McLaughlin by McLaughlin v. Boston School Committee, Civ. A. No. 95-11803-WAG.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Citation: 976 F.Supp. 53
• Docket Number: Civ. A. No. 95-11803-WAG.
• Parties: Julia A. McLAUGHLIN, by Catherine McLAUGHLIN, Plaintiff, v. BOSTON SCHOOL COMMITTEE, et al., Defendants.
• Decision Date: 29 August 1997

976 F.Supp. 53 Julia A. McLAUGHLIN, by Catherine McLAUGHLIN, Plaintiff,
v.
BOSTON SCHOOL COMMITTEE, et al., Defendants. Civ. A. No. 95-11803-WAG. United States District Court, D. Massachusetts. August 29, 1997.

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MEMORANDUM AWARDING ATTORNEYS' FEES

GARRITY, District Judge.

Until its dismissal for lack of subject matter jurisdiction on November 19, 1996, this was a civil rights action brought on behalf of Julia McLaughlin, a white twelve-year-old resident of Hyde Park, by her mother Catherine McLaughlin, seeking admission to the seventh grade at Boston Latin School ("BLS"). Julia had not previously attended Boston public schools, having completed the sixth grade at St. Mary of the Hills School, an elementary parochial school in Milton. Plaintiff's complaint was filed on August 11,

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1995, by Michael C. McLaughlin, Esq. ("McLaughlin"), Julia's father, for whom she now applies for attorneys' fees as well as for fees for the law firm of O'Brien, Partlow & White, P.C. ("OPW") which handled major aspects of the litigation.

Background

Plaintiff's complaint asserted at length a mix of federal and state claims,¹ some of which were later withdrawn or dismissed summarily. The essence of her claim under 42 U.S.C. § 1983 was that she was denied admission to BLS because 35% of the seats in the entering class had been reserved by the defendants for Black and Hispanic students, several of whom were admitted despite having scored lower than plaintiff on the annual entrance examination. The central allegation of the complaint was that the defendants' 35% set-aside for Black and Hispanic applicants violated plaintiff's civil rights under the Equal Protection Clause of the Fourteenth Amendment. Defendants' position was that the classification at issue was narrowly tailored to advance compelling governmental and educational interests and therefore could withstand strict constitutional scrutiny. The nature and resolution of the litigation are described in detail in McLaughlin v. Boston School Committee, 938 F.Supp. 1001 (D.Mass.1996), and McLaughlin v. Boston School Committee, 952 F.Supp. 33 (D.Mass.1996).

After issuing an order to show cause dated April 17, 1996, the court revisited plaintiff's application for a preliminary injunction. On August 22, 1996, the court ordered preliminarily that the defendants admit plaintiff to the eighth grade when the 1996 summer recess ended and classes resumed for the 1996-97 school year. Trial was scheduled to start on November 19, 1996. The court had denied, at plaintiff's urging, a series of requests by defendants for postponement until after an advisory group, appointed by the Boston School Committee ("BSC") in September 1996,² had completed a study of possible alternatives to existing examination school assignment processes and filed a report of its recommendations. On November 14, 1996, the defendants voted to waive any right to reassign plaintiff from BLS, thus making the preliminary injunction effectually permanent. On November 15, 1996, the defendants filed a suggestion of mootness. After briefing and hearing argument, the court found, over plaintiff's opposition, that defendants' suggestion of mootness was timely and dismissed the action for lack of subject matter jurisdiction.

After dismissal, plaintiff filed applications for attorneys' fees pursuant to 42 U.S.C. § 1988, to which the following distinctive features of the case appear to be germane:

1. It was an individual suit, not a class action.

2. Plaintiff was represented by her father, an attorney, and by two other attorneys.

3. Virtually all relevant facts were undisputed.

4. Direct testimony was ordered, with consent of the parties, to be filed in writing months before the trial date.

5. On the eve of trial, defendants voluntarily agreed to keep plaintiff at BLS as long as her grades were satisfactory.

6. Plaintiff did not obtain a judgment, consent decree, or settlement in this action, which was dismissed for lack of subject matter jurisdiction.

