (internal quotation omitted). In determining a reasonable attorneys' fee, the proper first step is to calculate the lodestar amount, which results from multiplying "the number of hours reasonably expended on the litigation times a reasonable hourly rate." Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (quoting Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). When making this calculation, the court must exclude any hours that are "excessive, redundant, or otherwise unnecessary," as such hours are not reasonably expended on the litigation. Hensley, 461 U.S. at 434, 103 S.Ct. 1933. This process requires the use of the same "billing judgment" that guides a lawyer in private practice in billing his client. Id.
A properly calculated lodestar figure is presumed to be a reasonable fee. See Del. Valley Citizens' Council for Clean Air, 478 U.S. at 565, 106 S.Ct. 3088. However, the court's discretion to award fees necessarily "encompasses the ability to depart from the lodestar in appropriate circumstances." Carroll v. Wolpoff & Abramson, 53 F.3d 626, 629 (4th Cir.1995). The court may adjust a fee upward or downward from the lodestar based on the twelve factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974),
Project Vote seeks an award of attorneys' fees in the amount of $349,317.05 and costs and expenses in the amount of $657.00. See Project Vote's Resp. 4. Defendants object to many aspects of Project Vote's request, but their arguments can be summarized into three main contentions: (1) the hourly rates cited by Project Vote are not reasonable in the relevant legal community; (2) Project Vote's request contains unreasonable or duplicative fee requests; and (3) Project Vote's documentation is insufficient for the court to ascertain the number of hours reasonable expended on the litigation. See Resp. Opp'n 2-15. Defendants do not object to an
In Project Vote's Response, as well as its August 3, 2011, Memorandum of Law in Support of Plaintiff's Motion to Recover Attorneys' Fees ("Memorandum in Support"), Project Vote argues that the Laffey Matrix, which reports prevailing market rates for attorneys in Washington, D.C., provides a guideline for reasonable attorneys' fees in this case. See Project Vote's Resp. 4; Mem. Supp. 9-11. In contrast, Defendants argue that Project Vote has not produced sufficient evidence in support of its fee request, and that a reasonable hourly rate should be calculated by looking at the local legal market, rather than the Laffey Matrix. See Resp. Opp'n 4-9.
The hourly rate requested by the prevailing party must be reasonable. See Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir.1994) (citing Hensley, 461 U.S. at 433, 103 S.Ct. 1933). Courts ordinarily look to the "prevailing market rates" charged by lawyers of similar capabilities and experience "in the relevant community." Blum, 465 U.S. at 895-96, 104 S.Ct. 1541. Prevailing parties bear the burden of demonstrating that their requests fall within the prevailing market rates, which can be accomplished through affidavits from disinterested counsel, evidence of awards in similar cases, or other specific evidence that allows the court to determine "actual rates which counsel can command in the market." Spell v. McDaniel, 824 F.2d 1380, 1402 (4th Cir. 1987). Affidavits from the prevailing party alone are not sufficient. See Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir.1990). The relevant community for determining the market rate is ordinarily the district where the case was tried. Rum Creek, 31 F.3d at 175. However, rates in other localities can be considered "[i]n circumstances where it is reasonable to retain attorneys from other communities." Id. Such circumstances are present "when the complexity and specialized nature of a case may mean that no attorney, with the required skills, is available locally, and the party choosing the attorney from elsewhere acted reasonably in making the choice." Id. at 179 (quoting National Wildlife Federation v. Hanson, 859 F.2d 313 (4th Cir.1988)).
