Jane L. v. Bangerter

• Decision Date: 29 June 1993
• Docket Number: Civ. No. 91-C-345G.
• Citation: 828 F. Supp. 1544
• Parties: JANE L., on behalf of herself and all other similarly situated; Utah Women's Clinic, P.C.; David Hansen, M.D.; Madhuri Shah, M.D.; Dan Chichester, M.D.; Kirtly Parker Jones, M.D.; Kathleen Kennedy, M.D.; Neil K. Kochenour, M.D.; Kenneth Ward, M.D., on behalf of themselves, and all others similarly situated; Julie S.; and American College of Obstetricians and Gynecologists, Utah Sections, Plaintiffs, v. Norman BANGERTER, as Governor of the State of Utah, Paul Van Dam, as Attorney General of Utah, and their successors, Defendants.
• Court: U.S. District Court — District of Utah

828 F. Supp. 1544

JANE L., on behalf of herself and all other similarly situated; Utah Women's Clinic, P.C.; David Hansen, M.D.; Madhuri Shah, M.D.; Dan Chichester, M.D.; Kirtly Parker Jones, M.D.; Kathleen Kennedy, M.D.; Neil K. Kochenour, M.D.; Kenneth Ward, M.D., on behalf of themselves, and all others similarly situated; Julie S.; and American College of Obstetricians and Gynecologists, Utah Sections, Plaintiffs, v. Norman BANGERTER, as Governor of the State of Utah, Paul Van Dam, as Attorney General of Utah, and their successors, Defendants.

Civ. No. 91-C-345G.

United States District Court, D. Utah, C.D.

June 29, 1993.

COPYRIGHT MATERIAL OMITTED

Janet Benshoof, Rachel N. Pine, The Center for Reproductive Law & Policy, Roger K. Evans, Planned Parenthood Federation of America, New York City, Allen Howard Lundgren, Bugden & Lundgren, Jeffrey R. Oritt, Amer. Civ. Liberties Union of Utah, Salt Lake City, UT, for plaintiffs.

Paul M. Durham, Durham, Evans & Jones, Mary Anne Q. Wood, Anthony B. Quinn, Wood, Spendlove & Quinn, L.C., Jan C. Graham, Atty. Gen., Utah Atty. General's Office, Salt Lake City, UT, for defendants.

MEMORANDUM DECISION AND ORDER IN RE ATTORNEYS FEES

J. THOMAS GREENE, District Judge.

This matter is before the court on both parties' applications for attorneys' fees and costs. The parties have filed memoranda and affidavits supporting their applications, as well as detailed objections. After due consideration, the court now issues its Memorandum Decision and Order.

FACTUAL BACKGROUND

Plaintiffs filed a complaint in this action on April 5, 1991, challenging the newly amended Utah Abortion Act (the "Act") and certain preexisting provisions of the Act. Utah Code Ann. §§ 76-7-301 et seq. (1990 & Supp. 1992). Prompted by the filing of this complaint, the Utah legislature revised the Act to avoid certain legal problems in a special session.¹ On May 15, 1991, plaintiffs filed an eight count Amended Complaint alleging numerous violations of the United States Constitution and the Utah Constitution. Enforcement of the contested provisions of the Act was enjoined pending a final ruling by this court.

Following a period of extensive discovery, defendants filed a Motion to Dismiss Plaintiffs' Fifth, Seventh and Eighth Causes of Action, and a Motion for Partial Summary Judgment on Plaintiffs' First, Second, Third, Fourth, and Sixth Causes of Action. A hearing was conducted on April 10, 1992, after which this court orally entered orders vacating trial, and granted the motions as to certain issues. On May 22, 1992, two written decisions were issued in which defendants' Motion to Dismiss was granted, and defendants' Motion for Summary Judgment was granted in part. Jane L. v. Bangerter, 794 F.Supp. 1528 (D.Utah 1992) Jane L. I; Jane L. v. Bangerter, 794 F.Supp. 1537 (D.Utah 1992) Jane L. II. Remaining issues were kept under advisement awaiting the decision of the Supreme Court in the pending case of Planned Parenthood v. Casey, ___ U.S. ___, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). After the Supreme Court's ruling in Casey, the remaining issues were resolved in an opinion of this court released on December 17, 1992. Jane L. v. Bangerter, 809 F.Supp. 865 (D.Utah 1992) Jane L. III.

