ABORTION INDUSTRY IN MELBOURNE, FLORIDALAWSUITSRANEY V AWARE WOMANDOCKET / CHRONOLOGICAL FILEDEFENDANTS' APPLICATION AS PREVAILING PARTY FOR LITIGATION EXPENSES AND FEESABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITSRANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANTS' APPLICATION AS PREVAILING PARTY FOR LITIGATION EXPENSES AND FEES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NO 97-1197-CV-ORL-19B
MEREDITH T RANEY, JR,
Plaintiff,
-versus-
AWCC, et al,
Defendants.
AWCC APPLICATION AS PREVAILING DEFENDANT FOR LITIGATION EXPENSES AND FEES
Prevailing Defendants AWCC et al respectfully submit this Application, Memorandum, and supplemental materials in support of a compensatory award of litigation fees and expenses in this case. FACE, 18 USC §248, and Eleventh Circuit case law support this compensation for "prevailing defendants" who succeeded in defense of this insubstantial lawsuit over the past two years, from 10/97 to date.
AWCC asks leave to file in excess of ten pages. This is because case law requires that multiple issues be addressed. AWCC further asks leave to file supplemental affidavits detailing times, tasks, rates, and expenses within 45' days of the subsequent requested ruling on entitlement to this compensation. Then specific amounts can be determined.
STANDARD FOR RECOVERY
As appears more fully, post, prevailing defendants may recover reasonable litigation expenses/fees for defending this kind of insubstantial case. Christiansburg Garment Co v EEOC, 434 US 410, 421 (1978}, applies when "... the plaintiffs action was frivolous, unreasonable, or without foundation .... " 434 US at 421. Accord, Hughes v Rowe, 449 US 5 (1980)(§1988 defendant fees/expenses follow Christiansburg standard).
Christiansburg sets the standard of responsibility for an insubstantial losing plaintiff who has imposed upon the Court and burdened innocent defendant litigants. Otherwise a frivolous plaintiff, like a repetitive jailhouse lawyer, can repeatedly harass both adversaries and the federal court system, wasting hundreds of hours as here, with no recourse. E.g., McGlothlin v Murray, 993 F Supp 413 (WD W Va 1997)(frivolous jailhouse lawyer suit, prevailing defendant fees).
This unusual action brought by Mr Raney was all that Christiansburg intended to prevent: unreasonable, without foundation, and frivolous. Bad faith is evident as well from Mr Raney's patterns of conduct and deposition, but is not required for litigation fee/expense compensation to a prevailing defendant under FACE, 18 USC §248, or 42 USC §1988.
AWCC previously submitted to the Court documentation for special findings as to the insubstantial repetitive nature of plaintiffs lawsuit. Such findings suggest far more than the case law requires to place responsibility on this plaintiff and his counselors. Of additional concern is the contradictory posture of Mr Raney in the two other cases he did not disclose to this Court. In both Raney v Melbourne cases he treated the Police as agents of the City. Yet here, he frivolously tried to link AWCC to control over City Police, without legal or evidentiary basis.
ELEVENTH CIRCUIT CASE LAW & LEGISLATIVE HISTORY
The Eleventh Circuit not infrequently upholds or orders full recovery of litigation costs and fees for "prevailing defendants."
Initially, the legislative history of FACE, 18 USC §248, is clear. The Congressional Joint Conference Report on FACE appears in the 1994 US Code Congressional & Administrative News regarding P.L. 103-259, 108 Stat. 694, appended hereto as Tab 1. It states:
"Specifically, the Conferees intend that under this provision, as under 42 U.S.C. 2000e-5(k), attorneys' fees and costs may be awarded to a defendant 'upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.' " 1994 USCCAN, PL 103-259, p 727 {Tab 1 hereto, Appended}.
Here, the lawsuit by Mr Raney, from the outset, lacked foundation in law and fact, was wholly unreasonable, and frivolous. It was plainly part of his overall careless plan, through a series of chaotic concerted incidents, to harass and intimidate patients & staff, and ruin AWCC.
