2d Cir: No Attorneys Fees Under Copyright Act For Ad Hominem Attacks

Bauer v Yellen, 2010 WL 1740815 (2d Cir. May 3, 2010)

The Second Circuit reduced the attorneys fees assessed against a losing defendant because of counsel's ad hominem attacks on the defendant.  Excerpts from the Court's opinion, including the nastygrams that the losing defendant did not have to pay for:

Under the Copyright Act, see 17 U.S.C. § 505, “the award of attorney's fees is within the sound discretion of the court.” N.A.S. Import, Corp. v. Chenson Enters., Inc., 968 F.2d 250, 253 (2d Cir.1992). There is “no precise rule or formula” for determining when such an award is merited. Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994) (internal quotation marks omitted). Instead, “equitable discretion should be exercised in light of the [relevant] considerations,” which include “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” Id. at 534 & n. 19 (internal quotation marks omitted); accord Crescent Publ'g Group v. Playboy Enters., Inc., 246 F.3d 142, 147 (2d Cir.2001).

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In awarding defendants attorney's fees, the district court explicitly considered the Fogerty factors. It concluded not only that Bauer had been “preoccup[ied] with collateral issues and frivolous discovery disputes” during the course of the litigation, Bauer v. Yellen, 548 F.Supp.2d 88, 96 (S.D.N.Y.2008), but also that her claims of copyright infringement were objectively unreasonable given that (1) defendant Linda Yellen had registered five different versions of the allegedly infringing script with the Writers Guild of America before ever reviewing Bauer's script, see id. at 94; and (2) “A Rose Is a Rose Is a Rose,” Bauer's script about the relationship between Gertrude Stein and Alice B. Toklas, and “The Hive,” defendants' script about five male artists living in a Paris tenement, were so obviously different that no reasonable juror could conclude that they contained similarities probative of copying, see id. at 95-96. In light of our observation that “objective reasonableness is a factor that should be given substantial weight in determining whether an award of attorneys' fees is warranted,” Matthew Bender & Co. v. West Publ'g Co., 240 F.3d 116, 122 (2d Cir.2001), this record manifests no “erroneous view of the law or ... clearly erroneous assessment of the evidence,” In re Sims, 534 F.3d 117, 132 (2d Cir.2008), sufficient to support the conclusion that the district court abused its discretion in awarding fees.

 While we are mindful that attorney's fees should only rarely be awarded against plaintiffs proceeding pro se, such an award is appropriate where, as here, the district court's determination that the plaintiff's “claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so,” finds support in the record. Hughes v. Rowe, 449 U.S. 5, 15 (1980) (internal quotation marks omitted). Nevertheless, our review of the record indicates that defendants' briefing below relies on ad hominem attacks not relevant or helpful to the court's expeditious resolution of the dispute, which attacks necessarily augmented the fee demand.FN2 Accordingly, we vacate the portion of the district court's order finalizing the amount of the fee award and remand for the court to reduce the total fee by deleting amounts incurred in mounting ad hominem attacks.

FN2. The record is replete with such attacks, particularly during discovery. We cite only a few examples:

• “Ms. Bauer's [May 21 letter to the Court] is of a kind with her reckless initiation and malicious prosecution of her baseless lawsuit, namely it is tainted by her dishonesty, deviousness, and disingenuousness.” Def's Response to Ptf's Excuses for Disobedience of Court Orders (ROA Doc. # 18, at 2).

• “Ms. Bauer's shameless begging for the sympathy of the court on the grounds that she is a pro se litigant ‘in over her head’ is a devious attempt to avoid the consequences of her arrogant disregard of three unequivocal Orders of the Court.” Def's Response to Ptf's Excuses for Disobedience of Court Orders (ROA Doc. # 18, at 3).

• “Every minute this case remains undismissed by you is an affront to the legal system and due process. We insist on meeting face-to-face IMMEDIATELY, as ordered, to explain to you why you have no case, why you are likely to be assessed our client's attorneys' fees, and why you should be held in contempt. You ignore our demand and the Court Order at your great peril. You are right only about one thing, you are in ‘way over your head.’ “ May 21, 2007 Email from Def. Counsel to Bauer (ROA Doc. # 19, Ex. 1).

• “Your refusal to meet up to NOW after you have had the ample opportunity to confirm that you have NO CASE is a violation of the May 2 Order for which we will seek sanctions including DISMISSAL, CONTEMPT, and the AWARD OF DEFENDANTS' ATTORNEY'S FEES.” May 22, 2007 Email from Def. Counsel to Bauer (ROA Doc. # 19, Ex. 2).

• “Ms. Bauer has pursued this case blindly, recklessly, vindictively, maliciously and without a shred of evidence to support her wild and deluded claim of copyright infringement.... Ms. Bauer's opposition papers mirror the nasty, mean-spirited approach she has taken in prosecuting this matter.” Def's Reply on MSJ, at 8-9 (filed Nov. 9, 2007).

We have considered Bauer's remaining arguments on appeal and conclude that they are without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED in part, VACATED in part, and REMANDED for further proceedings consistent with this order.