United States District Court, S.D. Mississippi, Northern Division
JACKSON WOMEN'S HEALTH ORGANIZATION, ET AL. PLAINTIFFS
MARY CURRIER, M.D., M.P.H., ET AL. DEFENDANTS
P. JORDAN III, CHIEF UNITED STATES DISTRICT JUDGE
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.
. 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.
Facts and Procedural History
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. The matters raised have been
fully briefed-including a Sur-Reply  and a Sur-Sur-Reply
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)).
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.
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
$1, 145, 146.75
Court will address each component of the lodestar calculation
separately, starting with the hourly rate.
Reasonable Hourly Rate
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).
“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.
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.  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.
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.  at 20 (citing No.
3:13-CV-1001-DPJ-FKB, 2015 WL 5712883, at *6 (S.D.Miss. Sept.
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.
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.  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.
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.
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.
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.
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
say that they too meet this burden based largely on
declarations from five Mississippi attorneys: McDuff, Cliff
Johnson, Mark Wann, Beth Orlansky, and Paloma
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
Johnson Decl. [217-17] ¶ 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