Case 1:13-cv-00482-CWD Document 122 Filed 07/28/14 Page 1 of 13

Deborah A. Ferguson, ISB No. 5333

The Law Office of Deborah A. Ferguson, PLLC
202 N. 9th Street, Suite 401 C
Boise, Idaho 83702
Tel.: (208) 484-2253
Craig Harrison Durham, ISB No. 6428
Durham Law Office, PLLC
910 W. Main Street, Suite 328
Boise, ID 83702
Tel.: (208) 345-5183
Shannon P. Minter
Christopher F. Stoll
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, California 94102
Tel.: (415) 392-6257
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SUSAN LATTA and TRACI EHLERS,
LORI WATSEN and SHARENE WATSEN,
SHELIA ROBERTSON and ANDREA
ALTMAYER, AMBER BEIERLE and
RACHAEL ROBERTSON,
Plaintiffs,
v.
C.L. "BUTCH" OTTER, as Governor of the
State of Idaho, in his official capacity, and
CHRISTOPHER RICH, as Recorder of Ada
County, Idaho, in his official capacity,
Defendants,
and
STATE OF IDAHO,
Defendant-Intervenor.

Case No. 1:13-cv-00482-CWD

PLAINTIFFS REPLY TO
DEFENDANTS
MEMORANDUM IN
RESPONSE TO MOTION
FOR ATTORNEYS FEES

Case 1:13-cv-00482-CWD Document 122 Filed 07/28/14 Page 2 of 13

As the prevailing party, Plaintiffs have requested the Court to order Defendants to pay
Plaintiffs attorneys fees and expenses through May 23, 2014.1 (Dkt. 113-1, p. 13.) The State
and Recorder Rich ask the Court to reduce Plaintiffs request significantly, and Governor Otter
joins their opposition. (Dkt. 120, 121.) For the reasons that follow, the Court should, after
making one minor adjustment discussed below, grant Plaintiffs request of $453,930.00 in fees
and $4,363.08 in costs, for a total request of $458,293.08.
INTRODUCTION
Defendants offer several reasons in support of their position, but these reasons all rest
primarily on a single faulty premise: this case, according to Defendants, was neither complicated
nor a case of first impression, and it did not require the level of expertise, skill, and investment of
time that Plaintiffs have claimed. Instead, Defendants assert, the parties were merely following
well-worn legal paths and offering recycled arguments. (Dkt. 121, p. 4, 5.) Of course, as the
Court has itself indicated, nothing could be further from the truth. When the Court opened the
May 5, 2014 hearing on dispositive motions, it discussed its own extensive preparation. (Dkt.
117, p. 6.) The Court noted that it had reviewed literally thousands of pages of documents,
ranging from briefing, declarations, legislative history, social science articles, and supplemental
authority provided by the parties from cases decided in recent weeks after the briefing was
complete. Id. This is an accurate description of the intense amount of work that went into this
cutting-edge case in a very condensed period of time. Further, this case was one of the first
federal marriage equality cases to move forward in the country, and required extensive research
and work to achieve Plaintiffs complete win on summary judgment.

Plaintiffs counsel will file a supplemental application for additional fees incurred in connection with this reply
brief.