Eleventh Circuit courts sanctioned the full compensation of litigation fees and expenses for prevailing defendants in Baker v Aideman, 158 F3d 516 (11th Cir 1998)(frivolous employment discrimination case); Johnson Enterprises v FPL Group, 162 F3d 1290, 1330-1331 (11th Cir 1998)(claim lacked substantial factual or legal support); Turner v Sungard, 91 F3d 1418 (11th Cir 1996)(fees and costs to prevailing defendants); Geaneas v Willets, 911 F2d 576, 582 (11th Cir 1990)(double costs and fees); FIGA v R.V.M.P. Corp., 681 F Supp 807 (SD Fla 1988)(fees also allowed for counterclaim work). See also Walker v City of Bogalusa, 168 F3d 237, 240 (5th Cir 1999)(prevailing defendant City awarded litigation expenses). See also Hahn v City of Kenner, 1 F Supp 2d 614 (ED La 19981, and Strain v Kaufman County, 23 F Supp 2d 698 (ND Tex 1998).
A leading case from this Court on fees/expenses in burdensome federal cases is Maltzer v Provident Life, 843 F Supp 692 (MD Fla 1993){Tab 3}.
A leading national decision on litigation fees, unpopular issues, and the necessity for experienced national counsel in the reproductive health field is Guam Society of Ob/Gyn's v ADA, 100 F3d 691 (9th Cir 1996) {Tab 4}.
See generally the treatise, J E KIRKLIN, SECTION 1983 LITIGATION STATUTORY ATTORNEY'S FEES (3d ed 1997). Volume. 2 exhaustively encompasses every issue here. Ch 10, p 471 covers "SUCCESSFUL DEFENDANTS."
DEFENDANTS ARE "PREVAILING PARTIES"
By virtue of summary judgment entered August 11, 1999 {Doc 148}, AWCC prevailed in this litigation, on grounds of "no-agency, no-control." AWCC raised this defense early in the initial Answer, Affirmative Defenses ¶¶ 23-24 {Doc 17, filed 12/23/1997}, and often, periodically thereafter. E.g., AWCC "Memorandum in Opposition to Motion to Dismiss Amended Counterclaims," p 2 {Doc 55, filed 6/22/1998}. Lack of agency was fairly straightforward as a dispositive question. By the Order of the Judgment, this Court found no persuasive evidence of agency or control, and concluded: "plaintiff [Raney] take[s] nothing .... "
Prevailing defendant AWCC also developed and briefed other meritorious defenses supported by Eleventh Circuit case law:
In sum, defendant AWCC prevailed on the merits with the agency issue. AWCC, moreover, could have prevailed if necessary on several equally meritorious defenses applicable at any point in the litigation. The fact that the narrowly framed initial motion to dismiss, under the strict rules of this Circuit, survived, does not add substance to the many missing foundations in Mr Raney's overall unreasonable and frivolous lawsuit. Moreover, his purpose was not redress. He carelessly invited and brought the arrests upon himself, to burden, harass and sue AWCC. As this Circuit noted in Popham v Kennesaw, 820 F2d 1570 (11th Cir 1987):
"If a plaintiff brings a lawsuit for a vexatious purpose or in bad faith, i.e., not in the hope of winning but solely in order to put the defendant to the burden of defending himself, the prevailing defendant arguably is entitled to attorney's fees regardless of whether the plaintiffs claims technically were frivolous." Id at 583.
Accord, Kentucky v Graham, 473 US 159, 165 n9 (1985); Hensley v Eckerhart, 461 US 424, 429 n2 (1983). The KIRKLIN TREATISE, §10.2, p 474, on federal fee claims identifies four categories of cases that often produce "prevailing defendant's" compensation. Three of the categories apply to this frivolous plaintiff's misadventure:
First: "The plaintiff failed to produce any evidence in support of her claims." Citing Sullivan v School Bd, 773 F2d 1182, 1189 (11th Cir 1985)(dictum). Mr Raney lost on this ground. He also conducted the litigation with disinterest in evidence, failing to take statements or depositions, and objecting to depositions rather than attending. He submitted only gory immaterial videos, and self-serving affidavits.