The final judgment in this case was entered on January 14, 1993.² Both parties subsequently filed applications for attorneys' fees and costs, each claiming to be the "prevailing party" under 42 U.S.C. § 1988, and Fed.R.Civ.P. 54(d). Plaintiffs argue that they prevailed because the alleged "core" of the Act (prohibition of elective abortion with certain exceptions), along with the spousal notification requirement, were ruled to be unconstitutional.³ Defendants claim to be the prevailing party because the court ruled in their favor on all of the other claims.⁴

ANALYSIS

I. PLAINTIFFS' ATTORNEYS' FEES

Title 42 U.S.C. § 1988 provides that in federal civil rights actions "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." The standard for qualification as a "prevailing party" is whether plaintiff "succeeded 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, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978)). More recently, the Supreme Court has held that "A plaintiff `prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, ___ U.S. ___, ___, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992).

There can be no doubt that plaintiffs succeeded on significant issues that brought them some of the benefits they sought in bringing this action. This court's decision that § 76-7-302(2) of the Utah Code is unconstitutional insofar as it relates to abortions before 21 weeks, as well as its ruling striking down Utah's spousal notification statute, both pertain to such significant issues.

Because plaintiffs have "prevailed" on significant issues in this action, they are entitled under § 1988 to a "reasonable attorney's fee." The first step in determining a reasonable fee is to establish a "lodestar" figure. This is done by multiplying the hours plaintiffs' counsel reasonably spent on the case by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1543, 79 L.Ed.2d 891 (1984); Hensley, 461 U.S. at 433, 103 S.Ct. at 1939; Clayton v. Thurman, 775 F.2d 1096, 1098 (10th Cir.1985).

A. Reasonable Hours

Plaintiffs' burden in an application for attorneys' fees is to "prove and establish the reasonableness of each dollar, each hour, above zero." Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir.1986). To meet that burden, the Tenth Circuit requires that lawyers keep "meticulous, contemporaneous time records ..." Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir.1983). In particular,

These records must reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks — for example, how many hours were spent researching, how many interviewing the client, how many drafting the complaint, and so on.

Id.

Before submitting a fee application to the court, the prevailing party must "make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission." Hensley, 461 U.S. at 434, 103 S.Ct. at 1939-40.

Upon review of the time records, this court has determined that five of plaintiffs' counsel have not met their burden of providing time records which adequately designate how much time was allotted to specific tasks.⁵ The time records for these five attorneys represent over 50% of the total hours which were submitted by plaintiffs. For example, on 4/10/92, Janet Benshoof's time records state that she spent 16.5 hours in preparation for a hearing, attendance at the hearing, a meeting with clients, travel and "discussion." Benshoof Declaration at A7. Her entry for 3/13/92 lists preparation for a hearing, attendance at the hearing, travel and "review" for a total of 14 hours. Id. Rachel Pine's entry for 3/18/92 reads: "Travel; prepare for hearing before magistrate; hearing before magistrate; press" for a total of 10 hours. Pine Declaration at A4. No attempt was made in these entries to break down time among the several different tasks performed.

In addition, it appears that with few exceptions, plaintiffs' counsel as a whole have not adequately excluded requests for "excessive, redundant, or otherwise unnecessary" hours. While some of the time plaintiffs' attorneys devoted to this case is clearly compensable, much of the time is not compensable. Hours spent on such things as unspecified "review" time, press conferences, excessive travel, and unnecessary duplicative time should be disallowed or reduced.⁶

The Tenth Circuit imposes the task upon the district judge of distinguishing between "raw" time and "billable" time, and determining the number of hours reasonably spent:

The district court must determine not just the actual hours expended by counsel, but which of those hours were reasonably expended in the litigation. When scrutinizing the actual hours reported, the district court should distinguish "raw" time from "hard" or "billable" time to determine the number of hours reasonably expended.

Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir.1983). In those instances where time records are not sufficiently detailed, as is the case with five attorneys in this case, the Supreme Court has offered the following guidance: "Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley, 461 U.S. at 433, 103 S.Ct. at 1939.

The reasons for reducing plaintiffs' claimed compensable time are numerous. Plaintiffs' time records include unspecified or inadequately specified "review" time, excessive travel time, unnecessary and duplicative time spent in conference calls, meetings, and hearings, noncompensable public relations time, noncompensable time expended after the judgment was rendered, and noncompensable clerical or "overhead" time.

1. Review Time

"Review" is a somewhat ambiguous term that often turns up in attorneys' time records. In this case, there are several instances where plaintiffs' counsel refer to unspecified or inadequately specified "review" time. This is evidence of excess. As noted in In re Wicat Securities Litigation, 671 F.Supp. 726 (D.Utah 1987), "the word `review' seems to be a catchall category with great versatility in counsels' applications. It is also a signal for the padding of hours." Id. at 735-36. Apart from the matter of "pad...