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IN THE UNITED STATES DISTRICT COURTWESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

ELECTRONICALLY FILED

GREGORY BOURKE, ET AL. ) )PLAINTIFFS )

) CIVIL ACTION NO.and )

) 3:13-CV-750-JGHTIMOTHY LOVE, ET AL. )

)INTERVENING PLAINTIFFS )

)v. )

)STEVE BESHEAR, ET AL. )

)DEFENDANTS )

)

* * * * * * * * * * *

PLAINTIFFS MOTION FOR ATTORNEYS FEES AND COSTS

I. RELIEF REQUESTED

Plaintiffs seek an award of attorneys fees in the amount of $66,235.00, which encompasses a

total of $30,635.00 for the Fauver law office, and $35,600.00 for Clay Daniel Walton Adams, PLC,

and $453.00 in costs.

II. FACTS

Shortly after the Supreme Court's opinion in Windsor , Plaintiffs filed this action under 42 U.S.C.

1983 to enforce their federal constitutional right to have their valid marriages recognized by the

Commonwealth of Kentucky. After filing briefs and the supporting testimony, this Court unequivocally

held that the challenged statutes were in violation of the U.S. Constitution. Plaintiffs have thus far won

a complete victory, and received precisely the relief they requested. Since this Court's Memorandum

Opinion and Order, the Defendant Attorney General has publicly admitted that the laws challenged in

Case 3:13-cv-00750-JGH Document 60 Filed 03/11/14 Page 1 of 6 PageID #: 780

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this case are discriminatory and unconstitutional, and that this Court got it right.

III. AUTHORITY

A. Plaintiffs are the Prevailing Party for the Purposes of Determining Attorneys Fees

This case was brought pursuant to 42 U.S.C. 1983. Prevailing parties under Section 1983 are

entitled to an award of reasonable attorneys fees. 42 U.S.C. 1988. [P]laintiffs may be considered

prevailing parties for attorneys fees purposes if they succeed on any significant issue in litigation

which achieves some of the benefit the parties sought in bringing suit. Hensley v. Eckerhart , 461 U.S.

424, 433, 103 S. Ct. 1933 (1983).

Where a plaintiff has obtained excellent results, his attorney should recover a fully

compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and

indeed in some cases of exceptional success an enhanced award may be justified. In these

circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on

every contention raised in the lawsuit. Id. at 435. Whether or not Plaintiffs succeeded on every claim or

every motion is unimportant[t]he result is what matters. Id. This fee should not be reduced

"simply because the plaintiff failed to prevail on every contention raised in the lawsuit." But if the

plaintiff achieved only limited success, the court should reduce the award accordingly. Harper v. BP

Exploration & Oil, Inc., 3 Fed. Appx. 204, 207 (6th Cir. 2001) (quoting Hensley ). It is hard to imagine

a more favorable result for the Plaintiffs in this case. Although counsel is not requesting enhanced fees,

this case should be considered an exceptional success.

B. The Appropriate Method for Determining Reasonable Attorneys Fees is the LodestarApproach

The lodestar approach is used to determine reasonable attorneys fees. See Hensley v. Eckerhart,

461 U.S. 424, 433-37 (1983). The lodestar is calculated by multiplying the number of hours the

prevailing party reasonably expended on the litigation by a reasonable hourly rate. Morales v. City of


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San Rafael, 96 F.3d 359, 363 (9 th Cir. 1996). Courts consider the following factors: the novelty and

complexity of the issues; the special skill and experience of counsel; the quality of representation; the

results obtained; and the contingent nature of the fee agreement. Id. at 364.

All of the lodestar facts support awarding Plaintiffs their full attorneys fees. Plaintiffs counsellitigated a novel issue of law that required specialized skill and experience in several areas of law,

including family law and constitutional law. Plaintiffs counsel provided high-quality representation,

achieving a complete victory within a year of filing.

