Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 1 of 18 PAGEID #: 6256

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION TRACIE HUNTER, et al., Plaintiffs, vs. HAMILTON COUNTY BOARD OF ELECTIONS, et al. Defendants. : : : : : : : : : : : Case No. 1:10-cv-820

Chief Judge Susan J. Dlott

PLAINTIFFS HUNTER, NEOCH AND ODPS MOTION FOR ATTORNEY FEES AND MEMORADUM IN SUPPORT

MOTION Plaintiffs Hunter, NEOCH and the Ohio Democratic Party, pursuant to Local Rule 54.2 and 42 U.S.C. 1988, move for an award of $1,434,424 $for reasonable attorneys fees and $30,737.82 in expenses for a grand total of $1,465,161.80 for the work done on all claims in this case. All Plaintiffs and their attorneys worked on the Hunter claims; in addition, NEOCH and ODP worked on the NEOCH claims. This Court entered judgment1 against Defendant Board of Elections on all Plaintiffs claims. (Judgment and Order Doc. 199). Plaintiffs therefore are prevailing parties and as such are entitled to reasonable attorney fees and expenses. The amounts are explained in detail in the memorandum below and in the attached declarations and exhibits. Plaintiffs submit this

request for most work done through April 5, 2012.2 Since the case has not been finally

Although no judgment has been entered pursuant to Fed. R. Civ. Proc. 58, Plaintiffs are treating the Courts Order and Judgment as a trigger for filing this motion pursuant to Local Rule 54.2. 2 Fees and expenses requested in this interim petition for Mr. McTigue, Mr. McGinnis and Mr. Colombo are only through February 14, 2012. Additional hours and expenses have been incurred since February 14, 2012 but will be submitted in a subsequent petition. The fees and expenses for Mr. Chandra are through April 18, 2012.

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 2 of 18 PAGEID #: 6257

resolved, Plaintiffs will supplement their requests for attorney fees for the fees expended in further litigation, including the appeals. MEMORANDUM IN SUPPORT I. Introduction Plaintiffs are prevailing parties in this Section 1983 action. Attorney fees and costs are authorized pursuant to 42 U.S.C. 1988, which provides that the Court may award a reasonable attorneys fee to prevailing parties as part of costs. Hensley v. Eckerhart 461 U.S. 424, 103 S.Ct. 1933 (1983) (The standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of fees to a prevailing party.). For the reasons set forth more fully below, Plaintiffs respectfully submit that the hours expended in this case were reasonable given the difficulty of the case and the importance of the issues. The hourly rates requested by each attorney and staff member are reasonable given their background and experience. Finally, Plaintiffs seek a multiplier, or enhancement, of 1.75 of the lodestar fee amount because Plaintiffs achieved exceptional success and is necessary to determine a reasonable fee in this case. II. Standard For Awarding Attorney Fees The criteria for the award of attorneys fees are set forth in Blum v. Stevenson, 465 U.S. 886, 104 S.Ct. 1541 (1984), Hensley v. Eckerhart 461 U.S. 424, 103 S.Ct. 1933 (1983), City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2368 (1992), and Northcross v. Bd. of Ed. of Memphis School District, 611 F.2d 624 (6th Cir. 1979), cert. denied, 447 U.S. 911 (1980). Once a plaintiff crosses the statutory threshold and is found to be a prevailing party, the plaintiff is entitled to recover attorneys fees for all time reasonably spent on a matter. Northcross, 611 F.2d at 636.

