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Jackson Women's Health Organization v. Currier

United States District Court, S.D. Mississippi, Northern Division

February 1, 2019




         Plaintiffs Jackson Women's Health Organization (“JWHO”) and Dr. Willie Parker seek an award of attorneys' fees, expenses, and costs under 42 U.S.C. § 1988(b), 28 U.S.C. § 1920, and Federal Rule of Civil Procedure 54(d). Mot. [217]. In all, Plaintiffs seek $1, 145, 146.75 in attorneys' fees in addition to costs and expenses. Defendants do not substantively dispute that Plaintiffs are entitled to recover but suggest that the attorneys' fee award should be no more than $411, 047.50. For the following reasons, the Court awards $714, 159 in fees plus the reasonable costs and expenses addressed below.

         I. Facts and Procedural History

         On June 27, 2012, Plaintiffs filed this lawsuit under 42 U.S.C. § 1983 challenging two provisions of a 2012 Mississippi abortion law: the admitting-privileges requirement and the ob-gyn requirement. Plaintiffs ultimately succeeded in having the former declared unconstitutional and permanently enjoined, and they now seek an award of over $1.1 million in attorneys' fees, over $30, 000 in expenses, and nearly $14, 000 in costs incurred in litigating the admitting- privileges-requirement claim.[1] The matters raised have been fully briefed-including a Sur-Reply [229] and a Sur-Sur-Reply [231].

         II. Analysis

         A. Attorneys' Fees

         Under 42 U.S.C. § 1988(b), “[i]n any action or proceeding to enforce a provision of section[] . . . 1983 . . . of this title, . . . 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.” While this section grants the Court discretion whether to award fees to a prevailing party in a § 1983 case, the Fifth Circuit has noted that “the discretion afforded to district courts to deny attorney's fees to prevailing plaintiffs under § 1988 is exceedingly narrow.” Sanchez v. City of Austin, 774 F.3d 873, 878 (5th Cir. 2014) (quoting Cruz v. Hauck, 762 F.2d 1230, 1233 (5th Cir. 1985)).

         Defendants concede that Plaintiffs are the prevailing parties with respect to the admitting-privileges requirement. And they do not contend that “special circumstances” render a fee award unjust. See Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). Instead, they dispute the reasonableness of the fees sought.

         “The linchpin of the reasonable fee is the lodestar calculation, a product of the hours reasonably expended by the law firms and the reasonable hourly rate for their services.” McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011). Here, the lodestar calculations Plaintiffs seek are set forth in the following table:


Plaintiffs' Proposed Hourly Rate

Hours Billed by Attorney

Plaintiffs' Lodestar

Julie Rikelman



$191, 820

Michelle Movahed



$233, 581.25

Autumn Katz



$52, 631.25

Jenny Gerry



$18, 812.50

Lara Rabiee



$59, 000

Tiseme Zegeye



$72, 400

Hillary Schneller



$19, 480

Rob McDuff



$41, 895

Allan Arffa



$4, 995

Aaron Delaney



$249, 663.75

Corey Callahan



$7, 400

Paula Viola



$170, 140



$1, 145, 146.75

         The Court will address each component of the lodestar calculation separately, starting with the hourly rate.

         1. Reasonable Hourly Rate

         The general rule is that “‘reasonable' hourly rates ‘are to be calculated according to the prevailing market rates in the relevant community.'” McClain, 649 F.3d at 381 (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)). And Plaintiffs bear the burden of “produc[ing] satisfactory evidence . . . that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. (quoting Blum, 465 U.S. at 896 n.11).