Second: "The claims were 'clearly barred by unambiguous case law.'" Again, Mr Raney rarely joined issue on the law as to any of the several defenses fully briefed by AWCC. The authorities he infrequently cited were often severely dated, inapplicable, or both.
Third: "The meritless claims already had been raised and defeated in a prior state court proceeding that clearly was entitled to preclusive effect." Again, Mr Raney had a litigious, repetitive past he did not disclose to the Court. He lost Alf which applied Madsen to exclude him personally from the buffer zone. Alf was not a meaningless exercise, but involved hundreds of hours of prosecutorial work, and two appeals, to apply the buffer zone to exclude 108 persons not named in the original injunction. This Court should not disregard or ignore what happened in Alf.
AWCC found the Alf papers while investigating the case thoroughly, and provided these to the Court previously. Mr Raney never produced these at deposition as requested, although he kept exhaustive records.
Mr Raney also followed the frightened doctor down the highway and pointed his fingers in gun-like fashion. Justice Stevens and the Florida Supreme Court elaborated on that alarming incident. Prior AWCC briefs cited those passages to this Court. That made him "in concert" for Madsen.
Time Expended "Prevailing" As to Defense
The starting point for calculating the "lodestar" is to compile the times and tasks of hours reasonably expended in defense of the lawsuit. These times are multiplied by reasonable hourly rates. Then adjustments up or down are made, according to the numerous criteria set out in the case law. This application and memorandum follow that prescribed course, supplemented by detailed affidavits within 45 days after the Court rules on the entitlement to "prevailing defendants" compensation.
Local Melbourne, Florida, counsel Mr Torpy and his associate Ms Hogreve initially defended this case in 1997 on an hourly basis. AWCC hired Mr Lucas and Ms England to assume the defense in 1998, with initial consultations in Texas and Colorado in March and April of 1998.
Initially, AWCC claims all reasonable litigation time and expenses involved in developing all of the substantial defenses to the lawsuit. AWCC had to investigate and develop all substantial defenses because reasonable jurists and attorneys might well differ as to which defenses were more persuasive than others. The time information to be submitted often describes the issues worked on separately where possible. Also, counsel necessarily worked on the case as a whole, investigating and researching numerous legal and factual matters in a given day.
Time Expended on Related, Necessary, Meritorious Counterclaims
Part of any good defense is a strong counterclaim offense growing out of the same matrix of facts. It was necessary for AWCC, and foreseeable to Mr Raney, that meritorious counterclaims could be asserted against him and others. These counterclaims arose from the broader factual background of which the Raney lawsuit was an inseparable part.
Since Mr Raney carelessly forced this lawsuit confrontation, he should be responsible as well for the reasonably necessary and substantially meritorious counterclaim activity, the compulsory and permissive counterclaims. Indeed, these counterclaims and their investigation inevitably led to and strengthened the AWCC defenses by unraveling many facts and other viable defenses.
Tab 3, an important case from this District, Maltzer v Provident Life, 843 F Supp 692, 695 (MD Fla 1993), allowed counsel hours on a bad faith issue because it related to the contract law question that was dispositive. Maltzer is a leading case nationally.
Earlier, FIGA v RVMP Corp, 681 F Supp 806, 809 (SD Fla 1988), allowed prevailing defendant work on voluntarily dismissed counterclaims. The claims and counterclaims were intertwined and arose from the same factual background. The same is true here. The conduct by Mr Raney is an integral part of the activity AWCC opposes as stalking, invasion of privacy, nuisance, intimidating, obstructive, and tortious interference with professional activity. The Raney activity of criminal contempt and implicit extortion made in documents also provides multiple predicate acts for AWCC RICO claims.
In sum, the inseparable work on counterclaims by AWCC counsel is fully compensable, as it was intertwined, possibly required by FRCP 13, and contributed to the successful defense against the Raney lawsuit.
Time Expended on Collateral Order Appeal
AWCC in good faith took a collateral order appeal to try every avenue possible to secure pre-trial dismissal of the insubstantial Raney lawsuit. Otherwise, an unnecessary, lengthy, burdensome, bankrupting trial would have been forced, wasting time. Ultimately, while the appeal was pending, this Court sua sponte determined that at least one AWCC defense {absence of agency or control} was valid as a matter of law {Order, Doc 140, filed 2/26/99}.