PLAINTIFFS REPLY TO DEFENDANTS MEMORANDUM IN RESPONSE TO MOTION FOR

ATTORNEYS FEES - 1

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Ironically, the State sought and was granted leave to intervene. By interjecting itself as a
third defendant, the State has greatly increased the time expended by Plaintiffs counsel in
seeking a remedy for Defendants violations of Plaintiffs civil rights. And now that Defendants
have lost, and have lost on every claim, their attempt to minimize the difficulty of the work that
was required to reach that successful result lacks credibility and merit.
THE HOURLY RATES ARE REASONABLE
Defendants assert that Plaintiffs requested hourly rates are not supported by the record
and that lead counsel, Ms. Deborah Ferguson, seeks an enhanced fee based on the contingent
nature of this case. (Dkt. 121, p. 13.) Neither of these arguments is correct.
There is a strong presumption that the lodestar represents the reasonable fee. City of
Burlington v. Dague, 505 US 557, 561 (1992). The fee applicant bears the initial burden of
adequately documenting her time, and satisfactory evidence of the prevailing market rate may
consist of a plaintiffs attorneys affidavit, other attorneys affidavits regarding prevailing fees in
the community, and rate determinations in other cases. Camacho v. Bridgeport Fin., Inc., 523
F.3d 973, 980 (9th Cir. 2008). Here, Plaintiffs offered evidence of the prevailing market rate
through the declarations of their attorneys and Ms. Debora Kristensen and Ms. Lauren
Scholnick, two experienced Boise civil litigators. (Dkts. 113-1 113-15.)
Ms. Kristensen, for instance, testified that attorneys with similar experience who practice
complex commercial and appellate work charge between $250 and $475 per hour and that Ms.
Fergusons rate of $400 per hour is similar to what attorneys in Boise doing specialized
litigation charge. (Dkt. 113-14 at 9.) Similarly, Ms. Scholnick testified that all of Plaintiffs
requested hourly rates are within the range of market rates charged by attorneys of equivalent
experience, skill, and expertise for comparable work in this community. (Dkt. 113-15, 9.)

PLAINTIFFS REPLY TO DEFENDANTS MEMORANDUM IN RESPONSE TO MOTION FOR

ATTORNEYS FEES - 2

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After the fee applicant has offered evidence in support of a request, [t]he party opposing
the fee application has the burden of rebuttal, which requires submission of evidence to the
district court challenging the accuracy and reasonableness of the hours charged or the facts
asserted by the prevailing party in its submitted affidavits. Gates v. Gomez, 60 F.3d 525, 534535 (9th Cir. 1995). In this case, notably absent from Defendants response is any evidence
about Boises market rates for this type of case involving attorneys of similar experience and
skill. Instead, Defendants urge arbitrary reductions in rates based on conjecture set forth in
Defendants Memorandum. While the personal opinion of defense counsel about the hourly
rates in the private market for a complicated civil rights case of first impression may have been
offered in good faith, it is not evidence.2
In addition, Plaintiffs directed the Courts attention to its decision allowing hourly rates
comparable to those billed here, by attorneys with similar experience and skill, in Community
House, Inc., v. City of Boise, et al., Case No. 1:05-cv-00283-CWD. Defendants have wholly
failed to distinguish, or even mention, Community House, which fully supports the requested
rates. There, the Court awarded $400 per hour to lead counsel with a similar litigation
background to Ms. Ferguson, and it awarded $325 per hour to second chair counsel with
comparable years of legal experience to Mr. Durham and Mr. Stoll. Id. at 13. Mr. Minter has
even more specialized experience in much larger markets, which could command a higher hourly
rate, but he is seeking the same Boise rate as Ms. Ferguson.
Neither Ms. Ferguson nor any other attorney for Plaintiffs is seeking an enhanced rate
because the case was taken on a contingency fee basis, or on any other basis. As Plaintiffs

2
This opinion is also inconsistent with the Attorney Generals very recent requested rates for its co-counsel in St.
Alphonsus Medical Center, et al. v. St. Lukes Health System, 1:12-cv-00560-BLW, Dkt. 481-1, pp. 9-12. In that
anti-trust case, the Attorney General hired outside counsel to assist the State, and requested that lead counsel be
compensated at $465 per hour, offering several reasons why that rate was reasonable for those attorneys because of
their particular expertise and skill in that area of the law. Id.

PLAINTIFFS REPLY TO DEFENDANTS MEMORANDUM IN RESPONSE TO MOTION FOR

ATTORNEYS FEES - 3

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evidence shows, Ms. Fergusons requested rate of $400 per hour is not an enhancement at all. It
is within the market range of rates charged by lawyers with similar experience who work on
cases of this significance. This is equally true of the other requested rates. Defendants complain
that these rates are above those that counsel charge for other legal work, but the Ninth Circuit has
repeatedly held that the determination of a reasonable hourly rate is not made by reference to
the rates actually charged the prevailing party, but by instead looking to rates for comparable
counsel in a similar type of case. Welch, 480 F.3d at 946.3
In short, Plaintiffs evidence establishes that their attorneys are highly qualified, skilled,
and experienced in complex litigation and that all of the requested rates are well within the range
for attorneys with similar skill and experience in Boise. Defendants offer no contrary evidence.
THE HOURS BILLED ARE NOT EXCESSIVE
Defendants claim that Plaintiffs total number of attorney hours requested are excessive.
They second-guess almost every aspect of Plaintiffs request, implying that some other
hypothetical legal team that Defendants might have preferred would not have spent the same
amount of time working on the tasks in this case. Defendants also seek to impose too high a
standard of documentation on Plaintiffs. Plaintiffs wish to set the record straight.
A.

