United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER ON MOTION FOR ATTORNEY
FEES AND EXPENSES
Lawrence L. Piersol, United States District Judge
prevailing in an action under 42 U.S.C. § 1983 to
enforce rights guaranteed under the First and Fourteenth
Amendments to the United States Constitution, Plaintiffs seek
attorney fees and expenses. Defendants ask for a downward
adjustment to the amount of fees requested by Plaintiffs. For
the following reasons, the Plaintiffs' Motion is granted
in part and denied in part.
case involved constitutional challenges to South Dakota's
deadline requiring new or newly-qualifying political parties
seeking to organize and participate in South Dakota elections
to submit a written petition (containing a certain number of
qualified signatures) to the Secretary of State in order to
appear on the ballot. Plaintiffs argued that South
Dakota's early deadlines requiring new or
newly-qualifying political parties to organize and obtain
signatures months before the major political parties selected
their candidates and chose their platforms, and thus months
before most voters were likely to be drawn to minor parties
discriminated against those candidates and their supporters
who wished to participate meaningfully in the electoral
process. Plaintiffs sought declaratory and injunctive relief
prohibiting the Defendants from enforcing the ballot-access
chose to defend rather than amend the South Dakota statutes.
The parties litigated the case for almost three years through
two motions for summary judgment filed by Defendants, and a
two-day court trial. The Court ruled that the substantially
burdensome ballot access provisions were not narrowly
tailored to serve a compelling state interest, and thus the
statutes violated the First Amendment right to vote and right
to associate as applied to new political parties in South
Dakota. See Libertarian Party of South Dakota v.
Krebs, 290 F.Supp.3d 902 (D.S.D. 2018).
the Voting Rights Act, 52U.S.C. § 10310(e) (formerly 42
U.S.C § 19731(e)), and the Civil Rights Attorney's
Fees Award Act, 42 U.S.C. § 1988(b), a district court
has discretion to award reasonable attorney's fees to a
"prevailing party." The test for a prevailing party
explained by the Supreme Court is that "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." Farrar v.
Hobby, 506 U.S. 103, 111-12 (1992); see Texas State
Teachers Ass'n v. Garland Indep. School Dist., 489
U.S. 782, 792-93 (1989) ("The touchstone of the
prevailing party inquiry must be the material alteration of
the legal relationship of the parties in a manner which
Congress sought to promote in the fee statute.").
Defendants do not dispute that Plaintiffs prevailed on their
constitutional challenges to the statutes at issue in this
case. The Court finds that Plaintiffs are prevailing parties
and therefore qualify for an award of reasonable
retained two out-of-state lawyers, M. Laughlin McDonald from
Atlanta, Georgia and Stephen L. Pevar from Hartford,
Connecticut. Local counsel are Brendan Johnson and Tim
Billion of Robins Kaplan LLP. The lodestar requested by
Plaintiffs will be discussed in greater detail below, but it
is summarized here:
support of the requested fees, Plaintiffs submit declarations
of their lawyers with detailed billing records attached.
(Docs. 143, 146, 147 and 148.) Plaintiffs discuss the
aggressive defense they faced from their opponents and how
their success in this lawsuit not only changed the legal
relationship between Plaintiffs and Defendants, but also
"changed the face of South Dakota politics and
strengthened the democratic process." See Doc.
137 at 4. They assert that the requested billing rates are
the prevailing rates for similar work in their attorneys'
respective communities and urge the Court to apply the
out-of-state billing rates for attorneys McDonald and Pevar,
which are higher than the rates of South Dakota counsel, due
to the expertise of Mr. McDonald in voting rights cases and
Mr. Pevar in civil rights cases, including voting rights.
Although local counsel Brendan Johnson and Tim Billion
typically bill at $535 and $485 per hour, respectively, for
purposes of this motion they reduced their hourly rates to
$300 per hour for Mr. Johnson and $250 per hour for Mr.
also request an award of expenses totaling $7, 539.30,
consisting of the following: (1) $3, 343.29 for Mr.
Pevar's travel expenses, including airfare, lodging,
meals and transportation costs incurred in travel to and from
depositions in May 2017 and trial in February 2018; (2) $2,
414.02 for Mr. McDonald's travel expenses, including
airfare, hotel and taxi to and from trial in February 2018;
and (3) $400 for the filing fee, $100 for the pro hoc vice
fee and $1, 281.99 for transcripts.
oppose the amount of Plaintiffs' fee request, raising two
main objections. First, they argue that the Court should
apply the hourly billing rates in the South Dakota market.
Second, Defendants contend that the Court should adjust the
fee request downward to reflect duplicative, vague, excessive
or otherwise unnecessary hours.
Reasonable Hourly Rate
starting point for determining an award of attorney fees
involves calculating the lodestar, which provides an initial
estimate of the value of the attorney's service.
Hensley v. Eckerhart,461 U.S. 424, 433 (1983). The
lodestar is "the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate."
Id. The reasonable hourly rate is the prevailing
market rate in the relevant legal community for similar