08-2838-cv
Bauer v. Yellen
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY O RDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 3 rd day of May, two thousand ten.
PRESENT: ROBERT D. SACK,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
----------------------------------------------------------------------
CHRISTINA BAUER,
Plaintiff-Appellant,
v. No. 08-2838-cv
LINDA YELLEN, KECKINS PROJECTS, LTD.,
Defendants-Appellees.
-----------------------------------------------------------------------
APPEARING FOR APPELLANT: CHRISTINA BAUER, pro se, New York, New
York.
APPEARING FOR APPELLEES: MICHAEL A. CORNMAN, Schweitzer Cornman
Gross & Bondell LLP, New York, New York.
Appeal from the United States District Court for the Southern District of New York
(P. Kevin Castel, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the April 25, 2008 judgment of the district court is AFFIRMED in part,
VACATED in part, and REMANDED.
Plaintiff Christina Bauer appeals pro se from an award of attorney’s fees in favor of
defendants initially granted on April 25, 2008, and finalized in an order entered on August
6, 2008.1 We review an award of attorney’s fees for abuse of discretion. See Farbotko v.
Clinton County of N.Y., 433 F.3d 204, 208 (2d Cir. 2005). In doing so, we assume the
parties’ familiarity with the facts and the record of prior proceedings, which we reference
only as necessary to explain our decision.
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
1
Bauer’s notice of appeal was taken from the district court’s judgment granting
summary judgment and an unspecified amount of attorneys’ fees to defendants. In October
2008, however, this Court dismissed the appeal to the extent that it challenged the grant of
summary judgment because that portion of the appeal lacked an arguable basis in law or fact.
See U.S.C.A. Dkt. No. 08-2838-cv, entry at 12/15/08. We will construe Bauer’s September
3, 2008 motion for appointment of counsel in this Court to be a notice of appeal from the
district court’s August 6, 2008 order finalizing the amount of the fee award, because it was
clear that Bauer intended to appeal the fee award. See Sahu v. Union Carbide Corp., 548
F.3d 59, 65-66 (2d Cir. 2008).
2
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).
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.
3
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.2 Accordingly, we vacate the portion of the
2
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
4
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.
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.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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).
5