Counsel Did Not Block Bill Their Time

Defendants have interspersed throughout their briefing an unfounded complaint that

Plaintiffs counsel block billed their time. (Dkt. 121, p. 5.) Specifically, they assert that 239
hours of Plaintiffs time entries constitute block-billed time, totaling 649.6 hours and
$235,727.50 of Plaintiffs fee request. (Dkt. 121, pp. 5, 11-13.) Even a cursory review of

Important public policy considerations dictate that [the court] should not punish an undercharging civil rights
attorney, but instead must award attorneys fees based on prevailing market rates. Nadarajah v. Holder, 569 F.3d
906, 916 (9th Cir. 2009).

PLAINTIFFS REPLY TO DEFENDANTS MEMORANDUM IN RESPONSE TO MOTION FOR

ATTORNEYS FEES - 4

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Defendants own exhibits shows this to be untrue. Defendants misunderstanding is obvious in

the paraphrased and incorrect definition of block billing it provides the Court. (Dkt. 121, p. 5,
fn. 4.) The correct definition is set forth in Welch: [b]lock billing is the time-keeping method by
which each lawyer and legal assistant enters the total daily time spent working on a case, rather
than itemizing the time expended on specific tasks. 480 F.3d at 945 n.2 (emphasis added). For
example, a block billed entry might read: Latta case, 8 hours on May 1, 2014. It would not
describe the specific tasks accomplished. The Supreme Court has made clear that counsel is not
required to record in great detail how each minute of his time was expended. But at least counsel
should identify the general subject matter of his time expenditures. Hensley v. Eckerhart, 461
U.S. 424, 437 n.12 (1983).
Virtually all of the entries Defendants identify exceed the Hensley requirement. Far from
entering the total daily time spent working on a case, Welch at 945 n.2, Plaintiffs entries break
down the general tasks that were being performed in 1/10 hour (6 minute) increments and identify
the work performed. This provides ample detail for this Court to make reasonableness
determinations. Plaintiffs have clearly articulated what tasks they were performing, all of which
were necessary and reasonable for the litigation of the underlying claims.4
Where courts have found documentation to be inadequate, the records failed to describe
how the time was spent. See, e.g., Pacific West Cable Co. v. City of Sacramento, 693 F. Supp.
865, 870 (E.D. Cal. 1988). In Pacific West, over 769 hours of blank time sheets were submitted
to the Court, lacking any description. In contrast, the Ninth Circuit has found generalized time
descriptions sufficient to pass muster under the Hensley standard such as a meeting at which a

Indeed, only a very few of Plaintiffs entries even arguably constitute block-billed time and they were recorded
on days when Plaintiffs counsel spent the entire day working with their clients and attending major hearings in the
case. It is completely reasonable that a few such entries may exist for days when an attorney truly did spend the
entire day working on the case and did so away from his office and timekeeping program.
PLAINTIFFS REPLY TO DEFENDANTS MEMORANDUM IN RESPONSE TO MOTION FOR
ATTORNEYS FEES - 5

