Uzzell v. Friday

• Decision Date: 27 September 1985
• Docket Number: No. C-74-178-D.,C-74-178-D.
• Citation: 618 F. Supp. 1222
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Lawrence A. UZZELL and Robert Lane Arrington, Individually, and upon behalf of all others similarly situated, Plaintiffs, and William Gwynne Head, III, and Richard Jeffrey Kania, Individually, and upon behalf of all others similarly situated, Intervening Plaintiffs, and Myra Susan Creed, Katharyn Luanne Holshouser, Jay Allen Kania, Sue Ann Kania, Myra Ann Mandeville, Patricia Dawn McKissick, Michael J. Morris, John Malcolm Overton, Edward B. Munyer, Michael L. Walker, and Timothy E. Walker, Individually, and upon behalf of all others similarly situated, Intervening Plaintiffs, and Donald Lewis Elmore, II, Individually, and upon behalf of all others similarly situated, Intervening Plaintiff, v. William C. FRIDAY, Individually, and as President of the University of North Carolina; Christopher Columbus Fordham, Individually, and as Chancellor of the University of North Carolina at Chapel Hill; Kevin Monroe, President of the Student Body of the University of North Carolina at Chapel Hill; The Board of Trustees of the University of North Carolina at Chapel Hill; and the Board of Governors of the University of North Carolina, Defendants, and Jessie Cureton, Jr., and Greg Cranford, Intervening Defendants, and Kevin Monroe, James J. Exum, Sherrod Banks, and Kevin D. Jones, Intervening Defendants.

618 F. Supp. 1222

Lawrence A. UZZELL and Robert Lane Arrington, Individually, and upon behalf of all others similarly situated, Plaintiffs and William Gwynne Head, III, and Richard Jeffrey Kania, Individually, and upon behalf of all others similarly situated, Intervening Plaintiffs and Myra Susan Creed, Katharyn Luanne Holshouser, Jay Allen Kania, Sue Ann Kania, Myra Ann Mandeville, Patricia Dawn McKissick, Michael J. Morris, John Malcolm Overton, Edward B. Munyer, Michael L. Walker, and Timothy E. Walker, Individually, and upon behalf of all others similarly situated, Intervening Plaintiffs and Donald Lewis Elmore, II, Individually, and upon behalf of all others similarly situated, Intervening Plaintiff, v. William C. FRIDAY, Individually, and as President of the University of North Carolina; Christopher Columbus Fordham, Individually, and as Chancellor of the University of North Carolina at Chapel Hill; Kevin Monroe, President of the Student Body of the University of North Carolina at Chapel Hill; The Board of Trustees of the University of North Carolina at Chapel Hill; and the Board of Governors of the University of North Carolina, Defendants and Jessie Cureton, Jr., and Greg Cranford, Intervening Defendants, and Kevin Monroe, James J. Exum, Sherrod Banks, and Kevin D. Jones, Intervening Defendants.

No. C-74-178-D.

United States District Court, M.D. North Carolina, Durham Division.

September 27, 1985.

Richard L. Voorhees, Gastonia, N.C., for plaintiffs and all intervening plaintiffs.

Elizabeth C. Bunting, Asst. Atty. Gen., Andrew A. Vanore, Jr., Deputy Atty. Gen., Raleigh, N.C., for defendants Friday, Fordham, Monroe, Bd. of Trustees, and Bd. of Governors of the University of North Carolina.

Napoleon Williams, NAACP Legal Defense Fund, New York City, and James C. Fuller, Jr., Raleigh, N.C., for all intervening defendants.

MEMORANDUM OPINION

BULLOCK, District Judge.

This action was commenced on June 4, 1978, by two students at the University of North Carolina at Chapel Hill (UNC at Chapel Hill) seeking declaratory and injunctive relief against three practices of the student government at that institution: subsidization of a campus organization, the Black Student Movement (BSM), which until after the suit was filed excluded whites from membership; the requirement that up to two minority race students be appointed to the student legislature if a like number of such students was not elected thereto; and the requirement that a student defendant before the honor court be permitted to require that a majority of judges on an individual panel be of his race or sex. These practices were alleged to violate the fourteenth amendment and the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the first practice—funding of the BSM—Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., as well.

Hearing the case on motions, this court per then Chief Judge Eugene A. Gordon granted summary judgment for all Defendants on the grounds that the claim relating to BSM had been mooted by BSM's admission of whites and that the other claims were nonjusticiable. Uzzell v. Friday, 401 F.Supp. 775 (M.D.N.C.1975). The case subsequently went before the United States Court of Appeals for the Fourth Circuit on four separate occasions and before the Supreme Court of the United States once. See Uzzell v. Friday, 625 F.2d 1117, 1119-20 (opinion of Winter, C.J., for the court), 1121-23 (Widener, J., dissenting) (4th Cir.), cert. denied, 446 U.S. 951, 100 S.Ct. 2917, 64 L.Ed.2d 808 (1980). The court of appeals eventually upheld this court's ruling that the claim relating to BSM had been mooted but remanded the two remaining claims to this court for trial. Following trial without a jury, this court on August 23, 1984, entered judgment for Plaintiffs on the remaining claims. Uzzell v. Friday, 592 F.Supp. 1502 (M.D.N.C.1984). The case is presently before the court on Plaintiffs' motion for attorney's fees pursuant to 42 U.S.C. § 1988, filed January 23, 1985, and related motions as follows: Plaintiffs' motion to compel discovery regarding attorney's fees, filed July 11, 1985; intervening Defendants' motion for an order barring the assessment of fees against them, filed May 31, 1985; and Plaintiffs' motion to intervene, filed September 21, 1984.