The roles of the attorneys for whom plaintiff seeks compensation changed during the pendency of the action. For the first month ("Phase I" of the litigation), McLaughlin was

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sole counsel. After the complaint was filed, a partner at the law firm where McLaughlin was counsel contacted Mark A. White, Esq. and asked if he would be interested in becoming involved in the case.³ White phoned McLaughlin to discuss the matter and on August 28, 1996, attended as a spectator the first hearing on plaintiff's motion for a preliminary injunction. Thereafter McLaughlin met with members of OPW and told them that he was not a trial lawyer and needed experienced trial counsel. On September 11, 1995, White filed his notice of appearance, soon joined by his partner, R. Keith Partlow, Esq. For approximately the next year ("Phase II"), White and Partlow handled virtually all the details of the litigation, culminating in the court's order on August 22, 1996, that plaintiff be enrolled at BLS. They drafted, briefed, and argued every motion and filed and followed up on every discovery request, but had no significant contact with either the real or nominal plaintiff. During this period, McLaughlin's services were confined to reviewing and making some revisions in documents drafted by OPW and attending court hearings, depositions, and conferences, mainly as an onlooker. He also consulted and engaged a husband and wife team of expert witnesses, the Thernstroms.⁴ However, McLaughlin's representation of plaintiff occurred primarily in the court of public opinion, explaining to local and national news media⁵ the objectives and status of his daughter's lawsuit. A third period of representation ("Phase III") began after August 1996. Several instances arose in which OPW had disagreements with McLaughlin and most, if not all, subsequent motions were signed solely by McLaughlin, who had decided to become lead trial counsel for the third phase. Working with volunteer law school students, he also briefed and argued plaintiff's unsuccessful opposition to defendants' suggestion of mootness that led to dismissal of the case on November 19, 1996. The period after dismissal until January 9, 1997, the date of the final hearing on McLaughlin's amended application for fees, we refer to as "Phase IV."

Applications for Fees and Court's Duty

Pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (West.Supp.1997), providing in part that "the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs," plaintiff applied for attorneys' fees and expenses exceeding $300,000 ($209,418.28⁶ for McLaughlin and $93,235.36 for OPW) plus an upward adjustment of an unspecified percentage to reward successful efforts.

The dates to which counsels' services and plaintiff's application for fees principally relate are the following:

August 11, 1995 — Complaint filed by McLaughlin, the last four pages of which are appended as Appendix A, in six counts and seeking declaratory and injunctive relief;

August 28, 1995 — Hearing on motion for preliminary injunction;

October 10, 1995 — Hearing on plaintiff's motion for reconsideration;

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April 17, 1996 — Hearing on cross motions for summary judgment at which plaintiff's motion was denied and, on defendants' motion, three counts in the complaint were dismissed, as follows: I. claiming violations of plaintiff's rights under the Fifth Amendment; III. claiming violation of unspecified statutes of the Commonwealth of Massachusetts; and VI. claiming a scheme to deceive plaintiff in granting admissions to BLS;

August 22, 1996 — Preliminary injunction entered ordering plaintiff's admission to BLS;

November 13, 1996 — Final pretrial conference;

November 19, 1996 — Hearing on defendants' suggestion of mootness based upon BSC vote on November 14, 1996, permitting plaintiff to remain at BLS; and dismissal for mootness.

In addition to attending the four hearings and final pretrial conference listed, plaintiff's counsel's services included attending eight scheduling conferences and one settlement conference, taking two depositions, drafting the motions heard and preparing exhibits and testimony for the anticipated trial.

Defendants have directed a barrage of objections, legal and factual,⁷ against the applications. In considering them, the court is obliged to undertake an independent review of the legality and reasonableness of plaintiff's requests. See Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 529 (1st Cir.1991); Gabriele v. Southworth, 712 F.2d 1505, 1507 (1st Cir.1983). As stated in Foley v. City of Lowell, 948 F.2d 10 (1st Cir.1991), "at least where public funds are involved or the public interest is otherwise implicated, the court has the duty to consider the application critically to ensure overall fairness...." Id. at 19. Both public funds and the public interest are involved here.

The court has carefully reviewed plaintiff's applications critically in light of legal precedents, defendants' numerous factual objections, its own experience, plaintiff's voluminous error-filled submissions, and three hearings on fee applications. Due to deficiencies in plaintiff's initial applications under § 1988, her successive ones for her father became virtually a case of their own, contrary to the admonition in Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983), that "[a] request for attorney's fees should not result in a second major litigation."

"Prevailing Party" under 42 U.S.C. § 1988

Defendants' response to plaintiff's applications starts with a blanket legal objection which we address first because, if sustained, it would bar plaintiff from recovering any attorneys' fees at all.⁸ Defendants submit that plaintiff was not a "prevailing party" as defined by Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, ...