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National Council of La Raza v. Cegavske

United States District Court, D. Nevada

June 21, 2017

BARBARA K. CEGAVSKE, in her official capacity as Secretary of the State of Nevada; RICHARD WHITLEY, in his official capacity as Director of the Department of Health and Human Services of the State of Nevada, Defendants.




         Before the Court is Plaintiffs' Motion to Set Attorneys' Fees and Costs (“Motion”), brought pursuant to the National Voter Registration Act of 1993, 52 U.S.C. § 20510 (“NVRA”). (ECF No. 117.) Defendants oppose the Motion, arguing that Plaintiffs are not entitled to fees and costs, or alternatively, that the amount they seek is unreasonable. (ECF No. 120.) The Court has reviewed these documents as well as Plaintiffs' reply. (ECF No. 121.) Plaintiffs' Motion is granted in the manner discussed below.


         Plaintiffs' Motion comes at the end of a lengthy and atypical journey through the federal courts. Relevant to this Order, Plaintiffs filed suit against Defendants on June 11, 2012, alleging violations of the NVRA. (ECF No. 1.) Defendants filed a Motion to Dismiss on July 3, 2012. (ECF No. 22.) A few days later Plaintiffs filed a Motion for Preliminary Injunction. (ECF No. 24.) Before briefing was completed on the preliminary injunction motion, the parties, who were engaging in settlement discussions, stipulated to withdraw both motions. (ECF Nos. 60, 61.) The Court did not address the stipulation, but subsequently, on December 19, 2012, issued an order dismissing the case. The order was based on Defendants' withdrawn Motion to Dismiss, as well as a sua sponte determination that Plaintiffs lacked standing. (ECF No. 70.) The Court also denied a number of unopposed pro hac vice applications from attorneys representing Plaintiffs. (ECF No. 57.)

         The parties ceased ongoing settlement discussions, and Plaintiffs appealed the dismissal. (ECF No. 71; ECF No. 117-1 ¶ 6.) Though Defendants had withdrawn their Motion to Dismiss, they defended the dismissal on appeal, both through briefing and oral argument. On September 3, 2015, the Ninth Circuit issued an opinion reversing dismissal, remanding the case for further proceedings, and reassigning the case to a different district court judge. (ECF No. 80.)

         After the case was remanded, the parties resumed settlement negotiations. They executed an agreement (“Settlement Agreement”) on March 11, 2016, and filed the same with the Court on March 14, 2016. (ECF Nos. 113-14.) The Settlement Agreement requires the Secretary of State and the Director of Health and Human Services to take certain steps to ensure compliance with the NVRA, including designating coordinators to oversee and report on compliance, developing training materials, and collecting and compiling data on their efforts. (Id.) The Settlement Agreement gives this Court continuing jurisdiction to enforce its terms. (Id.)


         The parties seeking attorney's fees must establish that the fees are reasonable. The district court “has a great deal of discretion in determining the reasonable of the fee.” Prison Legal News v. Schwarzenegger, 608 F.3d 446, 453 (9th Cir. 2010).

         Reasonable attorney's fees are based on the “lodestar” calculation set forth in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). See Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). The court must first determine a reasonable fee by multiplying “the number of hours reasonably expended on the litigation” by “a reasonable hourly rate.” Hensley, 461 U.S. at 433. Next, the court decides whether to adjust the lodestar calculation based on an evaluation of the factors articulated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), which have not been subsumed in the lodestar calculation. See Fischer, 214 F.3d at 1119 (citation omitted).

         The factors the Ninth Circuit set forth in Kerr are:

(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.

Kerr, 526 F.2d at 70. Factors one through five are subsumed in the lodestar calculation. See Morales v. City of San Rafael, 96 F.3d 359, 364 n. 9 (9th Cir. 1996). Further, the sixth factor, whether the fee is fixed or contingent, may not be considered in the lodestar calculation. See Davis v. City & Cnty. of S.F., 976 F.2d 1536, 1549 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993). Once calculated, the “lodestar” is presumptively reasonable. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 728 (1987). Finally, only in “rare and exceptional cases” should a court adjust the lodestar figure. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (internal quotations omitted). See also Fischer, 214 F.3d at 1119 n. 4 (stating that the lodestar figure should only be adjusted in rare and exceptional cases).

         IV. ANALYSIS

         A. Whether Plaintiffs Are Entitled to Fees

         As a threshold matter, Defendants argue that Plaintiffs are not entitled to fees at all. Defendants argue that the Settlement Agreement does not guarantee an award of fees and costs and that Plaintiffs are not the “prevailing party” under the NVRA. (ECF No. 120 at 9-10.)

         The Settlement Agreement states: “Plaintiffs shall be entitled to their reasonable attorneys' fees and expenses incurred in this litigation as determined by the Court.” (ECF No. 114 at 19.) Plaintiffs contend this provision means the parties agree that they are entitled to fees and the Court need only determine the amount. Defendants contend the provision means that the Court must determine whether Plaintiffs are entitled to fees in the first place, and, if so, determine the appropriate amount. At the very least, Defendants argue that the term is ambiguous and must be construed against Plaintiffs, who drafted the language.

         The Court need not address Defendants' ambiguity argument because it is clear that Plaintiffs are entitled to fees and costs as the prevailing party under the NVRA. To be considered a prevailing party for fee shifting purposes, a party must secure a court order effectuating a change in the legal relationship between it and the opposing party. Saint John's Organic Farm v. Gem Cty. Mosquito Abatement Dist., 574 F.3d 1054, 1058 (9th Cir. 2009) (quoting Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't of Health & Human Res., 532 U.S. 598, 604 (2001)). The judicially enforceable relief must be “on the merits of [the party's] claim.” Id. (citing Richard S. v. Dep't of Dev. Servs. of Cal., 317 F.3d 1080, 1086 (9th Cir.2003)).

         The Settlement Agreement is judicially enforceable. It explicitly grants this Court “continuing jurisdiction to enforce the terms of this Agreement.” (ECF No. 114 at 19.) The language of the Settlement Agreement is similar to the language approved by the Saint John's court. 574 F.3d at 1059. The Settlement Agreement also changes the legal relationship between the parties. It grants both parties an enforceable right to enforce its terms and collect attorneys' fees and costs if successful. (Id. at 19-20.) Therefore, even assuming that the Court must jump through the additional analytic hoop of determining that Plaintiffs ...

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