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IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

SECOND DIVISION


M. KENDALL WRIGHT, et al PLAINTIFFS


VS. Case No. 60CV-13-2662


NATHANIEL SMITH, MD, MPH, et al DEFENDANTS


RESPONSE IN OPPOSITION TO
MOTION OF PLAINTIFFS ATTORNEYS FOR
ATTORNEYS FEES AND COSTS


Come now the Director of the Arkansas Department of Health and the Director of the
Arkansas Department of Finance and Administration, in their official capacities, and their
successors in office (the State), and for their Response in Opposition to Motion of Plaintiffs
Attorneys for Attorneys Fees and Costs, state as follows:
1. The Plaintiffs request an award of $354,605 in attorneys fees, multiplied by 1.5
($531,907.50) or multiplied by two ($709,210).
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The Plaintiffs seek attorneys fees pursuant to
42 U.S.C. 1988, Ark. Code Ann. 16-123-105(b), and Ark. R. Civ. P. 54(d) and (e).
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The State also objects to the request for litigation costs set forth in 6 & 7 of the
Motion of Plaintiffs Attorneys for Attorneys Fees and Costs.

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Ark. Code Ann. 16-123-105(b) provides that [i]n the discretion of the court, a party
held liable under [the Arkansas Civil Rights Act of 1993] shall also pay the injured partys cost
of litigation and a reasonable attorneys fee in an amount to be fixed by the court. Id. The very
next section of the same statute provides that [w]hen construing this section, a court may look
for guidance to state and federal decisions interpreting the federal Civil Rights Act of 1871, as
amended and codified in 42 U.S.C. 1983[.] Ark. Code Ann. 16-123-105(c). Both Ark.
Code Ann. 16-123-105(b) and 42 U.S.C. 1988 (which applies in actions brought pursuant to
42 U.S.C. 1983) allow a prevailing party in a civil rights action to recover a reasonable
attorneys fee. The Plaintiffs state-law claim and federal-law claim for attorneys fees are
substantively identical, and should be evaluated the same by the Court.
ELECTRONICALLY FILED
2014-Jun-10 07:29:03
60CV-13-2662
C06D02 : 11 Pages
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2. A plaintiff must be a prevailing party
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to recover a reasonable attorneys fee
under Section 1988. Id. It remains for the [trial] court to determine what fee is reasonable.
Hensley v. Eckhart, 461 U.S. 424, 433 (1983). The most useful starting point for determining
the amount of a reasonable fee is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate. Id. (Emphasis added). The party seeking an award
of fees should submit evidence supporting the hours worked and the rates claimed. Where
the determination of hours is inadequate, the [trial] court may reduce the award accordingly. Id.
(Emphasis added). In this case, the Plaintiffs have submitted exactly zero evidence to support
their claims for attorneys fees.
The fee applicant (whether a plaintiff or a defendant) must, of course, submit
appropriate documentation to meet the burden of establishing entitlement to an award. Fox v.
Vice, ___ U.S. ___, 131 S.Ct. 2205, 2216 (2011). The fee request should, at a minimum, (1)
provide dates work was performed, (2) a reasonable, specific description of the work, and (3)
time expended on the work. Central Cab Co. v. Cline, 972 F. Supp. 370, 374 (S.D.W.Va.
1997). In this case, the Plaintiffs have offered no documentation to meet their burden of
establishing an entitlement to an attorneys fee award of any amount. [T]he burden is on the fee
applicant to produce satisfactory evidence in addition to the attorneys own affidavits that the
requested rates are in line with those prevailing in the community for similar services by lawyers
of reasonably comparable skill, experience and reputation. Grissom v. The Mills Corp., 549