C. The Hours and Rates Requested by Plaintiffs are Reasonable

Counsel requests compensation for 275.54 hours spent litigating this case. The rates and hours

expended by counsel are reasonable.

1. Counsels hourly rates are reasonable

Given counsels extensive expertise in civil rights, constitutional rights, and other civil

litigation, these rates are commensurate or below what is charged by attorneys of like experience in the

Louisville legal community. See Affidavits of Paul Hershberg and Gregory Belzley, attached hereto.

Compared to other federal litigation involving constitutional claims, these hourly rates are reasonable.

For example, in Maxwell's Pic-Pac, Inc. v. Dehner , 2013 U.S. Dist. LEXIS 34596, 11 (W.D. Ky. Mar.

12, 2013) this Court awarded attorneys hourly rates ranging from $475 - $180 for attorneys and $200

to $150 for paralegals. In that case, the Court said:

Plaintiffs claim that their success in this case, the difficulty of the issues involved includinga rigorous Equal Protection Clause standard to surmount, and the level of legal skill andexperience Plaintiffs' attorneys, paralegals, and librarian brought to this case, cumulatively

justify this award. In support of their rates, Plaintiffs further argue that these that they havecharged their client for their services. Plaintiffs support their rates with affidavits from twoof the most prominent attorneys in this area, both of whom claim that Plaintiffs' rates arereasonable.

Id. , pp.11-13. Thus, the Dehner case is readily comparable to the instant case. This Court went on to

state:


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As shown above, this Court has previously awarded rates between $200 and $305 forattorney's fees under 1988. For attorneys with a higher level of skill and experience, therate was at the higher end of this range. There is no evidence that these attorneys forewentother opportunities to handle this dispute. Nevertheless, the time spent and the resultsobtained are significant enough to justify an extension beyond the higher end of that range.

Accordingly, the Court will reduce each attorney's rate by 25%, using the attorney's 2011rate as the basis for the reduction and rounding up to the nearest dollar figure. Thus makingthe highest rate $342 per hour. The Court finds these rates aligned with the value of thequality of work and the complexity of the case, and are therefore reasonable.

Id ., at 15. The Court's comprehensive analysis throughout Dehner is helpful to the resolution of this

issue.

2. The hours expended by Plaintiffs counsel are reasonable

Not only are the rates reasonable, but the time expended to achieve the results in this case was

moderate. Conferences and other consultations were kept to a minimum. Work was clearly divided

between the attorneys, each taking specific responsibilities for the tasks at hand. The attorneys carefully

edited all briefs, resulting in high-quality legal memoranda that clearly and succinctly identified the

novel issues to be decided by the Court, and managed a group of eight clients who were originally split

into two different cases. Additionally, there was extensive media contact in this case, which

necessitated the time and attention of counsel as well. Counsel has not billed for the entirety of this

contact (which would be nearly possible to catalogue).

The time spent on the case is broken down in the time records attached to this Motion (i.e., an

invoice for attorneys Landenwich, Canon, and Dunman, a spreadsheet for the Fauver Law Office, and

the affidavit of Mr. Winner). The time reflects the significant effort spent briefing the pleadings and

memoranda in this case as well as preparing for hearings and managing client contact. To take timely

action, counsel had to place other work aside to quickly prepare this case. The legal issues were unique

and significant. Research and briefing was required on a variety of novel legal issues, including, among

others: the application of the federal right to travel; the interplay between sexual orientation

discrimination, sex discrimination, and the federal Constitution; the operation of the Kentucky state


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constitution; the Supremacy Clause; the role of the Establishment Clause, etc.

