source: Caselaw Access Project

author: RAYMOND J. BRODERICK, District Judge.

license: Public Domain

text:
    James GIDLEWSKI v. BETTCHER INDUSTRIES, INC.
    Civ. A. No. 83-570.
    United States District Court, E.D. Pennsylvania.
    March 18, 1985.

      Judgment affirmed 3d Cir., 779 F.2d 42.
    Fergus Norton, Haverford, Pa., for plaintiff.
    L. Carter Anderson, Rawle & Henderson, Philadelphia, Pa., for defendant.
   MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

The plaintiff, James Gidlewski, brought this diversity action against the defendant, Bettcher Industries, Inc., alleging that the plaintiff was injured as a result of a defective design in a machine (a fish press) which was manufactured by the defendant and leased to the plaintiff’s employer, Mrs. Paul’s Kitchens, Inc. Following the liability, portion of the bifurcated trial, in response to interrogatories the jury found, based upon a preponderance of the evidence, that the press was leased in a defective condition in that it was defectively-designed; that the press was not substantially changed after it was leased from the defendant, prior to the accident; and that the defective condition of the press at the time it was leased was a proximate cause of the accident. Following the damages portion of the trial the jury returned a verdict in favor of the plaintiff in the amount of one million dollars.

The defendant has filed a motion for a new trial with regard to both liability and damages. For the reasons that follow, this Court has determined that the defendant’s motion will be denied.

Facts

The plaintiff was injured on May 8, 1982, while he was cleaning the fish press which the defendant had leased and/or sold to the plaintiff’s employer, Mrs. Paul’s Kitchens, Inc. The evidence showed that the press in question was about six feet high, eight feet long, twenty-three inches wide, and weighed about three thousand pounds. At the time of the accident it was mounted on four steel swivel castor wheels, which raised the machine about six inches off the floor. The plaintiff, who had been working for Mrs. Paul’s only about two weeks, was cleaning fish particles from the bottom of the press. The press was situated within one or two feet of a drain in the floor. As the plaintiff was cleaning the base of the press, the entire press suddenly toppled over onto him, pinning him to the floor. The plaintiff did not know exactly what caused the press to fall over, and there were no other eyewitnesses to the accident. The parties stipulated, however, that the accident occurred when the press (which rolled easily on the metal swivel castors) moved as the plaintiff was cleaning it, and one of the wheels fell into the drain, causing the press to topple over.

The plaintiff’s expert testified that the press was defectively designed in that “the height of the center of mass is greater than two and one half times higher than the width of the support”, making it dangerously top-heavy and unstable. Plaintiff’s expert testified that three inches of movement by one of the wheels up or down would cause the press to topple over.

The defendant did not present any expert testimony refuting the plaintiff’s contention that the press was unstable, but did contend that the press had been substantially changed after it had left the defendant’s control in that it had been manufactured with two swivel castor wheels and with two rigid castor wheels (equipped with “brakes”). The defendant’s product service manager testified that the press in question was designed with two castor swivel and two castor rigid wheels; that the “pull sheet” or production record with respect to the wheels (Ex. D-6a) showed that two swivel and two rigid castors were ordered and “pulled” for the press’ assembly; and that the defendant did not design and manufacture presses with four steel swivel wheels as were on the machine at the time of the accident. Four employees of Mrs. Paul’s Kitchens (plaintiff’s employer) testified that the wheels had not been changed at any time after the press was delivered to Mrs. Paul’s on May 8, 1980. Two of these witnesses were present when the press was delivered, and testified that at the time of delivery the press was equipped with the four steel swivel castor wheels which were on the press at the time of the accident.

Following the Court’s charge to the jury on the liability issues, and during the course of the jury’s deliberations, the jury sent the following note to the Court: Exhibit D-6a, p. 12.

Since the swivel castors were the prime basis of the defendant’s case, after examining the pull sheets we have observed that the 2 entries for the castors seem to have been either typed in at a different time or altered in some way since the type and alignment is different.

When the note was read to counsel, defendant’s counsel requested the Court to instruct the jury that they may not speculate, and must base their decision on the evidence. The Court sent for the jury and instructed them as follows:

All right, glad to see you. Let me say that I received this note, and it is not in the form of a question. I am just going to read it out loud to you again into the record.
At the top it says, “Exhibit D-6-A, page 12. Since the swivel castors were the prime basis of the defendant’s case, after examining the pull sheets, we have observed that two entries for the castors seem to have been either typed in at a different time or altered in some way, since the type and alignment is different.”
I just wanted to state to you, the exhibits are evidence, and it is up to you to evaluate the evidence. I don’t hesitate to tell you that I didn’t even see this because, you see, the way the trial goes, I don’t examine these documents that come in. So that the examination of the evidence and the evaluation of the evidence is up to you. The only thing I can tell you is, from the standpoint of the law, a jury shouldn’t speculate or you shouldn’t guess, but this is up to you. That’s a piece of evidence, and you evaluate that, along with all the other evidence in the case. And you apply the law that I have given to you.
Of course, if you have a question, you can ask me the question, but if you are going to ask me a question about the, you know, the exhibits, I can’t answer those, because the only questions I can answer are the legal questions. As I told you, it is your recollection of the evidence and, frankly, it is your evaluation of the evidence that counts. That’s up to you.

Shortly thereafter, the jury returned with a verdict for the plaintiff in the liability portion of the case.

Trial on the plaintiff’s damages portion of the case commenced immediately. Court was adjourned at the end of the day in the midst of plaintiff’s testimony. Prior to the commencement of proceedings the following day, defendant’s counsel requested the Court to “instruct the jury to reconsider its liability verdict and to instruct the jury that it may not base its verdict on an irrelevant consideration”, i.e., the jury’s alleged incorrect speculation that the wheel pull sheet had been altered. The Court denied the defendant’s request, and evidence as to damages continued. That afternoon, defendant’s counsel presented a motion for a mistrial, based on the jury’s allegedly improper consideration of the evidence, and in the alternative a motion that the defendant’s witness be recalled “for the purpose of persuading this jury that they should not punish my client for what they have apparently concluded was falsified evidence.” The Court denied the defendant’s motion, and stated, “I might add that you may wish me to charge the jury that they should not punish your client____ And I will certainly give a charge along those lines.”

In the damages portion of the trial, the plaintiff presented testimony from the plaintiff himself, his mother, his treating orthopedic surgeon, his treating psychologist, and an economist who testified as to the plaintiff’s future lost earning capacity. The evidence showed that the plaintiff had sustained a fractured pelvis, a dislocation of the sacroiliac joint, damage to the sciatic nerve, a fractured sacrum, a fractured right arm, and a ruptured or herniated disc in the lower back. After two years, the injury to the plaintiff’s pelvis still had not stabilized, presenting (according to plaintiff’s orthopedist) “an extremely serious-type situation”. The prognosis for the future with respect to this injury, while not life-threatening, was described by the doctor as “real bad, real bad.” The doctor stated that a major operation (fusion) to stabilize the plaintiff’s pelvis area could be attempted, but that there was no guarantee that the plaintiff’s condition would improve following such surgery. The doctor stated that, at least for the next three to five years, the plaintiff could not work for more than three or four hours per day (light work only), with frequent breaks to relieve the pain, and with no prolonged walking or prolonged sitting. These restrictions “could last forever”, according to the orthopedist.

Motion For New Trial

In support of its motion for a new trial the defendant claims that the Court committed the following errors:

1. Permitting the plaintiff to amend the pretrial order at trial to permit the testimony of two employees of Mrs. Paul’s;
2. Permitting the plaintiff to introduce evidence of an accident involving the same model press which occurred pri- or to the accident at issue in this case;
3. Refusing to permit the defendant, in the damages portion of the case, to reopen its liability case and allow the jury to reconsider its liability verdict after receiving further evidence in connection with the wheel “pull sheets”;
4. Permitting certain testimony of plaintiff’s economist, Dr. Mathis; and
5. Refusing to instruct the jury that future lost earnings should be reduced to their present value.

The defendant also contends that the jury’s verdict on damages was excessive.

There are three grounds for granting a motion for a new trial: (1) manifest error of law; (2) manifest error of fact; and (3) newly discovered evidence. 6A J. Moore, J. Lucas, and G. Grother, Moore’s Federal Practice, ¶ 59.07, at 59-73 (2d ed. 1984); see Thomas v. E.J. Korvette, Inc., 476 F.2d 471, 474-75 (3d Cir.1973); Marks v. Mobil Oil Corp., 562 F.Supp. 759, 764 (E.D.Pa.1983). In the present case the defendant (with the exception of its “excessive verdict” contention) submits that a new trial should be granted on the basis of trial error. Motions for a new trial require the exercise of discretion by the Court, whose duty is to ensure that the trial verdict does not result in a miscarriage of justice. Marks v. Mobil Oil Corp., 562 F.Supp. at 764; Woodward & Dickerson, Inc. v. Yoo Hoo Beverage Co., 502 F.Supp. 395 (E.D.Pa.1980). “The jury’s verdict may be set aside only if manifest injustice will result if it were allowed to stand. The Court may not substitute its own judgment for that of the jury merely because the Court may have reached a different conclusion.” Marks v. Mobil Oil Corp., 562 F.Supp. at 764 (citations omitted). Because motions for a new trial are addressed to the sound discretion of the trial court, appellate inquiry is limited to a determination “if there was prejudicial error by the trial court ... which adversely affected substantial rights” of the party moving for a new trial. Thomas v. E.J. Korvette, Inc., 476 F.2d at 475.

Amendment of Pre-Trial Order

The defendant contends that the Court erred in allowing the plaintiff to call two employees of the plaintiff’s employer to testify to the fact that the steel swivel castor wheels which were on the press at the time of the accident were on the press at the time of its delivery from the defendant to Mrs. Paul’s Kitchens. Plaintiff had presented the uncontradicted testimony of two other employees of Mrs. Paul’s that the wheels of the press had not been changed at any time from July of 1980, when the press was first inspected by the plant’s safety director, up until the time of the plaintiff’s accident in May of 1982. The Court permitted the plaintiff to amend the pre-trial order at trial to allow the testimony of two additional employees of Mrs. Paul’s (the maintenance supervisor and the project engineer), who stated that they were present at the time of delivery of the press on May 8, 1980, and that they noticed that the press was equipped with four steel swivel castors because, in the words of one, “it rolled darn nice.”