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Although the Plaintiffs motion is purportedly brought by the attorneys representing the
Plaintiffs in this action, Section 1988 authorizes awards of attorneys fees to prevailing parties,
not to the attorneys themselves. Accordingly, the State treats the Plaintiffs motion as a motion
brought by the Plaintiffs as prevailing parties.
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F.3d 313, 321 (4th Cir. 2008). In this case, the Plaintiffs have offered no evidence regarding the
rates they have requested.
Because the Plaintiffs have offered zero evidence to meet their burden of establishing
entitlement to an attorneys fee award (and zero evidence of subsequent considerations such as
rates), the Plaintiffs request for an award of attorneys fees should be denied entirely. See, e.g.,
MacDissi v. Valmont Industries, Inc., 856 F.2d 1054, 1061 (8th Cir. 1988) (The maintenance of
such records is certainly desirable, and district courts may reduce or eliminate attorneys fees
awards where the absence of such records leaves the court without a reliable basis on which to
award fees.) (citing Hensley, 461 U.S. at 433).
3. Additional factors should be considered after a prevailing party submits the
requisite evidence supporting a threshold claim for attorneys fees: The product of reasonable
hours times a reasonable rate does not end the inquiry. There remain other considerations that
may lead the [trial] court to adjust the fee upward or downward[.] Hensley, 461 U.S. at 434.
For example, in determining the number of hours reasonably expended, hours that are
excessive, redundant, or otherwise unnecessary should be excluded. See, e.g., Rural Water
System # 51 v. City of Sioux Center, 202 F.3d 1035 (8th Cir. 2000), rehg & rehg en banc
denied (Mar. 7, 2000), cert. denied, 531 U.S. 820 (2000). A reduction may also be had where
the court determines that multiple attorneys were unnecessarily or needlessly used, see, e.g., Gay
Officers Action League v. Puerto Rico, 247 F.3d 288 (1st Cir. 2001), or where the conduct of the
prevailing partys attorneys needlessly consumed the courts time or unnecessarily prolonged the
litigation. See, e.g., Luciano v. Olsten Corp., 109 F.3d 111 (2nd Cir. 1997). The courts
calculation must also take into consideration whether, and how much, time was expended on
non-compensable claims. See, e.g., Gay Officers Action League, supra. Of course, it is
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impossible to consider any additional factors in the instant case because the Plaintiffs have failed
to meet the threshold starting point of submitting evidence supporting the hours worked and
the rates claimed. Id. The fee request should be denied accordingly.
4. Plaintiffs request for a multiplier of 1.5 or 2 for exceptional success, without
any evidence to support the threshold request of a reasonable fee, must be denied due to the
Plaintiffs evidentiary failure. Even if the Plaintiffs established a reasonable attorneys fee, the
Court should not award a multiplier in this case under the jurisprudence that governs the
exceedingly rare award of a multiplier for exceptional success. In support of their request for
what amounts to a double fee, Plaintiffs rely upon Hensley, supra; Nassar v. Jackson, Not
Reported in F.Supp.2d, 2013 WL 1290223 (E.D. Ark. March 28, 2013); and Chrisco v. Sun
Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990).
In Nassar, plaintiffs obtained a jury verdict in their favor on their employment action
against a school district pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C.
1983. 2013 WL 1290223, * 1. The plaintiffs requested an attorneys fee award in line with
the 40% contingency fee agreement between the plaintiffs and their attorneys. Id. at * 3-4. The
plaintiffs submitted copies of their contingency fee agreements to support the request for a fee
award. Id. at * 4. The district court noted that [t]he starting point for determining a reasonable
fee under the federal fee-shifting statutes is the lodestar amount, which is calculated by
multiplying the number of hours reasonably expended by reasonable hourly rates. Id. (Citing
Hensley, 461 U.S. at 437). The court further noted that [a]lthough the lodestar amount normally
produces a reasonable attorneys fee as required under the fee-shifting statutes, in some cases
of exceptional success an enhanced award may be justified. Id. (Citing Hensley). The court
noted that Arkansas courts apply a similar standard to applications for fee awards[.] Id.
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(Citing Ark. Code Ann. 16-22-308). The district court ultimately considered and arrived at
reasonable hourly rates for the attorneys, and hours reasonably expended by those attorneys, and
awarded a total fee larger than the initial lodestar presented by the plaintiffs, but smaller than the
amount that would have constituted the 40% contingency requested by the plaintiffs. Id. at * 5-
7. The Nassar case is distinguishable from the instant case because the plaintiffs have offered no
evidence of any contingency arrangement, and there is no monetary judgment upon which to
base a contingency fee award. The factor that justified an upward adjustment to the lodestar in
Nassar is not present in this case.
In Chrisco, Lowell Chrisco sued Sun Industries for breach of a sales agency contract.
304 Ark. at 228. After opening statements at the jury trial, Sun agreed to pay Chrisco $625,000
and only the issue of attorneys fees remained to be decided by the court. After the jury was
discharged, the trial court heard oral statements from Chriscos counsel on their fee
arrangements, hours, and expenses. The trial court then awarded attorneys fees of $25,000.
Chrisco appealed and asserted that the trial court abused its discretion in awarding an attorneys
fee of only $25,000. Id. Although counsel for Chrisco argue[d] with considerable force that the
trial judge conceded that his original fee allowance was inadequate, the Arkansas Supreme
Court held that [i]n spite of his equivocal remarks, we are persuaded the trial court considered
the pertinent facts in arriving at its award of $25,000. Id. at 230. Notwithstanding the
reservations later expressed, we find under the circumstances that the trial court did not abuse its
discretion in fixing the award. Id. The Chrisco case is not helpful to the Plaintiffs in this case,
and does not support an enhancement of the Plaintiffs fee award. Chrisco confirms that the
Court in this case has broad discretion to deny Plaintiffs request for attorneys fees entirely, or
award an amount substantially smaller than the fees sought by Plaintiffs through their motion.
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Enhancement of the lodestar amount is justified only in the rare case where the fee
applicant offers specific evidence to show that the quality of service rendered was superior to
what one reasonably should expect in light of the hourly rates charged and that the success was
exceptional. Blum v. Stenson, 465 U.S. 886, 899 (1984) (citing Hensley, 461 U.S. at 434)
(Reversing trial court award of 50% upward adjustment of fee award based upon conclusory and
unsupported allegations that the issues were novel, the litigation was complex, and the results