Here, Project Vote submitted affidavits from its own attorneys, as well as the Laffey Matrix, in support of its requested rates, which are as follows:
Table 1: Project Vote's Requested Hourly Rates Timekeeper Position Hourly Rate Hourly Rate Hourly Rate 6/1/09-5/31/10 6/1/10-5/31/11 6/1/11-5/31/12 Hallward-Driemeier, Doug Partner $569.00 $589.00 $609.00 Ropes & Gray Stewart, David Ropes & Counsel $686.00 $709.00 $734.00 Gray Malone, Ryan Ropes & Associate $505.00 $522.00 $540.00 Gray Ripa, Augustine Ropes & Associate $285.00 $294.00 $374.00 Gray
Idilbi, Jason Ropes & Gray Associate $285.00 $294.00 $374.00 Beauregard, Sheryl Ropes & Gray Paralegal $155.00 $161.00 $166.00 Antzoulatos, Sophia Ropes Paralegal $155.00 $161.00 $166.00 & Gray Sheffield, Yolanda Project Attorney $349.00 $361.00 $374.00 Vote Mellor, Brian Proiect Vote Attorney $686.00 $709.00 $734.00
Project Vote Resp. Ex. E. The Laffey Matrix was established in Laffey v. Nw. Airlines, Inc., 572 F.Supp. 354 (D.D.C. 1983), and is frequently used by the United States District Court for the District of Columbia, and other courts, as a "useful starting point" for determining the prevailing hourly rates for attorneys in Washington, D.C. See Grissom v. Mills Corp., 549 F.3d 313, 322 (4th Cir.2008). Notably, Project Vote did not submit any other affidavits concerning hourly rates in the Eastern District of Virginia. Project Vote argued it "acted reasonably by retaining counsel in Washington, D.C, whose office was located in close proximity to theirs, who had specific civil rights and constitutional law expertise, and who were willing to take on a case of first impression." Mem. Supp. 10. In its Reply, Project Vote made the additional argument, not found in its first two filings or the supporting declaration from its senior counsel, Brian Mellor, that Project Vote's relationship with counsel, Ropes & Gray, in other cases factored into its choice to use the firm. See Reply 3.
In turn, Defendants argue that the Laffey Matrix is irrelevant in assessing reasonable fees in this case, as the relevant legal market is the Eastern District of Virginia, not Washington, D.C. See Resp. Opp'n 6-9. Defendants argue that Project Vote has not made any showing that competent counsel could not be retained for this case from within the jurisdiction, or that choosing counsel from Ropes & Gray in Washington, D.C., constituted a reasonable decision. Further, in addition to the affidavits of Defendants' attorneys generally concerning their roles/participation in the case, see Resp. Opp'n Exs. 2 & 3, Defendants provide specific evidence, through an affidavit from trial attorney Robert L. Samuel, a partner based in a local office of a large Virginia law firm with multiple offices throughout the Eastern District of Virginia, and who himself has over thirty (30) years of continuous practice in the courts of southeastern Virginia, including practice in this District and the Fourth Circuit Court of Appeals. See Resp. Opp'n Ex. 1 ¶¶ 2-4.
Table 2: Defendants' Evidence of Reasonable Hourly Rates Timekeeper Position Experience Hourly Rate Hallward-Driemeier, Doug Ropes & Gray Partner 18 years $275-300 (Partner for 2) Stewart, David Ropes & Gray Counsel 34 years $350-400 (Partner for 23) Malone, Rvan Rones & Gray Associate 10 years $275-300 Ripa, Augustine Ropes & Gray Associate 4 years $180-$225 Idilbi, Jason Ropes & Gray Associate 4 years $180-$225 Sheffield, Yolanda Proiect Vote Attorney 7 years $180-$225 Mellor, Brian Proiect Vote Attorney 29 years $350-00
In reviewing the evidence from the parties, the court agrees with Defendants that Project Vote's requested hourly rates do not represent the prevailing market rate in the relevant community of the Eastern District of Virginia. Project Vote has failed to set forth specific evidence that the hourly rates it seeks coincide with local prevailing market rates; indeed, Project Vote has submitted no evidence at all on market rates within this District. Further, Project Vote's evidence in the form of the Laffey Matrix is insufficient as a reliable indicator of reasonable rates for a case proceeding outside of Washington, D.C. Cf. Grissom, 549 F.3d at 323 ("Moreover, the Laffey Matrix is also insufficient to carry Plaintiff's burden of proof [for a case in Reston, Virginia.]").