This Court’s Pre-Trial Order states “Amendments to this Pre-trial Order will not be permitted except where the Court determines that manifest injustice would result if the amendment is not allowed.” See Fed.R.Civ.P. 16(c); Ely v. Reading Co., 424 F.2d 758, 763 (3d Cir.1970). In view of the defendant’s contention that the press had been substantially changed by replacement of the original wheels, this Court had no hesitancy in finding that manifest injustice would occur if the Court denied the plaintiffs request to amend the Pre-Trial Order to permit the testimony of two witnesses who were present at the time the press was delivered. The Third Circuit has stated that the exclusion of critical evidence for failure of a witness to be listed in the Pre-Trial Order is “an extreme sanction” which is “not normally to be imposed absent a showing of willful deception or flagrant disregard of a Court order by the proponent of the evidence.” Meyers v. Penny-pack Woods Home Ownership Ass’n, 559 F.2d 894, 905 (3d Cir.1977) (citation omitted). No such showing was made in this case. Indeed, it does not appear in the record that defendant’s counsel objected to the amendment to the pre-trial order.

Evidence of Prior Accident

Through the defendant’s answers to plaintiff’s interrogatories, plaintiff learned that an accident involving the same model press had occurred in Ames, Iowa on February 15, 1982, some three months prior to the plaintiff’s accident. According to the defendant’s answer to the plaintiff’s request for reports of prior accidents involving the same model press, “an accident was reported by Carriage House Meat and Provision Company [in Ames, Iowa] on February 15, 1982. The company reported that a castor of its press had broken, causing the [ ] press to roll on an employee.” At trial the defendant objected to the admission of such evidence on the ground that the castor had broken in Iowa because the company had been in the habit of pushing it sideways, causing improper wear on the wheel and castor. Counsel stated that he “didn’t want the jury to think that this [prior accident] was a defective castor or a defective machine.” Counsel for defendant requested the opportunity to present evidence to explain why the castor on the press involved in the Iowa accident had broken. The Court permitted the defendant’s answer to the plaintiff’s interrogatory with respect to the prior accident to be read to the jury, and also permitted the defendant's witness (the product service manager) to explain that the castor in the Iowa accident had broken because the press “had been pushed sideways many times”. On cross-examination, defendant’s product service manager conceded that as a result of the castor breaking, the press in Iowa lost elevation at the point of the broken castor, and toppled over.

The Third Circuit has held that in products liability cases “evidence of prior accidents involving the same product under similar circumstances is admissible to show notice to the defendant of the danger, to show existence of the danger, and to show the cause of the accident.” Gumbs v. International Harvester, Inc., 718 F.2d 88, 97 (3d Cir.1983). In the present case plaintiff contended that the press was defectively designed because it was “top-heavy” and likely to topple over as a result of a slight rise or fall in the elevation of one of its wheels. In this case it was stipulated that one of the wheels on the press fell into a drain. In the Iowa case the wheel castor had broken. In both instances the result was that the loss of a wheel’s elevation apparently caused the machine to topple. Although the defendant now conténds, in his post-trial motion, that the Iowa press was “pushed” over, the defendant was afforded the opportunity to present the circumstances of the Iowa toppling-over incident. There is therefore no error in the Court’s ruling that the Iowa accident involved “the same product under similar circumstances” and therefore was relevant and admissible under Fed.R.Evid. 401.

Reconsideration of Liability Verdict

The defendant contends that the Court erred in failing to set aside the jury’s verdict as to liability and in denying the defendant’s request to present evidence that no falsification of defendant’s exhibit D-6a (the “pull sheet” on the press wheels) had occurred. As noted above, during the course of its deliberations as to liability, the jury sent a note to the Court stating that the jury had “observed” that the entries for the wheel castors “seemed” to have been typed in at a different time or altered in some way. At that time the defendant requested the Court to instruct the jury that it should not speculate. The Court granted the defendant’s request and so instructed the jury, without any objection by the defendant.

It is clear that after the verdict had been rendered as to liability, the defendant, speculating that the jury may have believed exhibit D-6a to have been falsified, sought to have a “second bite at the apple” (with respect to liability) by requesting the Court to set aside the jury’s verdict and permit the defendant to present additional evidence concerning exhibit D-6a. Rule 606(b) of the Federal Rules of Evidence bars inquiry of any juror

as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict ... except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

In this case it is not contended that any extraneous or outside information was presented to the jury or that any improper influence occurred. Nor is it contended that through inadvertence or mistake the verdict announced was not the verdict on which agreement was reached. See Mount Airy Lodge, Inc. v. Upjohn Co., 96 F.R.D. 378, 381 (E.D.Pa.1982); McNulty v. Borden, 542 F.Supp. 655, 657 (E.D.Pa.1982). The defendant speculates that the jury may have misconstrued exhibit D-6a, which was introduced into evidence by the defendant. As the Third Circuit has stated,

Long-settled considerations of public policy dictate that mistake of the testimony, misapprehension of the law, error in computation, irregular or illegal methods of arriving at damages, unsound reasons or improper motives, misconduct during the trial or in the jury room ... [cannot constitute grounds to overturn a verdict].

Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245, 1247 (3d Cir.1971) (citations omitted). See also McDonald v. Pless, 238 U.S. 264, 267, 35 S.Ct. 783, 784, 59 L.Ed. 1300 (1915); Chicago, Rock Island and Pacific Railroad Co. v. Speth, 404 F.2d 291, 295-96 (7th Cir.1968). Clearly a verdict may not be overturned on a party’s speculation that the jury may have misinterpreted a piece of evidence which that party submitted. There is no indication whatsoever that the jury based its verdict on its interpretation of exhibit D-6a. Furthermore, this Court, at the defendant’s request, instructed the jury to evaluate the evidence but not to speculate or guess, and the Court must presume that this instruction was followed. The defendant has not cited, nor has this Court discovered, any authority for reopening a case to take additional evidence, following a jury verdict, based on a party’s contention that the jury might have misinterpreted a piece of evidence which it presented.

Damages Issues

The defendant contends that plaintiff’s economist, Dr. Mathis, was not qualified to testify as to the extent of plaintiff’s loss of earning power based on a 75% disability. Dr. Mathis, an economist with significant experience in the field of employment opportunity, testified concerning his opinion of the plaintiff’s future employment opportunities. He based his opinion in part upon the treating orthopedist’s prognosis of the plaintiff’s physical disabilities. As noted above, the treating orthopedist testified that because of the severe injury to the plaintiff’s pelvis, the plaintiff was unable to work for more than three or four hours per day (light work only), with frequent breaks needed to relieve the constant pain in his lower back and pelvic area. The treating orthopedist also stated that the plaintiff could do no prolonged walking or standing, that his disability was “permanent”, and that the restrictions described above would last at least three to five years, and “could last forever”.

Dr. Mathis, on the basis of the treating orthopedist’s opinion and on the basis of the age, education, and work history of the plaintiff, testified that there were no jobs in the marketplace which the plaintiff could perform, and that a conservative estimate of the plaintiff’s future loss of earning capacity was 75%. Dr. Mathis then calculated the plaintiff’s future loss of earning capacity at approximately $815,000.

It is clear that because of the inherent element of uncertainty present in any estimate of future loss of earning power, the fact and the extent of the impairment are jury questions. Defendant also presented to the jury the testimony of an expert witness who made several projected loss of earning power calculations based upon a lesser percentage of disability.

The defendant also contends that, given the current state of the economy in this country, the Pennsylvania “offset” rule of damages as set forth in Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980) should not be applied, and that the jury should have been instructed (contrary to Bolubasz), that, in connection with loss of future earning capacity, any award should be discounted to present value. This is a diversity case, and the jury was instructed pursuant to the law of Pennsylvania as set forth in Bolubasz.

Finally, the defendant contends that the one million dollar verdict was excessive. A new trial on damages on the basis of an excessive verdict may be granted only when the award is so excessive that it shocks the conscience of the Court. Gullborg v. Rizzo, 831 F.2d 557, 561 (3d Cir. 1964); Marks v. Mobil Oil, Inc., 562 F.Supp. at 773. The conscience of this Court is not shocked by this verdict. There is ample evidence of serious injuries causing pain and suffering, both past and future, as well as loss of past and future earning capacity.

For all the reasons set forth above, this Court has determined that none of the defendant’s allegations of error, either singly or in combination, provide a sufficient basis upon which to grant a new trial. Accordingly, the defendant’s motion for a new trial will be denied.


author: ROBERT F. COLLINS, District Judge.

text:
    Jacqueline CARR v. The TIMES PICAYUNE PUBLISHING CORPORATION.
    No. 84-5142.
    United States District Court, E.D. Louisiana.
    March 22, 1985.

      Jacqueline Carr, Covington, La., for plaintiff.
    Rutledge C. Clement, Jr., Amelia J. Williams, Phelps, Dunbar, Claverie & Sims, New Orleans, La., for defendant.
   ROBERT F. COLLINS, District Judge.

This matter is before the Court on motion of counsel for the defendant, Times Picayune Publishing Corporation, seeking dismissal of plaintiffs’ suit pursuant to Rules 12(b)(1) and 12(b)(6) of the Fed.R. Civ.P. on the grounds that this Court lacks subject matter jurisdiction, and that the Complaint fails to set forth a claim upon which relief can be granted. Defendant further moves for sanctions pursuant to Rule 11 of the Fed.R.Civ.P. and pursuant to 28 U.S.C. § 1927 on the grounds that this suit should be dismissed with sanctions as having not been filed in good faith or for a proper purpose. Wherefore, after a careful consideration of the submitted memo-randa, the facts of this case, and the applicable law, the Court will GRANT defendant’s motion to dismiss and will grant a further hearing as to sanctions in this matter.

REASONS

On November 9, 1983, Jacqueline Carr, along with two other plaintiffs, filed a prior civil action (No. 83-5229) in this Court, alleging that various St. Tammany Parish and Louisiana state public officials, through their actions in changing the St. Tammany Home Rule Charter, somehow denied Ms. Carr the right to seek public office, namely a seat on the St. Tammany Parish Council and/or the St. Tammany Police Jury. That earlier Complaint alleged various actions and schemes on the part of the defendants purportedly designed to prevent plaintiff from exercising her right to run for public office.

On June 28,1984, plaintiffs were ordered by this Court to amend their Complaint within ten days, for the purpose of more clearly setting forth their amorphous claims against The Times-Picayune Publishing Corporation (The Times-Picayune). Due to plaintiffs’ failure to timely amend, all claims against The Times-Picayune were dismissed on July 31, 1984. A motion for entry of final judgment on behalf of The Times-Picayune was granted by this Court on December 5, 1984.

