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Hudson v. Pittsylvania County

United States District Court, W.D. Virginia, Danville Division

May 8, 2015



ROBERT S. BALLOU, Magistrate Judge.

Plaintiff Barbara Hudson ("Hudson") filed a second motion for attorney fees in this Establishment Clause case, which has been referred to me for a Report and Recommendation. See Dkt. Nos. 111 & 115. Defendants filed no opposition to the motion; thus, pursuant to this court's pretrial order (Dkt. No. 12), the motion is considered well taken. The court is nevertheless charged with reviewing Hudson's attorney fee request for overall reasonableness. Having done so, I RECOMMEND that Plaintiff's Second Motion for Attorney Fees and Expenses be GRANTED, and that Hudson be awarded Twenty Thousand Eight Hundred Sixty One and 54/100 Dollars ($20, 861.54) in attorneys' fees and expenses.


Hudson brought this Establishment Clause lawsuit to challenge the practice of the Board of Supervisors of Pittsylvania County, Virginia ("the Board") of regularly opening its meetings with Christian prayers. Dkt. No. 1. On March 27, 2013, the court granted Hudson's motion for summary judgment, permanently enjoined the Board from the practice of opening its meetings with sectarian prayer, and dismissed the case. Dkt. Nos. 83, 84, 85. The court also granted Hudson's request for attorneys' fees as the prevailing party, in the amount of $53, 229.92, and retained jurisdiction for purposes of enforcing the permanent injunction. Dkt. No. 95.

Defendants appealed the permanent injunction and award of attorneys' fees to the United States Court of Appeals for the Fourth Circuit. Dkt. No. 97. Defendants also filed a motion to stay this court's proceedings pending a decision by the United States Supreme Court in a case titled The Town of Greece, New York v. Galloway, 134 S.Ct. 1811 (2014), which the court denied. Dkt. No. 98 &102. After the Supreme Court issued its opinion in Town of Greece, Defendants filed a motion to dissolve and/or modify this court's permanent injunction in light of the Supreme Court's ruling. Dkt. No. 103. The court denied the motion, finding that it lacked jurisdiction to entertain the motion during the pendency of the Fourth Circuit appeal. Dkt. No. 107.

On December 17, 2014, the Fourth Circuit issued a memorandum opinion dismissing Defendant's challenge to the permanent injunction as untimely and affirming the award of attorney's fees. Dkt. No. 107. Thereafter, Hudson filed this second motion for attorney fees, seeking an award of attorney fees and expenses in the amount of $20, 861.54.


The Civil Rights Attorney's Fees Awards Act of 1976 provides that a prevailing party in certain civil rights actions may recover "a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. The Supreme Court has directed that the purpose of §1988 is to ensure meaningful and effective access to the judicial system for persons with civil rights grievances, and thus, a successful plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). To qualify as a "prevailing party, " the plaintiff must "obtain at least some relief on the merits of his claim." Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Hudson has continued to be the "prevailing party" in this matter, as she prevailed on all of the post-trial motions and appeal in this case. See Worldwide Network Services, LLC v. DynCorp Intern., LLC, No. 1:07cv627, 2010 WL 2933001, at *4 (E.D. Va. July 23, 2010). Thus, Hudson should be "fully compensated" for her legal expenses. Rum Creek Coal Sales, Inc v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994); see also Hensley, 461 U.S. at 435, 103 S.Ct. at 1940.

The Fourth Circuit follows a three-step process for courts to determine a reasonable attorneys' fee award. McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013), as amended (Jan. 23, 2014). First, the court determines the lodestar figure, which is calculated by multiplying the reasonable number of hours expended by the reasonable hourly rate. Id . Courts evaluate the reasonableness of the hours expended and rates sought on fee petitions under the lodestar method using the twelve factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th. Cir. 1974), as adopted by Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n. 28 (4th Cir. 1978). See Robinson v. Equifax Info. Servs., 560 F.3d 235, 243-44 (4th Cir. 2009).[1] Second, the court subtracts fees for hours spent on unsuccessful claims unrelated to successful claims. McAfee, 738 F.3d at 88. Finally, the court awards a percentage of the remaining amount to the plaintiff, depending on the degree of success of plaintiff's claims. Id.

A strong presumption exists that a properly calculated lodestar figure is reasonable. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010). That presumption may be overcome only in rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee. Id.


The reasonable hourly rate for purposes of the lodestar figure is generally the prevailing market rate for comparable services in the community in which the services were rendered. In re Mullins, 1996 WL 148527, *3 (W.D. Va. Feb. 12, 1996). Hudson is seeking fees for one attorney, Rebecca Glenberg, at a rate of $350.00 per hour, and one paralegal, Joseph Montano, at a rate of $100 per hour. See Dkt. No. 112, p. 5. This court previously found that $350.00 per hour was a reasonable rate for Ms. Glenberg, and the court's finding was affirmed by the Fourth Circuit on appeal. See Dkt. Nos. 92, 95, 107. I continue to find Ms. Glenberg's billing rate to be reasonable given the geographic location of this litigation and Ms. Glenberg's experience level. This court has also previously found a billing rate of $100.00 per hour to be reasonable for paralegals. Skycable, LLC v. Coley, No. 5:11cv00048, 2014 WL 4407130, at *4 (W.D. Va. Sept. 8, 2014). Thus, I find that the billing rates sought in Hudson's attorney fee request are reasonable.


I must next determine the number of hours reasonably expended by Hudson's counsel. Rum Creek Coal Sales, Inc., 31 F.3d at 174. Although a plaintiff who obtains full relief should receive a "fully compensatory fee, " the number of hours must be adjusted to delete duplicative or unrelated hours. Id. at 174-75 (citing Hensley, 461 U.S. at 437, 103 S.Ct. at 1941). The Court must carefully scrutinize the total number of hours reported by the prevailing party to arrive at the number of hours that can fairly and reasonably be charged to the losing party. See Spell v. ...

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