Davis v. Reed

72 F.R.D. 644, 1976 U.S. Dist. LEXIS 11687

• Court: District Court, N.D. Mississippi
• Decided: December 23, 1976
• Docket: No. EC 74-55-K
• Status: Published

Opinion

MEMORANDUM ORDER

READY, Chief Judge.

This action was brought by parents of black students enrolled in the Mississippi School for Blind “Colored” Children to terminate the operation of a dual racial school system for blind children in Mississippi. Defendants originally denied that they were operating racially segregated schools for blind children, but approximately one month after commencement of this action, a resolution which effectively desegregated the schools for the blind was adopted by the defendant Trustees of the Mississippi Schools for the Blind. This resolution formed the basis for the Consent Decree entered in this cause on August 15, 1974.

The motion of plaintiffs for an award of attorney fees is now before the court. We agree with plaintiffs that such an award is authorized in this case by the Emergency School Aid Act of 1972, 20 U.S.C. § 1617,¹ as this action, in the court’s opinion, was necessary to bring defendants into compliance with the Fourteenth Amendment to. the Constitution of the United States. It is immaterial that the suit was resolved by consent decree incorporating the resolution of the Board of Trustees, for there is no reason to believe the Trustees would have adopted the resolution in the absence of this lawsuit. See Aspira of New York, Inc. v. Board of Education of the City of New York, 65 F.R.D. 541 (S.D.N.Y.1975).

By affidavits, plaintiffs assert entitlement to attorney fees for the following: (1) time of attorney Melvyn R. Leventhal:

(2) for attorney Fred L. Banks, Jr.:

In addition, plaintiffs seek reimbursement of the following expenses:

Fairley v. Patterson, 493 F.2d 598, 607, n. 14 (5 Cir. 1974).

The court accepts plaintiffs’ figures as to hours expended and expenses “incurred.² We do not believe, however, Out-of-pocket expenses, when reasonable and when necessarily incurred in preparing for litigation, are of course, recoverable, that any expenses or attorney fees should be allowed in connection with the depositions taken by plaintiffs on August 12 and 13, 1974, only two days prior to the court’s approval of the proposed consent decree. These amounts can hardly be characterized as reasonably necessary for preparation of plaintiffs’ case, especially in light of attorney Leventhal’s affidavit to the effect that he spent 15 hours between August 5 and 12, 1974, in “preparation of and review of draft consent orders, meetings with counsel opposite and arrangements for entry of such an order.” We therefore find that Leventhal expended only 35 compensible hours in this action and that the claimed expense of $246 for depositions is not allowable in this award of attorney fees. We also do not believe that the time claimed by attorney Banks for establishing plaintiffs’ entitlement to an award of attorney fees should be included in the calculation of a reasonable attorney fee award, Latham v. Chandler, 406 F.Supp. 754 (N.D.Miss.1975). Banks is thus entitled to compensation for 8.5 hours spent on this suit.

Plaintiffs’ asserted rate of $50 per hour for computation of the award of attorney fees is in excess of what this court will allow, even for the services of experienced and capable counsel such as represented plaintiffs here. Rates of $35 and $40 per hour have been used by the court as a reasonable basis for the allowance of attorney fees, Payne v. Travenol Laboratories, Inc., No. DC 72-13—S (Dec. 8, 1976); Latham v. Chandler, supra; Ayers v. Western Line Consolidated School District, 404 F.Supp. 1225, 1228 (N.D.Miss.1975). However, “[t]ime spent on out-of-court matters, such as drafting pleadings, writing briefs, and traveling to and from court appearances, is customarily compensated at substantially less than $35.00 or $40.00 in the Greenville area,” Ayers, supra, at 1228. We believe $25 per hour is reasonable compensation for the out-of-court time expended in this case by plaintiffs’ counsel, other than travel time, which we think is adequately compensated at the rate of $20 per hour. Plaintiffs are therefore entitled to an award of attorney fees in the following amount:

It is accordingly

ORDERED

That plaintiffs haye of and recover from defendants, in their official capacities, the sum of $1,237.87 as an award of reasonable attorney fees and expenses incurred in this cause.

1 . An alternative authorization for an award of attorney fees is the Civil Rights Attorney’s Fees Award Act of 1976, P.L. 94r-559. See Wade v. Miss. Cooperative Extension Service, 424 F.Supp. 1242 (N.D.Miss.1976).

2 . The court, of course, is not bound in every case to accept the prevailing party’s figures, but “may weigh the hours claimed against his [the trial judge’s] own knowledge, experience, and expertise of the time required to complete similar activities,” Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5 Cir. 1974); see Latham v. Chandler, 406 F.Supp. 754 (N.D. Miss. 1975).