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Fish v. Kobach

United States District Court, D. Kansas

August 1, 2018




         On April 18, 2018, this Court issued a Memorandum and Order (“April Order”), granting Plaintiffs' Motion to Enforce Court Orders and for Order to Show Cause Why Defendant Kobach Should Not be Held in Contempt.[1] The Court assessed Defendant Secretary of State Kris Kobach sanctions in the amount of the reasonable attorneys' fees incurred by Plaintiffs' counsel on the following: drafting their November and December 2017 letters to Defendant that attempted to informally resolve the contempt issues ultimately presented to the Court, participating in a meet-and-confer session in December 2017, drafting their contempt motion and reply in early 2018, and participating in the show cause hearing on March 20, 2018. Plaintiffs also properly seek the fees they incurred drafting the fee application and reply. Before the Court is Plaintiffs' Application for Attorneys' Fees and Litigation Expenses in Connection with their Motion for Contempt (Doc. 529). The motion is fully briefed and the Court is prepared to rule. As described more fully below, the Court awards Plaintiffs $26, 214.79 in reasonable attorneys' fees and expenses as a sanction for the contempt found by the Court in its April Order.

         I. Background

         The Court's April Order found Defendant in contempt of the Court's May 17, 2016 preliminary injunction order in two ways. First, Defendant failed to ensure local election authorities sent certificates of registration, otherwise known as registration postcards, to individuals who registered to vote when applying for a Kansas driver's license or using the Federal Form, regardless of whether such registrants submitted documentary proof of citizenship (“DPOC”). Second, until recently, the publicly available County Election Manual continued to advise county election officials that individuals who apply to register to vote through the Kansas Department of Motor Vehicles (“DOV”) or using the Federal Form must submit DPOC. The April Order documented the efforts Plaintiffs took to notify Defendant of these violations and resolve them informally.

         Up until the show cause hearing on the contempt motion on March 20, 2018, defense counsel insisted that Defendant was not required to send certificates of registration to registrants covered by the Court's preliminary injunction order, and that it need not correct the County Election Manual until a more “permanent” change in the law occurred. Yet, at the contempt hearing, Defendant changed course and (1) claimed he had personally directed his staff to ensure that postcards be sent; (2) claimed that Mr. Bryan Caskey, Director of Elections, had in fact directed the counties to send standard registration postcards, but that the directive was inadvertently superseded by his later instruction about the Court-approved special notices; and (3) promised to immediately send the standard postcards. Also, at the hearing Defendant advised that the County Election Manual had been taken offline, and that he had provided compliant oral and written instructions to the counties that supplemented the manual.

         As for sanctions, the Court found that there was no need for coercive sanctions because Defendant was now engaged in the process of ensuring that all registrants covered by the preliminary injunction receive registration postcards, and because the County Election Manual is no longer available online, and was updated by Mr. Caskey's subsequent emails and phone calls. However, the Court did impose compensatory sanctions to make Plaintiffs whole for their losses sustained during the lengthy period before Defendant acknowledged the need for compliance and purged the contempt. The Court found that Plaintiffs' actual loss during the almost-five months before Defendant changed his position can be measured by assessing Defendant the reasonable attorneys' fees incurred by Plaintiffs pursuing Defendant's compliance and moving for contempt. The Court directed Plaintiffs to submit an application for attorneys' fees, in compliance with D. Kan. Rule 54.2.

         Under District of Kansas Local Rule 54.2(a), a party who moves for attorney's fees pursuant to Fed.R.Civ.P. 54(d)(2) must initiate consultation with the other party. Where the parties cannot come to agreement, the moving party must file a statement of consultation, which includes the date of consultation, the names of those who participated, and the results achieved.[2]Plaintiffs complied with the consultation requirement as evidenced by their Statement of Compliance, filed in conjunction with the fee application.[3] Plaintiffs seek attorneys' fees for nine timekeepers: attorneys and paralegals with both the American Civil Liberties Union (“ACLU”) and Dechert, LLP. They attached detailed affidavits and time records in support of their total fee request of $51, 646.15.