The appeal effort by AWCC was strategically necessary and reasonable. AWCC raised substantial appellate questions that had not previously been determined by the Eleventh Circuit or the Supreme Court. The appeal was necessary to attempt to prevent a seriously burdensome trial possibly beyond the means of AWCC. {The facility has nonetheless now closed.}
Since the appellate work was reasonably necessary in the defense of AWCC, these ultimately "prevailing defendants" should be allowed to recover that portion of litigation expenses and fees. The appellate work indeed helped AWCC to hone all meritorious grounds for dismissal.
But for the frivolous lawsuit by Mr Raney, neither the defense nor the appeal would have been necessary. The bringing by Mr Raney of plainly insubstantial claims in the first place entirely and proximately caused the 148-document file on this case, plus hundreds of hours of burdensome work. Mr Raney's actions necessitated the considerable appellate effort to block a pointless trial. This lawsuit was a gross imposition on the Court, and a monumental burden to AWCC. It was a massive exercise in time wasted, for which Mr Raney and his counselors are responsible.
Time Expended on Cost & Fee Application
The time involved in assembling a fee application is normally allowed. The first two reproductive health cases in the Eleventh Circuit on discriminatory regulation/zoning applied this principle almost twenty years ago.
AWC v Cocoa Beach, 629 F2d 1146 (5th Cir - Fla 1980), used 42 USC
§1988 to compensate this same facility for litigation costs and expenses. The entire AWC appeal involved time expended in seeking fees and expenses, after overturning a frivolous City ordinance.
One year later this Circuit again compensated a similar facility for its legal expenses and fees contesting a discriminatory zoning ordinance. DMC v Deerfield Beach, 661 F2d 330 (5th Cir - Fla 1981)(injunction and fee/expense award ordered). {This trial counsel also worked AWC and DMC}
Here the obstacle to AWCC is not a City, but Mr Raney and his repertoire of harassment by multiple means, including frivolous complaints and lawsuits. The effect is the same. Functionally in this lawsuit, AWCC is a prevailing civil rights plaintiff who was wrongly sued.
The Eleventh Circuit, following the Supreme Court, normally allows time expended seeking litigation expenses and fees. The KIRKLIN TREATISE §4.10, pp 212-13, covers "Work on Fee Application" by Circuit. He cites from this Circuit Jones v Stack, 758 F2d 567, 568 (11th Cir 1985), and Carmichael v Birmingham, 738 F2d 1126 {11th Cir 1984}.
Reasonable Costs and Expenses Incurred by AWCC Recoverable
AWCC necessarily incurred substantial expenses in defending this action. All such expenses were proximately caused by plaintiffs frivolous lawsuit. Subsequent affidavits will detail these. The KIRKLIN TREATISE §8.8, pp 420-21, lists postage, telephone, photocopying, travel, food, lodtling, depositions, and exhibits, all applicable here.
Novelty and Difficulty of the Questions
The frivolity of Mr Raney's claims has been evident to AWCC from the outset. He did not present unique, potentially meritorious claims. When experienced reproductive health litigators became involved in the case, a half dozen strong defenses appeared likely. Mr Raney never had a case, never had real damages, had no law on his side, and never tried to build a factual case through investigation and discovery.
The difficulty of the defense task was the enormous necessary consumption of time researching and investigating many straightforward areas. AWCC counsel had to develop the relevant background and research the law under FACE. This included legislative history, hearings, background events, the ten years of harassment endured by AWCC, the case law background of several cases in the Supreme Court, i.e., Bray, Madsen, Alf, and much more.
The Circuit cases on FACE, pre-FACE, and nationwide Operation Rescue harassment also were relevant. The annotations to FACE had to be studied and could not be ignored. Hundreds of pages of legislative history had to be combed. Then, AWCC counsel necessarily researched the case law and factual background for each and every substantial defense.
