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N.Y. STATE NAT. ORG. FOR WOMEN v. TERRY

May 31, 1990

NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN; NEW YORK CITY CHAPTER OF THE NATIONAL ORGANIZATION FOR WOMEN; NATIONAL ORGANIZATION FOR WOMEN; RELIGIOUS COALITION FOR ABORTION RIGHTS-NEW YORK METROPOLITAN AREA; NEW YORK STATE NATIONAL ABORTION RIGHTS ACTION LEAGUE, INC.; PLANNED PARENTHOOD OF NEW YORK CITY, INC.; EASTERN WOMEN'S CENTER, INC.; PLANNED PARENTHOOD CLINIC (BRONX); PLANNED PARENTHOOD CLINIC (BROOKLYN); PLANNED PARENTHOOD MARGARET SANGER CLINIC (MANHATTAN); OB-GYN PAVILION; THE CENTER FOR REPRODUCTIVE AND SEXUAL HEALTH; VIP MEDICAL ASSOCIATES; BILL BAIRD INSTITUTE (SUFFOLK); BILL BAIRD INSTITUTE (NASSAU); DR. THOMAS J. MULLIN; BILL BAIRD; REVEREND BEATRICE BLAIR; RABBI DENNIS MATH; REVEREND DONALD MORLAN; AND PRO-CHOICE COALITION, PLAINTIFFS, AND CITY OF NEW YORK, PLAINTIFF-INTERVENOR,
v.
RANDALL TERRY; OPERATION RESCUE; REVEREND JAMES P. LISANTE; THOMAS HERLIHY; JOHN DOE(S) AND JANE DOE(S), THE LAST TWO BEING FICTITIOUS NAMES, THE REAL NAMES OF SAID DEFENDANTS BEING PRESENTLY UNKNOWN TO PLAINTIFFS, SAID FICTITIOUS NAMES BEING INTENDED TO DESIGNATE ORGANIZATIONS OR PERSONS WHO ARE MEMBERS OF DEFENDANT ORGANIZATIONS, AND OTHERS ACTING IN CONCERT WITH ANY OF THE DEFENDANTS WHO ARE ENGAGING IN, OR INTEND TO ENGAGE IN, THE CONDUCT COMPLAINED OF HEREIN, DEFENDANTS.



The opinion of the court was delivered by: Robert J. Ward, District Judge.

      Plaintiffs move for an award of reasonable attorney's fees and costs against defendants pursuant to 42 U.S.C. § 1988 for services rendered in litigating this action from the spring of 1988 through the spring of 1989. In addition, plaintiffs seek attorney's fees and costs against certain defendants and other individuals and organizations acting in concert with those defendants (collectively "respondents") who were adjudged in civil contempt of this Court's orders in an Opinion dated February 27, 1990 (the "February 27 Opinion"), 732 F. Supp. 388. Attorney A. Lawrence Washburn, Jr. ("Washburn") has filed a motion to vacate that portion of the February 27 Opinion which imposed sanctions against him under Rule 11, Fed.R.Civ.P. For the reasons that follow, plaintiffs' motion for an award of attorney's fees and costs against defendants under section 1988 and plaintiffs' application for attorney's fees and costs against the contemnors are granted in part and denied in part. Washburn's motion to vacate the imposition of Rule 11 sanctions is denied.

BACKGROUND

In April 1988, plaintiffs filed suit against defendants claiming violations of 42 U.S.C. § 1985(3) and New York State law. Plaintiffs sought injunctive and declaratory relief to restrain defendants from blocking access to medical facilities providing abortions. On May 4, 1988, this Court issued an order ("the May 4 Order") which enjoined defendants from obstructing ingress into or egress from abortion facilities in the New York City area, and which provided for coercive fines of $25,000 for each day defendants violated the terms of the order. Defendants moved to vacate the May 4 Order for plaintiffs' alleged failure to comply with Rule 65(c), Fed.R.Civ.P. That motion was denied on May 6, 1988. Also on that date, the Court of Appeals denied defendants' application for a stay of the May 4 Order pending appeal.