         II. Discussion

         A. Actual Loss

         As an initial matter, the Court must address Defendant's argument that attorneys' fees are not an appropriate sanction in this case because there are no “actual losses sustained as a result of [his] contumacy, ”[4] given that Plaintiffs' counsel represents Plaintiffs pro bono. To be sure, “a direct causal relationship must exist between the amount of damages and the violation of an injunction.”[5] The causal connection required is a but-for test: “The complaining party . . . may recover ‘only the portion of his fees that he would not have paid but for' the misconduct.”[6] The Supreme Court has explained that this

standard generally demands that a district court assess and allocate specific litigation expenses-yet still allows it to exercise discretion and judgment. The court's fundamental job is to determine whether a given legal fee-say, for taking a deposition or drafting a motion-would or would not have been incurred in the absence of the sanctioned conduct. The award is then the sum total of the fees that, except for the misbehavior, would not have accrued.[7]

         Defendant interprets this but-for test literally to mean that the complaining party must be liable for the fees incurred due to the misconduct. But that position is contrary to Supreme Court and Tenth Circuit precedent. For example, in Blum v. Stenson the Supreme Court considered whether fee awards under 42 U.S.C. § 1988 should vary depending on whether the plaintiff is represented by private counsel or a nonprofit legal services organization.[8] The Court rejected such an approach, finding that Congress intended fee rates to be calculated “according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.”[9] Likewise, in the context of Fed.R.Civ.P. 37 sanctions, the Tenth Circuit held that an

“attorney fee” arises when a party uses an attorney, regardless of whether the attorney charges the party a fee; and the amount of the fee is the reasonable value of the attorney's services. The payment arrangement for an attorney can vary widely-hourly rate, flat rate, salary, contingency fee, pro bono. What the client pays or owes the attorney may not accurately reflect the reasonable value of the services.[10]

         Under Rule 37, the purpose of “attorney-fee sanctions would be thwarted if a party could escape the sanction whenever opposing counsel's compensation is unaffected by the abuse, as when the fee arrangement is a contingency fee or, as here, a flat rate.”[11] In so holding, the court explained that when interpreting a fee shifting provision, “courts should look to their statutory purposes rather than focusing on the inclusion of a word (incurred) that, in ordinary usage, would be read into the statute in any event.”[12]

         As stated in the Court's April Order, the civil contempt sanction in this case is compensatory, just like the Rule 37 sanction considered by the Tenth Circuit in Centennial Archaeology.[13] That case involved a fixed-fee arrangement in which no attorneys' fees were technically incurred in the making of the discovery motion at issue, or caused by the failure of the opposing party's compliance with a discovery order. Nonetheless, the court explained, “we refuse to assume that Centennial believed that extra efforts by its attorney caused by AECOM's violations of rules and orders were worthless. . . . The fixed fee is irrelevant to the value of the services performed because of AECOM's misconduct.”[14]

         Under this line of authority, the Court finds that Plaintiffs' counsel's pro bono fee arrangement in this case does not reflect the value of the services provided by these attorneys to Plaintiffs in seeking to enforce the Court's preliminary injunction order. As documented in the Court's April Order, the services provided by Plaintiffs' attorneys were undoubtedly multiplied by Defendant's conduct giving rise to the contempt finding. Rather than respond to Plaintiffs' initial efforts to informally resolve the compliance issues raised in the motion, defense counsel insisted for months that he need not comply at all. Almost five months later, Defendant took the position that it had taken the very compliance measures it disclaimed in those letters. This needless gamesmanship led to another round of letters, a meet-and-confer session, briefing on the motion to compel, and ultimately a three-hour hearing on March 20, 2018. The Court will award the reasonable value of counsel's services directly caused by Defendant's contemptuous behavior. Such an award is in keeping with Supreme Court and Tenth Circuit precedent.

         B. Lodestar Calculation

         The parties agree that in determining reasonable attorneys' fees, the starting point is the “lodestar” figure-“the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”[15] If a party seeks compensation for services of a non-lawyer, such as a legal assistant, the court must scrutinize the reported hours and suggested rates in the same manner.[16] The party seeking an award of fees has the burden of proving both the number of hours spent and reasonableness of the hourly rates.[17] Once this burden is met, a claimant is entitled to a strong presumption that this lodestar amount reflects a “reasonable” fee.[18]

         1. Reasonable Hours

         Plaintiffs submit declarations from Dale Ho of the ACLU and Neil Steiner of Dechert, LLP, in support of the time spent litigating the contempt motion. Plaintiffs seek fees for the work of nine timekeepers as follows:[19]



Neil Steiner


Dale Ho


Doug Bonney


Angela Liu


R. Orion Danjuma


Sophia Lin Lakin


Tharuni Jayaraman


Lila Carpenter


Dalaney Berman




In order for the applicant to satisfy its burden of proving the number of hours reasonably spent on the litigation, the party must submit “meticulous, contemporaneous time records that reveal all hours for which compensation is requested and how those hours were allotted to specific tasks.”[20] A district court is justified in reducing the reasonable number of hours if the attorney's time records are “sloppy and imprecise” and fail to document adequately how he or she utilized large blocks of time.[21]