         Usually, “the ‘relevant market for purposes of determining the prevailing rate to be paid in a fee award is the community in which the district court sits'”-here, the Northern Division of the Southern District of Mississippi-and the reasonable hourly rate for that community “is established through affidavits of other attorneys practicing there.” Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002) (quoting Scham v. District Courts Trying Criminal Cases, 148 F.3d 554, 558 (5th Cir. 1998). Courts also look to other court decisions regarding the prevailing rate. See, e.g., Walker v. U.S. Dep't of Hous. & Urban Dev., 99 F.3d 761, 660 (5th Cir. 1996) (affirming prevailing rate arrived at by district court using “the hourly rate on awards by other judges in the [division, ] previous awards in the . . . case, and the published billing rates of outside counsel”). There is no dispute that the prevailing local rate must apply to Plaintiffs' local counsel Robert McDuff. Accordingly, the Court will consider his rate before turning to the out-of-district attorneys.

         a. Robert McDuff

         Plaintiffs assert that a rate of $450 an hour for McDuff's time “is in line with the prevailing rates in Jackson for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Pls.' Mem. [218] at 14. They support that statement first with McDuff's own declaration, in which he states that he has “had hourly rate clients who paid $350 per hour and others who have paid between $350 and $500.” McDuff Decl. [217-10] ¶ 7.

         Plaintiffs supplement McDuff's declaration with one from attorney Cliff Johnson, who opines that “the $450/hour rate sought by Mr. McDuff is consistent with the rates charged to fee-paying clients by lawyers based in the Southern District of Mississippi of reasonably comparable skill, reputation, and experience during the relevant time period.” Johnson Decl. [217-17] ¶ 13. Finally, Plaintiffs note that in Perez v. Bruister, the Court approved an undisputed hourly rate of $375 for Jackson attorney Louis Watson, who graduated law school eleven years after McDuff. Pls.' Mem. [218] at 20 (citing No. 3:13-CV-1001-DPJ-FKB, 2015 WL 5712883, at *6 (S.D.Miss. Sept. 29, 2015)).

         Defendants counter that a $350 hourly rate is more appropriate for McDuff's time. They begin by citing an April 30, 2015 affidavit that local attorney Lawson Hester filed in another case. There, Hester testified,

Throughout the course of my practice, I have never known any attorney in Mississippi to receive compensation in excess of $265/hr. for handling 42 U.S.C. § 1983 claims. In my experience, typical rates across the state for these types of claims fall in the range of $150-$250/hour, depending upon the experience of the counsel, the complexities of the case and the past billing relationships of the party and counsel.

         Hester Aff. [222-17] ¶ 7. Defendants also cite several § 1983 cases from this district approving hourly rates ranging from $150 to $375 per hour. Defs.' Mem. [222] at 7 (collecting cases). Finally, Defendants offer a survey from the Mississippi Bar indicating that in 2016, just 1.5% of Mississippi attorneys billed their clients $400 per hour or more. Survey [222-18] at 5.[2]

         The Court's own research, coupled with the other record evidence, indicates that a $375 hourly rate is appropriate for McDuff's work as local counsel. As Judge Reeves observed in Depriest v. Walnut Grove Correctional Authority, “Prevailing market rates for [major civil-rights] work in Jackson vary widely.” No. 3:10-CV-663-CWR-FKB, 2017 WL 4228751, at *7 (S.D.Miss. Sept. 22, 2017) (collecting cases). In that case, McDuff successfully prosecuted claims of systemic Eighth Amendment violations at the Walnut Grove Correctional Facility and sought an hourly rate of just $219. Judge Reeves approved that request but suggested that McDuff undervalued his services after offering an “affidavit stating that hourly rates for similar attorney work in Jackson are between $300 and $450.” Id.

