No. 10-3686-cv.United States Court of Appeals, Second Circuit.
September 12, 2011.
PRESENT: DENNIS JACOBS, Chief Judge, ROBERT A. KATZMANN, SUSAN L. CARNEY, Circuit Judges.
FOR PLAINTIFF-APPELLANT: Christina Bauer, pro se, New York, NY.
FOR DEFENDANTS-APPELLEES: Michael A. Cornman, Ladas Parry LLP, New York, NY.
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Appeal from a judgment of the United States District Court for the Southern District of New York (Castel, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
In Bauer v. Yellen, 375 Fed. Appx. 154 (2d Cir. 2010) (“Bauer I“), we concluded that the district court did not err in awarding attorneys’ fees to defendants following its dismissal of plaintiff’s frivolous claims. Id. at 156. Nonetheless, we vacated the portion of the district court’s order awarding fees and remanded for the district court to “reduce the total fee by deleting amounts incurred in mountin ad hominem attacks.” Id. at 156-57. On remand, the district court reduced the fee award by 10% to account for time expended in producing the offending statements. We affirm.
Our review of an award of attorneys’ fees is highly deferential, and only for abuse of discretion. Crescent Publ’g Group, Inc. v. Playboy Enters., Inc., 246 F.3d 142, 146 (2d Cir. 2001). “We afford a district court considerable discretion in determining what constitutes reasonable attorney’s fees in a given case, mindful of the court’s `superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.'” Barfield v. N.Y.C. Health and Hosps. Corp., 537 F.3d 132, 151 (2d Cir. 2008) (quotin Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). However, “a district court necessarily abuses its discretion if its conclusions are based on an erroneous determination of law, or on a clearly erroneous assessment of the evidence.”Matthew Bender Co. v. West Publ’g Co., 240 F.3d 116, 121 (2d Cir. 2001) (alterations, citations, and internal quotation marks omitted).
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Bauer argues that the 10% reduction was arbitrary. However, the district court gave Bauer two opportunities to “identify by marking with specificity . . . those portions of defendants’ submissions which a reasonable person would view as personal attack[s].” Bauer’s responses largely ignored that directive and argued instead for a fee reduction based upon discovery issues that she unsuccessfully litigated in her first appeal. Defendants’ responses were equally unhelpful. Under the circumstances, the district court did not abuse its discretion by using 10% as a fair approximation of the amount of fees associated with the ad hominem attacks based upon its evaluation of the offending comments in the context of the litigation.
We have considered Bauer’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
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