The instant civil action, filed on October 23, 1984, arises out of the same operative facts as Civil Action 83-5229. Plaintiff again contends that The Times-Picayune violated her civil rights and damaged her reputation. The Complaint asserts federal question jurisdiction under 28 U.S.C. § 1331 due to defendant’s purported violation of certain civil rights statutes; the state law defamation claim is tacked on through pendent jurisdiction.

Plaintiff instituted this civil action against The Times-Picayune for defamation and for the alleged deprivation of her civil rights under 42 U.S.C. §§ 1973, 1981, 1983, and 1985. The Court will take up each of these allegations in turn.

I. 42 U.S.C. § 1973 And 1981

Plaintiff vaguely asserts that certain public officials and The Times-Picayune engaged in conspiratorial activities which allegedly violated her civil rights. The claims do not give any indication of the specific manner in which defendant is allegedly liable for a federal statutory breach.

It is well settled that § 1981 only addresses discrimination based on an individual’s race. Adams v. McDougal, 695 F.2d 104, 107 (5th Cir.1983); White v. Washington Public Power Supply System, 692 F.2d 1286, 1288 (9th Cir.1982). A showing of a racially discriminatory purpose is likewise required to prevail in a § 1973 action. Bolden v. City of Mobile, 542 F.Supp. 1050, 1071, (S.C.Ala.1982).

In Gremillion v. Rinaudo, 325 F.Supp. 375, 377 (E.D.La.1971), the Court stated that a voting rights statute, such as § 1973, protects voters from denial of their right to vote where the basis for the infringement is racial discrimination. In granting defendant’s motion to dismiss for failure to state a claim under Rule 12(b)(6), the Gremillion court observed that the threshold inquiry, when reviewing the merits of such a motion, is one of determining whether or not plaintiff’s allegations of wrongdoing are, as a matter of law, encompassed within the terms of the statute upon which he relies for subject matter jurisdiction. Since Ms. Carr fails to allude to any purported act of racial discrimination, she has failed to state a claim under §§ 1973 and 1981.

Aside from plaintiff’s factual deficiencies relative to her §§ 1973 and 1981 claims, defendant asserts that the lawsuit should be dismissed for failure to demonstrate that The Times-Picayune even inferentially acted “under color of state law.”

II. 42 U.S.C. §§ 1983 And 1985

Before a claim for relief pursuant to 42 U.S.C. § 1983 will be granted, a plaintiff must allege and prove: (1) a deprivation of a federal or constitutional right which (2) resulted from an action committed by a person acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981); Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980).

Despite a contrary suggestion in Flagg Bros. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978), the Supreme Court in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), held that conduct that constitutes “state action” for purposes of the Fourteenth Amendment due process clause is also conduct “under color of state law” for purposes of § 1983 actions. In Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), the Court identified three factors to be considered in determining whether particular conduct constitutes “state action:”

(a) There must be “sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may fairly be treated as that of the State itself,” and
(b) The nexus must be such that the State “has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the state,” and
(c) The entity has exercised powers “that are ‘traditionally the exclusive prerogatives of the state.’ ”

102 S.Ct. at 2786.

Analyzed in the light of these principles, the Complaint makes only the most superficial allegations that The Times-Picayune acted “in concert” with the various state and parish officials to deprive the plaintiff of her rights. These vague and conclusory assertions do not satisfy the state action and detailed pleading prerequisites of 42 U.S.C. §§ 1983 and 1985, as courts have consistently required. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Evans v. Abney, 396 U.S. 435, 90 S.Ct. 628, 24 L.Ed.2d 634 (1970).

Numerous courts have granted motions to dismiss for failure to state a claim on the grounds that the plaintiff’s civil rights claims consisted of bald conclusory statements devoid of factual basis. Arsenaux v. Roberts, et al., 726 F.2d 1022 (5th Cir. 1982); McClure v. Esparza, 556 F.Supp. 569, 571 (E.D.Mo.1983), aff'd 732 F.2d 162 (8th Cir.1984); Dubray v. Rosebud Housing Authority, 565 F.Supp. 462, 465 (D.S. D.1983); Cole v. Gray, 638 F.2d 804, 811 (5th Cir.), cert. denied, 454 U.S. 838, 102 S.Ct. 144, 70 L.Ed.2d 120 (1981).

In Brown v. Southeastern Pennsylvania Transportation Authority, 519 F.Supp. 864, 866 (E.D.Pa.1981), the Court granted defendant’s motion to dismiss for failure to state a cause of action under § 1985 where the Complaint alleged no specific conduct indicative of a conspiracy, but, instead, made only a conclusory statement that a private and public entity conspired to deprive him of his due process rights.

An examination of the Complaint reveals no specific factual allegations of any conspiratorial actions taken by The Times-Picayune. Indeed, it neglects to give even a general description of the manner in which the defendant purportedly maintained a symbiotic relationship with any state or parish official. Plaintiff alleges only that The Times-Picayune conspired with state officials, at some unspecified time, in an unspecified location, and in an unspecified manner, to somehow violate unspecified civil rights.

It would be patently unreasonable to expect defendant to defend against these vague and conclusory civil rights claims. Because plaintiff has failed to allege with any specificity how the newspaper, clearly a private entity, acted under color of state law or conspired with state officials to violate her civil rights, the Complaint fails to state a claim under either § 1983 or § 1985.

Finally, plaintiff attempts to predicate subject matter jurisdiction on the presence of a federal question under 28 U.S.C. § 1331. It is well settled that the party seeking to invoke the jurisdiction of a federal court has the burden of affirmatively establishing that jurisdiction exists. Jeteo Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1232 (5th Cir.1973). As noted previously, plaintiff has failed to state a cause of action pursuant to the federal statutes to which she refers in her Complaint. No other federal statute or constitutional provision which might provide a separate and independent basis for subject matter jurisdiction exists. There is likewise no diversity of citizenship among the parties, and, accordingly, the pendent claims must fall where there is no federal undergirding.

It is clear that plaintiff’s asserted jurisdictional basis is statutorily unjustified and insufficient; accordingly, dismissal of this capricious and unsubstantiated claim under Rule 12(b)(1) of Fed.R.Civ.P. is mandated. See Save Our Cemeteries, Inc. v. Archdio cese of New Orleans, Inc., 568 F.2d 1074, 1077 (5th Cir.), cert. denied, 439 U.S. 836, 99 S.Ct. 120, 58 L.Ed.2d 133 (1978).

Finally, defendant asserts that plaintiffs latest drafting efforts stand in blatant violation of Rule 11, Fed.R.Civ.P., which requires that all pleadings be filed in “good faith” and after reasonable inquiry to ascertain that the allegations are “well grounded in fact.” The Court agrees. The allegations in the instant Complaint are not “well grounded in fact” because they find no support in any possible theory of law or any possible interpretation of the facts. The filing of the Complaint contravenes Rule ll’s requirement that claims be “warranted by existing law” or in “good faith,” and is in the Court’s opinion meant merely “to harass” the defendant. Plaintiff has unreasonably increased litigation cost and clogged the judicial system by instituting this suit which merely duplicates the previously dismissed action and which is nothing more than a facile attempt to circumvent plaintiff’s abject failure to abide by this Court’s order to amend the Complaint in Civil Action 83-5229. Such an unwarranted litigation practice demands the application of sanctions under Rule 11 as well as under 28 U.S.C. § 1927. Accordingly, the Court will invite counsel for defendant to file a motion and affidavits as to what costs and attorney’s fees were incurred by defendant.

IT IS ORDERED that plaintiff’s Complaint in this case is hereby dismissed.


author: KEADY, District Judge.

text:
    David JORDAN and Sammie Chestnut, on behalf of the Greenwood Voters League, Individually and on behalf of others similarly situated, Plaintiffs, v. William A. ALLAIN, Governor of Mississippi, T.H. Campbell, III, Chairperson, Bill Harpole, Vice-Chairperson, J.C. “Con” Maloney, Secretary, and their successors in office, Joint Congressional Redistricting Committee; Brad Dye, Lieutenant Governor of Mississippi and President of the Senate; and Clarence B. “Buddie” Newman, Speaker of the House of Representatives, Defendants. Owen H. BROOKS, Sarah H. Johnson, Rev. Harold R. Mayberry, Willie Long, Robert E. Young, Thomas Morris, Charles McLaurin, Samuel McCray, Robert Jackson, Rev. Carl Brown, June E. Johnson, and Lee Ethel Henry, individually and on Behalf of others similarly situated, Plaintiffs, v. William A. ALLAIN, Governor of Mississippi, Edwin L. Pittman, successor in office to William A. “Bill” Allain, Attorney General of Mississippi; Dick Molpus, successor in office to Edwin Lloyd Pittman, Secretary of State of Mississippi, in their official capacities and as members of the Mississippi State Board of Election Commissioners; State Board of Election Commissioners, Mississippi Democratic Executive Committee, Mississippi Republican Executive Committee, Defendants.
    Nos. GC82-80-WK-O, GC82-81-WK-O.
    United States District Court, N.D. Mississippi, Greenville Division.
    April 1, 1985.

      Frank R. Parker, Patricia Hanrahan, Sidney Bixler, Lawyers’ Committee for Civil Rights Under Law, Washington, D.C., Johnnie E. Walls, Jr., Greenville, Miss., Robert B. McDuff, University, Miss., for Brooks plaintiffs.
    Alvin O. Chambliss, North Miss. Rural Legal Services, Oxford, Miss., Willie Perkins, North Miss. Rural Legal Services, Greenwood, Miss., for Jordan plaintiffs.
    Edwin L. Pittman, Atty. Gen. of Miss., Jackson, Miss., Jerris Leonard, Kathleen Heenan McGuan, Washington, D.C., Hubbard T. Saunders, IV, Champ Terney, Jackson, Miss., R. Scott Levanway, Jackson, Miss., for State defendants.
    Michael B. Wallace, Jackson, Miss., for Republican defendants.
   MEMORANDUM OPINION

KEADY, District Judge.

The court presently has for consideration the motion of the Brooks plaintiffs, as prevailing parties, for an award of attorneys’ fees and litigation expenses incurred in this statutory and constitutional challenge to two Mississippi congressional redistricting plans, one of which was enacted by the state legislature and the other adopted on an interim basis by the three-judge court previously convened in this cause. This litigation was originally commenced under section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, the one-person, one-vote requirement of article 1. section 2, and the fourteenth amendment to the United States Constitution, and was ultimately decided under section 2 of the Voting Rights Act, as amended in 1982, 42 U.S.C. § 1973 (Supp.1984). It resulted in the re-creation of Mississippi’s historical Delta congressional district with a majority black voting age population after two evi-dentiary hearings and two appeals to the United States Supreme Court.