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host of issues were discussed. Davis v. City and County of San Francisco, 976 F.2d 1536, 1542
(9th Cir. 1992). Plaintiffs counsel have more than adequately documented their time describing
both the tasks accomplished and the time expended to complete those the tasks during each day.
This allows this Courts review of the fee petition, and the time reasonably spent achieving the
excellent results obtained in this case.5
Despite Defendants claims that they are seeking 20 or 25 percent reductions in
Plaintiffs time for various categories of work (including this purported block-billed category)
their repeated inclusion of the same time entries in multiple exhibits shows that they are actually
seeking to double-reduce Plaintiffs hours. This is best illustrated by the fact that if this Court
accepted all of Defendants objections, it would compensate Plaintiffs for only 44 percent of
their requested fees in a case where they obtained 100 percent of the relief they sought
($203,435.00 compared to Plaintiffs $463,480.00 request). Defendants compound their
objections by calculating all reductions based on Plaintiffs claimed hourly rates, and not the
rates they urge this Court to award. They fail to provide any probative evidence showing the
reduced rates are warranted, as they were required to do, further illustrating the lack of merit to
their objections. (See Exhibit A.)
The unreasonableness of these double reductions becomes even more pronounced in
Defendants later exhibits. For example, Defendants argue that Ms. Ferguson is the only
attorney who should be compensated for time spent preparing for oral argument, and that even
her time should be reduced to only 40 hours. (Dkt. 121 at 9.) If this reduction is made, various

Contrary to Defendants assertion, every separate task during the course of a day need not be broken into a separate
time entry. For example, Ms. Fergusons October 9, 2013 entry Finalize plaintiff selection, emails regarding same,
prepare agenda re: 10/10 conference call with co-counsel was billed as .3 hours, or 18 minutes. Defendants assert
this was improper block billing, because the entry contains three tasks. It is not required that the three tasks be
broken into three separate entries of .1 hour each. That is far beyond the standard in Hensley. The entry supplied
gives the Court ample information on how those 18 minutes were spent on the litigation by counsel.
PLAINTIFFS REPLY TO DEFENDANTS MEMORANDUM IN RESPONSE TO MOTION FOR
ATTORNEYS FEES - 6

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time entries would not only be reduced to zero hours, but they would actually go into negative
hours. Mr. Durham spent 2.2 hours preparing Ms. Ferguson for oral argument on April 21, 2014.
Defendants would reduce these 2.2 hours to zero hours, but because they also object to this same
entry as an unwarranted conference, (see Exhibit A to Zanzig Decl.), they would actually
deduct an extra 1.1 hours from Plaintiffs time. (Dkt. 121 at p. 7) (urging this Court to reduce
Plaintiffs excessive conferencing time by half). Defendants do not explain or acknowledge
these double-reductions, rendering their Exhibits wholly unreliable.
B.

Counsels Time Spent on Specific Tasks was Reasonable

Defendants also contend that Plaintiffs are requesting excessive fees for attorney
conferences and consultations, work on dispositive motions, and preparing for oral argument.
They do not acknowledge the significant reduction of hours worked that were excluded from
Plaintiffs fee petition. (Dkt. 113-1, p.8.)6 They assert that the only significant legal work
necessary to resolve the case was some briefing on intervention and summary judgment motions
and two court appearances totaling approximately 2.5 hours. (Dkt. 121, p. 5.) Characterizing
the work in this case as some briefing on intervention and summary judgment motions, and
two court appearances of 2.5 hours, is more than an understatement. Even a quick glance at
the docket will confirm that thousands pages of documents were filed in six short months (the
majority by the Defendants), reflecting intensive investigation, research, consultation, and noseto-the grindstone writing, editing, and re-writing. This is a significant body of attorney work
produced in a very short period of time. It is irrelevant that there was no discovery or trial.
Defendants assertion that 309.5 attorney hours was spent preparing the summary
judgment motion omits that this recorded time includes preparation of the eight Plaintiffs

Two examples: Ms. Ferguson excluded all of her extensive pre-filing activity, as well as additional billable time
totaling 79 hours, reducing her request by $31,600.00. Likewise, the NCLR did not charge for the time of attorney
David Codell, its Constitutional Litigation Director, who participated extensively in the case. (Dkt. 113-1, p.9)
PLAINTIFFS REPLY TO DEFENDANTS MEMORANDUM IN RESPONSE TO MOTION FOR
ATTORNEYS FEES - 7

