Henry v. First Nat. Bank of Clarksdale, Civ. A. No. DC69-58-WK.

• Decision Date: 16 November 1984
• Docket Number: Civ. A. No. DC69-58-WK.
• Parties: Aaron HENRY, National Association for the Advancement of Colored People (NAACP), Mississippi State Conference of the NAACP, and Coahoma Branch of the NAACP State Conference v. FIRST NATIONAL BANK OF CLARKSDALE; Claiborne Hardware Company, Inc.; Q.H. McDaniel, Jr., doing business as McDaniel Pharmacy; James E. Hudson and George Hudson, doing business as Hudson Bros.; Waddy Abraham, doing business as Jitney Jungle; Joe Ellis, Mrs. Ben Mullin and Miss Ella Ellis, doing business as George Ellis Food Store; Norman N. Ellis and Barbara B. Ellis, doing business as Ellis Variety Store; Murad Nasif and Mildred Nasif, doing business as M & M Super Store & Washateria; W.H. Hay, doing business as O.K. Cleaners & Shirt Laundry; Charles R. Dobbs, doing business as Western Auto Associate Store; Allen Motor Co., Inc.; Port Gibson Lumber & Supply Company, Inc.; and Mrs. Edgar A. McCaa, doing business as Town & County.
• Court: U.S. District Court — Northern District of Mississippi

603 F. Supp. 658

Aaron HENRY, National Association for the Advancement of Colored People (NAACP), Mississippi State Conference of the NAACP, and Coahoma Branch of the NAACP State Conference v. FIRST NATIONAL BANK OF CLARKSDALE; Claiborne Hardware Company, Inc.; Q.H. McDaniel, Jr., doing business as McDaniel Pharmacy; James E. Hudson and George Hudson, doing business as Hudson Bros.; Waddy Abraham, doing business as Jitney Jungle; Joe Ellis, Mrs. Ben Mullin and Miss Ella Ellis, doing business as George Ellis Food Store; Norman N. Ellis and Barbara B. Ellis, doing business as Ellis Variety Store; Murad Nasif and Mildred Nasif, doing business as M & M Super Store & Washateria; W.H. Hay, doing business as O.K. Cleaners & Shirt Laundry; Charles R. Dobbs, doing business as Western Auto Associate Store; Allen Motor Co., Inc.; Port Gibson Lumber & Supply Company, Inc.; and Mrs. Edgar A. McCaa, doing business as Town & County.

Civ. A. No. DC69-58-WK.

United States District Court, N.D. Mississippi, Delta Division.

November 16, 1984.

COPYRIGHT MATERIAL OMITTED

David S. Tatel, Hogan & Hartson, Washington, D.C., Barry H. Powell, Gilbert & Powell, Jackson, Miss., for plaintiffs.

Dixon L. Pyles, Pyles & Tucker, Jackson, Miss., for defendants.

MEMORANDUM OPINION

KEADY, Senior District Judge.

The court presently has for consideration plaintiffs'¹ motion for an award of attorneys' fees and litigation expenses incurred in this civil rights action brought under 42 U.S.C. § 1983 to enjoin defendants (state court plaintiffs) from seeking to enforce the judgment of the Chancery Court of the First Judicial District of Hinds County, Mississippi, granting injunctive relief against the continuation or enforcement of federal plaintiffs' boycott and picketing of various Port Gibson and Claiborne County, Mississippi, merchants, and awarding damages against the federal plaintiffs for conduct of the boycott. Plaintiffs, as prevailing parties in this federal district court, the United States Court of Appeals for the Fifth Circuit and the United States Supreme Court, seek a fees award totalling $227,302.50,² together with expenses of $15,883.93, against defendant Port Gibson and Claiborne County merchants³ pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (1981). Defendants object to the entry of any fees award on three grounds: (1) that plaintiffs' motion is untimely; (2) that § 1988 is inapplicable for lack of any state action to support the underlying § 1983 judgment; and (3) that § 1988 is inapplicable because this action was no longer pending on the effective date of the statute. Alternatively, defendants contest the reasonableness of plaintiffs' request, alleging duplication of effort on the part of plaintiffs' counsel. We preface our analysis with a brief procedural history of this protracted litigation.

Plaintiffs filed their amended complaint⁴ on October 1, 1976, and on October 20, this court, per Judge Orma R. Smith, issued three preliminary injunctive orders, one of which prohibited the state court plaintiffs from taking any action to enforce the injunction and damages award entered by the Hinds County Chancery Court pending review of the state court judgment by the Mississippi Supreme Court and, if necessary, by the United States Supreme Court.⁵See 424 F.Supp. 633, 639 (N.D.Miss.1976). Judge Smith's decision was affirmed in all respects by the Fifth Circuit on May 21, 1979. Henry II, 595 F.2d 291, 309 (5th Cir.1979). Defendants' petition for writ of certiorari was denied by the Supreme Court in January 1980. 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980). In the meantime, the state court defendants pursued appropriate avenues of appeal from the judgment of the chancery court. That court's decision was affirmed by the Mississippi Supreme Court on December 10, 1980, NAACP v. Claiborne Hardware Co., 393 So.2d 1290 (Miss.1980), but was subsequently reversed by the United States Supreme Court on July 2, 1982. 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). The chancery court dissolved its injunction and vacated its award of damages on March 22, 1983, making further extensive proceedings in this court unnecessary. We finally dismissed this action on January 12, 1984.