On May 31, 1988, plaintiffs sought to have defendants adjudged in civil contempt for demonstrations held in violation of the May 4 Order on May 5 and 6, 1988. In an Opinion dated October 27, 1988 ("the October 27 Opinion"), this Court granted plaintiffs' motion, denied defendants' cross-motion to dismiss, and adjudged defendants Randall Terry ("Terry") and Operation Rescue in civil contempt of the May 4 Order for their activities during the May 5 and May 6 demonstrations. 697 F. Supp. 1324, 1338. Accordingly, a judgment was entered by the Court holding Terry and Operation Rescue jointly and severally liable for $50,000.00 in civil contempt sanctions to be paid to plaintiff, National Organization for Women ("N.O.W."). In addition, a judgment was entered in the amount of $19,141.00 in favor of the City of New York for the costs it incurred as a result of defendants' failure to provide advance notice of either demonstration.

On October 7, 1988, plaintiffs moved to modify the Court's prior injunction to cover the dates October 28, 29 and 31, 1988, in response to defendants' publicized plan to conduct a "National Day of Rescue" at the end of October. At the conclusion of an evidentiary hearing conducted on October 25 and 27, 1988, the Court granted plaintiffs' motion and signed an order granting plaintiffs the modified preliminary relief they sought ("the October 27 Order"). Defendants' applications to this Court and to the Court of Appeals for a stay pending appeal of the October 27 Order were denied.

On December 21, 1988, plaintiffs moved for summary judgment and a permanent injunction upon receiving notice of blockades planned by Operation Rescue in the New York City area from January 12 to 14, 1989. These blockades had been organized in express retaliation for this Court's October 27 Opinion. 697 F. Supp. 1324. See Exhibit A, annexed to Affirmation of Mary M. Gundrum, filed December 21, 1988 (Letter from Randall Terry, dated November 16, 1988, urging participation in January blockades of "abortion mills" in the New York City area in order to "face down" this Court). On January 6, 1989, the Court heard oral argument on plaintiffs' motion for summary judgment and defendants' motion to dismiss and, on January 10, 1989, the Court issued a permanent injunction that again enjoined defendants from blocking access to medical facilities offering abortions and included coercive sanctions of $25,000 per day for violations of the order (the "Permanent Injunction"). The Permanent Injunction was modified from the previous orders to provide that each successive violation of the injunction would result in doubling the civil contempt sanction applicable to the contemnor.

On January 20, 1989, the Court issued an opinion granting plaintiffs' motion for summary judgment on their common law trespass claim and on their 42 U.S.C. § 1985(3) federal cause of action and permanently enjoining Operation Rescue and its participants from blocking ingress into and egress from medical facilities providing abortion related services ("the January 20 Opinion").

Defendants appealed from the various orders entered by this Court. The Court of Appeals, in an Opinion dated September 20, 1989, affirmed this Court's rulings which, inter alia, (1) enjoined defendants from blocking access to clinics offering abortions, (2) held Terry and Operation Rescue in contempt for violation of the May 4 Order, and (3) imposed discovery sanctions on defendants. 886 F.2d 1339. The ruling regarding payment of the civil contempt sanctions was modified to provide that the coercive penalties for violations of the orders be payable into Court, not to plaintiff N.O.W. 886 F.2d at 1353. Defendants' petition for certiorari was denied by the Supreme Court on May 21, 1990. ___ U.S. ___, 110 S.Ct. 2206, 109 L.Ed.2d 532.

On June 9, 1989, plaintiffs moved by order to show cause to hold defendants Operation Rescue, Terry, Thomas Herlihy ("Herlihy") and respondents Bistate Operation Rescue Network ("B.O.R.N."), Jesse Lee ("Lee"), Joseph Foreman ("Foreman"), Michael McMonagle ("McMonagle"), Jeff White ("White"), Michael La Penna ("La Penna"), Florence Talluto ("Talluto"), Adelle Nathanson ("A. Nathanson"), Bernard Nathanson ("B. Nathanson") and Robert Pearson ("Pearson") in civil contempt for violating the May 4 Order, the October 27 Order and/or the Permanent Injunction.*fn1 The Court conducted a hearing on August 9, 10, 15 and 16, 1989 to determine factual issues disputed by respondents B. Nathanson, A. Nathanson and Pearson.

