Case 1:13-cv-00482-CWD Document 148 Filed 03/05/15 Page 1 of 6

LAWRENCE G. WASDEN
ATTORNEY GENERAL
STEVEN L. OLSEN
Chief of Civil Litigation Division
W. SCOTT ZANZIG, ISB # 9361
CLAY R. SMITH, ISB# 6385
Deputy Attorneys General
Civil Litigation Division
Office of the Attorney General
954 W. Jefferson Street, 2nd Floor
P. O. Box 83720
Boise, ID 83720-0010
Telephone: (208) 334-2400
Fax: (208) 854-8073
scott.zanzig@ag.idaho.gov
clay.smith@ag.idaho.gov
Attorneys for Defendant Christopher Rich
and Defendant-Intervenor State of Idaho
IN THE 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,
vs.
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.

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

MEMORANDUM IN RESPONSE
TO SUPPLEMENTAL MOTION
FOR ATTORNEYS FEES
(DKT. 147)

MEMORANDUM IN RESPONSE TO SUPPLEMENTAL MOTION FOR ATTORNEYS FEES - 1

Case 1:13-cv-00482-CWD Document 148 Filed 03/05/15 Page 2 of 6

I.
INTRODUCTION
Defendant Christopher Rich and Defendant-Intervenor State of Idaho object to plaintiffs
request for an award of attorneys fees on the following grounds: (1) plaintiffs request additional
fees for work on their original fee motion, even though the Court has instructed them not to do
so; and (2) the fees plaintiffs seek for the Ninth Circuit appeal, particularly those relating to oral
argument, are excessive. A $78,861.25 reduction of plaintiffs requested fees is appropriate.
II.
THE COURT SHOULD REJECT PLAINTIFFS REQUEST FOR ADDITIONAL FEESON-FEES FOR THEIR INITIAL FEE APPLICATION
This Court has already determined that plaintiffs are not entitled to any additional fee
award for work on their initial fee request. In its Memorandum Decision and Order, dated
December 19, 2014 (Dkt. 139), the Court found that Plaintiffs counsel spent too much time
preparing Plaintiffs [initial] motion for attorney fees. Dkt. 139 at 19. As a result, the Court
reduced plaintiffs fee-on-fee award to 40 hours, which was at most . . . a reasonable amount of
time. Id. at 20. The Court further stated that it would not entertain another request for fees
incurred in litigating [plaintiffs initial] fee motion. Id. at 20.
In spite of the Courts clear instruction, plaintiffs supplemental fee motion seeks an
award of additional fees incurred on the initial fee motion. Plaintiffs seek an award of 13.1 hours
spent by Ms. Ferguson ($5,240),1 9.8 hours spent by Ms. Whelan ($2,695),2 5.9 hours spent by
paralegal Aaron Aruck ($737.50),3 and 15.1 hours spent by Mr. Durham ($4,907.50)4 preparing
a reply on plaintiffs initial fee motion. In total, plaintiffs seek an award of an additional 43.9

1 Dkt. 147-2, Exhibit B (date entries May 28 through July 25, 2014).
2 Dkt. 147-3, Exhibit B (Whelan date entries June 3 through July 24, 2014).
3 Dkt. 147-3, Exhibit B (Aruck date entries July 7 through July 15, 2014).
4 (Dkt. 147-4, Exhibit B) (date entries June 3 through July 25, 2014).
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hours (and $13,580) for work on their initial fee motion. The Court should adhere to its prior
determination and reject this request.
III.
PLAINTIFFS FEE REQUEST FOR HANDLING THE NINTH CIRCUIT APPEAL IS
EXCESSIVE AND SHOULD BE REDUCED
A court may reduce fees if it finds them to be duplicative or excessive. Chalmers v. City
of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), as amended by 808 F.2d 1373 (9th Cir.
1987). Hours that are not properly billed to ones client also are not properly billed to ones
adversary pursuant to statutory authority. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)
(quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)). In setting its award of
reasonable attorneys fees, the Court should keep in mind that the purpose of section 1988 is not
to provide a form of economic relief to improve the financial lot of attorneys. Perdue v.
Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010) (quoting Pennsylvania v. Delaware Valley
Citizens Council for Clean Air, 478 U.S. 546, 565 (1986)). Fee awards should not produce
windfalls to attorneys. Id. at 552 (quoting Blum v. Stenson, 465 U.S. 886, 897 (1984)).
Plaintiffs seek nearly $300,000 for 835.9 hours spent working on the Ninth Circuit appeal
and their fee applications. Plaintiffs request compensation for 769.3 hours working on the merits
of the appeal.5 The bulk of this request is for time spent between May 14, 2014 (the day this
Court entered judgment) and September 8, 2014 (the date of oral argument in the Ninth Circuit).
This period was not quite four months long, fewer than 17 weeks. Plaintiffs seek compensation
for 629.3 hours spent during this time.6 This amounts to more than 37 hours per week, every
single week, for 17 consecutive weeks between judgment and oral argument. In essence, just for