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 3 of 18 PAGEID #: 6258

The Sixth Circuit accords considerable deference to a district court's determination of whether a plaintiff is a prevailing party because the district court has a ring-side view of the underlying proceedings. McQueary v. Conway, 614 F.3d 591, 604 (6th Cir.2010), petition for cert. filed, No. 10569 (U.S. Oct. 27, 2010). A plaintiff prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff. Farrar v. Hobby, 506 U.S. 103, 11112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). The Supreme Court in Farrar went on to clarify that [n]o material alteration of the legal relationship between the parties occurs until the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendant. Id. at 113; see also DiLaura v. Twp. of Ann Arbor, 471 F.3d 666, 670 (6th Cir.2007) (quoting Farrar ). Perrea v. Cincinnati Pub. Sch., 1:08-CV-352, 2010 WL 4683990 *4 (S.D. Ohio Nov. 10, 2010) (although no separate injunction was issued, the Court prohibited defendant from racial balancing staff employment decisions and thus plaintiff was a prevailing party). In the case at bar, the Court entered judgment for Plaintiff against the Defendant Board of Elections after a lengthy trial and multiple appeals. The Courts order altered the legal relationship between Plaintiffs (Hunter, NEOCH and ODP) and the Board of Elections. Plaintiff Hunter succeeded in obtaining a judgment and injunction prohibiting the Board of Elections from rejection a large number of provisional ballots and ordering the Board to count those ballots. The number of ballots ordered not to be rejected and ordered to be counted is approximately 300. This order is sufficient to change Ms. Hunters legal relationship with the Board of Elections. For these reasons, Plaintiff Hunter is a prevailing party and is entitled to seek compensation for the hours spent on the entire litigation. Defendants may argue that Hunter did not obtain all the relief she sought or prevail on all her claims. This argument does not change the fact that Hunter is a prevailing party since judgment was entered for Plaintiff. See Perrea v. Cincinnati Pub. Sch., 2010 WL 4683990 *5. Hunter raised both equal protection and due process claims. 3

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 4 of 18 PAGEID #: 6259

The Court entered an order granting a remedy only on the equal protection claims. As a remedy, Plaintiff Hunter sought an order prohibiting the Board from rejecting 690 ballots and ordering the Board to count these ballots. (List of Ballots to Be Counted Doc. 182). This Court ordered approximately 300 ballots be counted, including all ballots cast at the right location but the wrong precinct. The Court enjoined the Board from rejecting otherwise valid provisional ballots that were cast in the correct location but the wrong precinct and 16 other ballots. The Court further ordered the Board to include these ballots in the recount. Judgment and Order p. 92-93. Even though Plaintiff Hunter did not succeed in obtaining an injunction on all 690 ballots or a remedy with regard to the due process claims, when successful and unsuccessful claims are related the hours spent on the unsuccessful claims are compensable. [S]uccessful and unsuccessful claims are deemed related when they involve a common core of facts are based on related legal theories or when counsel's time is devoted generally to the litigation as a whole, making it difficult to divide the hours expended. Hensley, 461 U.S. at 433, 103 S.Ct. 1933, 76 L.Ed.2d 40. Barnes v. City of Cincinnati, 401 F.3d 729, 745 (6th Cir. 2005) (affirming district courts finding that successful employment discrimination claims and unsuccessful claims were related). The district court may focus on the plaintiff's overall success where the claims are related and not examine the plaintiff's success on a strict claim-by-claim basis. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 555 (6th Cir.2008) (citing DiLaura, 471 F.3d at 673). Perrea v. Cincinnati Pub. Sch., 2010 WL 4683990 *7. When a party wins her case on only one of her four claims, she is still entitled to receive 100% of the fee award in light of the overall relief obtained. Phelan v. Bell, 8 F. 3d 369 (6th Cir. 1993).

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 5 of 18 PAGEID #: 6260

In the case at bar, Plaintiff Hunters equal protection and due process claims involved a common core of facts: evidence of poll worker error, evidence of the chaotic voting process, evidence of the absence of voter error, evidence of Ohios precinct voting, and evidence of how provisional ballots were counted by the Board of Elections, were all necessary to prove both the equal protection claim and the due process claim. In addition, the vast majority of Plaintiffs counsels time was devoted to the litigation as a whole and was not divided into equal protection time or due process time. For all these reasons, all of Plaintiff Hunters counsels time should be compensated. Plaintiffs NEOCH and ODP are also prevailing parties. They brought claims seeking an order for Defendants to comply with the terms of the Consent Decree entered in Northeast Ohio Coalition for the Homeless v. Ohio Secretary of State, Case No. 06-CV896 (S.D. Ohio) (Marbley, J.) (hereinafter, the NEOCH Consent Decree). Amended Complaint Doc. 180. This Court found Defendant violated the NEOCH Consent Decree and ordered the Board to count the fifteen NEOCH ballots cast in the right location, wrong precinct and to investigate the ten NEOCH ballots that lacked complete affirmation statements. Judgment and Order pp. 81, 92. Thus, NEOCH and ODP are prevailing parties and are entitled to attorney fees and expenses.

