The opinion of the court was delivered by: Ward, District Judge.
Plaintiffs have moved for a supplemental award of
attorneys' fees pursuant to 42 U.S.C. § 1988, Fed. R. Civ. P. 54,
and Rule 83.9 of the Local Civil Rules of this Court. For the
reasons hereinafter stated, plaintiffs' motion is granted.
The Court assumes familiarity with the underlying facts
of this case which are fully reported in New York State NOW v.
Terry, 159 F.3d 86 (2d Cir. 1998). However, in order to fully
understand plaintiffs' claims, a brief review of the several
stages of the litigation is necessary.
Plaintiffs brought this action in 1988 seeking
declaratory and injunctive relief to restrain defendants from
blocking access to medical facilities that provide abortions.
The complaint alleged eight separate causes of action: violations
of New York Civil Rights Law § 40-c and New York Executive Law §
296; public nuisance; interference with the business of medical
facilities; trespass; infliction of emotional harm; tortious
harassment; false imprisonment; conspiracy to deny women seeking
abortion or family planning services the equal protection of the
laws and equal privileges and immunities in violation of
42 U.S.C. § 1985 (3).
In 1989, plaintiffs moved for summary judgment on their
§ 1985(3) and New York law claims, and for a permanent injunction
enjoining defendants from blocking abortion clinics. The Court
granted plaintiffs' motion and issued a permanent injunction
which established a schedule of prospective coercive civil
sanctions, payable to plaintiff NOW, in the case of future
violations. See New York State NOW v. Terry, 704 F. Supp. 1247,
1258-64 (S.D.N.Y. 1989). The Second Circuit modified the
sanctions to make them payable to the court rather than to
plaintiff NOW and affirmed. New York State NOW v. Terry,
886 F.2d 1339 (2d Cir. 1989). The Supreme
Court denied certiorari.
New York State NOW v. Terry, 495 U.S. 947 (1990). These
proceedings are referred to in this decision as "Terry I."*fn1
In 1990, the Court ruled that defendants had violated
the permanent injunction as well as a temporary restraining order
and preliminary injunction that had previously been imposed. The
Court adjudged defendants to be in contempt and fined them in
amounts ranging from $25,000 to $100,000. See New York State NOW
v. Terry, 732 F. Supp. 388, 398-409 (S.D.N.Y. 1990). The Second
Circuit affirmed the contempt judgments against all defendants
and all but two non-party respondents and counsel. See New York
State NOW v. Terry, 961 F.2d 390, 401 (2d Cir. 1992). The
Supreme Court granted defendants' petition for certiorari,
vacated, and remanded Terry for reconsideration in light of Bray
v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993). See
Pearson v. Planned Parenthood Margaret Sanger Clinic,
507 U.S. 901 (1993). This stage of the litigation will be referred to as
On remand, the Second Circuit reinstated the contempt
fines, stating that all applications for relief in light of Bray
should be decided in the first instance by the district court.
See New York State NOW v. Terry, 996 F.2d 1351, 1352 (2d Cir.
1993). Another appeal was taken by defendants. The Supreme
Court again granted certiorari and remanded the case, this time
for reconsideration in light of International Union. United Mine
Workers v. Bagwell, 512 U.S. 821 (1994). See Pearson v. Planned
Parenthood Margaret Sanger Clinic, 512 U.S. 1249 (1994). These
proceedings will be referred to as "Terry III."*fn3
The second time the case was remanded to the Second
Circuit, the court vacated the contempt judgments and remanded
the case to the district court for reconsideration in light of
Bray and Bagwell. See New York State NOW v. Terry, 41 F.3d 794,
796-97 (2d Cir. 1994). These events will be referred to
throughout this decision as "Terry IV."
On remand to the district court, plaintiffs moved to
have the Court's original injunction modified to comply with
Bagwell and to have the contempt sanctions reinstated. The Court
granted plaintiffs' motion, the Second Circuit affirmed, and the
Supreme Court denied defendants' petition for certiorari. See
New York State NOW v. Terry, 952 F. Supp. 1033, 1039-1043
(S.D.N.Y. 1997); New York State NOW v. Terry, 159 F.3d 86, 98 (2d
Cir. 1998); Pearson v. Planned Parenthood Margaret Sanger Clinic,
119 S.Ct. 2336 (1999). These proceedings will be referred to as
I. Plaintiffs are Entitled to Attorneys' Fees as Prevailing Parties
The Civil Rights Attorney's Fees Award Act of 1976
provides that "the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney's fee as part of the
costs." 42 U.S.C. § 1988 (b). This provision includes the
discretion to award plaintiffs fees for their attorneys'
successful appellate efforts. Hastings v. Maine-Endwell Cent.
School Dist., 676 F.2d 893, 896-97 (2d Cir. 1982).
While a court's decision to award attorney's fees is discretionary, the
Second Circuit has noted that successful civil rights litigants
should recover reasonable fees unless "special circumstances"
render such an award unjust. DiFilippo v. Morizio, 759 F.2d 231,
234 (2d Cir. 1985) (citing S. Rep. No. 1011, 94th Cong., 2d Sess.
4, reprinted in 1976 U.S. Code Cong. & Ad. News 5908, 5912).
In deciding whether to award attorney's fees, the court
must first determine whether plaintiffs are "prevailing parties."
The Supreme Court has stated that ""plaintiffs may be considered
"prevailing parties' for attorney's fees purposes if they succeed
on any significant issue in litigation which achieves some of the
benefit the parties sought in bringing suit.'" Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe,
581 F.2d 275, 278-279 (1st Cir. 1978))
Furthermore, a plaintiff who is ultimately successful may be able
to recover reasonable attorney's fees for interim stages of the
litigation at which plaintiff did not prevail. Where plaintiff has
obtained relief on the merits, the Second Circuit has stated that
"she should not necessarily be denied fees for hours expended on
interim stages of the case in which a ruling was made in favor of the
party against whom she ultimately prevailed." Gierlinger v. Gleason,
160 F.3d 858, 880 (2d Cir. 1998). In such a case, the Court of Appeals has
suggested, "the proper inquiry is not whether [plaintiff's]
efforts on appeal itself were successful, but rather whether, in
light of the circumstances of the litigation as a whole, those
efforts were reasonable." Id. at 880.
A. Plaintiffs are Prevailing Parties with Respect to the the Litigation
of this Court's Initial Fee Award
This Court has already found plaintiffs to be prevailing parties on
their underlying § 1985 claims and has previously awarded them
attorneys' fees for the costs they incurred in Terry I. See NOW v.
Terry, 737 F. Supp. 1350, 1367 (S.D.N.Y. 1990). Plaintiffs now seek
additional attorneys' fees for the ...