Fact investigation was time-consuming, for months. AWCC eventually deposed Mr Raney for two days. He produced numerous unorganized boxes of relevant documents, over 50 videotapes, and a few thousand log sheets on patient vehicles, license plates, and identities, that were part of his privacy-invading activities. Counsel had to study all of this material as part of the defense and development of counterclaims.
AWCC took deposition-statements of the Police Chief and an arresting officer. Mr Raney and his counsel failed to attend and objected to their use on questionable grounds. Cooperation was not the theme of discovery. One key witness, Mr LeStourgeon and his counsel simply walked out.
Throughout, the legal and factual matters were not unclear or disputed. There were just so many of them, so many details to the entire picture, a Kafkaesque jigsaw of 5000 pieces. Vigorous representation of AWCC in the overall context required much more burdensome work than one from the outside might initially, or after-the-fact, consider necessary.
Skills Requisite to Perform the Legal Services
Skills are one of the twelve fee factors from Johnson v Hwy Express, 488 F2d 714 (5th Cir - Ga 1974). Defending this lawsuit required all of the skills needed in a comprehensive federal litigation practice, and patience. This turned into a 148-document case. Every kind of work a lawyer does came up: factual investigation and research, interviews, affidavits, depositions, development of useful exhibits & demonstrative evidence, extensive motion practice, evidentiary questions, numerous areas of legal research, related state common law, statutory, and administrative law questions of many kinds, such as invasion of privacy, stalking, trespass, nuisance, tortious interference, confidentiality, pretrial preparation, application of a new federal statute out of context, computer-based research and drafting of pleadings, immunity issues, probable cause, insurance law questions on Raney and AWCC coverage, and relevance of earlier material state proceedings such as Madsen and Alf.
Working this case with its numerous factual and legal issues was as challenging and time-consuming as many that this trial counsel has taken all the way to the Supreme Court. At stake was the survival of the clinic and the privacy of thousands of patients.
Preclusion of Other Employment
The task of defending and responding to this litigation had three effects on other employment, at least for trial counsel Lucas.
First, available time was sharply diminished for other work in other cities, particularly at a distance. Counsel came out of semi-retirement from an extended illness to work this and related cases. No full-time employment such as teaching or government practice could be undertaken outside of Cerrtral Florida while this and similar cases required substantial attention and considerable commitments of time.
Second, the subject matter of the case is so socially and politically controversial that work in other areas evaporates. Always, it is extraordinarily difficult to obtain local counsel, and to secure other professional work from more traditional fields of professional practice. The stigma is pervasive, even though irrational and unreasoned.
Third, counsel had to commit so much time to this and related cases that he has not been able to re-establish {post-illness} his Washington, DC, practice again. The time commitment to be in this District, and the delay in payment for work in such an extended case, both have combined to delay counsel's return to other work and the DC area full-time.
Not A Typical Contingent Fee Case
The uncertainty in this case for defense counsel was not a traditional "contingent" percent of recovery. It was the reality of not being paid at all for the overwhelming bulk of professional services required and performed in this lawsuit. That is the principal judicial rationale for enhancements.
Results Obtained
AWCC prevailed in this case, in a sense, fully and completely, although reluctantly coerced to close its doors before final judgment. From a fee and expense standpoint, AWCC prevailed in this lawsuit, and handed the torch to the next generation. Now AWCC can only seek overdue compensation for multiple losses and expenses in paying on this case.
The no-agency issue, on which AWCC ultimately prevailed, is one writ large in its Answer, research, and memoranda of law. The City Police were never employed, influenced, or controlled by AWCC. The Police arrested or cited patients who tried to salvage privacy by covering up their license plates. The Police stopped enforcing the buffer zone shortly after the Raney arrests. AWCC could not fire the Police. AWCC did not hire or pay the Police. The City Council and Mayor even issued a "Proclamation," condemning abortion on the anniversary of Roe v Wade.
AWCC certainly never paid workmen's comp for the Police.
The final judgment states "plaintiff [Raney] take[s] nothing .... "AWCC succeeded in securing that judgment, and will defend it in any appeals.
The remaining question is whether Mr Raney and his co-conspirators compensate AWCC for taking everything from them over the last decade.
Experience of Counsel
Four defense counsel worked on this case, with little overlap.