On February 27, 1990, the Court issued a decision granting in part and denying in part plaintiffs' motion for contempt. Defendants Randall Terry and Operation Rescue were adjudged in civil contempt of the October 27 Order and Permanent Injunction and assessed coercive civil penalties in the amount of $100,000. Defendant Herlihy was adjudged in civil contempt of the May 4 Order and assessed coercive civil penalties in the amount of $25,000. Respondent B.O.R.N. was adjudged in civil contempt of the October 27 Order and assessed coercive civil penalties in the amount of $25,000. Respondent Lee was adjudged in civil contempt of the May 4 Order, October 27 Order and Permanent Injunction and assessed coercive civil penalties in the amount of $100,000. Respondent Foreman was adjudged in civil contempt of the May 4 Order and Permanent Injunction and assessed coercive civil penalties in the amount of $25,000. Respondents McMonagle and White were adjudged in civil contempt of the Court's Permanent Injunction and each assessed coercive civil penalties in the amount of $25,000. Respondent La Penna was adjudged in civil contempt of the May 4 Order and October 27 Order and assessed coercive civil penalties in the amount of $25,000. Respondent Talluto was adjudged in civil contempt of the October 27 Order and Permanent Injunction and assessed coercive civil penalties in the amount of $50,000. Respondent A. Nathanson was adjudged in civil contempt of the October 27 Order and assessed coercive civil penalties in the amount of $25,000. Respondent Pearson was adjudged in civil contempt of the Permanent Injunction and assessed coercive civil penalties in the amount of $25,000. Respondent B. Nathanson was not adjudged in civil contempt.

The Court held that each of the contemnors was liable to plaintiffs for a pro rata share of the attorney's fees and costs incurred by plaintiffs as a result of bringing the contempt motion against him or her, with the exception of those expenses associated with a renewed cross-motion to dismiss filed by Washburn on behalf of respondents Talluto, La Penna, White and McMonagle. The cross-motion to dismiss was denied and sanctions were imposed under Rule 11 against Washburn for refiling this frivolous motion in contravention of the Court's instructions. Washburn was held liable to plaintiffs for the attorney's fees and costs they incurred as a result of filing their motion for Rule 11 sanctions and responding to his renewed cross-motion to dismiss.

In their motion under section 1988, plaintiffs seek $306,423 in attorney's fees and $4,294.31 in costs. This requested fee award is based on a lodestar amount of $153,211.50 and a multiplier of 2.0. Defendants dispute the applicability of section 1988 to their conduct, take issue with the authenticity and clarity of certain of the time records produced by plaintiffs and argue that a multiplier is inappropriate.

In their application for attorney's fees and costs against the contemnors, plaintiffs seek to recover a total of $121,073.50. Respondents Talluto, La Penna, White and McMonagle argue that attorney's fees may only be awarded under section 1988, not as a consequence of their contempt, and that a fee award under section 1988 is improper in this case. Respondent A. Nathanson argues that she should not be liable for any attorney's fees because she was adjudged in contempt of only one of the two orders which plaintiffs' alleged she had violated. Respondent Pearson joins in this argument. Respondent B. Nathanson claims that he should be awarded his attorney's fees and costs because he was not found in contempt. No other opposition to the fee application has been filed.

Plaintiffs seek $11,712.47 for attorney's fees and costs incurred as a result of Washburn's violation of Rule 11. Washburn, in his motion to vacate the imposition of Rule 11 sanctions, argues that an evidentiary hearing was required before sanctions could be imposed, and challenges certain procedural steps taken by plaintiffs in pursuing their Rule 11 motion.

The Court will first discuss plaintiffs' entitlement to fees under section 1988, the reasonableness of the award they request and defendants' objections to this award. Next, the Court will address the reasonableness of plaintiffs' application for fees against the contemnors, and the objections raised by the contemnors to this fee request. Finally, the Court will consider Washburn's motion to vacate the imposition of Rule 11 sanctions and the reasonableness of the attorney's fees and costs requested by plaintiffs.

DISCUSSION

A. 42 U.S.C. § 1988

Pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, a district court, in its discretion, may award attorney's fees and costs to the prevailing party in any action or proceeding to enforce certain civil rights acts. 42 U.S.C. § 1988.*fn2

1. Entitlement to Fees — Plaintiffs as Prevailing Parties

The statutory language of section 1988 creates a presumption in favor of fee awards, Di Filippo v. Morizio, 759 F.2d 231, 234 (2d Cir. 1985), and a prevailing party is ordinarily entitled to recover fees and costs unless there are special circumstances which would render such an award unjust. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968).

The Supreme Court has recently explained that a party meets the threshold requirement necessary to be considered a prevailing party under section 1988 if he or she succeeds on "any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Texas State Teachers Ass'n. v. Garland Independent School District, 489 U.S. 782, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989) (rejecting the "central issue" test for determining an award of attorney's fees). See also, Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983).

  The touchstone of the prevailing party inquiry
  must be the material alteration of the legal
  relationship of the parties in a manner which
  Congress sought to promote in the fee statute.