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declarations, Dr. Lambs expert report, counsel declarations, the statement of facts, the request
for judicial notice, review of the legislative history regarding the marriage laws, and quite a bit of
time opposing the States motion to dismiss. Defendants also cite the amicus brief that NCLR
submitted in the Utah marriage case, arguing that much of it is strikingly similar, if not
identical, to portions of Plaintiffs summary judgment brief. (Dkt. 121, p.7.) The NCLRs
amicus brief was not even 17 pages, compared to the Plaintiffs 60-page summary judgment
memorandum submitted here.
Defendants further assert the time spent preparing for oral argument was unreasonable
under any metric. (Dkt. 121, p.8.)7 Ms. Ferguson spent 81.7 hours preparing for and arguing
the three dispositive motions at the May 5, 2014 hearing. Yet, even according to the cases cited
by Defendants, this is reasonable. For example, in Hash v. United States, No.1:99-cv-00324MHW (Dkt. 270, p.30), a case on which Defendants rely, the Court awarded 120 hours for
preparation time for a 30 minutes argument (applying a 40% reduction from the 200 hours
requested). Likewise 153.6 hours was allowed for another 30 minutes oral argument in that case.
Neither of these amounts included time spent in moot courts, which were awarded in addition to
this preparation time. Ms. Fergusons length of argument was 50% longer than in Hash or 45
minutes and her preparation of 81.7 hours included moot court practice, and was considerably
less. See also Nadarajah v. Holder, 569 F.3d 906, 916 (9th Cir. 2009) (finding 40 hours of
preparation for a 15-minute oral argument to be reasonable in an immigration case).
Defendants attempt to discount the amount of time devoted to the fee motion should
likewise be disregarded. Ms. Whelan did not spend 30 hours principally devoted to preparing
Mr. Minters declaration. (Dkt. 121, p. 9.) As with many of Defendants assertions of fact, this

Defendants Ex. F purports to list time expended in connection with oral argument, but contains 6.2 hours
unrelated to that activity. See e.g. first 4 entries of Dkt. 121, Ex. F.

PLAINTIFFS REPLY TO DEFENDANTS MEMORANDUM IN RESPONSE TO MOTION FOR

ATTORNEYS FEES - 8

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one can be disproven by looking at the time records, which show that Ms. Whelan billed her time
for the complicated tasks of compiling the NCLR team members billing, researching and
drafting parts of the substantive motion, and drafting several declarations. (Dkt. 113-10, p. 2.)
And Mr. Durhams 16 hours of work to research and write the memorandum was not an
opportunity to educate Mr. Durham, but was a reasonable amount of time to complete briefing
on a substantial fee request. (Dkt. 121, p. 10.) After all, Defendants found it necessary to
respond with a 17 page memorandum and 15 supporting exhibits.
Defendants arguments ignore the Ninth Circuits admonition that courts should defer to
the winning lawyers professional judgment as to how much time he was required to spend on
the case. Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). It is equally true
lawyers are not likely to spend unnecessary time on contingency fee cases in the hope of
inflating their fees. The payoff is too uncertain, as to the result and the amount of the fee. Id.
Like similar marriage equality cases that have been brought nationwide, this case
demanded a coordinated and experienced legal team, with each team member possessing unique
strengths and skills, as set forth in Plaintiffs Memorandum in Support. Cf. Davis, 976 F.2d at
1543-1544 (noting that billing records in a case with multiple attorneys reflected the distinct
contribution of each lawyer to the case.). Telephone conferences were absolutely necessary for
team members to stay abreast of rapidly changing developments, to discuss strategy, to be
assigned tasks according to their skills, and to coordinate their work product. The telephone
conferences also eliminated all but the most necessary travel.
Finally, Defendants quibble with the NCLRs request for reasonable expenses should not
be countenanced. It was reasonable for Mr. Minter and Mr. Stoll to travel to Boise to be present
at the oral argument on dispositive motions. It is also worthy to note that they participated via
telephone on the earlier intervention hearing.
PLAINTIFFS REPLY TO DEFENDANTS MEMORANDUM IN RESPONSE TO MOTION FOR
ATTORNEYS FEES - 9

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C.

Counsel are Entitled to Fees for Responding to the Motion to Intervene

Defendants make the odd argument that Plaintiffs are not entitled to fees for the time that
they spent responding to the States motion to intervene. In other words, Defendants claim that
Plaintiffs should not be compensated for work that one of the Defendants created for them.
Defendants conflate the lack of success on a claim or claims for relief, which may implicate who
is the prevailing party in the case was, with lack of success in opposing a motion, which does
not. See, e.g., Cabrales v. County of Los Angeles, 935 F.2d 1050, 1053 (9th Cir. 1991) (noting
that a plaintiff is entitled to fees on successful claims even though she may have suffered some
adverse rulings along the way).
D.

