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NEW YORK STATE NATL. ORGN. FOR WOMEN v. TERRY

April 26, 2000

NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN, ET AL., PLAINTIFFS,. CITY OF NEW YORK, PLAINTIFF-INTERVENOR, AND UNITED STATES OF AMERICA, JUDGMENT CREDITOR,
V.
RANDALL TERRY, ET AL., DEFENDANTS.



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

OPINION

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.

BACKGROUND

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 "Terry II."*fn2

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 "Terry V."

DISCUSSION

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 ...


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