Monday, June 14, 2010

Sanctions reduced because of defendants' ad hominem attacks

A pro se plaintiff alleging copyright violations was hit with a sanction for pursuing frivolous litigation in claiming that someone stole her screenplay. The Court of Appeals vacates that sanction because of some particularly uncivil conduct by the lawyers representing the defendant.

The case is Bauer v. Yellin, a summary order issued on May 3. Summary orders do not tell us everything that happened in the case, but it seems that Bauer claimed that defendants stole her idea for a script. The district court dismissed the case on the merits and also granted defendants attorneys' fees as a sanction for Bauer's utterly meritless claim. The Second Circuit (Sack, Raggi and Hall) says, in part, "'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."

Appellate courts will defer to the lower court's finding that the litigation is frivolous and deserves sanctions. But the Court of Appeals does something that I have never seen before: it sends the case back to the district court to reconsider the sanctions because defendants' written submissions to that court were full of ad hominem, or personal, attacks "not relevant or helpful to the court's expeditious resolution of the dispute, which attacks necessarily augmented the fee demand."

Here are the attacks against plaintiff. The Second Circuit is concerned that these attacks affected the sanction, most likely in that the attorneys' fees to which defendants are entitled increased as a result of the work that defendants performed in assaulting plaintiff's character:

“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.”

• “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.”

• “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.’”

• “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.”

• “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.”

Pretty nasty stuff. These attacks are taken from either defendants' briefs or their emails to plaintiff. Courts don't like this kind of ad hominem attack on other litigants, especially pro se litigants. The sanction is vacated for reconsideration at the district court. The Second Circuit instructs the lower court "to reduce the total fee by deleting amounts incurred in mounting ad hominem attacks."

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