Plaintiffs now seek an attorneys’ fee award totaling $350,749.00 together with expenses of $70,102.78, against the State of Mississippi and defendant Mississippi Republican Executive Committee (Republican defendants), pursuant to the Civil Rights Attorney’s Fee Award Act of 1976, 42 U.S.C. § 1988, and 42 U.S.C. § 1973Z(e). Additionally, the Republican defendants assert prevailing party status in the expenses in the amount of $24,986.58 incurred since entry of final judgment on January 6,1984, to be assessed jointly and severally against plaintiffs and their counsel. Republican defendants also seek sanctions of $5,165.98 against plaintiffs’ counsel for Republican resistance to plaintiffs’ instant motion for attorneys’ fees pursuant to Fed.R.Civ.P. 11. We preface our analysis with a brief history of this litigation.

I. Procedural History In their complaint filed April 5, 1982, plaintiffs sought (1) an injunction against utilization of the state’s 1981 legislatively enacted congressional redistricting plan, known as the “least change” plan, until the plan was precleared under section 5 of the Voting Rights Act; (2) a prohibition against further use of the state’s existing (1972) congressional plan because of population malapportionment allegedly violative of article I, section 2 and the fourteenth amendment to the United States Constitution; and (3) adoption of a court-ordered interim redistricting plan. See Jordan v. Winter, 541 F.Supp. 1135 (N.D.Miss.1982) (three-judge court), vacated and remanded sub nom. Brooks v. Winter, 461 U.S. 921, 103 S.Ct. 2077, 77 L.Ed.2d 291 (1983).

Plaintiffs were successful in each of these objectives, securing an injunction against utilization of the “least change” plan unless and until the plan was pre-cleared in accordance with section 5, 541 F.Supp. at 1141-42; obtaining a prohibition against the further use of the malappor-tioned 1972 plan, id. at 1142; and facilitating the adoption of an interim plan for holding the 1982 Republican and Democratic party primaries and general election, id. at 1142-45. Although the interim plan initially adopted by the court, known as the “Simpson plan,” was not favored by the plaintiff class, plaintiffs succeeded in obtaining the court’s disapproval of interim plans urged by the state defendants. Id.

Plaintiffs appealed the trial court’s ruling to the Supreme Court, contending that the Simpson plan unlawfully diluted black voting strength in the Second District by combining majority white “hill” counties with predominantly black Delta and part-Delta counties. The state defendants cross-appealed claiming error in the ruling. While these appeals were pending, Congress amended section 2 of the Voting Rights Act and the Supreme Court subsequently vacated and remanded this court’s first decision for reconsideration in light of amended section 2. Brooks v. Winter, 461 U.S. 921, 103 S.Ct. 2077, 77 L.Ed.2d 291 (1983) (mem.).

After extensive briefing and a second evidentiary hearing in December 1983, involving for the first time the participation of the Republican defendants on an active basis, the trial court concluded that the structure of the Second District under the court-ordered Simpson plan unlawfully diluted black voting strength in violation of amended section 2. Jordan v. Winter, 604 F.Supp. 807, 808 (N.D.Miss.1984) (memorandum opinion of the three-judge court supplementing bench ruling of December 21,1983, and final judgment of January 6,1984), affd mem. sub. nom. Mississippi Republican Executive Comm. v. Brooks, — U.S.—, 105 S.Ct. 416, 83 L.Ed.2d 343 (1984). However, the court again rejected plaintiffs’ proposals for creation of a 65% black district combining portions of metropolitan Jackson with rural Delta counties, see 604 F.Supp. at 814-15, and ordered into effect an interim plan, fashioned by the court with the aid of the parties, which contained a mostly-Delta district with a total black population of 58.3%.

Following promulgation of the court plan in January 1984, the Republican defendants moved the trial court to amend its judgment, specifically attacking the constitutionality of section 2 as amended and seeking reinstatement of the Simpson plan. The court overruled the motion, and all parties active in the litigation — the Brooks plaintiffs and both Republican and state defendants — appealed the trial court’s second decision to the Supreme Court. The Republican defendants, joined by the state defendants, thereafter sought a stay of the January 6, 1984, judgment and reinstatement of the Simpson plan. The court again rejected defendants’ contentions and denied the relief requested. The Supreme Court likewise declined to stay the judgment. After extensive briefing in the three docketed appeals, the Supreme Court summarily affirmed the judgment of the district court. Mississippi Republican Executive Comm. v. Brooks, — U.S.—, 105 S.Ct. 416, 83 L.Ed.2d 343 (1984). The instant attorneys’ fees motions followed.

II. Applicability of §§ 1988 and 1973/(e)

At the outset, we reject the contention of the Republican defendants that attorneys’ fees for time spent in pursuit of “pure” section 2 remedies, without other statutory or constitutional foundation (specifically, attorney work performed in connection with the second evidentiary hearing), are not recoverable by a prevailing party under the plain language of either § 1988, which allows an award of fees to a prevailing party in proceedings to enforce certain enumerated civil rights statutes, see supra note 5, or § 1973/ (e), which provides fees in successful proceedings to enforce constitutional voting guarantees, see supra note 6. The legislative histories of both § 1973/ (e) and amended § 2 (42 U.S.C. § 1973), as well as decisional law awarding fees in voting rights actions, make clear beyond peradventure that a prevailing voting rights litigant is entitled to recover attorneys’ fees regardless of the statutory or constitutional predicate of the action. As the House sponsor of Section 402 of the Voting Rights Act Amendments of 1975 (subsequently codified as 42 U.S.C. § 1973/ (e)) explained during floor debate on the section:

The provision for attorneys’ fees in Section 402 is available in “any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment.” Such litigation would include not only suits based directly on those amendments, but also cases based on statutes passed pursuant to them, such as 42 U.S.C. § 1971,1973, and 1983. The phrase used are words of inclusion, not limitation.

121 Cong.Rec. H4735 (daily ed. June 2, 1975) (remarks of Congressman Robert Drinan). Similarly, the House Report on amended section 2 declares Congress’ intent that private litigants who establish a violation of the statute “are entitled to attorneys’ fees under 42 U.S.C. §§ 1973/ (e) and 1988.” H.R.Rep. No. 97th Cong., 1st Sess. 32 (1981).

Courts presented with fee requests submitted by prevailing parties in actions brought under the Voting Rights Act have routinely applied the fee statutes in question. In Posada v. Lamb County, 716 F.2d 1066 (5th Cir.1983), an action brought under both section 5 and article I, section 2, the Fifth Circuit stated without elaboration that “[Attorneys fees are available under § 1973/ (e) of the Voting Rights Act and § 1988 to ‘prevailing parties’ in voting rights litigation.” 716 F.2d at 1071; see also Garcia v. Guerra, 744 F.2d 1159, 1161 (5th Cir.1984) (fees awarded to successful section 5 litigants); Commissioners Court of Medina County v. United States, 719 F.2d 1179, 1179, 1181-82 (D.C.Cir.1983) (fees may be recovered by private interveners in judicial preclearance proceeding); Donnell v. United States, 682 F.2d 240, 248-49 (D.C.Cir.1982) (same), cert. denied, 459 U.S. 1204, 103 S.Ct. 1190, 75 L.Ed.2d 436 (1983).

Finally, we observe that awarding attorneys’ fees to prevailing parties in litigation brought to enforce statutory, rather than constitutional, voting guarantees furthers the congressional purpose in enacting both §§ 1973/ (e) and 1988 by “encouraging private litigants to act as ‘private attorneys general’ in seeking to vindicate the civil rights laws.” Donnell, 682 F.2d at 245. As the Senate Report on § 1973Z (e) stated, “Congress depends heavily upon private citizens to enforce the fundamental rights involved. The awards are a necessary means of enabling private citizens to vindicate these Federal rights.” S.Rep. No. 295, 94th Cong., 1st Sess. 40 (1974), reprinted in [1975] U.S.Code Cong. & Ad.News 774, 807, quoted in Donnell, 682 F.2d at 245. The statutory interpretation urged by the Republican defendants is directly contradictory to the stated purpose of § 1973/ (e) and would serve to hinder, rather than encourage, private enforcement of the Voting Rights Act.

III. Which Party Prevailed?

The adverse motions of the Brooks plaintiffs and the Republican defendants for awards of attorneys’ fees brings into sharp focus the statutory mandate of §§ 1988 and 1973Z(e) that fees and expenses may be recovered only by a prevailing civil rights litigant. The phrase “prevailing party” carries the same general meaning under both acts. S.Rep. No. 295, 94th Cong., 1st Sess. 40 (1974), reprinted in [1975] U.S.Code Cong. & Ad.News 774, 807; Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40, 50 n. 7 (1983); Posada v. Lamb County, 716 F.2d at 1071. Plaintiffs assert that they prevailed in all aspects of this litigation, with the sole exception of their second appeal in No. 83-1865 in which they sought to overturn the court-drawn boundaries of the Second District in favor of a 65% black district, and that they should be compensated accordingly. Plaintiffs’ counsel frankly concede that they were unsuccessful on that appeal; the affidavits submitted in support of their fee request do not catalogue time spent in pursuing plaintiffs’ appeal in No. 83-1865, but do include hours devoted to resisting defendants’ appeals in Nos. 83-1722 and 83-2053.

The state defendants make no attempt to controvert plaintiffs’ claim of success in any regard other than on the first appeal, arguing that the Supreme Court’s vacation and remand for reconsideration in light of amended section 2 was prompted not by plaintiffs’ efforts, but by the Solicitor General’s amicus curiae brief urging such a disposition. For reasons expressed in Part IV, A, 3 below, we agree with state defendants that compensation claimed by plaintiffs’ counsel for work performed in furtherance of the first Supreme Court appeal should be reduced to reflect plaintiffs’ limited success.

The Republican defendants claim that it was they, and not the Brooks plaintiffs, who prevailed at the second evidentiary hearing and on the second appeal, and are therefore entitled to fees and expenses as prevailing defendants. The court is thus called upon to make the “threshold determination” of who actually prevailed and to what extent and at what stages of the litigation each party may be considered successful within the intendment of the governing statutes. See Hensley v. Ecker-hart, 461 U.S. 424, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40, 50 (1983).

A. The Brooks Plaintiffs

In assessing plaintiffs’ claims, we are guided by the Hensley Court’s recognition that, “ ‘plaintiffs may be considered “prevailing parties” for attorneys’ fees purposes if they succeed on any significant issue in litigation which achieves some of benefit the parties sought in bringing suit.’ ” 461 U.S. at 433, 103 S.Ct. at 1939, 76 L.Ed.2d at 50 (quoting Nadeau v. Helge-moe, 581 F.2d 275, 278-79 (1st Cir.1978)). There can be little doubt that plaintiffs have easily crossed the Hensley threshold.