III.

The Hours Expended By Plaintiffs Counsel Were Reasonable The Supreme Court has recognized the method for calculating an appropriate

award of attorney's fees is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Hensley at 433. This is known as the Lodestar calculation. Northcross clearly sets forth the procedure for calculating the number of hours reasonably expended. Northcross, 611 F.2d at 636-637. The Court should indicate on the record the number of hours it finds the prevailing partys attorneys have expended

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 6 of 18 PAGEID #: 6261

on the case. This finding must first take into account the affidavits of counsel. The hours claimed need not be automatically accepted by the court, but to the extent that hours are rejected, the court must indicate some reason for its action. Hours may be cut for duplication, padding or frivolous claims. If a court decides to eliminate hours of service adequately documented by the attorneys, it must identify those hours and articulate its reasons for their elimination. See Northcross, supra. Time spent for litigating the fee issue should also be included in the award. See Weisenberger v. Huecker, 593 F.2d 49 (6th Cir. 1979). The time spent on this action is reasonable: The question is not whether a party prevailed on a particular motion or whether in hindsight the time expenditure was strictly necessary to obtain the relief achieved. Rather, the standard is whether a reasonable attorney would have believed the work to be reasonably expended in pursuit of success at the point in time when the work was performed. Wooldridge v. Marlene Industries Corp., 898 F.2d 1169, 1177 (6th Cir. 1990). Under this test, all hours expended in this action by all Plaintiffs attorneys were reasonable. On behalf of Plaintiff Hunter Ms. Branch was the attorney primarily responsible for investigating and researching the causes of action; researching and drafting the pleadings including the four appeals filed prior to trial; researching and drafting pleadings in the companion case of State ex rel. Painter v. Brunner, 128 Ohio St. 3d 17, 29, 33 (2011); conducting discovery, developing the facts, and identifying witnesses for trial; creating thousands of pages of trial exhibits in paper and electronic format; examining most of the 70 witnesses during the twelve day trial; summarizing the trial evidence during and after trial, including 2,739 pages of testimony; calculating the ballots to be counted; drafting post-trial briefs; and supervising the paralegals and law clerks at

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 7 of 18 PAGEID #: 6262

Gerhardstein & Branch. Ms. Branch was assisted in all this work, especially during trial, by co-counsel Al Gerhardstein, Gerhardstein & Branch staff, and by attorneys and staff for NEOCH and ODP. Attorneys for NEOCH were indispensible to Plaintiff Hunter in helping with the examination of witnesses at trial, summarizing the trial evidence during trial, drafting and editing pleadings, and strategizing on the case. The lead attorneys in this case have considerable background, experience, and skill in representing plaintiffs in civil rights cases in federal court. (See Branch Declaration (Ex. A), Gentry Declaration (Ex. B), McTigue Declaration (Ex. C) and Chandra Declaration (Ex. D)). Based on the attorneys background, experience and skill, the hours requested in the fee application have been necessarily expended. The fees requested comport with and are reasonable in light of the factors contained in Ohio Rules of Professional Conduct 1.5 insofar as they accurately reflect the time and labor required in the prosecution of this matter, the difficulty of the questions involved, the skill required to perform the work properly, comport with the fees customarily charged by others for similar legal services, and are appropriate in light of the results obtained. IV. Calculation of Fees Under 42 U.S.C. 1988 The first step in determining a reasonable fee is to determine the hourly rate to be used. The Supreme Court held that attorneys fees are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel. Blum v. Stevenson, 465 U.S. 886, 895, 104 S.Ct. 1541 (1984). To arrive at a reasonable hourly rate, courts use as a guideline the prevailing market rate, defined as the rate that lawyers of comparable skill and experience