         Once the court has adequate time records before it, it must determine whether counsel has exercised billing judgment with respect to the number of hours worked and billed.[22] Billing judgment consists of winnowing hours actually expended down to hours reasonably expended.[23]Hours that an attorney would not bill to his or her client cannot reasonably be billed to the adverse party.[24]

         After examining the specific tasks and whether they are properly chargeable, the Court should look at the hours expended on each task.[25] This determination requires the Court to consider such factors as the complexity of the case, the number of reasonable strategies pursued, and the responses necessitated by the maneuvering of the other side, and potential duplication of services.[26] There is no requirement the court identify and justify each disallowed hour or announce what hours are permitted for each legal task.[27] Rather, “[a] general reduction of hours claimed in order to achieve what the court determines to be a reasonable number is not an erroneous method, so long as there is sufficient reason for its use.”[28]

         a. Descriptions of Time Expended

         When examining the adequacy of an attorney's billing entries, the court is primarily concerned with evaluating the propriety of the fee request based on the specific billing entries.[29]Defendant challenges Plaintiffs' time records as vague, arguing that several entries are worded too generally to document how they spent large blocks of time. Without getting into whether the amount of time spent on each task is reasonable, the Court agrees that several timekeepers' descriptions are too vague to determine how the time was spent, particularly since the same descriptions were used for multiple timekeepers. For example, “draft, ” “review, ” “revise, ” and “edit” are used throughout the records to describe the following timekeepers' work on the contempt briefing without further specific description: Ho, Danjuma, Lakin, Carpenter, Jayaraman, and Liu. There are also several references to “correspondence, ” without further explanation. The Court finds that a general reduction of 10% of the hours claimed by counsel other than Bonney should be imposed to account for the lack of detail in the records.

         b. Billing Judgment

         Next, Defendant challenges whether Plaintiffs' counsel exercised billing judgment. As explained, exercising billing judgment requires counsel to winnow its hours from the amount actually expended to those reasonably expended. Ho and Steiner each attest to their use of billing judgment. Ho explains that the ACLU ensured that as much work as possible was performed by qualified attorneys with lower billing rates instead of partners, and by legal support staff and interns instead of attorneys. He further explains that he excluded hours spent by a legal fellow, a legal administrative assistant, and legal interns. He eliminated timekeepers who engaged in “entirely supportive or duplicative work.”[30]

         Mr. Steiner attests that he limited the Dechert reimbursement request to time spent by the “core team of Dechert attorneys, ” and does not request time for others who may have participated in tasks related to the contempt motion. And like the ACLU, he ensured that as much work as possible was performed by qualified attorneys with lower billing rates instead of partners. He also ensured that his firm did not bill for redundant or duplicative time.

         Given this evidence, the Court finds that these attorneys exercised billing judgment in winnowing their requested hours. The issue of time spent on each task, will be addressed below.

         c. Hours Expended on Each Task

         i. Scope of April Order

         As an initial matter, the Court's April Order provided the scope of attorneys' fees awarded as a sanction for Defendant's contempt: drafting their November and December 2017 letters to Defendant that attempted to informally resolve the contempt issues ultimately presented to the Court, participating in the meet-and-confer session in December 2017, drafting their contempt motion and reply in early 2018, and participating in the show cause hearing on March 20, 2018. But Plaintiffs' billing records appear to go beyond these items and include time spent investigating Defendant's compliance well before November 2017, and drafting correspondence beyond that awarded by the Court. The Court therefore deducts 10.2 hours from Jayaraman, .3 from Berman, and 1.8 hours from Liu spent on matters that preceded work on the November 2017 letter referenced by the Court in its April Order.

         Defendant also challenges the scope of requested time on the basis that Plaintiffs addressed compliance issues in their November and December letters that were not ultimately included in their motion for contempt. The Court agrees. Ho's November 10, 2017 six-page letter to Defendant primarily addressed issues other than those for which Defendant was ultimately held in contempt. Indeed, the County Election Manual issue is addressed in a footnote of that letter.[31] The Court will not award fees for all of counsel's time spent preparing and revising this letter. Instead, the Court reduces the following timekeepers' requested hours spent preparing that letter as follows: 1.5 hours from Ho, 1.5 hour from Danjuma, and 1.4 hour from Lakin. Likewise, Plaintiffs' November 30, 2017 seven-page letter addressed issues beyond those for which the Court ordered compensatory fees. Fees were incurred for only two of the six issues addressed in that letter. The Court therefore reduces the following timekeepers' requested hours spent preparing that letter as follows: 1 hour by Ho, and 4.4 hours by Jayaraman. The Court considers all other time expended on these issues in November or earlier beyond the scope of its compensatory fee award.

         ii. ...

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