Neither group of defendants disputes plaintiffs’ success in securing injunctions against use of the unprecleared “least change” plan or the malapportioned 1972 plan. Nor can it be denied that plaintiffs brought about a fundamental realignment in Mississippi’s congressional districts, thereby vindicating the voting rights of black Mississippians. The trial court’s adoption of the Simpson plan in 1982 eliminated the horizontal dismemberment of the Delta; in 1983, the court concluded that the combination of certain majority white counties with black majority Delta counties unlawfully diluted black voting strength in violation of section 2. The end result was promulgation of the first congressional redistricting plan in Mississippi since passage of the Voting Rights Act that contained a district with a majority black voting age population.

The fact that the relief ultimately granted plaintiffs was not fully commensurate with that requested, is, while relevant, not a controlling factor. Hensley teaches that fees should not be denied or reduced “simply because the plaintiff failed to prevail on every contention raised in the lawsuit,” so long as the attorney hours expended are reasonable in view of the limited success achieved. 461 U.S. at 435, 103 S.Ct. at 1940, 76 L.Ed.2d at 52. Further, in Commissioners Court of Medina County v. United States, 719 F.2d 1179 (D.C.Cir. 1983), the court observed that, in the context of a section 5 judicial preclearance proceeding, the county’s failure to adopt the preferred plan of minority voters and the Attorney General’s approval of the new county plan over the minority voters’ objections “does not dilute appellants’ claim to ‘prevailing party’ status.” 719 F.2d at 1181.

The Republican defendants argue that plaintiffs are not entitled to fees for work performed in relation to the second appeal, ignoring the fact that plaintiffs have not requested compensation for pursuing their own appeal, but only for defending the two appeals taken by the Republican Party and the state defendants. In this regard, Republican reliance on Hanrahan v. Hampton, 446 U.S. 754, 758-59, 100 S.Ct. 1987, 1989-90, 64 L.Ed.2d 670 (1980) (attorneys’ fees should not be awarded where no actual relief is secured in appellate court), is misplaced. We therefore find as a fact, and hold as a matter of law, that the Brooks plaintiffs are the prevailing parties in this action within the meaning of §§ 1988 and 1973/ (e), and are thus entitled to recover reasonable attorneys’ fees, subject to adjustment for the limited success achieved on the first appeal.

B. The Republican Defendants

Consistent with our conclusion that the Brooks plaintiffs obtained significant relief in this action, we determine that there is no basis in fact or in law for either awarding attorney’s fees and litigation expenses to the Republican defendants or assessing Rule 11 sanctions against the Brooks plaintiffs or their counsel. First, the Republican defendants clearly cannot be considered a “prevailing party” within the meaning of §§ 1988 or 1973/ (e), with the possible limited exception of defending the Brooks plaintiffs’ appeal in No. 83-1865. While the Republican defendants now profess post-election satisfaction with the 1984 court-ordered plan, these defendants vigorously opposed abandonment of the Simpson plan prior to and during the December 1983 evidentiary hearing and, as noted above, they unsuccessfully attempted to stay implementation of the new plan and reinstate the Simpson plan on at least two occasions following entry of judgment. Nor were these defendants successful either in their attempt to secure a stay pending an appeal in the Supreme Court or on the merits of their appeal in No. 83-1722.

Even were we to consider the Republican defendants a “prevailing party,” they fall far short of establishing, as they must in order to recover attorney’s fees against an unsuccessful civil rights plaintiff, that either the underlying litigation or the second appeal was “vexatious, frivolous, or brought to harass or embarrass the defendant.” Hensley, 461 U.S. at 429 n. 2, 103 S.Ct. at 1937 n. 2, 76 L.Ed.2d at 48 n. 2 (1983); Ckristianburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). The Republican defendants’ motion for an award of attorney’s fees and litigation expenses will therefore be denied.

Likewise, the Republican defendants are not entitled to an assessment of Rule 11 sanctions against plaintiffs’ counsel for resisting the Brooks plaintiffs’ attorneys’ fees motion, as they have failed to establish that the Brooks plaintiffs’ motion is not “well grounded in fact and ... warranted by existing law or a good faith argument” or is interposed for an “improper purpose.” Fed.R.Civ.P. 11. Indeed, plaintiffs’ motion raises serious questions as to the proper allocation of responsibility for payment of a fee award between state and private defendants, as will be addressed below.

IV. Reasonableness of Plaintiffs’ Fee Request

Hensley dictates that “[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” 461 U.S. at 433,103 S.Ct. at 1939, 76 L.Ed.2d at 50; see also Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1543, 79 L.Ed.2d 891, 895 (1984). This initial calculation may then be adjusted upward or downward by the district court to account for such factors as either exceptional or limited success and the contingent nature of the lawsuit. Hensley, 461 U.S. at 434-37, 103 S.Ct. at 1940-41, 76 L.Ed.2d at 51-53. Similarly, the Fifth Circuit has directed the district courts to give “special heed” to the Johnson factors of time and labor involved, the customary fee, the results obtained, and the experience, reputation and ability of counsel, in arriving at a “lodestar” figure, which should then be adjusted on the basis of other relevant Johnson factors. Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581-84 (5th Cir. 1980) (Copper Liquor II); see also Graves v. Barnes, 700 F.2d 220, 222 (5th Cir.1983); Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1092-93 & n. 11 (5th Cir. 1982) (Copper Liquor III), modified in part en banc, 701 F.2d 542 (5th Cir.1983).

After considering memoranda of law and affidavits and statements of counsel regarding the reasonableness of plaintiffs’ fee request, the court, pursuant to the guidelines articulated in Hensley, 461 U.S. at 433-37, 103 S.Ct. at 1939-41, 76 L.Ed.2d at 50-53, and Johnson, 488 F.2d at 717, as modified by Copper Liquor II, 624 F.2d at 581-84, and Copper Liquor III, 684 F.2d at 1092-97, and as affected by Blum v. Sten-son, 465 U.S. at---, 104 S.Ct. at 1548-50, 79 L.Ed.2d at 901-03 (certain Johnson factors irrelevant to court’s consideration of request for enhancement of fee), finds as follows.

A. Time and Labor Required

As stated, plaintiffs’ counsel seek compensation for 1555.45 hours expended by six attorneys at various stages of this litigation. This total includes 61 hours expended by two attorneys in mounting private opposition to section 5 preclearance of the “least change” plan prior to commencement of this action; 335.25 hours spent by four attorneys in preparation for and during the first evidentiary hearing; 150 hours on the first Supreme Court appeal by three attorneys; 715.7 hours in preparation for and during the second evidentiary hearing by five attorneys; 147.9 hours devoted to questions of post-judgment relief in the trial court and on the second Supreme Court appeal by four attorneys; and 145.6 hours expended by four attorneys in preparing plaintiffs’ motion for an award of attorneys’ fees. We consider each of these items seriatim.

1.

The state defendants object to plaintiffs’ inclusion of 61 hours spent by Messrs. Parker and McDuff in opposing, on behalf of private parties, section 5 preclearance of the state’s “least change” plan prior to initiation of this lawsuit. In urging the Attorney General to enter such an objection, a course of action which was in fact taken by the Attorney General, counsel prepared three comprehensive section 5 comment letters which discussed in great detail the legislative history of the “least change” plan, analyzed its discriminatory impact, and presented legal argument against use of Mississippi’s 1966 and 1972 redistricting plans as benchmarks to determine whether the “least change” plan had a discriminatory effect.

These defendants correctly state that the Fifth Circuit has not yet conclusively determined whether attorney time spent in private opposition to section 5 preclearance is properly compensable under the relevant fee statutes. See Posada v. Lamb County, 716 F.2d at 1073-74. In Posada, the court assumed, without deciding, that in an appropriate case such private participation in the administrative process could be com-pensable. In so doing, the court articulated a stringent standard which preclear-anee opponents must meet to show entitlement to a fee award:

[I]f fees can be obtained at all for private opposition mounted in a preclearance review, which review resulted in the Attorney General’s expression of dissatisfaction with the plan, the award must be justified by a showing that the private objectors’ participation, through particularly astute criticism or creative legal argument, changed the result that the Attorney General would otherwise have reached. We will not presume that the Attorney General has failed adequately to satisfy his statutory obligations to enforce the public interest in compliance with the voting rights legislation, or that the reservations the Attorney General voiced would have passed unnoticed absent objections filed by private parties, [citations omitted]. Absent evidence that the objectors’ work had a substantial independent effect on the outcome of the preclearance review, the threshold burden to justification for an award of fees for preclearance participation has not been met.

Posada, 716 F.2d at 1075 (citing Donnell, 682 F.2d at 248-49) (our emphasis).

The Brooks plaintiffs acknowledge the difficulty in meeting Posada’s heavy evi-dentiary burden, as neither they nor this court are privy to the internal decision-making processes of the Justice Department; plaintiffs thus attempt to satisfy Posada by quoting from the Attorney General’s section 5 objection letter, which makes reference to the opposition of these private parties. However, such proof, standing alone, is clearly insufficient to establish, as plaintiffs must, that responsibility for the Attorney General’s action should be credited to them. Indeed, under similar facts, the court in Posada rejected the plaintiffs’ claims of victory predicated on an objection letter filed by the Attorney General making reference to materials supplied by the private opponents. The court’s evaluation of the Posada plaintiffs’ participation applies with equal force in the case sub judice:

It is quite possible that their extensive comment assisted the Attorney General in organizing the pertinent materials, identifying the problem areas and crys-talizing the issues. But there is no evidence that their submission carried the Attorney General beyond the analysis he would have otherwise have undertaken.

716 F.2d at 1075. We are constrained to hold that the Brooks plaintiffs have failed to meet their burden of proof with regard to the significance of their participation in the preclearance process; accordingly, 18 hours claimed by Mr. Parker and 43 hours claimed by Mr. McDuff must be excluded from their compensable time.

2.

Plaintiffs’ counsel’s preparation for and participation in the first trial in May 1982, including the drafting of post-trial briefs, consumed 335.25 attorney hours. Republican defendants have virtually no interest in this aspect of the litigation and state defendants have only minor objections to the time logged. Their primary argument is that some of the hours charged against them are more properly attributable to other parties over whom they exercised no control; insofar as these defendants object to time spent by plaintiffs’ counsel in reviewing pleadings generated by the Republican and Democratic defendants and the AFL-CIO amicus brief during this period, we believe that this time (6.9 hours spent by Messrs. Parker and Walls and unspecified portions of 15 hours spent by Mr. Walls) is sufficiently related to plaintiffs’ prosecution of their claims against the state defendants, who at all times assumed the primary responsibility for defending the litigation, to justify compensation from the state treasury.