Significant briefing occurred on two separate occasions. See Dkt. Nos. 38, 40, 46. It should be

noted that the law regarding the claims brought by Plaintiffs involved not only a great deal of historical

and legislative research, but also required counsel to stay abreast of a rapidly changing legal landscape.As this Court is well aware, since the Windsor opinion, there have been several opinions issued by

district courts, all reaching slightly different conclusions, and all briefed under (sometimes

substantially) different legal theories using different approaches. These nuances have left counsel on

terra incognito , and have required perhaps more research than the average 1983 case. In addition, the

intervention of the Family Foundation as amicus, and their brief, required counsel to research social,

cultural, and psychological issues (i.e., to engage in Brandeis briefing) which would normally not be

required in federal litigation.

Thus, the hours spent on the case are reasonable given the novelty and complexity of legal

issues involved, the compressed schedule and the complete victory obtained for the Plaintiffs.

IV. ATTORNEYS OUT-OF-POCKET EXPENSES

All litigation expenses in civil rights cases, including out-of-pocket expenses, are recoverable

under 42 U.S.C. 1988, as long as the expenses were reasonable and necessary to the litigation of

plaintiffs claims and are not normally billed to the lawyers paying clients as overhead. Ramos v.

Lamm, 713 F.2d at 559-60 (photocopying, postage, telephone, etc.). The Act [42 U.S.C. 1988]

essentially shifts the costs of litigation from the victim to the violator. Spell v. McDaniel , 616 F. Supp.

1069, 1113 (E.D.N.C. 1985), affd in part, vacated in part on other grounds, 824 F.2d 1380, (4 th Cir.

1987), cert. den. sub nom. City of Fayetteville v. Spell , 484 U.S. 1027 (1988).

In this case, counsel does not seek travel expenses, meals, copies, phone charges, paralegal

time, or anything of the sort. Plaintiffs simply seek to recoup their original filing fee and the expense of

ordering videos from the Legislative Research Commission regarding the legislative history of the


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discriminatory constitutional amendment at issue in this case. These are quite modest expenses.

V. CONCLUSION

Plaintiffs should be awarded attorneys fees in the amount of $66,235.00 and $453.00 in costs,

totaling $66,688.00.

Respectfully submitted,

Shannon Fauver Dawn ElliottFAUVER LAW OFFICE, PLLC1752 Frankfort Ave.Louisville , KY 40206(502) 569-7710www. fauverlaw.comCounsel for all Plaintiffs

s/ Daniel J. Canon Daniel J. CanonLaura E. LandenwichL. Joe Dunman

Louis P. Winner CLAY DANIEL WALTON ADAMS, PLCMeidinger Tower, Suite 101462 S. Fourth StreetLouisville, KY 40202(502) 561-2005www.justiceky.comCounsel for all Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on March 11, 2014, I electronically filed the foregoing with the clerk of thecourt by using the CM/ECF system, which will send a notice of electronic filing to the following:

Clay A. BarkleyBrian JudyAssistant Attorney GeneralsOffice of the Attorney GeneralSuite 118700 Capital AvenueFrankfort, KY 40601Counsel for Defendants Steve Beshear and

Jack Conway

/s/ Daniel J. Canon


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Prep/research & telephonic hearing on Motionto Stay; corresp w counsel; media contact

Receipt and review: Case pleadings; other casepleadings

Corresp w Fauver, review pleadings and MTD,consult w/LEL & LPW, preliminary research

Meeting with Shannon and Dawn to discusscase [JD]

Meeting with co-counsel

Review pleadings, revise documentation andresearch

Email exchange regarding procedural steps w/Canon & Landenwich [JD]

Research legislative history of KRS 402.020 etseq., Const 233A; email w/ Canon [JD]

Review final draft of Second Amend Complaint[JD]

Research & draft amended complaint

Draft: Mot Restyle; Mot Leave, Second Amended Complaint

Draft initial affidavits of clients based on Fauver email notes [JD]