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 8 of 18 PAGEID #: 6263

can reasonably expect to command within the venue of the court of record. Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir.2004). In determining the reasonable rate, the Court has the discretionary authority to consider a party's submissions, awards in analogous cases, and its own knowledge and experience from handling similar requests for fees. Project Vote, 2009 U.S. Dist. LEXIS 34571, at *5 (citing Johnson v. Connecticut Gen. Life Ins. Co. 2008 LEXIS 24026, at * 14 (N.D.Ohio Mar. 13, 2008)). Ne. Coal. for Homeless v. Brunner, 2:06-CV-896, 2010 WL 4939946 *7 (S.D. Ohio Nov. 30, 2010). The hourly rates requested by Plaintiffs meet this standard. Plaintiff Hunter requests an award of fees based on hourly rates of $400 for Alphonse Gerhardstein and $300 for Jennifer Branch. Ms. Branch and Mr. Gerhardstein have settled cases or been awarded fees at these rates since 2007. B.H. v. West Clermont Local School District, S.D.OH Case No. 1:06-cv-113 (Doc. 35, 43); Meyer v. McNichols, S.D.OH Case No. 2:07-cv-1253 (Doc. 65, 73, 74); Fredericks v. Potter, S.D.OH Case No. 1:06-cv-113 (Doc. 123). See also, Branch Declaration. NEOCHs and ODPs attorneys rates are: Name Subodh Chandra Donald McTigue Mark McGinnis J. Corey Colombo Caroline Gentry Brad Hughes Paul Hallinan Dan Miller Eric Gallon Sara Cooperrider Sheena Little Hourly Rate $400.003 410.00 $400.00 $250.00 $250.00 $330.00 $315.00 $390.00 $240.00 $335.00 $195.00 $220.00

The rates for the NEOCH attorneys are comparable to the rates of attorneys with

Mr. Chandras rate for 2010 is $400 per hour, for 2011 is $410 and for 2012 ins $425; however his hours from January 1, 2012 through April 18, 2012 are being billed at the 2011 rate of $410 per hour. All attorneys rates increased in 2012 but no attorney is requesting fees submitted with this interim petition at their 2012 rates. The attorneys may bill any future work on the case at their 2012 (or later year) rate.

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 9 of 18 PAGEID #: 6264

similar background, experience and skill. See Gentry Declaration, McTigue Declaration, and Chandra Declaration. Many of NEOCHs attorneys have been awarded fees in other cases at these rates, including in Ne. Coal. for Homeless v. Brunner, 2:06-CV-896, 2010 WL 4939946 (S.D. Ohio Nov. 30, 2010). The Southern District of Ohio still utilizes Judge Rubins 1983 committees determination of reasonable attorney fee rates for the Southern District, adjusted for cost of living at 4% per year.4 See Fredericks v. Potter, Case No. 1:06-CV-113, Doc. 123 (S.D. OH 2009), Lee v. Javitch, Block & Rathbone LLP, 568 F.Supp. 2d. 870 (S.D. Ohio 2008) (C.J. Beckwith) (merits decision later reversed); Kindel v. Continental Casualty Co., 2005 WL 1241975 (S.D. Ohio 2005) (C.J. Beckwith). Under Judge Rubins rubric, on average, all the attorneys rates are comparable except Branch, whose rate is low. The chart below summarizes the current rates compared to Judge Rubins rubric using 1983 rates calculated for 2011 and 2012 rates. (Branch Declaration). Name Al Gerhardstein Jennifer Branch Donald McTigue Mark McGinnis J. Corey Colombo Subodh Chandra Caroline Gentry Brad Hughes Paul Hallinan Dan Miller Eric Gallon Sara Cooperrider Sheena Little
4

Hourly Year Years in Rubin Rate Rubin Rate Rate Admitted Practice as of 2011 as of 2012 $400 1976 35 383.74 399.14 $300 1987 24 383.74 399.14 $400 1979 32 383.74 399.14 $250 2003 8 288.21 299.77 $250 2000 12 339.16 352.77 5 $410 1995 17 339.16 352.77 $400 $330 1996 15 339.16 352.77 $315 1999 12 339.16 352.77 $390 1980 31 383.74 399.14 $240 2006 5 247.60 257.54 $335 1999 12 339.16 352.77 $195 2010 1 184.69 192.10 $220 2008 3 214.14 222.74

Counsel is unaware of any District Court Chief Judge conducting a rate survey since Chief Judge Rubin commissioned the survey in 1983. 5 Mr. Chandra was admitted to practice in New Mexico in 1995 and admitted in Ohio in 1998.