I. Timeliness

Defendants urge the court to deny plaintiffs' application for attorneys' fees and expenses as untimely. Defendants' brief in opposition calculates the date of service of plaintiffs' motion, February 9, 1984, as being "589 days after the United States Supreme Court reversed and remanded, 1622 days after the mandate of the Fifth Circuit was filed in the district court, and 345 days from the time the Hinds County Chancery Court entered its order," but ignores the fact that the motion was filed only twenty-eight (28) days after entry of this court's final order of dismissal on January 12, 1984. The Local Rules of this court provide that

All motions for attorney's fees to be awarded by law as part of the costs of the action, whether provided for by statute or otherwise, shall be served by the prevailing party to whom costs are awarded not later than 30 days after entry of judgment.

N.D.Miss.R. C-13(2)(a).

Of course, "the district courts are free to adopt local rules establishing timeliness standards for the filing of claims for attorney's fees." White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 454, 102 S.Ct. 1162, 1168, 71 L.Ed.2d 325 (1982). Moreover, while recognizing that the final disposition of this lawsuit has consumed fifteen years in the state and federal courts, we find no prejudice or unfair surprise inhering in plaintiffs' application for fees and expenses at this time, nor is any alleged. Indeed, denial of plaintiffs' motion as untimely would operate to prejudice plaintiffs, as they were clearly entitled to rely on this court's policy pronouncements as incorporated in its Local Rules. It may well be that the court could have entered its final order of dismissal at an earlier date; however, our rules provide that a prevailing party shall have thirty days after such entry within which to serve its motion. We therefore reject defendants' argument that the instant motion is untimely.

II. State Action

Section 1988 provides for the allowance of a reasonable attorney's fee in the discretion of the court to a party prevailing "in any action or proceeding to enforce a provision of section ... 1983...." 42 U.S.C. § 1988 (1981). As stated, defendants assert that § 1988 is inapplicable in the case sub judice because the named defendants against whom fees are sought are private parties and, as such, there was no state action which would support plaintiffs' underlying § 1983 judgment. However, the question of state action in this case has already been conclusively resolved unfavorably to defendants, and we are, of course, bound by this earlier determination. As the Fifth Circuit held in Henry II:

The supplemental and amended complaint filed October 1, 1976, alleged that enforcement of the state court's judgment would infringe rights secured to the federal plaintiffs by the First and Fourteenth Amendments of the Constitution and by 42 U.S.C. § 1983; as such it plainly stated a federal cause of action over which the district court had jurisdiction under 28 U.S.C. §§ 1331(a) and 1343(3). The requisite state action which we found absent in Henry I has since been supplied by entry of the state Chancery Court judgment which is immediately enforceable. The crucial difference between a private party who has merely filed a civil suit in a state forum and the successful litigant who possesses an immediately enforceable state judgment is that in the latter case the full power and authority of the state can be invoked on behalf of the litigant. It is this exercise of state power that provides state action for purposes of the Fourteenth Amendment and section 1983.

595 F.2d at 299; see also 424 F.Supp. at 639. Section 1988 is thus applicable in this § 1983 action to vindicate rights under the First and Fourteenth Amendments, and defendants, having assumed the role of state actors, are jointly and severally liable for any award made by this court pursuant to § 1988.

III. Pendency of the Action

Section 1988, as amended on October 19, 1976, and effective that date, applies to all cases pending on, or commenced subsequently to, the effective date of the amendment. Hutto v. Finney, 437 U.S. 678, 694 n. 23, 98 S.Ct. 2565, 2575, n. 23, 57 L.Ed.2d 522 (1978) (citing H.R.Rep. No. 94-1558 at 4 n. 6 (1976)).

Defendants' argument that this action was no longer pending on October 19, 1976, is patently without merit. We need only point to the date of Judge Smith's memorandum of decision and entry of orders of injunction, October 20, 1976, the day following the effective date of the statute, see 424 F.Supp. at 633, to refute defendants' contention. This action was plainly still pending before the district court on the effective date, as the court had not at that time finally disposed of the substantive motions for preliminary injunction. Furthermore, the Fifth Circuit has held that an action is considered "pending" even if the only issue remaining for resolution on the effective date of the statute is the question of attorneys' fees. Taylor v. Sterrett, 640 F.2d 663, 668 (5th Cir.1981); Robinson v. Kimbrough, 620 F.2d 468, 475 (5th Cir.1980); see also Knights of the Ku Klux Klan, Realm of Louisiana v. East Baton Rouge Parish School Bd., 679 F.2d 64, 67-68 (5th Cir.1982) (action is pending on effective date of Equal Access to Justice Act, 28 U.S.C. § 2412, where motion for attorneys' fees is only matter still before the court).

IV. The Johnson Factors

For these reasons, we conclude that plaintiffs, as prevailing parties in this civil rights action, are entitled to recover reasonable attorneys' fees and litigation expenses from defendants. After considering affidavits and statements of counsel regarding the...