Research FRCP 5.1 re constitutional challenge;draft notice to USAG

Date Matter Description User Rate Total

02/28/2013 00837-Bourke

Billed on Invoice 798

Dan Canon

3.00

$250.00 $750.00

10/09/2013 00837-Bourke


Laura Landenwich

2.20

$250.00 $550.00

10/18/2013 00837-Bourke


Dan Canon

1.00

$250.00 $250.00

10/21/2013 00837-Bourke


Dan Canon

1.50

$200.00 $300.00

10/21/2013 00837-BourkeBilled on Invoice 798

Laura Landenwich

1.20

$250.00 $300.00

10/22/2013 00837-Bourke


Dan Canon

1.00

$250.00 $250.00

10/23/2013 00837-Bourke


Dan Canon

0.20

$200.00 $40.00

10/28/2013 00837-Bourke


Dan Canon

1.50

$200.00 $300.00

10/28/2013 00837-Bourke


Dan Canon

0.50

$200.00 $100.00


Dan Canon

2.00

$250.00 $500.00

10/28/2013 00837-Bourke


Laura Landenwich

1.20

$250.00 $300.00

10/29/2013 00837-Bourke


Dan Canon

1.00

$200.00 $200.00

10/29/2013 00837-Bourke Dan Canon $250.00 $125.00


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Research and draft amd complaint

Research and revise 2nd am complaint

Draft: 2nd amended complaint

Corresp w counsel & clients

Meeting at Fauver office to interview clients for affidavits [JD]

Meet w clients, gather info for affidavits

Review draft Joint Scheduling Order, emailexchange w/ Canon & Landenwich [JD]

Email exchange w/ Landenwich re: Entry of Appearance [JD]

Email exchange w/ Goodman re: Entry of Appearance; filing of Entry of Appearance [JD]

Review affidavits drafted and finalized byChambers [JD]

Review Ohio ruling Obergefell; email exchangew/ Winner, Canon & Landenwich [JD]

Review Answer to 2nd Amend Complaint fromDefendants [JD]


Billed on Invoice 7980.50


Dan Canon

2.00

$250.00 $500.00


Dan Canon

2.00

$250.00 $500.00


Laura Landenwich

0.80

$250.00 $200.00


Dan Canon

0.50

$250.00 $125.00

11/12/2013 00837-Bourke


Dan Canon

2.00

$200.00 $400.00


Dan Canon

2.00

$250.00 $500.00

11/20/2013 00837-Bourke


Dan Canon

0.30

$200.00 $60.00

11/25/2013 00837-Bourke


Dan Canon

0.00

$200.00 $0.00

11/26/2013 00837-Bourke


Dan Canon

0.20

$200.00 $40.00

11/27/2013 00837-Bourke


Dan Canon

0.80

$200.00 $160.00

11/27/2013 00837-Bourke


Dan Canon

1.50

$200.00 $300.00

12/02/2013 00837-Bourke


Dan Canon

0.30

$200.00 $60.00


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Corresp w clients and counsel

Review amd answer

Email exchange w/ Canon & Landenwich re:MSJ arguments [JD]

Review research results from Canon re:Windsor doctrine; email w/Canon; Reviewlegislative video [JD]

Draft Equal Prot & Due Process section of MSJmemo [JD]

Draft MSJ

Draft Equal Prot & Due Process section of MSJmemo [JD]

Draft MSJ

Research

Email exchange w/ Fauver re: Federal SSMbenefits [JD]

Draft MSJ; review and revise co-counsel'sportions

Email exchange regarding affidavit execution w/Canon & Landenwich [JD]

Review and revise affidavits



Dan Canon

0.30

$250.00 $75.00

12/02/2013 00837-Bourke


Dan Canon

0.30

$250.00 $75.00

12/04/2013 00837-Bourke


Dan Canon

0.10

$200.00 $20.00

12/05/2013 00837-Bourke


Dan Canon

2.50

$200.00 $500.00

12/05/2013 00837-Bourke


Dan Canon

4.00

$200.00 $800.00


Dan Canon

3.00

$250.00 $750.00

12/06/2013 00837-Bourke


Dan Canon

6.00

$200.00 $1,200.00


Dan Canon

3.00

$250.00 $750.00


Laura Landenwich

1.20

$250.00 $300.00

12/08/2013 00837-Bourke


Dan Canon

0.10

$200.00 $20.00

12/08/2013 00837-Bourke


Dan Canon

4.00

$250.00 $1,000.00

12/09/2013 00837-Bourke


Dan Canon

0.10

$200.00 $20.00


Dan Canon

0.30

$250.00 $75.00


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Research: Legislative history; Establishmentclause