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 10 of 18 PAGEID #: 6265

Paralegals Law clerk

$80-120 $75

113.35 71.64

117.90 74.52

In addition, the market rates in the Cincinnati market are comparable to the rates being charged by Plaintiffs attorneys. Other Cincinnati litigators with similar years of experience as the lead attorneys in this case bill at higher rates: Attorney Name (date of admission) David Altman (1974) David M. Cook ( 1978) Jim Helmer (1975) Paul Martin (1979) Frederick Morgan, Jr. (1983) Julie Popham (1992) Jennifer Verkamp (1996) Awarded rate (year of award) $390 (2004) 6 $450 (2008)7 $420 (2004)8 $498 (2010)9 $375 (2004) 10 $500 (2010) 11 $425 (2010) 12 $450 (2010) 13

These Cincinnati market rates are higher than the rates Plaintiffs request in this case. For additional comparison of court awarded Cincinnati market rates. See West. v. AK Steel Corp. Ret. Accumulation Pension Plan, 657 F. Supp. 2d 914, 934 (S.D. Ohio 2009) (approving experienced counsel rates for $351 to $497 in an ERISA case). In West the Court relied on both Judge Rubins survey, increased over time at 4% a year, the experience of counsel, the result obtained, and prior awards to counsel with the addition of a 4% per year increase. Finally, Courts have awarded fees to Mr. McTigue at $400 per hour and Mr.

Opinion and Order awarding fees (Judge Spiegel Aug. 23, 2005) in Unites States of America v. Sierra Club, Case No. C-1-02-107 and affidavit of Helmer in support thereof (Aug. 6, 2004). 7 Bailey v. AK Steel Corp., 2008 WL 553764 (S.D. OH 2008). 8 Opinion and Order awarding fees (Judge Spiegel Aug. 23, 2005) in Unites States of America v. Sierra Club, Case No. C-1-02-107 and affidavit of Helmer in support thereof (Aug. 6, 2004). 9 U.S. ex rel. Ellison v. Visiting Physicians Association, P.C. 2010 WL 2854137(S.D. OH 2010). 10 Doc. 177, Order granting fees (Judge Black June 1, 2004) in Estate of Roger Owensby, Jr. v. City of Cincinnati (and Doc. 133, Declaration of Paul Martins in support thereof). 11 U.S. ex rel. Ellison v. Visiting Physicians Association, P.C. 2010 WL 2854137(S.D. OH 2010). 12 U.S. ex rel. Ellison v. Visiting Physicians Association, P.C. 2010 WL 2854137(S.D. OH 2010). 13 U.S. ex rel. Ellison v. Visiting Physicians Association, P.C. 2010 WL 2854137(S.D. OH 2010).

10

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 11 of 18 PAGEID #: 6266

McGinnis at $250 per hour. Project Vote v. Blackwell, 1:06-cv-1628, 2009 WL 917737 *17. Courts in the Southern District of Ohio have awarded Mr. Chandra rates of $395 (for work performed in 2006-2007) and $400 (for work performed in 2010). Courts in the Northern District of Ohio have awarded Mr. Chandra $400 per hour. See Chandra Declaration 9. In addition, Mr. Chandra has been paid $400 per hour by his clients who pay hourly. Id. Based on all of these indicia, the hourly rates of Plaintiffs counsel are reasonable. V. A Multiplier is Appropriate in this Case A reasonable attorney fee is one that is adequate to attract competent counsel, but [that does] not produce windfalls to attorneys Blum v. Stenson, 465 U.S. 886, 897 (1984), (citation to legislative history omitted). Multipliers, or enhancements to the Lodestar calculation, are permissible in some cases of exceptional success. Blum at 897. An upward adjustment may be awarded in the rare case where the fee application offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was exceptional. Blum at 899. Multipliers are admitted rare and only exceptional cases are suitable for upward adjustment. See Barnes v. City of Cincinnati, 401 F.3d 729, 746 (6th Cir. 2005) (affirming this Courts award of 1.75 multiplier in a transgendered discrimination case few lawyers would have taken and the immense skill requisite to conducting the case properly); Geier v. Sundquist, 372 F.3d 784, 792-796 (6th Cir. 2004) (permitting upward adjustment because desegregation case was pathbreaking and of great social import,); see also Brotherton v. Cleveland, 141 F.Supp.2d 907, 913 (S.D. Ohio 2001) (awarding 1.50 adjustment for solo practitioner who took an unpopular case others turned down,