However, we are concerned that the hours claimed by Mr. Walls during this period (87.1), devoted in large measure to the review of pleadings prepared by others, conferences and other purely administrative matters, is duplicative. We therefore reduce his claim by 50% (-43.55 hours).

After careful review of the other attorney affidavits covering this period of the litigation, we are convinced that the time expended was neither excessive nor dupli-cative, and should thus be allowed. Although, as we have previously observed, plaintiffs did not obtain the full relief which they sought at this stage of the proceedings, no further reduction of the time claimed is warranted due to the significant success achieved and the enhanced relief obtained following remand.

3.

The claimed 150 hours spent on the first appeal should be substantially reduced due to the limited nature of plaintiffs’ success in the Supreme Court. A large number of these hours (Parker: 34; Hanrahan: 1) are easily segregated from the total as having been devoted to a wholly unsuccessful endeavor — plaintiffs’ application for stay of the district court judgment pending appeal, which the Supreme Court denied— and will thus be disallowed. We find suspect, and therefore exclude as unreasonable, an additional 23.5 hours claimed by Mr. Parker for two trips to Greenwood, Mississippi, to consult with clients during the pendency of this appeal. It is difficult to conceive why counsel’s physical presence was required in Greenwood at such a time or, at the very least, why local counsel could not have handled the matter.

Plaintiffs’ claim for the remaining 91.5 hours (Parker: 88; McDuff: 3.5) spent on the merits of the appeal again raises the related issues of “prevailing party” status and the actual degree of success achieved by plaintiffs. While there can be little doubt that the ultimate result of the appeal — remand for a second evidentiary hearing — favored plaintiffs’ position, it is far from certain that plaintiffs themselves were responsible for that result or, stated differently, that their “success” can be attributed to the claimed expenditure of time. Rather, while we acknowledge the peril inherent in second-guessing the motivation of another tribunal, it appears from the record available to this court that the Supreme Court’s remand in Brooks v. Winter, 461 U.S. 921, 103 S.Ct. 2077, 77 L.Ed.2d 291 (1983), was prompted by Congress’ amendment of section 2, which occurred after entry of judgment by the district court, and not by plaintiffs’ arguments advanced in the Supreme Court. Indeed, the issues raised in plaintiffs’ jurisdictional statement in Brooks v. Winter, No. 82-233, were not addressed by the Supreme Court in its disposition of the case. 461 U.S. at 921, 103 S.Ct. at 2077. On November 1,1982, the Court invited the Solicitor General to file a brief in the pending appeals expressing the view of the United States. Brooks v. Winter, 459 U.S. 965, 103 S.Ct. 290, 74 L.Ed.2d 275 (1982). The Solicitor General suggested in his brief that the case be remanded so that the trial court could reconsider the Simpson plan in light of amended section 2. The plaintiffs did not propose such a disposition.

Furthermore, it cannot be said that plaintiffs were successful on the merits at the appellate level, although it is true that had the Brooks plaintiffs never taken the first appeal, the first judgment would not have been vacated nor further relief granted in a second evidentiary hearing. In Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980), the Supreme Court disallowed as premature a fee award where plaintiffs had not prevailed on the merits of their case in the appellate court, but had merely secured a reversal and remand for new trial. Id. at 758-59, 100 S.Ct. at 1989-90. The instant case differs somewhat from Hanrahan in that plaintiffs here were eventually successful in obtaining further relief. Because of the mixed results of counsel’s time expenditure on the first Supreme Court appeal, we reduce the remaining 91.5 hours by one-half. We thus find that Mr. Parker should be compensated for 44 hours and Mr. McDuff 1.75 hours expended during this period.

We emphatically reject the argument of Republican defendants, made with reference to the second appeal but equally applicable here, that the Supreme Court’s partial reservation unto itself of the right to tax costs in that Court, embodied in its Rule 50, deprives this court, or any other lower court, of jurisdiction to assess attorneys’ fees for work performed on appeal to the Supreme Court. It is well established that a district court may award prevailing civil rights plaintiffs attorneys’ fees for work performed at the appellate level. See, e.g., Gresham Park Community Org. v. Howell, 652 F.2d 1227, 1248 n. 61 (5th Cir.1981); Johnson v. State of Mississippi, 606 F.2d 635, 638-39 (5th Cir.1979). More to the point, in Kirchherg v. Feenstra, 708 F.2d 991 (5th Cir.1983), the Fifth Circuit expressly held that prevailing civil rights litigants were entitled to compensation for work performed in the Supreme Court, and remanded the case to the district court with instructions to make such an award. 708 F.2d at 1001; see also Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 954-55 (1st Cir.1984) (routinely awarding compensation for work performed before Supreme Court); Henry v. First National Bank, 603 F.Supp. 658, 666 (N.D.Miss.1984) (same).

4.

Notwithstanding the involvement of five attorneys, including their presence at trial, and the relatively large number of hours claimed by counsel for work performed in connection with the second evidentiary hearing (715.7), we conclude after close examination that the time spent, with minor exceptions, was reasonable under the circumstances and that counsel should be compensated accordingly. A considerable amount of the time claimed was devoted to the research of novel issues and preparation of extensive pretrial memoranda which proved helpful to the court. Other large blocks of time were spent in interviewing witnesses and taking depositions, all of which strengthened plaintiffs’ case at trial.

However, we deduct 4 hours claimed by Mr. Parker on November 15, 1983, and a total of 18 hours claimed by Mr. Bixler on November 15,16 and 17, 1983, for unnecessary duplication in the preparation for and attendance at certain evidentiary depositions taken on the dates noted. As for the attendance of five lawyers at trial, we observe that all counsel participated to some degree, although primary responsibility was clearly borne by Mr. Parker, and that the participating defendants were represented by a total of five attorneys, four representing the state defendants and one representing the Republican defendants. All other objections not specifically mentioned herein have been considered by the court and rejected.

5.

As previously stated, plaintiffs seek no compensation for time spent in prosecuting their second appeal to the Supreme Court in No. 83-1865, but do claim a total of 147.4 hours spent to oppose defendants’ motions for post-judgment relief in the trial court and to resist defendants’ appeals in Nos. 83-1722 and 83-2053. Plaintiffs were successful in both aspects, protecting the significant relief they obtained in the trial court from the several collective efforts of defendants to reinstate the Simpson plan. In view of the substantial number of hours devoted to that end by defendants’ counsel, we believe the time spent by plaintiffs’ counsel to be entirely reasonable. However, consistency demands that we make minor reductions of time, as follow, for hours clearly spent in furtherance of plaintiffs’ own appeal: .4 hours spent by Mr. Walls discussing possible appeal with co-counsel (Jan. 23, 1984); and .9 hours similarly expended by Mr. McDuff (Jan. 5, 10, 23 & 24). Additionally, we subtract .5 hours from Mr. Parker’s total which was erroneously included in his second affidavit without documentation.

Defendants’ objections to time expended by plaintiffs’ counsel in opposing post-judgment relief in this court have a distinctly hollow ring; in the opinion of the court, these defendants, and particularly the Republican Party, crossed the line separating hard-fought litigation from needless multiplication of proceedings, at great waste of both the court’s and the parties’ time and resources. With regard to state defendants’ objection that they should not be charged with time spent by plaintiffs’ counsel in responding to Republican efforts to overturn the district court’s judgment, we simply observe that the state defendants joined in the Republican motions for post-judgment relief and must assume responsibility therefor.

6.

The Supreme Court’s admonition that “[a] request for attorney’s fees should not result in a second major litigation,” Hensley, 461 U.S. at 437, 103 S.Ct. at 1941, 76 L.Ed.2d at 53, has been reduced to little more than wishful thinking in the instant case. The court has literally been flooded with paper, more easily measurable in pounds than in pages, from all parties. Plaintiffs have filed an original fee motion, an amended motion, a second amended motion and a supplemental motion, together with supporting briefs and evidentiary materials; in all but one instance plaintiffs seek additional compensation for preparation of their submissions, devoting an aggregate of 145.6 hours, comprising nearly 10% of the total time invested in the litigation, to recovery of attorneys’ fees.

While work performed in preparing a fee request is plainly compensable, Kirchberg, 708 F.2d at 1001; Ridell v. National Democratic Party, 624 F.2d 539, 547 (5th Cir. 1980), hours so expended are no less subject to the stricture of reasonableness than are those devoted to the merits of the case. Plaintiffs’ briefs on the attorneys’ fees issue — and we count a minimum of five, totaling 94 pages — address for the most part, settled, fundamental questions of law with which counsel are doubtless intimately familiar. Plaintiffs’ first and second briefs are, to a large degree, needlessly repetitive. Research and writing of the three briefs for which Mr. Parker and Ms. Han-rahan seek compensation consumed at least 120 of the hours documented, an extravagant expenditure of time for which the court can find little justification. Accordingly, the court reduces by 40% the hours claimed by Mr. Parker (112.2 hours claimed reduced to 67.3) and Ms. Hanrahan (24 hours claimed reduced to 14.4). Additionally, the court disallows in their entirety the 6 hours claimed by Ms. Stewart, as the work she performed was clearly of a nonlegal nature.

Summary

In accordance with the specific hourly deductions the court has made above, we conclude that a total of 1262.35 hours expended by plaintiffs’ counsel are properly compensable as follows:

Total
Compensable
Attorney Hours Claimed Deduction Hours
Parker 903.55 - 168.9 734.65
Hanrahan 191.80 - 10.6 181.20
Bixler 182.8 - 18.0 164.80
McDuff 161.30 - 45.65 115.65
Walls 110.0 - 43.95 66.05
Stewart 6.0 - 6.0 0
1,555.45 1,262.35

B. Novelty and Difficulty of the Issues

This case required consideration of long-established legal principles as well as application of newly-enacted statutory criteria in evaluating plaintiffs’ section 2 claims on remand. With regard to plaintiffs’ request for an injunction blocking utilization of the patently unconstitutional 1972 plan and the unpreeleared “least change” plan, we agree with defendants that these were issues upon which it was “hardly conceivable that the plaintiffs could possibly lose.” Flowers v. Wiley, 675 F.2d 704, 706 (5th Cir. 1982).

