AKRON C. FOR REPRODUCTIVE H. v. City of Akron, C78-155.

• Decision Date: 08 February 1985
• Docket Number: No. C78-155.,C78-155.
• Citation: 604 F. Supp. 1275
• Parties: AKRON CENTER FOR REPRODUCTIVE HEALTH, et al., Plaintiffs, v. CITY OF AKRON, et al., Defendants, Francois Seguin, M.D. et al., Intervening Party Defendants.
• Court: U.S. District Court — Northern District of Ohio

604 F. Supp. 1275

AKRON CENTER FOR REPRODUCTIVE HEALTH, et al., Plaintiffs, v. CITY OF AKRON, et al., Defendants, Francois Seguin, M.D. et al., Intervening Party Defendants.

No. C78-155.

United States District Court, N.D. Ohio, E.D.

February 8, 1985.

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MEMORANDUM OPINION

DOWD, District Judge.

The Court has before it the motion of plaintiffs' counsel for an award of attorney fees following plaintiffs' prosecution of an action brought pursuant to 42 U.S.C. § 1983 attacking the constitutionality of an ordinance adopted by the City of Akron in 1978 regulating abortions within Akron.

The plaintiffs are three Ohio corporations that operate out-patient abortion clinics in Akron and a physician who has performed abortions at one of the clinics. The defendants are the City of Akron, its mayor and director of public health and the police prosecutor of Akron (hereinafter referred to as Akron). Upon motion, the District Court permitted participation by a group of intervenors "solely in their independent capacity as parents of unmarried minor daughters of child-bearing age," (hereinafter referred to as intervenors).

The case was tried before the Hon. Leroy J. Contie, Jr., in District Court during the period of twelve trial days in September of 1978. On August 22, 1979, Judge Contie declared several sections of the ordinance unconstitutional and several sections constitutional and found that the plaintiffs had no standing as to the remaining sections. Akron Center for Reproductive Health v. City of Akron, 479 F.Supp. 1172 (1979). Following Judge Contie's ruling, notices of appeal were filed by Akron, the intervenors and the plaintiffs.

On June 12, 1981, the Court of Appeals for the Sixth Circuit affirmed in part and reversed in part Judge Contie's decision. Akron Center for Reproductive Health v. City of Akron, 651 F.2d 1198 (6th Cir. 1981). Thereafter, the United States Supreme Court granted certiorari to Akron and plaintiffs and denied intervenors' petition for certiorari. Subsequently, the Supreme Court affirmed in part and reversed in part the holdings of the Sixth Circuit Court of Appeals. See City of Akron v. Akron Center for Reproductive Health, Inc., 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983).

Following the conclusion of the proceedings before the United States Supreme Court, the plaintiffs renewed their motion for attorney fees. They first sought an award of attorney fees in October, 1979. By order dated February 22, 1980, Judge Contie deferred decision on the fee application pending the resolution of the appeal of the case on the merits.

By the time this case was returned to the District Court, Judge Leroy Contie had been elevated to the Sixth Circuit Court of Appeals. Hence the case was submitted to the draw and assigned to this Court. This Court is placed in the position of determining the application for the fees without the benefit of having presided over the trial in District Court.

I. APPLICABLE LAW

In order to encourage lawyers to represent litigants in civil rights litigation, Congress adopted the Civil Rights Attorney's Fees Awards Act of 1976. 42 U.S.C. § 1988 authorizes district courts to award a reasonable attorney's fee to prevailing civil rights litigants.¹ In Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the United States Supreme Court ruled that a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate. In Blum v. Stenson, ___ U.S. ___, 104 S.Ct. 1541, 79 S.Ct. 891 (1984), the United States Supreme Court ruled that "reasonable fees" in federal civil rights action are to be calculated according to prevailing market rates in the relevant community (Akron) regardless of whether plaintiff is represented by private or nonprofit counsel.² Additionally, Blum v. Stenson holds that the district court, in the exercise of its discretion, is authorized to allow the prevailing party an upward adjustment in attorney fees in cases of exceptional success. The upward adjustment is frequently referred to as an enhancement of the award and the upward movement or enhancement is accomplished by applying a multiplier to the authorized fee determined by multiplying the number of hours as fixed by the Court by the hourly rate as fixed by the Court.