Trial counsel Lucas was once a South Carolina youngster. He received a Root-Tilden Fellowship to attend New York University Law Center, 1963-67. He earned a year abroad as a Rotary Foundation International Fellow in 1966-67, then graduated, with high honors, Order of the Coif, Law Review, also with Phi Beta Kappa, and later Mensa, Who's Who in America, and Who's Who in the World honors. He went into public interest litigation, instead of the highly lucrative Wall St, Park Avenue, Phillip Morris, or Capitol Hill venues. He stirred up the issues of offering Root-Tilden fellowships for women, in 1966, and Rotary membership to women, around 1970 in New York City, an interesting historical footnote.
Lucas handled many early 1970s federal cases on rights of the disabled, the hearing impaired, women excluded from public universities, minors denied health care, non-residents denied an education, academic freedom, and of course the right of personal privacy and choice in human reproduction. The California Supreme Court cited his first law review article, on privacy and abortion, in 1969. He published this in the June 1968 N.C.L. Rev. The first citing case is People v Belous (Cal 1969), with Chief Justice Roger Traynor concurring in the majority on privacy.
More pertinent to relevant experience here, Lucas has since tried and appealed all kinds of federal cases all over the United States beginning at the US Court of Appeals before Chief Judge Brown in 1968, appearing within eleven federal judicial circuits, and before the highest courts of eight States. He often spoke at ABA annual meetings on health law, debated William F Buckley and John Noonan on "Firing Line," and was the subject of a cover Sunday New York Times Magazine article before turning thirty. He argued federal reproductive health care cases before panels of three judges in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits, with a reasonable degree of success, and long hours of labor. He argued three before the Supreme Court, and prevailed in others solely on briefs, including a leading §1988 fee application case, the second prong of this matter.
His last brief in the Supreme Court was on behalf of the Screen Actors Guild, filed July 15, 1999, in the driver's license privacy case, Reno v Condon, US No 98-1464.
That is as much federal privacy litigation experience as just about any American lawyer has, anywhere, anytime. Now Lucas is semi-retired, a cancer survivor, working only on a handful of cases in Florida, D.C., and N.C., contemplating a new Law Center for Cancer Survivors, in D.C., as soon as his few privacy cases here in Florida are completed.
Co-counsel Susan England also has substantial experience in reproductive health, privacy, and equality litigation, as will be detailed in her affidavit. She was co-counsel in Madsen v WHC, 512 US 753 (1994), and sat at counsel table for that argument in the Supreme Court with now F.S.U. President Sandy D'Alemberte.
Initial local counsel, Mr Torpy and his associate Ms Hogreve, handled early stages of this case when early dismissal seemed possible. His firm charged a reduced public interest hourly rate of $75, and shifted responsibility to attorneys Lucas and England in mid-1998.
Undesirability of Case
This kind of case has some uniquely undesirable features. Fundamentalist zealots have gunned down doctors in Florida in this field of work. Doctors now must employ bodyguards and the kind of security seen only at international airports and modern urban federal buildings.
Very few lawyers have experience with FACE, a 1994 statute, or with burdensome, confrontational reproductive health litigation. Both trial counsel Lucas and Ms England have over 20 years of experience with civil rights, equal rights, and reproductive health law work.
As to harassment of counsel, on day one in April 1998, Mr Raney and a co-conspirator copied Lucas' license plate, for utterly no future legitimate use than intimidation, potential tracking, stalking, or worse. That Exhibit is Tab 2 hereto. It was an inauspicious greeting to Florida.
A colleague of Mr Raney also published extensive biographical information about Lucas and his role since formulating the Roe v Wade, Doe v Bolton theories and outcome back in 1966-67. This was on a fundamentalist Website with a veritable "hit list" of physicians and clinic owners, and now a newly targeted lawyer. Corporate and insurance lawyers rarely enjoy such novel life experiences in their practices.
Counsel Lucas purchased his first shredder because of the "trash gathering" reputation of Mr Raney, admitted in deposition. Counsel obtained a PO Box to protect addresses in Florida because of the track record by Mr Raney of a decade harassing AWCC associates at home and at work. Life in this kind of confrontational litigation is like being in the federal witness protection program, but without protection.