However, plaintiffs were put to far greater difficulty in establishing a section 2 violation at the second evidentiary hearing and in securing adoption of a redistricting plan which contained a majority black voting age population. Plaintiffs correctly point out that whether the trial court would conclude that its own court-ordered remedy (the Simpson plan) was itself violative of section 2, a result clearly not mandated by the Supreme Court’s remand, was highly speculative. Finally, the court was called upon to consider the novel question of section 2’s constitutionality.

C. The Skill Requisite to Perform the Legal Services Properly

The court finds that plaintiffs’ counsel ably and skillfully performed the professional services rendered on behalf of their clients.

D. Preclusion of Other Employment by the Attorneys Due to Acceptance of the Case

We agree with plaintiffs’ counsel that acceptance of this case committed counsel to a major undertaking, necessitating the expenditure of a considerable amount of attorney time. However, we note that by far the largest blocks of time were spent by attorneys employed by the Lawyers’ Committee (Parker, Hanrahan and Bixler and, to a lesser extent, McDuff), an organization whose primary function is to undertake just such litigation. The court is cognizant of the fact that the instant representation demanded counsel’s faithful attention during peak periods of activity, but we are also aware that counsel were engaged in other civil rights actions during the time period in question. On balance, we conclude that plaintiffs’ counsel were not unduly precluded by this representation from accepting other employment.

E. The Customary Fee

“ ‘[Reasonable fees’ ... are to be calculated according to the prevailing market rates in the relevant community,” that is, those rates “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 104 S.Ct. at 1547 & n. 11, 79 L.Ed.2d at 899-900 & n. 11; see also Johnson, 488 F.2d at 718; Henry, 603 F.Supp. at 666. Plaintiffs’ counsel seek compensation at rates ranging from $75 to $135 per hour, depending upon each individual attorney’s experience, as well as upon the location of his or her practice. Three attorneys, Mr. Parker, Ms. Hanrahan and Mr. Bixler, urge that the “relevant community” to which this court should look in selecting a reasonable hourly rate is Washington, D.C., their primary area of practice, rather than the Northern District of Mississippi. Consequently, they suggest that appropriate hourly rates for their services would be $135, $100, and $100, respectively. Messrs. McDuff and Walls ask to be compensated at the “local” rate of $75 per hour.

As we have in the past, we decline counsel’s invitation to reward their services at out-of-district rates: “we believe that the rates allowed by this court for legal work performed in this judicial district should reflect the customary fee here rather than the standard rates in Washington, D.C.” Henry, 603 F.Supp. at 666. Plaintiffs’ argument that their Washington counsel should be compensated at Washington rates because the state defendants also retained Washington counsel, Jerris Leonard and Kathleen H. McGuan, is unpersuasive, particularly in view of the fact that defendants’ counsel were compensated at rates substantially below what their services would command in Washington, $85 and $50 per hour, respectively. Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 (7th Cir.1982), cert. denied, 461 U.S. 956, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983), and Bolden v. City of Mobile, No. 75-297-P, slip op. (S.D.Ala. Dec. 12, 1983), two cases cited by plaintiffs for the proposition that out-of-district counsel should be awarded out-of-district rates where opposing counsel are so compensated, are inapposite: in both eases, unlike the ease sub judice, the defendants paid their out-of-district counsel at hourly rates comparable to the rates sought by plaintiffs, thereby justifying a higher hourly rate for plaintiffs’ counsel. Chrapliwy, 670 F.2d at 767; Bolden, slip op. at 18.

The court is quite familiar with reasonable hourly rates prevailing in this judicial district for attorney services and observes that such rates fall generally within the $60 to $100 per hour range, depending upon the experience, skill and reputation of the particular attorney involved. We have so noted on numerous occasions. E.g., Henry, 603 F.Supp. 666; Jackson v. Hollowell, No. GC73-51-WK, slip op. at 9 (N.D. Miss. Mar. 15, 1985); Johnston v. Lucas, No. GC82-46-WK-O, slip op. at 13 (N.D. Miss. Jan. 25, 1985); Litten v. Burke, No. WC81-168-WK-P, slip op. at 7 (N.D.Miss. Nov. 30, 1984); Quarles v. St. Clair, No. GC77-37-K, slip op. at 10 (N.D.Miss. July 2, 1984). -Consonant with the experience and reputation of each applying attorney, and after firsthand observation of his or her trial skills and level of participation, we reduce the claimed hourly rates as follows:

Attorney Claimed Rate Allowable Rate
Parker $135 $100
Hanrahan 100 65
Bixler 100 80
McDuff 75 65
Walls 75 65

F. Whether the Fee is Fixed or Contingent

As stated in Mr. Parker’s affidavit, “[t]he Lawyers’ Committee for Civil Rights Under Law is a private charitable civil rights legal organization which accepts cases involving the constitutional and civil rights of minority and poor persons on a non-fee generating basis.” Other counsel, Mr. Walls and Mr. McDuff, to the extent that his time is not attributable to his former association with the Lawyers’ Committee, also worked without payment or promise of payment of a fee. As such, payment of any fee to plaintiffs’ counsel was contingent first upon plaintiffs’ success in the underlying action and, second, upon an award by this court based upon appropriate fee statutes.

G. Time Limitations

Both evidentiary hearings in the trial court were conducted on an expedited basis, imposing in many instances severe time limitations upon counsel. Plaintiffs’ counsel further represent to the court that this action was treated as a priority case in their office, sometimes pre-empting other work.

H. The Results Obtained

The court has previously commented upon the results obtained by counsel on behalf of the plaintiff class, see supra Parts III, A; IV, A, 2-5. For present purposes it is sufficient to reiterate that plaintiffs’ counsel are responsible for, and should be credited with, achieving significant benefits for a broad class of Mississippi citizens by vindicating the right of minority voters to participate meaningfully in congressional elections. Although the ultimate outcome of the case was determined in large part by the 1982 amendment to section 2 of the Voting Rights Act passed during the pendency of this litigation, plaintiffs’ efforts to avoid unlawful dilution of black voting strength-represent a hard-earned victory.

I. Experience, Reputation and Ability of the Attorneys

Plaintiffs’ counsel _ possess varying degrees of experience in voting rights litigation, and some of these attorneys, without doubt, enjoy greater reputations in this field than do others. All counsel competently rendered professional services on behalf of their clients. The hourly rate allowed each attorney reflects that attorney’s degree of experience. Mr. Parker, however, bore the primary responsibility for development and presentation of plaintiffs’ case both at trial and on appeal, and he should be recognized for the excellent quality of his work.

J. Undesirability of the Case

Inasmuch as the attorneys involved in this case devote their practice almost exclusively to civil rights litigation, this action could hardly be considered “undesirable.” Indeed, it is likely that counsel’s reputations have been enhanced by their involvement in this case.

K. Professional Relationship With the Client

This factor is not relevant in this case.

L. Awards in Similar Cases

Our awards of $65, $80 and $100 per hour in this case fall within the range of prevailing rates in this judicial district and compare favorably with hourly rates recently awarded in other civil rights cases before this court. See, e.g., Henry, 603 F.Supp. at 666 (awards of $65, $90 and $100 per hour); Jackson v. Hollowell, slip op. at 10 ($75 per hour); Johnston v. Lucas, slip op. at 13 ($60 and $75 per hour); Quarles, slip op. at 10 ($75 per hour).

Computation of the “Lodestar” Fee

Under the method adopted by the Fifth Circuit in Copper Liquor II, 624 F.2d at 583; see also Graves v. Barnes, 700 F.2d at 222; Copper Liquor III, 684 F.2d at 1092-93, directing the district court to give “special heed” to the Johnson factors of time and labor involved, the customary fee, the results obtained, and the experience, reputation and ability of counsel, in arriving at a “lodestar” figure, which may then be adjusted upward or downward on the basis of other relevant Johnson factors, we determine that an appropriate “lodestar” fee in this case is $110,237.50, allocable as follows:

Compensable Allowable
Attorney Hours Rate Lodestar Fee
Parker 734.65 $100 $ 73,465.00
Hanrahan 181.2 $ 65 11,778.00
Bixler 164.8 $ 80 13,184.00
McDuff 115.65 $ 65 7,517.25
Walls 66.05 $ 65 4,293.25
$110,237.50

V. Should the “Lodestar” fee be enhanced?

We next consider plaintiffs’ request for a 100% enhancement of the fee award, applicable to all hours claimed with the exception of 68.7 hours spent by Mr. Parker in preparing attorneys’ fees papers and 6.0 hours claimed by Ms. Stewart but disallowed by the court. Plaintiffs maintain that the exceptional results obtained, the contingent nature of the case and the delay in payment entitle them to such an across-the-board enhancement. After review of the relevant Johnson factors, with particular attention paid to the quality of representation, we conclude that in order to adequately and fairly compensate plaintiffs’ counsel an upward adjustment of the lodestar calculation is required on the following basis: Mr. Parker will be awarded a 50% “multiplier” of his fee for .611.35 of the 734.65 hours previously allowed him by the court, excluding from enhancement those hours consumed by travel (56) and in preparation and furtherance of the attorneys’ fees request (67.3). See Graves v. Barnes, 700 F.2d at 224 (approving exclusion of travel hours from enhancement).

There is no justification in the record for an across-the-board enhancement of the fee award. We single out Mr. Parker’s labor for unique treatment because of his special expertise in voting rights litigation and because of his outstanding performance in this court. Noting that the quality of representation is generally subsumed in the reasonable hourly rate, the Supreme Court has held that a district court

may justify an upward adjustment only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was ‘exceptional’.

Blum v. Stenson, 465 U.S. at -, 104 S.Ct. at 1549, 79 L.Ed.2d at 902. We conclude that Mr. Parker’s representation falls squarely within this category and that his fee award should therefore be enhanced as described above. In denying a fee enhancement to the other attorneys involved, we observe that they have been adequately compensated for their roles in assisting Mr. Parker in this case.