The court finds at the outset that the record is sufficiently complete to permit it to rule on the motion for attorney's fees. The motion to compel discovery shall accordingly be denied. Although Plaintiffs initially requested a hearing, they have subsequently waived it and the court does not otherwise find one necessary.

The award of attorney's fees to Plaintiffs' counsel is clearly authorized in this case under 42 U.S.C. § 1988. That statute empowers a district court to "allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs" in certain civil rights actions, including those to enforce 42 U.S.C. § 1983 and Title VI of the Civil Rights Act of 1964. The court finds here that Plaintiffs are "the prevailing party" with respect to all three of their claims. In the case of the claims challenging the student legislature and honor tribunals, this court granted essentially all the relief Plaintiffs requested. The claim regarding BSM, having been mooted before trial by BSM's admission of whites, was never the subject of court-ordered relief, but evidence at trial established that the filing of this lawsuit was a substantial factor in BSM's taking this remedial action. E.g., Williams v. Leatherbury, 672 F.2d 549, 550-51 (5th Cir.1982); McManama v. Lukhard, 464 F.Supp. 38, 41 (W.D.Va.1978), aff'd, 616 F.2d 727 (4th Cir.1980).

The task now becomes to calculate the amount of fees to be awarded Plaintiffs' counsel. Under precedent of the Fourth Circuit, Anderson v. Morris, 658 F.2d 246 (4th Cir.1981); Barber v. Kimbrell's, Inc., 577 F.2d 216 (4th Cir.), cert. denied, 439 U.S. 934, 99 S.Ct. 329, 58 L.Ed.2d 330 (1978), and more recently of the Supreme Court, Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the determination of the appropriate amount of fees is to be made in light of twelve factors delineated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 716-19 (5th Cir.1974). These factors are: the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal service properly; the preclusion of employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation, and ability of the attorneys; the "undesirability" of the case; the nature and length of the professional relationship with the client; and awards in similar cases.

The most useful starting point in consideration of these factors is to calculate the so-called lodestar; it is the product of the number of hours reasonably expended times a reasonable hourly rate set in accordance with prevailing market rates in the relevant community. Blum v. Stenson, 465 U.S. at ___-___, 104 S.Ct. at 1546-1547, 79 L.Ed.2d at 899-900; Hensley v. Eckerhart, 461 U.S. at 433, 103 S.Ct. at 1939; Anderson v. Morris, 658 F.2d at 249. The lodestar may then be adjusted upward or downward on the basis of factors not subsumed in calculating it, Blum v. Stenson, 465 U.S. at ___-___, 104 S.Ct. at 1548-1549, 79 L.Ed.2d at 901-03; Hensley v. Eckerhart, 461 U.S. at 434 & n. 9, 103 S.Ct. at 1940 & n. 9; Anderson v. Morris, 658 F.2d at 249, although the Blum decision teaches that it is a "rare case in which an upward adjustment to the presumptively reasonable fee of rate times hours is appropriate."¹ Blum v. Stenson, 465 U.S. at ___ n. 18, 104 S.Ct. at 1550 n. 18, 79 L.Ed.2d at 903 n. 18; see also Murray v. Weinberger, 741 F.2d 1423, 1428 (D.C.Cir. 1984). One factor which may justify enhancement is the "results obtained," Hensley v. Eckerhart, 461 U.S. at 434, 103 S.Ct. at 1940; they will normally, however, be subsumed in the lodestar calculation, Blum v. Stenson, 465 U.S. at ___, 104 S.Ct. at 1549, 79 L.Ed.2d at 903. Although the Supreme Court in Blum, 465 U.S. at ___ n. 17, 104 S.Ct. at 1550 n. 17, 79 L.Ed.2d at 903 n. 17, expressly left open whether the contingency of the fee and thereby the risk of not prevailing may also be the basis of an upward adjustment, the Fourth Circuit as well as other courts of appeals have held since Blum that they can be. Vaughns v. Board of Education of Prince George's County, 770 F.2d 1244 (4th Cir.1985), aff'g 598 F.Supp. 1262 (D.Md.1984); Murray v. Weinberger, 741 F.2d at 1430-32; Craik v. Minnesota State University Board, 738 F.2d 348, 350-51 (8th Cir.1984). Enhancement of a fee because of its contingent nature is, however, to be reserved for cases presenting "exceptional circumstances." Vaughns v. Board of Education of Prince George's County, at 1246 (4th Cir.); see also Blum v. Stenson, 465 U.S. at ___, 104 S.Ct. at 1549, 79 L.Ed.2d at 903; Murray v. Weinberger, 741 F.2d at 1428. The burden of supporting a request for fees rests with the claimant. Blum v. Stenson, 465 U.S. at ___, 104 S.Ct. at 1548, 79 L.Ed.2d at 901.

In their motion for fees, Plaintiffs seek a fee award totaling $285,756.00.² The fee is requested on behalf of the following: Hugh Joseph Beard, Jr., who was counsel of record for Plaintiffs until September 1981³ when he began a tour of service with the federal government which continues to the present; Richard L. Voorhees, an attorney who performed services in this case as early as May 1981 and has been counsel of record for Plaintiffs since September 1981; and several attorneys, two law students, and one paralegal who at various times assisted Messrs. Beard and Voorhees. Each of these claims shall be analyzed in turn.

Beard

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