The Supreme Court decisions in Hensley, supra and Blum, supra, followed a major decision on the issue of attorney fees by the Sixth Circuit in Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624 (6th Cir.1979) where guidelines for district courts were published with respect to the task of fixing attorney fees. The Court directed the district courts with the following language:

The district court should indicate on the record the number of hours it finds the plaintiff's attorneys to have expended on the case. This finding must first take into account the affidavits of counsel. The hours claimed may not be automatically accepted by the district court, but to the extent that hours are rejected, the Court must indicate some reason for its action so that we may determine whether the court properly exercised its discretion or made an error of law in its conclusion. Hours may be cut for duplication, padding or frivolous claims. In complicated cases, involving many lawyers, we have approved the arbitrary but essentially fair approach of simply deducting a small percentage of the total hours to eliminate duplication of services.... Such an approach seems preferable to an attempt to pick out, here and there, the hours which were duplicative (citation omitted).

Beyond this allowance for duplicative services, however, we hold that if a district court decides to eliminate hours of service adequately documented by the attorneys, it must identify those hours and articulate its reasons for their elimination.

Mindful of the admonitions and directions of Hensley, Blum and Northcross, supra, the Court turns now to the controversy at hand.

II. SCOPE OF THE FEE APPLICATION

Plaintiffs' counsel seek a lodestar figure for the attorney fees of $469,396.45 representing 4,391.4 hours of services rendered. Additionally, plaintiffs seek their cost and expenses in the sum of $21,230.76. Plaintiffs' counsel also petitioned the Court for an enhancement of the lodestar figure so that the total request is for $701,936.36 for fees and an additional sum of $21,230.76 for a total application of $723,194.12.

At the outset, plaintiffs' cause was handled at the District Court by four lawyers. At the Circuit Court, two lawyers were involved. When the case reached the United States Supreme Court, a task force of new lawyers became involved on behalf of the plaintiffs. The prosecution of the fee application has included the services of an additional lawyer so that the petitions for attorneys' fees on behalf of the plaintiffs have been filed by the following lawyers:

                    NAME            WORK SCOPE3       HOURS          RATE    TOTAL REQUEST
                 1. Landsman,         All courts           DC 815         75       $ 61,125.00
                    Stephan                             CA/SC 1515       125        188,375.00
                 2. Hawley,           DC                       508.4      60         30,504.00
                    Wayne
                 3. Roberts,          DC                       175        50          8,750.00
                    Patricia
                 4. Leitzer,          DC                       236        50         11,800.00
                    Ellen
                 5. Benshoof,         SC                       527.05    175         92,233.70
                    Janet
                 6. Stavile,          SC                        83.25    100          8,325.00
                    Deborah
                 7. Law,              SC                        27.7     175          4,847.50
                    Sylvia
                 8. Hunter,           SC                       101.75    150         15,262.50
                    Nan D
                 9. Lipton,           SC                       100       100         10,000.00
                    Lois
                10. Lynn,             SC                       149.80    150         22,470.00
                    Suzanne
                11. Beggs,            CA                        14.5      75          1,087.50
                    Gordon            Fee App.                  20.75     75          1,556.25
                                                                72.75    100          7,275.00
                12  Jacobs,           Fee App.                  43.5     110          4,785.00
                    Louis
                                                              _______              ___________
                                            TOTAL             4,391.4              $469,396.45
                                     RECAPITULATION OF FEE REQUEST
                                          DISTRICT COURT WORK
                             1. Landsman                            $ 61,125.00
                             2. Hawley                                30,504.00
                             3. Roberts                                8,750.00
                             4. Leitzer                               11,800.00
                                                                      _________
                                   Total                            $112,179.00
                       Request for 32% increase
                       for delay in receipt                           35,897.00
                                                                    ___________
                                    Total Request                   $148,076.00
                                         APPELLATE COURT WORK
                            1. Landsman                             $189,375.00
                            2. Beggs                                   1,087.50
                            3. Benshoof                               92,233.70
                            4. Stavile                                 8,325.00
                

                                         APPELLATE COURT WORK
                            5. Law                                       4,847.50
                            6. Hunter                                   15,262.50
                            7. Lipton                                   10,000.00
                            8. Lynn                                     22,470.00
                                                                        _________
                                 Total                                $343,601.20

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