obtained were of far-reaching significance to a large class of people). See also, Perdue v. Kenny
A. ex. rel. Winn, 559 U.S. 542 (2010) (concluding that the circumstances where superior attorney
performance can justify an enhancement in the fee award are indeed rare and exceptional,
and require specific evidence that the lodestar fee would not have been adequate to attract
competent counsel; reversing district courts 75% enhancement of lodestar for attorneys fees
under 1988 as arbitrary) (citing Blum, supra, 465 U.S. at 897); Pennsylvania v. Delaware
Valley Citizens Council for Clean Air, 483 U.S. 711 (1987) (reversing upward adjustment of fee
award and holding that awards may not be adjusted upward based upon perceived risk of losing
the litigation); Bywaters v. U.S., 670 F.3d 1221, 1230 (Fed. Cir. 2012) (Applying the standards
set forth in Hensley and later cases, we find that this case does not present the sort of rare and
exceptional circumstances where the factor of amount involved and results obtained should
be considered as a basis for departure from the lodestar figure.); Van Skike v. Director, Office of
Workers Compensation Programs, 557 F.3d 1041, 1048 (9th Cir. 2009) (Here, as in Blum, the
novelty and complexity of the issues presumably were fully reflected in the number of billable
hours recorded by counsel. Therefore, [n]either complexity nor novelty of issues . . . is an
appropriate factor in determining whether to [adjust] the basic fee award.).
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In this case, Plaintiffs offer no specific evidence that this case presented circumstances so
rare and exceptional that without an upward adjustment in the lodestar amount, the Plaintiffs
would have been unable to attract competent counsel. Any such argument is belied by the fact
that Plaintiffs counsel separately filed suits in both state and federal court before joining
together as counsel in this case, and the separately-filed federal case is ongoing. Any such
argument is further belied by Plaintiffs counsels persistent assertion that at least 18 other
substantively identical cases have been presented to courts since the summer of 2013, and all of
the cases have been decided in favor of plaintiffs. The Plaintiffs request for an enhancement of
the lodestar attorneys fee should be denied.
5. In Love v. Beshear, No. 3:13-CV-750-H, 2014 WL 1922928 (W.D.Ky. May 14,
2014), the Kentucky district court issued a final order on February 26, 2014, declaring that the
Kentucky marriage amendment and Kentucky marriage statutes violate the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution. Id. at * 1. The plaintiffs
moved for attorneys fees based upon an hourly rate of $250, and total hours of 275.54, which
the district court determined to be most certainly reasonable and quite modest. Id. As
required, after considering the plaintiffs proposed hourly rate and number of hours worked, the
district court considered other factors and made adjustments accordingly. The district court
adjusted downward for public relations expenses [that] are not properly included in the
calculation of Plaintiffs attorneys fees[,] and adjusted downward for fees related to the
Intervening Plaintiffs, who have not yet been successful on the merits, [which] are not properly
included. Id. (Citations omitted). After reductions of $3,600 for the amount of fees
attributable to media and public relations, and $2,310 for work attributable to the intervening
plaintiffs, the district court awarded a $10,000 bonus to account for Plaintiffs risk and success
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in this litigation. Id. at * 2. Thus, in a federal case where plaintiffs successfully challenged
state marriage laws, the district court awarded a total of $70,325 in attorneys fees. Id.
Concomitantly with the fee award, the district court ordered that this order is STAYED pending
the resolution of Defendants appeal before the Sixth Circuit Court of Appeals. Id.
In a substantively identical challenge to state marriage laws brought in federal court,
multiple attorneys representing the plaintiffs obtained an attorneys fee award of $70,325,
including a $10,000 bonus, based upon their documented hours worked of 275.54 and an
hourly rate of $250. In this case, the Plaintiffs request an award of $354,605 in attorneys fees,
with a bonus multiplier of 1.5 (to bring the total fee award to $531,907.50) or two (to bring the
total fee award to $709,210). The attorneys fee award requested by the Plaintiffs in this case is
more than ten times the amount awarded in Love v. Beshear. Unlike the plaintiffs in Love v.
Beshear, the Plaintiffs in this case have not provided evidence of the details underlying the hours
worked by Plaintiffs counsel, so the Defendants and the Court cannot even begin to analyze the
fee request as required. In light of the resolution of this issue in Love v. Beshear, a case upon
which the Plaintiffs have relied, Plaintiffs request for over $350,000 in attorneys fees is not
only unreasonable, it is wholly without merit. Plaintiffs request for a multiplier taking the total
award over $500,000 or over $700,000 is likewise wholly without merit. Plaintiffs fee request
should be denied.
6. The Plaintiffs have utterly failed to meet their burden of supporting their fee
request with specific evidence. The Plaintiffs must meet their burden before any fee award can
issue. The State reserves the right to review and respond to any supportive documentation the
Plaintiffs may rely upon, before the Court rules on the fee and cost request. See Ark. R. Civ. P.
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54(e)(3) (On request of a party or class member, the court shall afford an opportunity for
adversary submissions with respect to the motion in accordance with Rule 43(c) or Rule 78.).
7. The Court has the discretion to consider this issue now, or await resolution of the
appeal. See Reporters Notes to Ark. R. Civ. P. 54, Addition, 1997 Amendment (Filing a
motion for fees under subdivision (e) does not affect the finality or appealability of a judgment.
If an appeal on the merits of the case is taken, the court may rule on the claim for fees, defer its
ruling on the motion, or deny the motion without prejudice and direct under paragraph (2) a new
period for filing after the appeal has been resolved.). The State submits that the Court should
dismiss the Plaintiffs motion without prejudice, or hold the motion in abeyance, pending the
resolution of the States appeal. Of course, if the Defendants are successful in their appeal, the
Plaintiffs will not be prevailing parties and will not be entitled to any award of fees and costs.
If the Plaintiffs are only partially successful on appeal, the Court should consider that and reduce
any fee award, supra. By failing to produce any evidence, the Plaintiffs have essentially placed
the attorneys fees issue into abeyance pending the presentation of requisite evidence. The Court
should make it official and announce that this issue will be addressed after the appeal.
8. If the Court hears the Plaintiffs motion for fees and costs before the appeal is
final, any resulting order should be stayed contemporaneously pending the resolution of the
appeal. See, e.g., Love v. Beshear, supra.