11

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 12 of 18 PAGEID #: 6267

achieved exceptional results, and brought to light a novel cause of action); Meredith v. Jefferson County Bd. of Educ., No. 3:02-cv-620-H, 2007 WL 3342282, *12-13 (W.D.Ky. 2007) (awarding 1.75 multiplier in undesirable and difficult discrimination case where counsel was vilified and suffered adverse public and personal criticism and succeeded more upon a conviction than skill). The Sixth Circuit has endorsed the Johnsons list of 1214 approach in assessing enhancements and reasonable attorney fees. Barnes, 401 F. 3d at 745-746; Paschal v. Flagstar Bank, 297 F.3d 431 (6th Cir. 2002), cert denied 2003 WL 398361 (2/24/03), relying on Blanchard v. Bergeron, 489 U.S. 87, 93, 109 S.Ct. 939 (1989). The 12 factors to be considered in assessing the reasonableness of an award of attorneys fees are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (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. Barnes, 401 F. 3d at 745-746. The district court may apply the Johnson factors during its initial calculation of the fee award and/or when the court is considering a request for an enhancement. Paschal at 435. In Paschal, the Sixth Circuit upheld the district courts 1.50 enhancement because: [The trial attorneys] did an excellent job at trial in proving to the jury the merits of the [plaintiffs] claims of discriminatory treatment in an area (residential mortgage lending) where discriminatory treatment is often difficult to prove. The marshaling of evidence was an arduous and time consuming task. Moreover, the hourly rates on which the "lodestar" amount is computed are comparatively modest in light of prevailing rates in this area, and not out of line with those awarded in similar cases.
14

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717019 (5th Cir. 1974).

12

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 13 of 18 PAGEID #: 6268

Paschal at 435-436. The Sixth Circuit held these were all proper reasons for awarding a 1.50 enhancement. Id. at 436. In Barnes, the Sixth Circuit approved a multiplier because the district court provided a clear and concise explanation for its decision that the multiplier was appropriate because of the novelty and difficulty of the question in the case, the immense skill and requisite to conducting the case properly, the result achieved was extraordinary, the case was highly controversial and because of testimony that few lawyers would have locally or nationally taken such a case. Barnes, 401 F. 3d at 746. Plaintiffs counsel seek a multiplier for several reasons. First, the novelty and difficult of the equal protection question in the case, coupled with the results obtained justify an enhancement so that counsel are reasonably compensated. Hunters attorneys identified an equal protection problem while attending the Board of Elections meeting where provisional ballots were being decided. Counsel even asked the Board about the unequal treatment at the meeting but was disregarded. In light of your ruling just now on the pollworker errors for the people that voted here at the Board, wouldn't that same logic hold true for the prior batch of the 849 people? If they cast their vote because of pollworker error in the wrong precinct, shouldn't they also have their votes counted? Id. at 46. Hunter's counsel asked whether it was possible to separate out those ballots of the 849 that were cast at the right location but wrong precinct and to decide whether there was pollworker error with respect to those ballots. Id. at 46-47. Hunter v. Hamilton County Bd. of Elections, 635 F.3d 219, 225 (6th Cir. 2011) (citing to R.1-3 (Nov. 16, 2010 Board Meeting Tr.). On the evening of Friday, November 19, 2010 the Board counted the provisional ballots and announced Mr. Williams lead shrunk from 2,847 votes to only 23. Complaint, Doc. 1 9-10. On Sunday night, November 21, 2010, counsel researched the law, drafted pleadings, and filed this case, obtaining a preliminary injunction the next day after a three hour hearing. After three appeals failed