Brian Mellor of Project Vote cited Ropes & Gray's proximity to its office, constitutional and civil rights expertise, and willingness to take a case of first impression as the three reasons justifying the decision to retain counsel in Washington, D.C. Mem. Supp. 10. However, Project Vote has made no showing that it was unable to find local counsel — charging prevailing market rates — competent and willing to handle this case. See Rum Creek, 31 F.3d at 179; National Wildlife, 859 F.2d at 317. Project Vote argues in its Reply that such proof is not required by Rum Creek and National Wildlife. See Reply 3. Such an argument misses the point; Project Vote, in applying for a fee, has "the burden to make out the reasonableness of [its] hourly rate with specific evidence." Newport News Shipbuilding & Dry Dock Co. v. Holiday, 591 F.3d 219, 230 n. 12 (4th Cir.2009). The Fourth Circuit has confirmed that the first step in assessing the reasonableness of retaining non-local counsel is asking "if extrajurisdictional counsel rendered services that were truly available in the visited market." See id. at 229. Project Vote's idle speculation that the case "was likely to be politically distasteful for local counsel" does not satisfy its burden. Reply 4.
As such, the court finds that reasonable hourly rates for this case are those charged by comparable counsel within the Eastern District of Virginia.
Table 3: Court's Finding of Reasonable Hourly Rates Timekeeper Position Reasonable Hourly Rate Hallward-Driemeier, DOUR Ropes & Gray Partner $300 Stewart, David Ropes & Gray Counsel $400 Malone, Ryan Ropes & Gray Associate $300 Ripa, Augustine Ropes & Gray Associate $225 Idilbi, Jason Ropes & Gray Associate $225 Beauregard, Sheryl Ropes & Gray Paralegal $1008 Antzoulatos, Sophia Ropes & Gray Paralegal $1009 Sheffield, Yolanda Project Vote Attorney $225 Mellor, Brian Project Vote Attorney $400
Defendants next argue that Project Vote's fee request includes numerous entries that are "excessive, redundant, or otherwise unnecessary," and represent overstaffing and duplicative billing. See Resp. Opp'n 10 (quoting Hensley, 461 U.S. at 434, 103 S.Ct. 1933). Defendants argue that Project Vote's attorneys, who took the case pro bono, "seem[] to have used this case as a training exercise, without proper billing discretion as to the amount of hours expended." Id. at 12. Defendants note that only one attorney represented Defendants at almost all proceedings. Id. at 11 n. 2; id. Ex. 2 ¶ 5; id. Ex. 4 ¶ 5. Defendants also submit as evidence Mr. Samuel's affidavit, in which he states "[t]here is a great deal of duplication and overstaffing"
"The court must necessarily exclude any hours that are ... not reasonably expended on the litigation." Lilienthal v. City of Suffolk, 322 F.Supp.2d 667, 670 (E.D.Va.2004). "[The Fourth Circuit has] been sensitive to the need to avoid use of multiple counsel for task where such use is not justified by the contributions of each attorney." Rum Creek, 31 F.3d at 180. As such, the court will "award fees for the time of one attorney when an issue does not require the attention of multiple lawyers." Cox v. Reliance Std. Life Ins. Co., 179 F.Supp.2d 630, 636 (E.D.Va.2001) (Brinkema, J.).
Chronologically, Defendant's first specific objection on this ground is to Project Vote's billing related to the July 30, 2010, hearing on Defendant's Motion to Dismiss, found in Phase 3 of Exhibit E to Project Vote's Motion for Attorney Fees. See Resp. Opp'n 11 n. 2. Project Vote had three attorneys attend the motion hearing in Norfolk, Virginia.
Defendants next point to the time entries entered by three of Project Vote's attorneys, found in Phase 4 of Exhibit E to Project Vote's Motion for Attorney Fees, concerning participation in the Federal Rule of Civil Procedure 26(f) Telephonic Conference.
Defendant's next object to Project Vote's billing related to the Federal Rule of Civil Procedure 16(b) Scheduling Conference. See Resp. Opp'n 11. Project Vote had three attorneys attend the Rule 16(b) Conference in Norfolk, Virginia.
