The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARISA PORRAS,
Plaintiff,
v. Case No: 8:21-cv-423-JSS
UNITED STATES OF AMERICA,
Defendant.
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ORDER
Plaintiff moves the court to determine her entitlement to attorneys’ fees and
costs pursuant to Middle District of Florida Local Rule 7.01(b), 28 U.S.C. § 2412(b),
Federal Rule of Civil Procedure 54(d)(2), Section 768.79 of the Florida Statutes, and
Florida Rule of Civil Procedure 1.442. (Motion, Dkt. 169.) Defendant opposes the
Motion (Dkt. 171), and Plaintiff has filed a reply to Defendant’s opposition (Dkt. 174).
Upon consideration and for the reasons that follow, Plaintiff’s Motion is denied
without prejudice.
BACKGROUND
Plaintiff brought this action against Defendant United States of America
pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., alleging one
count of negligence arising from a vehicle collision between Plaintiff and a United
States Postal Service (USPS) vehicle driven by USPS employee Natasha Prieto on
March 5, 2019. (Dkt. 1.) The court held a five-day bench trial from August 22, 2022
to August 26, 2022. See (Dkts. 135, 137, 138, 139, 141.) On March 21, 2023, the court
issued its findings of fact and conclusions of law pursuant to Federal Rule of Civil
Procedure 52 and ordered judgment in favor of Plaintiff. (Dkt. 166.) The Clerk
thereafter entered final judgment on behalf of Plaintiff and against Defendant in the
total amount of $229,295.47. (Dkt. 167.) On April 4, 2023, Plaintiff filed the Motion
seeking a determination of her entitlement to attorneys’ fees. (Dkt. 169.) On May 22,
2023, Defendant filed a notice of appeal of the final judgment. (Dkt. 175.)
APPLICABLE STANDARDS
As a general rule, the filing of a notice of appeal divests a district court of
jurisdiction on any matter involved in the appeal. In Green Leaf Nursery v. E.I. DuPont
de Nemours & Co., 341 F.3d 1292, 1309 (11th Cir. 2003). However, the district court
may retain jurisdiction to consider motions on matters that are collateral to the matters
on appeal. Mahone v. Ray, 326 F.3d 1176, 1179 (11th Cir. 2003). Specifically, the
district court may entertain a motion for attorneys’ fees and costs after a notice of
appeal has been filed in the underlying case. Briggs v. Briggs, 260 F. App’x 164, 165
(11th Cir. 2007) (per curiam) (citing Rothenberg v. Sec. Mgmt. Co., 677 F.2d 64, 65 (11th
Cir. 1982)).
Alternatively, the court has discretion to deny a motion for fees and costs
without prejudice with leave to re-file after the appeal has concluded. See Fed. R. Civ.
P. 54(d) advisory committee’s note to 1993 amendment (providing that“[i]f an appeal
on the merits of the case is taken, the court may rule on the claim for fees, may defer
its ruling on the motion, or may deny the motion without prejudice, directing under
subdivision (d)(2)(B) a new period for filing after the appeal has been resolved”); see
also Universal Physician Servs., LLC v. Del Zotto, No. 8:16-cv-1274-T-36JSS, 2020 WL
886867, at *1 (M.D. Fla. Feb. 24, 2020); Short v. Immokalee Water & Sewage Dist., No.
2:18-cv-124-FTM-38CM, 2019 WL 8370780, at *1 (M.D. Fla. July 10, 2019) (“The
district court may also deny a motion for attorneys’ fees without prejudice with leave
to refile after the appeal has concluded.”); The Indigo Room, Inc. v. City of Fort Myers,
No. 2:12-cv-39-FTM-38CM, 2014 WL 1174355, at *1 (M.D. Fla. Mar. 21, 2014)
(denying motion for attorneys’ fees without prejudice and with leave to re-file after
entry of appellate court’s mandate); Southern-Owners Ins. Co. v. Wall 2 Walls Constr.,
LLC, No. 8:12-cv-1922-T-33TBM, 2013 WL 6893254, at *1 (M.D. Fla. Dec. 31, 2013)
(same).
ANALYSIS
Upon consideration of Plaintiff’s Motion (Dkt. 169) and Defendant’s notice of
appeal (Dkt. 175), the court finds that the ends of justice are best served by denying
the Motion without prejudice with leave to re-file after the conclusion of the appeal.
See, e.g., Bowers v. Universal City Dev. Partners, Ltd., No. 6:03-cv-985-Orl-18JGG, 2005
WL 1243745, at *2 (M.D. Fla. May 19, 2005) (stating that “[i]f the district court were
to resolve the fee and cost issue while an appeal remains pending, it would be asked to
repeat the procedure following the appeal”); Pinto v. Rambosk, No: 2:19-cv-551-JLB-
MRM, 2021 WL 4263404, at *2 (M.D. Fla. Sept. 20, 2021) (“Notably, courts routinely
defer ruling on motions for attorney’s fees and costs pending appeal in the interest of
judicial economy.”) (collecting cases). Given the procedural posture of the case and
Defendant’s pending appeal, immediate resolution of the Motion is unwarranted. See
Hess v. Coca-Cola Refreshments USA, Inc., No. 8:13-cv-3136-T-33EAJ, 2016 WL 99567,
at *1 (M.D. Fla. Jan 8, 2016) (“Immediate resolution of the collateral issues of taxable
costs and attorneys’ fees and costs is unlikely to assist the Court of Appeals, and
attorneys’ fees and costs are often resolved in appellate mediation.”); U.S. ex rel.
Ragghianti Founds. IIT, LLC v. Peter R. Brown Constr., Inc., No. 8:12-cv-942-T-33MAP,
2014 WL 5307490, at *1 (M.D. Fla. Oct. 16, 2014) (“Resolving [defendant’s] Motion
and Proposed Bill of Costs while the present appeal remains pending would require
the Court to engage in piecemeal adjudication of costs, as the Court would be asked
to repeat the procedure following the appeal.”).
Accordingly, Plaintiff's Motion for Determination of Entitlement to Attorney’s
Fees and Non-Taxable Costs (Dkt. 169) is DENIED without prejudice. Plaintiff may
re-file the Motion within 30 days of the entry of a mandate by the Eleventh Circuit
Court of Appeals on Defendant’s pending appeal.
ORDERED in Tampa, Florida, on May 24, 2023.
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UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
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