Draft, edit, and finalize pleading: MSJ

Review affidavits and secure approval; correspw clients and counsel

Email exchange regarding draft of MSJ w/Canon & Landenwich [JD]

Research; write introduction to MSJ

Draft: MSJ

Review, edit, and finalize MSJ and Memo inSupport; File w/ court [JD]

Meet w counsel; final review & revision of MSJ

Review and edit MSJ

Compile exhibits, finalize, and file MSJ

Draft: MSJ

Review, copy, submit as exhibit to courtlegislative video [JD]

Review AG response


12/09/2013 00837-Bourke


Laura Landenwich

3.00

$250.00 $750.00

12/09/2013 00837-Bourke


Laura Landenwich

2.00

$250.00 $500.00

12/13/2013 00837-Bourke


Dan Canon

0.30

$250.00 $75.00

12/15/2013 00837-Bourke


Dan Canon

0.30

$200.00 $60.00

12/15/2013 00837-Bourke


Dan Canon

1.00

$250.00 $250.00


Laura Landenwich

6.00

$250.00 $1,500.00

12/16/2013 00837-Bourke


Dan Canon

6.00

$200.00 $1,200.00

12/16/2013 00837-Bourke


Dan Canon

2.50

$250.00 $625.00


Dan Canon

1.50

$250.00 $375.00


Dan Canon

0.80

$250.00 $200.00


Laura Landenwich

8.20

$250.00 $2,050.00

12/17/2013 00837-Bourke


Dan Canon

1.50

$200.00 $300.00


Dan Canon

1.00

$250.00 $250.00


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Email exchange w/ Canon & Landenwich re:potential law clerk assistance on case [JD]

Review of Acknowledgement of Constitutional

Challenge from US DOJ [JD]

Review of Order granting Plaintiffs' leave torespond to Amicus Brief [JD]

Research and draft response to Amicus Brief;submit to Landenwich for inclusion [JD]

Draft: Response to Amicus brief/research

Review and edit Landenwich draft of Responseto Amicus [JD]

Review & revise response to amicus brief,research, draft introduction & conclusion

Draft: Response to Amicus

Review advanced copy of MemorandumOpinion filed by Judge Heyburn [JD]

Meeting w/ Canon & Landenwich to discussMemorandum Order and next steps [JD]

Press conferences and interviews re: JudgeHeyburn's opinion. [JD]

Receive and review opinion; filed various mediacontacts, meet w clients & counsel

Meeting with Intervening Plaintiffs to discussprocedural steps [JD]


01/20/2014 00837-Bourke


Dan Canon

0.10

$200.00 $20.00

01/21/2014 00837-Bourke


Dan Canon

0.10

$200.00 $20.00

01/23/2014 00837-Bourke


Dan Canon

0.10

$200.00 $20.00

01/24/2014 00837-Bourke


Dan Canon

3.50

$200.00 $700.00

02/02/2014 00837-Bourke


Laura Landenwich

2.20

$250.00 $550.00

02/03/2014 00837-Bourke


Dan Canon

2.00

$200.00 $400.00

02/03/2014 00837-Bourke


Dan Canon

1.50

$250.00 $375.00

02/03/2014 00837-Bourke


Laura Landenwich

6.80

$250.00 $1,700.00

02/12/2014 00837-Bourke


Dan Canon

0.30

$200.00 $60.00

02/12/2014 00837-Bourke


Dan Canon

1.00

$200.00 $200.00

02/12/2014 00837-Bourke


Dan Canon

3.50

$200.00 $700.00

02/12/2014 00837-Bourke


Dan Canon

6.00

$250.00 $1,500.00

02/13/2014 00837-Bourke


Dan Canon

0.30

$200.00 $60.00


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Final review of Mot to Intervene and Mot for Prelim Injunction & associate docs [JD]