Unavailability of Federally Experienced Local Counsel
AWCC has experience since 1980 in the frustrating effort to find sufficiently dedicated, federally experienced local counsel for "abortion cases." Doctors have scattered into other areas of medicine with the advent of "Unwanted Posters" and slayings in Florida. Very few federal litigators been willing to take the risks and ignore the harassment/stigma problem. AWCC had to go all the way to Texas to coax semi-retired Lucas out of post-cancer rehab to handle the substantial burden of this case in a thorough way without imposing impossible fees. This is not to minimize Florida counsel, but few have federal experience, F3d, F Supp, US Code, and experience with Congressional history, much less dedication toward reproductive rights, gender equality, and US Supreme Court success in both §1983 and §1988 matters.
Customary Fees, Awards in Similar Cases
Customary fees for highly experienced federal litigators in this District and other large metropolitan areas are much higher than requested by these modest counsel. A few illustrative cases show that $300 per hour is a low norm for experienced 20+ year federal practitioners who have worked extensively at the highest levels starting in the late 1960s.
Tab 3, a leading 1993 Middle District opinion, Maltzer v Provident Life, 843 F Supp 692, 697 (MD Fla 1993), accepted hourly rates from $250 to $350 for the most experienced counsel with over 20 years and documented skills. Maltzer then added a 2.5 enhancement multiplier.
A further leading federal case, FIGA v RVMP Corp, 681 F Supp 806, 809 (SD Fla 1988), involved prevailing defendant litigation fees. FIGA, over eleven years ago, allowed $200 per hour for experienced counsel. This would extrapolate to well over $300 in 1999.
The leading national reproductive health fee case is Tab 4, Guam Society of Ob/Gyn v Ada, 100 F3d 691 (9th Cir 1997). Guam, not unlike Mr Raney, sought to outlaw almost all abortion. {Mr Raney would outlaw contraception as well, according to his deposition.} Guam physicians had to reach all the way to New York to find experienced federal litigation counsel. Counsel traveled to Guam and succeeded in restoring Roe v Wade to the Island, surely an easier task than dismissing Mr Raney's lawsuit.
Those counsel sought §1988 fees at urban, metropolitan rates in 1996 of $240 per hour, based on contingency no-pay enhancement, the undesirable case factor, and implicit risks to their safety. That US Court of Appeals awarded the $240 rate, and a 2X enhancement.
Risk of Non-payment, Undesirability Multiplier
The depressing factor of possibly never being paid at all for hundreds of long hours of burdensome legal work, and the potentially life-threatening nature of this undertaking, individually and combined, support a modest multiplier. Many leading cases reason that a two-fold multiplier is suitable, and others go higher. AWCC counsel Lucas and England request reasonable hourly rates at $300 and $200 per hour respectively, and a two-fold multiplier as appropriate under all of the circumstances.
AWCC requests a 1.5 enhancement multiplier for the Torpy firm work.
Counsel previously discussed the Maltzer and Guam Society cases which are persuasive and appropos. {Tabs 3, 4}.
Most recently, Nutrivida v Inmuno Vital, 46 F Supp 2d 1310, 1319 (SD Fla 1999), found a lodestar of $191,009, a partial contingency arrangement, and "that an upward enhancement of two (2) times the lodestar amount is warranted." Citing FIGA v RVMP Corp, 681 F Supp 806, 808 (SD Fla 1988). Cf Natl Portland Cement v Goudie, 718 So2d 274, 275 (Fla 2d DCA 1998)(multiplier awarded and work involving counterclaim); Tampa Bay Publications v Watkins, 549 So2d 745 (Fla 2d DCA 1989)(multiplier appropriate in unpaid wages case).
PLAINTIFF & HIS COUNSEL LIABLE JOINTLY
The Eleventh Circuit, in cases such as this, allows the imposition of litigation fees and expenses on both the frivolous plaintiff and his counselors. This was done in Turner v Sungard Business Systems, 91 F3d 1418 (11th Cir 1996)(insubstantial employment discrimination case). This Circuit in Turner awarded "attorney fees and monetary sanctions on a party and his counsel for continuing to prosecute a frivolous action." The Court relied upon Christiansburg, supra, the standard here. Sungard was a prevailing defendant on summary judgment, as is AWCC.