Texas State Teachers Ass'n. v. Garland Independent School District, supra, 109 S.Ct. at 1493.

Defendants concede, as they must in light of the numerous legal issues decided in plaintiffs' favor and plaintiffs' success in obtaining a permanent injunction, that "it is clear that the plaintiffs are `prevailing parties' and that defendants are `losing parties.'" Memorandum of Law, filed March 16, 1990 at 6. They argue, however, that special circumstances exist which render a fee award in this case unjust. Specifically, defendants maintain that they are immune from an award of attorney's fees because, as a per se rule, activity in opposition to abortion is exempt from the application of section 1988, and their conduct was motivated by a true desire to oppose abortion. They also argue that they should be treated as civil rights plaintiffs for purposes of the fee shifting analysis.

No case authority has been cited by defendants in support of their position that the civil rights fee shifting statute contains an exemption for cases involving abortion, and the Court rejects this proposed per se ban. See Haskell v. Washington Township, 864 F.2d 1266, 1279 (6th Cir. 1988) (plaintiff entitled to fees under § 1988 in suit challenging zoning ordinances as infringing on right to abortion); Planned Parenthood of Central and Northern Arizona v. Arizona, 789 F.2d 1348, 1351-52 (9th Cir.) (plaintiff awarded fees under § 1988 after successfully challenging restrictions on the use of state funds for abortion-related services), aff'd, 479 U.S. 925, 107 S.Ct. 391, 93 L.Ed.2d 346 (1986); Cf. Diamond v. Charles, 476 U.S. 54, 69-70, 106 S.Ct. 1697, 1707-08, 90 L.Ed.2d 48 (1986) (intervenor lacked standing to contest the merits of a decision enjoining a state statute which attempted to restrict the availability of abortion, despite an award of attorney's fees against him under section 1988); Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 494, 103 S.Ct. 2517, 2526, 76 L.Ed.2d 733 (1983) (judgment of lower court invalidating certain restrictions on abortion affirmed in part and reversed in part, and judgment awarding attorney's fees under section 1988 for all hours expended by plaintiffs' counsel remanded for further proceedings to determine a reasonable fee consistent with the dictates of Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).

Furthermore, the alleged or actual good faith of a defendant in carrying out the conduct which is found to violate the civil rights laws is not sufficient to deny an attorney's fee award. See Hutto v. Finney, 437 U.S. 678, 693, 98 S.Ct. 2565, 2574, 57 L.Ed.2d 522 (1978); Rose v. Heintz, 806 F.2d 389, 391-92 (2d Cir. 1986). Consequently, the strength of defendants' convictions does not immunize them from the civil rights fee shifting statute.

Defendants have not attempted to demonstrate that any of their conduct was intended to further, or did further, the Congressional civil rights policies behind 42 U.S.C. § 1981, 1982, 1983, 1985, or 1986, or Title IX of Public Law 92-318 or Title VI of the Civil Rights Act of 1964. See 42 U.S.C. § 1988. Therefore, defendants are not in a position analogous to losing civil rights plaintiffs, and the more stringent test for awarding fees against unsuccessful plaintiffs suing under the civil rights statutes is completely inapplicable to this case. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) (recovery of fees against an unsuccessful civil rights plaintiff appropriate only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation").

Similarly, defendants' argument against the award of fees finds no support in the Supreme Court's recent decision in Independent Federation of Flight Attendants v. Zipes, supra, 109 S.Ct. at 2732. In Zipes, the Supreme Court held that attorney's fees may be assessed against a blameless intervenor who was not found to be liable to a prevailing plaintiff only if the intervenor's action was "frivolous, unreasonable, or without foundation." Id. at 2736. The majority premised its holding on the need for a connection between liability for violation of federal law and liability for attorney's fees under the federal fee shifting statutes. Id. at 2737. In this case, of course, defendants have been held liable for violations of plaintiffs' civil rights. Thus, they can take no refuge in case law designed to shield from fee shifting those who have not violated the civil rights laws.

In sum, defendants enjoyed no civil or constitutional right to block access to the clinics in violation of the civil rights of plaintiffs. Nor did defendants have any arguable right willfully to disregard the orders of this Court and encourage others to do the same, especially when these orders were narrowly crafted to balance defendants' First Amendment rights with the rights of plaintiffs. See 886 F.2d at 1363-64. Accordingly, the Court finds no special circumstances exist which would render an award of attorney's fees in this case anything but just.

The Court concludes that plaintiffs are prevailing parties under section 1988, entitled to an award of ...


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