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WHEREFORE, the State prays that the Court will dismiss the Plaintiffs motion without
prejudice or hold the motion in abeyance and direct that the Plaintiffs request for fees and costs
will be heard after the appeal has been resolved, that the Court will order the Plaintiffs to provide
evidentiary support for the attorneys fees sought, and allow the Defendants to respond to the
Plaintiffs evidence; and for all other just and appropriate relief.
Respectfully Submitted,


By: /s/ Colin R. J orgensen
Colin R. J orgensen
Ark. Bar #2004078
Assistant Attorney General
323 Center Street, Suite 200
Little Rock, AR 72201
Phone: (501) 682-3997
Fax: (501) 682-2591
Email: colin.jorgensen@arkansasag.gov

Attorney for the State.





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CERTIFICATE OF SERVICE

I, Colin R. J orgensen, Assistant Attorney General, certify that on this 10th day of J une,
2014, I electronically filed the foregoing with the Circuit Court Clerk using the Arkansas
J udiciarys eFlex electronic filing system, which shall provide electronic notification to the
following:

Cheryl K. Maples
ckmaples@aol.com

J ack Wagoner III
jack@wagonerlawfirm.com

Angela Mann
angela@wagonerlawfirm.com

R. Keith Pike
keith@wagonerlawfirm.com

Attorneys for the Plaintiffs


David M. Fuqua
dfuqua@fc-lawyers.com

Attorney for Separate Defendants Pulaski County Clerk Larry Crane and
Saline County Clerk Doug Curtis


J ason E. Owens
owens@rainfirm.com

Attorney for Separate Defendants White County Clerk Cheryl Evans, Lonoke County Clerk
William Larry Clarke, Washington County Clerk Becky Lewallen, and Conway County
Clerk Debbie Hartman




/s/ Colin R. J orgensen


EQCF_130