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Myers v. Gant

United States District Court, D. South Dakota, Southern Division

May 27, 2015

JASON M. GANT, in his official capacity as Secretary of State for the State of South Dakota Defendant.


LAWRENCE L. PIERSOL, District Judge.

Upon prevailing on a 42 U.S.C. § 1983 action, lawyer for Plaintiff, Edward Welch, moves the Court for reasonable attorney's fee and costs. Based on the following, the motion is granted.


On January 7, 2014, Myers declared his intention to run as an Independent candidate for Governor of South Dakota in the November 2014 election. On January 9, 2014, Myers and Caitlin F. Collier (Collier) filed with the Secretary of State. A form filed with the Secretary of State stated Myers' intention to run for governor and certified Collier as his lieutenant governor candidate. Next, Myers circulated his nominating petition. Collier's name was not required to and did not appear on the Myers' nominating petition. On April 23, 2014, Myers submitted his nominating petition with more than the required number of signatures of registered voters to the South Dakota Secretary of State's Office, which approved Myers' nomination as a non-party Independent candidate for governor.

On or before June 12, 2014, Collier informed Myers that she needed to withdraw from the race for personal reasons. On June 16, 2014, the Secretary of State's Office received a notarized form from Collier entitled "Candidate's Request to Withdraw Nomination." On July 8, 2014, Myers announced his nomination of Lora Hubbel to replace Collier as his running mate. That same day, Hubbel signed and submitted the bottom portion of an "Independent Candidate For Governor Declaration of Candidate and Certification of Running Mate" form to the South Dakota Secretary of State's Office to get her name placed on the election ballot as Myers' running mate. This notarized form was received by the South Dakota Secretary of State's Office on July 15, 2014.

On July 18, 2014, the Secretary of State's office notified Hubbel and Myers by letter that Hubbel could not be certified as the candidate for lieutenant governor and Collier could not be removed from the ballot. According to Gant's letter, there was no South Dakota law allowing a non-party Independent gubernatorial candidate to certify a replacement candidate for lieutenant governor after the candidate had met the deadline for circulating and filing his or her nominating petition. Gant also stated that Collier could not simply drop off the ballot because Article IV section 2 of the South Dakota Constitution requires that the governor and lieutenant governor be jointly elected.

South Dakota law allowed party nominees for governor, such as Republicans and Democrats, to fill a vacancy created by the death or withdrawal of their running mate up until the second Tuesday in August, which was August 12, 2014, of last year's election cycle. See SDCL § 12-8-6. As with the nomination of a lieutenant governor, the replacement of a lieutenant governor candidate must be done by party vote and nomination. If a vacancy occurs for lieutenant governor, a statewide office, the State Party Central Committee is charged with the responsibility of replacing that nominee. SDCL § 12-6-56. "Vacancies filled by the State Central Committee shall be by unit representation, each county casting the number of votes cast in that county at the last general election for that party's candidate for Governor." SDCL § 12-6-57. Gant contended that Collier's nomination was secured by the voters of South Dakota after certification by Myers and Collier that Collier agreed to serve as Myers' choice for lieutenant governor. Replacing Collier with Hubbel, Gant believed, would have undone the will of over 3, 000 voters who signed Myers' nominating petition with the expectation that Collier would be his running mate, and would disenfranchise those voters at the general election by denying them the opportunity to vote for the individual they expected to be the lieutenant governor candidate.

Myers claimed that the failure to provide equal ballot access to non-party candidates imposed an unconstitutional burden on his First and Fourteenth Amendment rights of free association by effectively preventing him from replacing his running mate. This Court found in favor of Myers. Myers' lawyer, Edward Welch, has now moved the Court for reasonable attorney's fees in relation to his work on Myers' case. Welch's motion is unopposed by Defendant.


Attorney Fees

"The prevailing party' in a§ 1983 action is generally entitled to a reasonable attorney's fee.'" Warnock v. Archer, 397 F.3d 1024, 1026 (8th Cir. 2005) (citing 42 U.S.C. § 1983; Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)). See also Maher v. Gagne, 448 U.S. 122, 124 (1980). The basic standard for determining if a plaintiff is a "prevailing party" is "if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Eckerhart, 461 U.S. at 433 (quoting Nadeau v. Helgmoe, 581 F.2d 275, 278-79 (1st Cir. 1978) (abrogation recognized on other grounds)).

Here, Plaintiff was the prevailing party. Plaintiff brought a single 42 U.S.C. § 1983 claim against Defendant upon which he was accorded the requested relief Thus, Plaintiff succeeded on a "significant issue in litigation" as it was the only issue. Upon resolving the question in a plaintiffs favor, the next step is to determine if the requested attorney's fee is reasonable. Id.

"The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. [1] A strong presumption exists that the figure resulting from the above calculation (i.e., the lodestar figure) is reasonable. See Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554, 130 S.Ct. 1662, 1673 (2010). In order to allow a court to best apply the formula, it is incumbent upon the moving party to submit supporting evidence showing hours worked and claimed rates.[2] Eckerhart, 461 U.S. at 433. If the submitted documentation is inadequate, it is within the court's discretion to adjust the requested fee accordingly. Id. "[T]he lodestar figure includes most, if not all, of the relevant factors constituting a reasonable attorney's fee, and [] an enhancement may not be awarded based on a factor that is subsumed in the lodestar calculation, ... " Perdue, 559 U.S. at 553 (internal quotations and internal citations omitted). A critical factor to consider when evaluating attorney fees is the degree of success the claimant obtained. Eckerhart, 461 U.S. at 436, 40 ("We hold that the extent of a plaintiffs success is a crucial factor in determining the proper amount of an award of attorney's fees under 42 U.S.C. § 1988."). Thereafter, a court may adjust the calculated fee based on the particular circumstances of a case.[3] Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541 (1984). Ultimately, "[h]ours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Eckerhart, 461 U.S. at 434 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc) (emphasis in original)).

First, the Court will determine if the claimed number of hours worked is reasonable. "A court may reduce attorney hours, and consequently fees, for inefficiency..." A.J. by L.B. v. Kierst, 56 F.3d 849, 864 (8th Cir. 1995). Other factors, such as a case's novelty and complexity, are also generally reflected in an attorney's billable hours. Perdue, 559 U.S. 553. While Welch's motion for attorney fees is unopposed by Defendant, the Court finds it necessary to review the various hours claimed. See CHARLES ALAN WRIGHT, ET AL, 10 FEDERAL PRACTICE AND PROCEDURE§ 2675.1 (3d ed. 2014) ("[I]t generally is recognized that the federal courts should exercise care and restraint when awarding attorney fees. Undue generosity might encourage some members of the bar to seek out clients and encourage litigation over disputes that otherwise might not reach the courts."); Baker v. John Morrell & Co., 263 F.Supp.2d 1161, 1196 (N.D. Iowa 2003) (citing Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1330 (8th Cir. 1995)) ...

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