Press conferences and media interviews RE:

Mot to Intervene [JD]

Review Order for Conference; email exchangere: attendance at Conference [JD]

Attend Conference w/ Judge regarding Motionto Intervene and effect of Final Order [JD]

Prep hearing for prelim inj/intervention; attend

hearing; media contact

Preparation for and Appearance at Hearing

Review Motion for Stay filed by Defendants;Review Order granting Mot to Intervene; reviewOrder denying injunction; Email exchangeregarding attendance at Conference re: Mot toStay; Review Order for Conference [JD]

Press interview re: Mot to Stay [JD]

Review of Order modifying style of the case toLove v. Beshear [JD]

Press conference w/ media re: Mot to Stay andconference [JD]

Attend Conference w/ Judge re: Mot to Stay[JD]

Review Order Granting Mot to Stay [JD]


02/14/2014 00837-Bourke


Dan Canon

1.00

$200.00 $200.00

02/14/2014 00837-Bourke


Dan Canon

2.00

$200.00 $400.00

02/19/2014 00837-Bourke


Dan Canon

0.50

$200.00 $100.00

02/26/2014 00837-Bourke


Dan Canon

2.00

$200.00 $400.00

02/26/2014 00837-Bourke


Dan Canon

4.00

$250.00 $1,000.00


Laura Landenwich

1.20

$250.00 $300.00

02/27/2014 00837-Bourke


Dan Canon

1.20

$200.00 $240.00


Dan Canon

1.00

$200.00 $200.00

02/28/2014 00837-Bourke


Dan Canon

0.10

$200.00 $20.00

02/28/2014 00837-Bourke


Dan Canon

1.00

$200.00 $200.00

02/28/2014 00837-Bourke


Dan Canon

2.00

$200.00 $400.00


Dan Canon

0.30

$200.00 $60.00


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Phone interview with media re: Order grantingStay [JD]

Research re stay requirements, prep for

hearing, telephonic hearing

Press interviews [JD]

Prepare attorney fee petition and affidavits

Receipt and review: Opinion and Order

Contact w county attorneys re: dismissal of clerks; review proposed motion from StephanieFrench; conf w counsel


02/28/2014 00837-Bourke


Dan Canon

0.50

$200.00 $100.00

02/28/2014 00837-Bourke


Laura Landenwich

3.20

$250.00 $800.00


Dan Canon

1.00

$200.00 $200.00


Dan Canon

3.00

$250.00 $750.00

03/06/2014 00837-Bourke


Laura Landenwich

0.50

$250.00 $125.00

10/24/2014 00837-Bourke


Dan Canon

0.50

$250.00 $125.00

146.00 $33,675.00


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IN THE UNITED STATES DISTRICT COURTWESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

ELECTRONICALLY FILED

PLAINTIFFS

v. CIVIL ACTION NO. 3:13-CV-750-JGH

STEVE BESHEAR, ET AL. DEFENDANTS

* * * * * * * * * * * *

ORDER

Upon motion of the Plaintiffs, having reviewed the affidavits submitted by

Plaintiffs counsel, and having reviewed this file in its entirety the Court finds that the

Defendant(s) are hereby ordered to pay the Plaintiff's attorneys, Daniel J. Canon, Laura

E. Landenwich, L. Joe Dunman, Louis P. Winner, Shannon Fauver, and Dawn Elliott the

sum of $66,235.00 in attorneys fees and $453.00 in costs. This is a final and appealableOrder and there is no just cause for delay in its entry.


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