Mr Sapp, a veteran of interstate clinic rescue operations, initiated this lawsuit for Mr Raney. No one knows - Mr Raney will not tell - how many legal organizations had rejected the case before as without merit.
Sometime before pretrial a Mr Michael Hirsh also came on board. He joined in fully for a time, and attended the pretrial before Magistrate Baker. Hirsh subsequently never made a formal appearance or moved for special admission. His stated intent and participation throughout the critical pretrial stage, however, is certainly a ratification and endorsement of the merits of a futile lawsuit, from at least December 1998 onward. He too should share joint and several responsibility.
Mr Hirsh is widely known in the legal community as one who wrote a law review article defending the killing of physicians who provide abortions. See generally Michael Hirsh, Use of Force in Defense of Another: An Argument for Michael Griffin, Regent University Law Review (Spring 1994)(publication suppressed), discussed in F Clarkson, ETERNAL HOSTILITY: The Struggle Between Theocracy and Democracy 144-148 (1997). See also Eric Lipton, Law Review Cancels Abortion Article, Washington Post, August 23, 1994. "Regency" is the fundamentalist law school started by Pat Robertson, using Oral Roberts' inventory, the same Robertson who made the apocalyptic prediction of comets and asteroids striking Orlando, probably in the Disney area.
Additional and supplemental authority for declaring the responsibility of counsel for fees may be found in the sanctions statute, 28 USC §1927. "A lawyer's reckless indifference to the law may impose substantial costs on the adverse party. Section 1927 permits a court to insist that the attorney bear the costs of his own lack of care." In re TCI Ltd, 769 F2d 441,445 (7th Cir 1985}.
CONCLUSIONS & RELIEF REQUESTED
For the reasons set out, prevailing defendants AWCC et al respectfully urge the Court to award litigation fees and expenses. AWCC requests 45 days from the date of the ruling on entitlement in which to file affidavits of the four counsel involved, and of AWCC, quantifying times, tasks, lodestar, adjustments, expert evaluations, and detailed expenses incurred in defending this insubstantial lawsuit by Messrs Raney, Sapp, and Hirsh. This extra time is needed because the mid-August ruling came at a time when the parties and their counsel are, or are about to be, out-of-state for several weeks and unable to assemble what is needed in the way of documentation and itemization.
Plaintiffs further request that the Court require Mr Raney and his counsel to post a responsible bond to cover the full amount of litigation fees and expenses, before they are allowed to appeal from any compensatory award. Otherwise, they can shed assets and avoid responsibility for the damage inflicted upon AWCC. That is a practice and tactic well known to Operation Rescue anti-abortion harassers. It subverts the legal process.
RESPECTFULLY SUBMITTED:
Roy Lucas, Esq <signed>
DC # 153957
c/o PO Box 1433
Melbourne, FL 32902-1433
TEL: 1-407-725-2413
FAX: 1-407-725-3847
and
Susan England, Esq
FL # 0186018
2805 Lakeview Drive
Fern Park, FL 32730
TEL: 1-407-339-4600
FAX: 1-407-331-3006
ATTORNEYS FOR DEFENDANTS AWCC et al.
CERTIFICATE OF SERVICE & LOCAL RULE 3.01 COMPLIANCE
This "Application of AWCC as Prevailing Defendants for Litigation Fees and Expenses" has been served by First Class Mail, postage prepaid, sent by the undersigned this Tuesday, the 24th day of August, 1999, to:
Christopher Sapp
PO Box 1012
Lehigh Acres, FL 33970-1012
and
Michael Hirsh
125 Townpark Drive
Kennesaw, GA 30144.
Counsel conferred with Mr Sapp twice by attempted telephone with no return response or agreement on any of the issues both on the 23rd and lastly the 24th of August, 12:29 pm. Actually this Application is dispositive as to the only remaining matter pending before the Court, so the consultation is probably not required.
BY: Roy Lucas <signed>
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