5 See Dkt. 147-2, Exhibit A, Dkt. 147-3, Exhibit A, and Dkt. 147-4, Exhibit A.
6 This includes 347.3 hours ($138,920) of Ms. Fergusons time (Dkt. 147-2, Exhibit A), 69.8
hours ($27,920) of Mr. Minters time, 90.4 hours ($29,380) of Mr. Stolls time, two hours ($550) of Ms.
Whelans time, 12.2 hours ($2,135) of Ms. Huling-Delayes time, 6 hours ($750) of Mr. Arucks time,
29.6 hours ($3,700) of an unidentified law students time (Dkt. 147-3, Exhibit A), and 72 hours ($23,400)
of Mr. Durhams time (Dkt. 147-4, Exhibit A).
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work on the appeal through oral argument, plaintiffs seek compensation for an experienced
lawyer to work full-time on nothing but the appeal, for a total fee of $226,755. It is difficult to
imagine any paying client receiving such a bill and accepting it as reasonable.
A closer review of plaintiffs records reveals that a substantial portion of these charges is
attributable to an enormous amount of time plaintiffs counsel spent preparing for and attending
Ms. Fergusons 30-minute oral argument. Ms. Ferguson seeks 223.6 hours ($89,440) from July
11 to September 8 solely for preparing for and making her half-hour argument.7 This total
includes only entries specifically related to oral argument and preparation for it. It does not
include many hours described as reviewing briefing, legal research, and preparation of briefs.
Ms. Ferguson seeks an additional 30.6 hours ($12,240) for reviewing amicus briefs before her
argument, presumably to help her prepare.8 Other lawyers also seek compensation for oral
argument preparation and attendance. Mr. Durham requests 34.2 hours ($11,115).9 Mr. Minter
seeks 36.7 hours ($14,680).10 Mr. Stoll seeks 9.5 hours ($3,087.50).11 In total, plaintiffs seek
to be paid for 334.6 hours ($130,562.50) for oral argument.
In evaluating the reasonableness of this request, defendants ask the Court to consider that
[a] reasonable fee for hours spent preparing for a legal argument should be limited to hours
reasonably necessary for a lawyer to become familiarized with the facts and the law pertaining to
the issue to be argued, an analysis of the opponent's argument, and questions anticipated to be
posed by the court. Maldonado v. Houstoun, 256 F.3d 181, 187 (3d Cir. 2001); accord Hash v.

7 See Dkt. 147-2, Exhibit A (date entries July 11, 12, 13, 14, 15, 16, 17, 21, 25, 27, 28, 29, and
31; August 1, 2, 3, 4, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30, and
31; and September 1, 2, 3, 4, 5, 6, 7, and 8).
8 See Dkt. 147-2, Exhibit A (date entries June 23, 24, and 30; July 1, 2, 3, 7, 22, 25, 29, 30, and
31; and August 23, 28, 29, and 31).
9 See Dkt. 147-4, Exhibit A (date entries August 6, 19, 20, 21, and 27; and September 1, 3, 4, 5,
6, 7, and 8).
10 See Dkt. 147-3, Exhibit A (Minter date entries August 9, 20, 21, and 27; and September 2, 3,
7, 8, and 9).
11 See Dkt. 147-3, Exhibit A (Stoll date entries August 21 and 27; and September 1 and 8).
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United States, No. 1:99-cv-00324-MHW, 2012 WL 1252624, at *15 (D. Idaho Apr. 13, 2012)
(finding 200 hours of hearing preparation excessive and reducing fees by 40 percent).
In addition, it is important to remember that the Court has already compensated plaintiffs
counsel handsomely for more than 137 hours preparing for the summary judgment argument,12
an argument that addressed issues identical to those argued before the Ninth Circuit. That
extensive preparation for summary judgment should have substantially reduced the time
necessary to prepare for the Ninth Circuit argument. See Welch v. Metro. Life Ins. Co., 480 F.3d
942, 950 (9th Cir. 2007) (approving 69% reduction of requested hours on fee application because
counsel was able to recycle prior work).
Considering all the circumstances, defendants submit that it would be appropriate for the
Court to reduce plaintiffs oral argument fee request by 50 percent. That would compensate
plaintiffs for 167.3 hours (and fees of $65,281.25) for oral argument preparation and attendance
(in addition to the 137 hours for which plaintiffs were paid for the summary judgment argument).
IV.
CONCLUSION
For the foregoing reasons, the Court should substantially reduce the supplemental
attorneys fee award plaintiffs request.

Defendants submit that the Court should reduce

plaintiffs requested attorneys fee award of $297,475 to $218,613.75.

Dated this 5th day of March 2015.
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

By:

/s/
W. SCOTT ZANZIG
Deputy Attorney General

12 See Dkt. 139 at 18-19.

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 5th day of March 2015, I electronically filed the
foregoing Memorandum in Response to Supplemental Motion for Attorneys Fees with the Clerk
of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the following
Persons:
Deborah A. Ferguson
d@fergusonlawmediation.com
Craig Harrison Durham
craig@chdlawoffice.com
Shannon P. Minter
sminter@nclrights.org
Christopher F. Stoll
cstoll@nclrights.org
Thomas C. Perry
tom.perry@gov.idaho.gov
Cally A. Younger
cally.younger@gov.idaho.gov

/s/
W. SCOTT ZANZIG

MEMORANDUM IN RESPONSE TO SUPPLEMENTAL MOTION FOR ATTORNEYS FEES - 6