Plaintiffs Will Withdraw 28.3 Hours for Time Spent on Appeal

Plaintiffs time sheets inadvertently included some time spent responding to Defendants
emergency motion to stay in the Court of Appeals which occurred the week the Courts
judgment was entered. (Dkt. 119-11, Ex. J.) Accordingly, 28.3 hours (equating to $9,550.00)
will be withdrawn from Plaintiffs request before this Court and transferred to the time records
related to the appeal. (See Exhibit B for revised chart of fees.)
E.

Interest on the Fee Judgment

Plaintiffs request that the Court order that the prevailing interest rate apply to this sum
from the date of the Courts Judgment on May 14, 2014. Friend v. Kolodzieczak, 72 F.2d 1386,
1391-92 (9th Cir. 1995), cert. denied, 516 U.S. 1146 (1996).
CONCLUSION
Plaintiffs counsels hard work in this case helped bring about a landmark decision that
will affect not only Plaintiffs lives but also the lives of thousands of other Idahoans. Plaintiffs
now request that the Court order Defendants to pay $458,293.08 in attorneys fees and costs
($453,930.00 for fees and $4,363.08 in costs) through May 23, 2014.
PLAINTIFFS REPLY TO DEFENDANTS MEMORANDUM IN RESPONSE TO MOTION FOR
ATTORNEYS FEES - 10

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Respectfully submitted this 28th day of July, 2014.

______________/s/____________
Deborah A. Ferguson
The Law Office of Deborah A. Ferguson, PLLC
Craig Harrison Durham
Durham Law Office, PLLC
Shannon P. Minter
Christopher F. Stoll
National Center for Lesbian Rights
Attorneys for Plaintiffs

PLAINTIFFS REPLY TO DEFENDANTS MEMORANDUM IN RESPONSE TO MOTION FOR

ATTORNEYS FEES - 11

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 28th day of July, 2014, I filed the foregoing Reply
electronically through the CM/ECF system, which caused the following parties or counsel to be
served by electronic means, as more fully reflected on the Notice of Electronic Filing:
Attorneys for Defendant Rich and Intervenor State of Idaho:
Steven Lamar Olsen
steven.olsen@ag.idaho.gov
Clay R Smith
clay.smith@ag.idaho.gov
W Scott Zanzig
scott.zanzig@ag.idaho.gov,

Attorneys for Defendant Governor Otter:

Thomas C. Perry
tom.perry@gov.idaho.gov
Cally Ann Younger
cally.younger@gov.idaho.gov

PLAINTIFFS REPLY TO DEFENDANTS MEMORANDUM IN RESPONSE TO MOTION FOR

ATTORNEYS FEES - 12

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EXHIBIT A
Chart of Defendants Double Reductions

This chart provides an illustrative example of double reductions, showing that

many of the time entries included in Exhibits D through I of the Declaration of
Scott Zanzig were also included in either Exhibit A or B:

Defendants Exhibits
D (Summary Judgment)
E (Response to
Defendants Motion
for Summary
Judgment)
F (Oral Argument)
G (Fees Motion)
H (Opposition to Motion
to Intervene)
I (Additional Motion to
Intervene)

Time Entries that

Overlap with Exhibit A
13

Time Entries that

Overlap with Exhibit B
25

25

34

17
11
13

11
5
6

10

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EXHIBIT B
Revised Summary of Plaintiffs Reasonable Attorneys Fees
Through May 23, 2014
ATTORNEY

RATE

HOURS

AMOUNT

Deborah Ferguson

$400

696.2

$278,480.00

Shannon Minter

$400

118.4

$47,360.00

Craig Durham

$325

150.9

$49,042.00

Christopher Stoll

$325

127.1

$41,307.50

Amy Whelan

$275

82.7

$22,742.50

Jaime Huling Delaye

$175

85.7

$14,997.50

Total fees: $453,930.00

Total costs: $ 4,363.08
TOTAL:

$ 458,293.08