Plaintiffs are thus entitled to recover reasonable attorneys’ fees in the total amount of $140,805.00, allocable as follows:

Compensable Allowable Total
Attorney Hours Rate Compensation
Parker 734.65 $100 $ 73,465.00
50%' Enhancement 611.35 $ 50 30,567.50
Hanrahan 181.20 $ 65 11,778.00
Bixler 164.80 $ 80 13,184.00
McDuff 115.65 $ 65 7,517.25
Walls 66.05 $ 65 4,293.25
$140,805.00

VI. Expenses

Plaintiffs also seek an award of $70,102.78 for out-of-pocket litigation expenses. All reasonable expenses that would customarily be billed to a fee-paying client may, of course, be recovered by plaintiffs as prevailing parties under §§ 1973/ (e) and 1988. See, e.g., Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir.1983); Loewen v. Turnipseed, 505 F.Supp. 512, 517-19 (N.D.Miss.1980). As such, we allow reimbursement as follows:

Paralegal Services
Samuel Issacharoff (38.4 hours x $30 per hour) $ 1,152.00
Jill Rappaport (43.2 hours x $30 per hour) 1,296.00
Lawvers’ Committee out-of-pocket litigation expenses
Filing fees 275.10
Transcripts 590.00
Deposition expenses 3,120.63
Expert witness fees and expenses 32,585.61
Copying expenses 3,050.43
Travel 7,260.45
Meals and lodging 3,764.59
Long distance telephone calls 1,448.69
Postage 321.29
Express mail service 915.25
Research work and expenses 597.44
December 1983 trial transcript 1,014.00
Documents from State Auditor 76.10
McDuff Expenses
Travel, meals, lodging, express mail 554.90
$58,022.48

Of the 131.1 hours generated by Mr. Issacharoff, we disallow in their entirety 46.8 hours spent preparing Brooks plaintiffs’ unsuccessful application for stay in conjunction with the first Supreme Court appeal, and 7.5 hours for an unnecessary trip to Greenwood with Mr. Parker. Further, we reduce Mr. Issacharoff’s remaining hours (76.8) by one-half, taking into consideration plaintiffs’ lack of complete success on the first appeal. See supra Part IV, A, 3 (reducing attorney hours similarly expended). We believe that $30 per hour reflects a fair rate of compensation for paralegal (law student) services in this judicial district.

The court disallows $7,183.80 charged for the printing of Supreme Court briefs in both appeals as being noncompensable under Supreme Court Rule 50.3. See, e.g., Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 957 (1st Cir.1984) (expenses of printing Supreme Court briefs are not properly taxable); Duncan v. Poythress, 572 F.Supp. 776, 781 (N.D.Ga.1983) (same). We also deduct $1700 from the total charged for travel and $400 from meals and lodging, as an approximation of the expenses incurred by Messrs. Parker and Issacharoff for their previously disallowed trips to Greenwood in July 1982 (Parker and Issacharoff) and February 1983 (Parker only). Finally, we subtract $8.00 for typing from Mr. McDuff’s itemized expenses, attributable to office overhead which is not properly compensable. Dowdell, 698 F.2d at 1192. All other expenses incurred are properly chargeable to defendants as reasonable out-of-pocket litigation expenses.

VII. Conclusion

Finally, we determine that full responsibility for payment of the award of attorneys’ fees and expenses made herein must lie solely with the State of Mississippi. Both plaintiffs and state defendants have urged the court to assess partial liability, in varying degrees, against the Republican defendants. The question is, we think, a close one, particularly in light of the multiplication of pleadings and legal process engendered by the Republican defendants; however, in the final analysis, we find that the Republican defendants were joined in this action and participated at all times as agents of the state. As such, the state must assume full liability for payment of plaintiffs’ attorneys' fees and expenses, including that portion of the total which was spent opposing Republican efforts. See supra note 4.

To summarize, we today conclude that the Brooks plaintiffs, as prevailing parties in this voting rights action, are entitled to recover from the state defendants, acting in their official capacities, the sum of $198,-827.48, representing an award of attorneys’ fees in the amount of $140,805.00 and litigation expenses in the amount of $58,-022.48.

Let an order issue accordingly.

      . Brooks v. Attain, No. GC82-81-WK-O, was consolidated with Jordan v. Attain, No. GC8280-WK-O, shortly after commencement of these actions. Two plaintiff classes were certified and defined by the court as (1) all black residents and black registered voters of the State of Mississippi; and (2) all residents and registered voters of the State of Mississippi. The two groups of named plaintiffs were represented throughout the pendency of these proceedings by separate counsel, although counsel for the Brooks plaintiffs bore the primary responsibility for prosecution of the action. The Jordan plaintiffs have not applied for an award of attorneys’ fees and expenses. Their failure to apply for such an award within thirty days of entry of final judgment bars the Jordan plaintiffs from any recovery. See N.D.Miss.R. C-13(2)(a).

      . The three-judge court, convened pursuant to 28 U.S.C. § 2284(a), was dissolved by order of the court on March 7, 1985, and all remaining issues regarding attorneys' fees and litigation expenses were remanded to the undersigned district judge for determination. Contrary to the suggestion of defendant Mississippi Republican Executive Committee, no § 2284(a) issues remain for resolution; hence, defendant's request to reconvene the three-judge court will be denied. See Bond v. White, 508 F.2d 1397, 1400-01 (5th Cir.1975).

      . This figure represents 1,555.45 hours of claimed compensable time expended by six attorneys and billed at hourly rates ranging from $75 to $135 ($180,236.75). Additionally, plaintiffs seek a 100% enhancement for all but 74.7 hours of the work performed (+ $170,512.25). Plaintiffs are represented by three attorneys (Mr. Parker, Ms. Hanrahan, Mr. Bixler) employed by the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee) in Washington, D.C., one attorney formerly associated with the Lawyers’ Committee (Mr. McDuff), and a private practitioner (Mr. Walls) and a Lawyers’ Committee attorney (Ms. Stewart) working in Mississippi.

      . Among those named as parties defendant were Mississippi’s Governor, Attorney General, Secretary of State, and State Board of Election Commissioners (hereinafter collectively referred to as state defendants). Of course, where state executives are sued in their official capacities, as here, an award of attorneys’ fees may be made to prevailing plaintiffs out of state funds. Hutto v. Finney, 437 U.S. 678, 693-94, 98 S.Ct. 2565, 2574-75, 57 L.Ed.2d 522 (1978); Connor v. Winter, 519 F.Supp. 1337, 1343-44 (S.D.Miss. 1981) (three-judge court).

      . 42 U.S.C. § 1988 (1981) provides in pertinent part:

        l’< * * * * *
      In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, 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.

      . 42 U.S.C. § 19731(e) (1981) provides:
      (e) In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment, 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.

      . This figure represents 272.05 hours expended by Republican counsel, Michael B. Wallace, Esquire, in pursuing post-judgment relief in the trial court, in prosecuting the Republican defendants’ appeal to the Supreme Court and in defending plaintiffs’ appeal, at an hourly rate of $75, for a total fee claim of $20,403.75, together with litigation expenses of $4,582.83.

      . A description of the “least change" plan, also referred to as S.B. 2001, is contained in the court’s first opinion, Jordan v. Winter, 541 F.Supp. 1135, 1139 (N.D.Miss.1982) (three-judge court), vacated and remanded sub nom. Brooks v. Winter, 461 U.S. 921, 103 S.Ct. 2077, 77 L.Ed.2d 291 (1983).

      . The Attorney General of the United States interposed a section 5 objection to the "least change” plan on March 30, 1982. Two days after initiation of this litigation, on April 7, 1982, the state filed a declaratory judgment action in the United States District Court for the District of Columbia, seeking judicial preclearance of the “least change” plan. See Mississippi v. Smith, No. 82-0956 (D.D.C.). This effort was ultimately abandoned.

      . The Simpson plan, developed by the staff of the joint Senate-House Committee for Congressional Redistricting on motion of Representative James C. Simpson, and urged by the AFL-CIO as amicus curiae, is described at 541 F.Supp. at 1144-46.

      . Plaintiffs sought adoption of either one of two plans drawn by Senator Henry J. Kirksey, a black legislator, both of which plans combined portions of the City of Jackson with counties in the Delta area to produce black majority districts of approximately 65%. See 541 F.Supp. at 1140. The court rejected both plans as "obvious racial gerrymanders].” Id. at 1144. The state defendants urged retention on an interim basis of either the unprecleared "least change" plan, the malapportioned 1972 plan, or a court-drawn plan slightly modifying one of these two plans. Id. at 1141. The court likewise rejected the state's arguments in adopting the Simpson plan. Id. at 1142, 1145.

      . The Republican and Democratic state executive committees were made defendants because of their responsibility for conducting primary and general elections in Mississippi. Both of these defendants consented to the entry of judgment against them, agreeing to be bound by any decree of the court with regard to redistricting. The Republican defendants apparently reconsidered their position following the 1982 elections, thereafter taking an active role in the litigation and appeals. The Democratic defendants have remained on the sidelines.

      . The court plan is described in detail in an addendum to the April 16, 1984, opinion. Jordan v. Winter, 604 F.Supp. at 816-20.

      . The three appeals were docketed in the Supreme Court as Mississippi Republican Executive Comm. v. Brooks, No. 83-1722; Brooks v. Attain, No. 83-1865; and Attain v. Brooks, No. 83-2053.

      . Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).

      . Preclearance Objection:

      Frank R. Parker (12/28/81-2/26/82) 18.0 hours
      Robert B. McDuff (2/17-26/82) 43£
      61.0

      . First Evidentiary Hearing:

      Parker (4/1-6/11/82) 188.95 hours
      Patricia Hanrahan (5/26/82) 2.20
      McDuff (3/31-6/1/82) 57.00
      Johnnie Wails (4/2-6/1/82) 87.10
      335.25

      . First Supreme Court Appeal:

        Parker (6/11/82-5/18/83) 145.5 hours
      Hanrahan (6/16/82) 1.0
      McDuff (6/10-9/15/82) 3.5
      150.0

      . Second Evidentiary Hearing:

      Parker (5/25/83-1/9/84) 145.5 hours
      Sidney R. Bixler (11/5/83-1/7/84) 191.8
      Hanrahan (8/23/83-1/5/84) 155.3
      McDuff (11/23-12/21/83) 52.5
      Walls (5/20/83-1/8/84) 22.5
      715.7

      . Post-Judgment Relief in the Trial Court and second Supreme Court Appeal:

      Parker (1/13-11/13/84) 144.8 hours
      Hanrahan (1/20/84) .3
      McDuff (1/5-1/23/84) 1.9
      Walls (1/23/84) .4
      147.4

      . Preparation of Attorneys’ Fees Motion:

      Parker (1/26-2/6/84; 12/6-12/12/84;
      12/13/84-3/6/85) 112.2
      Hanrahan (1/5-2/1/84) 24.0
      McDuff (1/23-1/25/84) 3.4
      Nausead Stewart (2/10-3/5/85) 6.0
      145.6

      . The court is cognizant that the undue expenditure of time by plaintiffs' counsel in furtherance of their fee request was prompted in part by defendants’ vigorous opposition to the motion, and by the filing of counter-motions by the Republican defendants. Even so, we remain convinced that entirely too much time was devoted to the fee question by plaintiffs’ counsel.