         McDuff's record evidence in Depriest-as well as his declaration in this case-fully support a $375 hourly rate for his work as local counsel. And that rate finds further support in two other cases from this district. First, in Anderson v. City of McComb, Judge Tom Lee approved a $375 hourly rate for prominent Mississippi attorney Dennis Sweet. No. 5:13-CV-263-TSL-MTP, 2016 WL 4261777, at *4 (S.D.Miss. Apr. 4, 2106). Second, in Perez-an ERISA case that was far more complicated and time-consuming than this one-the undersigned approved that same rate for attorney Louis Watson. Perez, 2015 WL 5712883, at *6-7. All parties in Perez deemed the fee reasonable for Watson's work as local counsel. Id. at *2. Here, Plaintiffs say McDuff should be paid more than Watson because he has been practicing longer. But Watson is no novice; he has been practicing for nearly 28 years and has built a sizeable practice. His rate as local counsel in Perez is a good benchmark. In view of the foregoing, the Court finds that an hourly rate of $375 represents a reasonable, prevailing-market rate for McDuff's work assisting as local counsel in this case.

         b. Out-of-District Counsel

         Plaintiffs' out-of-district attorneys all practice in the Southern District of New York, and they seek the prevailing hourly rates for that venue. For the seven attorneys with the Center for Reproductive Rights (“CRR”), the requested rates range from $250 to $600 per hour. Plaintiffs also employed four attorneys from the New York office of the Paul Weiss firm, and they seek hourly rates between $400 and $675 for their services.

         Generally, forum rates apply. McClain, 649 F.3d at 382. But the Fifth Circuit created an exception to the local-community rule for cases “where . . . abundant and uncontradicted evidence prove[s] the necessity of . . . turning to out-of-district counsel.” Id. In McClain, the court found that the plaintiffs met that burden because the record was “replete with affidavits from a variety of expert employment lawyers who swore that no Texas attorneys were willing and able to assist in such a large case that might drag on for years without any guarantee of financial remuneration.” Id. at 383.

         Plaintiffs say that they too meet this burden based largely on declarations from five Mississippi attorneys: McDuff, Cliff Johnson, Mark Wann, Beth Orlansky, and Paloma Wu.[3]

         In relevant part, McDuff's declaration states:

I am aware of no lawyer or law firm in Mississippi who would have been willing and able to take this case as lead counsel and spend the time and resources necessary to litigate it effectively. Abortion is generally unpopular in Mississippi. Many Mississippi lawyers are opposed to abortion. Even for those who are not, many would be concerned about the impact such a case would have on their practice because it would be unpopular with some of their existing and potential clients and would affect their reputations in ways they believe would be adverse to their business. In addition, the economics of such a case would make it extremely difficult for a solo or small-firm lawyer to take the case and spend the necessary time and resources on it. Even for large law firms, the economics of a case such as this, as well as [the] unpopularity of abortion among many Mississippians, including many of their clients, would deter them from taking it on. While there are a small number of nonprofit public interest law offices in Mississippi, none of their lawyers at the time had significant experience in abortion rights litigation. The only one that I believe might have taken this case in light of the cost and time commitment would have been the ACLU of Mississippi, which invariably brings in lawyers from its national office to provide the necessary experience and resources for litigation such as this. Had the ACLU taken this case, lawyers from its national ACLU office who specialize in abortion rights litigation would have taken the lead and done the vast majority of the work and the national office would have funded the litigation.
Very few lawyers in Mississippi have experience litigation abortion rights cases. I believe I have more experience in this area than any other lawyer in Mississippi. But I could not have afforded the time or the financial resources necessary to take this case either by myself or in combination with any other willing Mississippi lawyers. This case could not have been litigated properly unless the Plaintiffs had also been represented by out-of-state counsel with the expertise, time, and resources to do so.

McDuff Decl. [217-10] ¶¶ 12-13. Johnson's declaration echoes McDuff's perspective:

While there are Mississippi attorneys-such as Rob McDuff and myself-who are willing to assist as local counsel in reproductive rights cases, I am not aware of any Mississippi lawyers with the combination of the necessary skills, experience, time, and resources who would have been willing and able to take on a complex, multi-year abortion rights case without substantial assistance from out-of-state counsel.

Johnson Decl. [217-17] ΒΆ 7. As for Wann, Orlansky, and Wu, they are the only other in-state attorneys Defendants identified by name as being equipped to assist McDuff in this ...

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