NY STATE NAT. ORGANIZATION FOR WOMEN v. Terry

• Decision Date: 31 May 1990
• Docket Number: No. 88 Civ. 3071(RJW).,88 Civ. 3071(RJW).
• Citation: 737 F. Supp. 1350
• Parties: 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.
• Court: U.S. District Court — Southern District of New York

737 F. Supp. 1350

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.

No. 88 Civ. 3071(RJW).

United States District Court, S.D. New York.

May 31, 1990.

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Center for Constitutional Rights (David Cole, Mary M. Gundrum, Rhonda Copelon, of counsel), Now Legal Defense and Educ. Fund (Alison C. Wetherfield, Sarah E. Burns, of counsel), New York City, for plaintiffs.

Michael E. Tierney, New York City, Rutherford Institute of Connecticut, Inc., Milford, Conn. (Joseph P. Secola, George J. Mercer, of counsel), for defendants.

A. Lawrence Washburn, Jr., New York City, for defendants and respondents Florence Talluto, Michael McMonagle, Michael La Penna, Jeff White.

John J. Broderick, Syosset, N.Y., for respondent Jesse Lee.

Kevin P. McGovern, Brooklyn, N.Y., for respondent Joseph Foreman.

Putney, Twombly, Hall & Hirson (John P. Hale, of counsel), New York City, for respondents Adelle and Bernard Nathanson.

Hogan & Traynor, (Richard J. Traynor, of counsel), Morristown, N.J., for respondent Robert Pearson.

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.¹ 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...