Defendant's final specific objection
Defendants' final objection concerning the unreasonableness of Project Vote's fee request relates to attorney travel. Defendants argue that the decision to charge "full rate for hours spent traveling to and from Washington, D.C.... further demonstrates Plaintiff's counsel's `apparent absence of billing judgment.'" Resp. Opp'n 12 (citing Burston v. Virginia, 595 F.Supp. 644, 651 (E.D.Va.1984) (Merhige, J.)). Defendants cite several cases for the proposition that "plaintiffs should not recover the same fee for travel time as they recover for active legal work." Rosenberger v. Rector and Visitors of Univ. of Va., No. 91-0036-C, 1996 WL 537859, at *6, 1996 U.S. Dist. LEXIS 13799, at *20 (W.D.Va. Sept. 17, 1996). Defendants argue that the appropriate hourly rate for attorney travel time is one fifth of an attorney's regular billing rate, citing Sun Publ'g Co. v. Mecklenburg News, Inc., 594 F.Supp. 1512, 1520 (E.D.Va.1984). Resp. Opp'n 13.
Defendants' remaining objections to Project Vote's fee request focus on the documentation provided to the court. Defendants characterize Project Vote's evidence as providing the court with "no way... to accurately determine the reasonableness of the time expended." Resp. Opp'n 15. Specifically, Defendants, and Mr. Samuel in his affidavit, point to counsel's practice of "lumping" multiple tasks into the same time entry. See id. at 14; id. Ex. 1 ¶ 12. Project Vote, in turn, argues that "block billing" is not prohibited by binding authority, and that the provided entries are sufficiently specific for the court. Reply 8.
While perhaps "block billing" is not prohibited, it simply does not provide the court with a sufficient breakdown to meet Project Vote's burden to support its fee request in specific instances. "Inadequate documentation includes the practice of grouping, or `lumping,' several tasks together under a single entry, without specifying the amount of time spent on each particular task." Guidry, 442 F.Supp.2d at 294. Courts may reduce a fee award when "lumping" prevents an accurate assessment of the reasonableness of the fee request by either identifying hours that are not sufficiently documented or "by reducing the overall fee award by a fixed percentage or amount based on the trial court's familiarity with the case, its complexity, and the counsel involved." See id. Thus, the issue is not whether the court classifies Project Vote's timekeeping as demonstrating either "lumping" or "block billing," but whether Project Vote has satisfied its burden of providing the court with evidence from which the court can assess the reasonableness of the time requests.
In reviewing the time logs, the court did not find a single instance in which a timekeeper recorded multiple entries for a single day; instead, only the total amount of time for each day is reported, with no breakdown of how that time was spent among often as many as four or five distinct tasks. See, e.g., Mot. Attorneys' Fees
After arriving at the lodestar figure, the district court still must assess "whether that figure must be adjusted, upward or downward, on the basis of the circumstances in the case, including the Johnson factors." Guidry, 442 F.Supp.2d at 294-95. The court will not belabor these factors
The full details of the court's calculations adjusting Project Vote's requested attorneys' fee award are set out in Appendix A, which is attached hereto and made a part of this Opinion and Order. After reducing the hourly rate, as detailed supra in Part III.A, and making the adjustments to the billable time, as detailed supra in Parts III.B and III.C, the court
Project Vote also requests $657.00 in costs. Litigation expenses are recoverable under the statute, see 42 U.S.C. § 1973gg-9(c), and Defendants have noted no objection
For the foregoing reasons, the court
Appendix A: Court's Calculation of Attorneys' Fees Timekeeper Total Duplicative Adjusted Total Hours Hourly Total Fee Reported Hours Hours After 10% Rate Award Hours Reduction Hallward-Driemeier, Doug 17.25 0 17.25 15.525 $300 $4,657.50 Ropes & Gray Stewart, David Ropes & 0.50 0 0.50 0.45 $400 $180.00 Gray Malone, Ryan Ropes & 253.00 0 253.00 227.7 $300 $68,310.00 Gray Ripa, Augustine Ropes & 413.25 (56.05) 357.20 321.48 $225 $72,333.00 Gray Idilbi, Jason Ropes & Gray 149.25 (20.75) 128.50 115.65 $225 $26,021.25 Beauregard, Sheryl Ropes 52.50 0 52.50 47.25 $100 $4,725.00 & Gray Antzoulatos, Sophia Ropes 21.75 0 21.75 19.575 $100 $1,957.50 & Gray Sheffield, Yolanda Project 18.80 0 18.80 16.92 $225 $3,807.00 Vote Mellor, Brian Project Vote 6.20 0 6.20 5.58 $400 $2,232.00 Total: 932.50 (76.80) 855.7 770.13 $184,223.25