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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,
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
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
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
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
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
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
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.
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
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
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
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 ...