13

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 14 of 18 PAGEID #: 6269

to overturn the injunction and one appeal failed to delay the trial, a 12 day trial took place over three weeks in July and August 2011. Plaintiff Hunter succeeded at trial, securing a judgment against defendants and injunctive relief requiring the Board of Elections to count approximately 300 provisional ballots that had originally rejected on November 16, 2010. This result was extraordinary, given the fact that Plaintiff could find no other election case where such relief was granted. Furthermore, the commentary about the District Court and Court of Appeals decisions has touted the results as significant extending the jurisprudence of equal protection law in elections beyond Bush v. Gore.15 For these reasons alone, a multiplier is requested. Additional factors support the need for a multiplier. Hunters counsel are Ms. Branch and Mr. Gerhardstein who practice in a small firm with one additional associate (who was hired during the litigation in March 2011). The time and labor required to litigate this case, the time limitations imposed by the court, the circumstances of the election deadlines, and the preclusion of other employment by Ms. Branch due to the work on this case also support an enhancement. During the first three months of the case, Ms. Branch worked 36% of her total time at the firm on just this case for a total of 282 hours. During the summer June through September 7, she worked 70% of her total time at the firm on this case, for a total of 692 hours. Because of the need to devote so many hours to one case unexpectedly, Ms. Branch was not able to take on as many new clients from December 2010 through August 2011. This had an impact on the firms ability to represent clients. Additionally, these hours show that a significant amount of time was spent on the case in a rather short period of time.

15

See selected commentary attached as Ex. E.

14

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 15 of 18 PAGEID #: 6270

Finally, a 1.75 multiplier is reasonable given awards in other cases; Barnes, 401 F. 3d at 745-746 (1.75 multiplier awarded in employment discrimination case); Brotherton, 141 F.Supp.2d at 913 (1.5 multiplier awarded in civil rights class action due in part to counsels having compelling facts but scant case-law to rely on); Guam Soc. of Obstetricians & Gynecologists v. Ada, 100 F.3d 691, (9th Cir. 1996) cert. denied, 522 U.S. 949 (1997) (2.0 multiplier awarded because of the extreme undesirability of the case, the likelihood that no other attorney on Guam would take the case, and the rare and exceptional nature of the case (constitutional challenge to Guam anti-abortion legislation)); Paschal, 297 F.3d at 436 (1.5 multiplier in discrimination case awarded due to inherent difficulty in marshaling evidence and proving claims); Hyatt v. Appel, 195 F.3d 188, 192 (4th Cir. 1999) (1.33 multiplier awarded for exceptional result for court order stopping the Social Security Administration from enforcing unlawful policies, and because plaintiffs counsel faced monumental rsistance and bad faith from the government in an extensive and procedurally tortured case); Vassalle v. Midland Funding, LLC, 3:11 CV 96, 2011 WL 3557045 (N.D. Ohio Aug. 12, 2011) (1.75 multiplier awarded because of substantial risk in taking the case on a contingency fee basis, and establishment of groundbreaking legal precedent for low-income debtors); In re Countrywide Fin. Corp. Customer Data Sec. Breach Litig., 3:08-MD-01998, 2010 WL 3341200 (W.D. Ky. Aug. 23, 2010) (1.20 multiplier applied due to complexity of the case, and recovery achieved for the class); Mikaloff v. Walsh, 5:06-cv-96, 2009 WL 901860 *14 (N.D. OH 2009) (multiplier of 1.25 awarded in civil rights case for establishing an important precedent on the constitutionality of sex-offender residency laws. . . .); Meredith v. Jefferson County Bd. of Educ., No. 3:02-cv-620-H, 2007 WL

15

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 16 of 18 PAGEID #: 6271

3342282 at *4 (W.D. Ky. 2007) (awarding 1.75 multiplier in school discrimination case); James v. Frank, 772 F.Supp. 984, 1003 (S.D. Ohio 1991) (multiplier of 2 awarded in employment discrimination case); McDaniel and Kammer v. City of Cincinnati, U.S.D.C. No 99-CV-325 (Doc. 53) (1.6 multiplier awarded for extraordinary result in employment discrimination case). Therefore, Plaintiffs respectfully request that the award of attorney fees be increased by 1.75. FEES REQUESTED WITH MULTIPLIER OF 1.75 Hours Hourly Rate Alphonse A. Gerhardstein Jennifer L. Branch G&B Associate G&B Law Graduate G&B Paralegals16 G&B Paralegal G&B Law Clerks Donald McTigue Mark McGinnis J. Corey Colombo Subodh Chandra (2010) Subodh Chandra (2011 & 2012) Caroline Gentry Brad Hughes Paul Hallinan Dan Miller Eric Gallon Sara Cooperrider Sheena Little Porter Wright Paralegal Elizabeth O'Connor TOTAL 301.79 931.55 28.60 7.50 78.90 129.20 326.12 102.60 60.00 6 6 16.50 283.00 308.50 5.0 31 127.75 298.50 4.25 14.25 $400 $300 $175 $130 $80 $95 $75 $400 $250 $250 $400 $410 $330 $315 $390 $240 $335 $195 $220 $120 Lodestar Lodestar plus 1.75 Multiplier 211,253 489,063 8,758 1,706 11,046 21,479 42,803 71,820 26,250 2,625 4,200 11,838 163,432 170,336 3,412 13,020 74,893 101,862 1,636 2,992 $1,434,424

120,716 279,465 5,005 975 6,312 12,274 24,459 41,040 15,000 1,500 2,400 6,765 93,390 97,335 1,950 7,440 42,796 58,207 935 1,710 $819,674

16

Includes entries for paralegal Sydney Emrick and Paralegal I.

16

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 17 of 18 PAGEID #: 6272

VI.

Litigation Costs Plaintiffs are entitled to an award of costs for expenses that would normally be

billed to fee-paying clients. This includes filing fees, long distance phone, copy costs, deposition and transcript costs. Northcross, 611 F.2d at 639. Plaintiffs itemized costs are shown on Attachment 3 to the Branch Declaration, and contained in the Gentry Declaration, the McTigue Declaration, and the Chandra Declaration. Plaintiff Hunter has incurred a total of $14,471.35 related to the case. (Declaration of Branch). Plaintiff NEOCH has incurred a total of $15,796.83 related to the case. (Declarations of Gentry and Chandra). Plaintiff ODP has incurred a total of $469.64 related to the case. (Declaration of McTigue). Therefore, Plaintiffs seek a total of $30,737.82 in expenses through the date indicated on the billing statements. CONCLUSION Plaintiffs should be awarded attorney fees in the amount of $1,434,424 pursuant to 42 U.S.C. 1988. Plaintiffs should be awarded their expenses in the amount of $30,737.82 for a grand total of $1,465,161.80.

Respectfully submitted, /s/ Jennifer L. Branch Jennifer L. Branch, Trial Attorney (0038893) Alphonse A. Gerhardstein (0032053) GERHARDSTEIN & BRANCH CO. LPA 432 Walnut Street, Suite 400 Cincinnati, OH 45202 (513) 621-9100 Fax: (513) 345-5543 jbranch@gbfirm.com agerhardstein@gbfirm.com Attorneys for Plaintiff Tracie Hunter /s/ Caroline H. Gentry Caroline H. Gentry, Trial Attorney (0066138) PORTER, WRIGHT, MORRIS & ARTHUR LLP One South Main Street, Suite 1600 Dayton, OH 45402 (937) 449-6748 Fax: (937) 449-6820 cgentry@porterwright.com Lawrence Bradfield Hughes (0070997) Eric Benjamin Gallon (0071465)

17

Case: 1:10-cv-00820-SJD Doc #: 210 Filed: 04/18/12 Page: 18 of 18 PAGEID #: 6273

/s/ Donald J. McTigue Donald J. McTigue, Trial Attorney (0022849) Mark A. McGinnis (0076275) MCTIGUE LAW GROUP 550 East Walnut Street Columbus, OH 43215 (614) 263-7000 Fax: (614) 263-7078 mctiguelaw@rrohio.com Attorneys for Intervenor Ohio Democratic Party

PORTER, WRIGHT, MORRIS & ARTHUR LLP 41 S High Street, Suite 2800 Columbus, OH 43215-6194 Mr. Hughes: (614) 227-2053 Mr. Gallon: (614) 227-2190 Fax: (614) 227-2100 bhughes@porterwright.com egallon@porterwright.com Subodh Chandra (0069233) THE CHANDRA LAW FIRM, LLC 1265 W. 6th Street, Suite 400 Cleveland, OH 44113-1326 (216) 578-1700 Fax: (216) 578-1800 Subodh.Chandra@StanfordAlumni.org Attorneys for Intervenor Northeast Ohio Coalition for the Homeless

CERTIFICATE OF SERVICE I hereby certify that on April 18, 2012, a copy of the foregoing pleading was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Courts electronic filing system. Parties may access this filing through the Courts system. I further certify that a copy of the foregoing pleading and the Notice of Electronic Filing has been served by ordinary U.S. mail upon all parties for whom counsel has not yet entered an appearance electronically. /s/ Jennifer L. Branch

18