Spencer Sheehan v. Big Lots, Inc.

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-13354

Non-Argument Calendar

____________________

ATTORNEY SPENCER SHEEHAN,

Plaintiffs-Appellants,

versus

BIG LOTS, INC.,

Defendant-Appellee.

.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 5:23-cv-00561-GAP-PRL

____________________

Before JILL PRYOR, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:

After the district court dismissed a lawsuit that attorney

Spencer Sheehan filed on behalf of client Peggy Durant against

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2 Opinion of the Court 24-13354

retailer Big Lots, Inc., the court ordered Sheehan to pay the re-

tailer’s attorney’s fees and ultimately awarded Big Lots $144,047 in

attorney’s fees. On appeal, Sheehan challenges the amount of the

fee award. After careful consideration, we affirm.

I. FACTUAL BACKGROUND

Big Lots is a national retailer that operates stores around the

country. In its stores, Big Lots sells products under its own “Fresh

Finds” label. One of these products is a 24-ounce can of Colombian

medium-dark roast coffee.

The back of the coffee canister has a label with brewing di-

rections. The label gives instructions for brewing one, five, or ten

servings of coffee at a time. One serving requires one tablespoon

of coffee and six fluid ounces of water. Five servings require one-

quarter cup (four tablespoons) of coffee and 30 fluid ounces of wa-

ter. Ten servings require one-half cup (eight tablespoons) of coffee

and 60 fluid ounces of water. The label states that the “canister

makes up to 210 suggested strength 6 fl oz servings.” Doc. 1 at 2. 1

Sheehan has twice sued Big Lots alleging that this label is

deceptive and misleads consumers. We begin by reviewing the pro-

ceedings in the first lawsuit, which Sheehan filed on behalf of client

Amy Devey, and then discuss the proceedings in this lawsuit, which

he filed on Durant’s behalf.

1 “Doc.” numbers refer to the district court’s docket entries.

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A. The Devey Litigation

Sheehan first sued Big Lots on Devey’s behalf in the Western

District of New York. See Devey v. Big Lots, Inc., 635 F. Supp. 3d 205

(W.D.N.Y. 2022). The complaint alleged that the coffee canister’s

label was deceptive because it was impossible for a consumer fol-

lowing the instructions for brewing a single serving of coffee at a

time to make 210 servings from the canister. Id. at 210. Sheehan

filed the complaint as a putative class action and asserted claims

under New York law for deceptive marketing, breach of express

warranty, breach of the implied warranty of merchantability, neg-

ligent misrepresentation, fraud, and unjust enrichment, as well as

a claim alleging a violation of the federal Magnuson-Moss War-

ranty Act. Id.

The district court dismissed the complaint. Id. It explained

that all Devey’s claims rested on a theory that the label contained a

misrepresentation. Id. at 213. The court noted that the complaint’s

allegations “focus[ed] solely on the instructions for brewing a single

serving” and “completely overlook[ed] the brewing instructions on

the label for larger batches,” which “require[d] 20% less ground

coffee: ¼ cup (4 Tblsp.) for 5 servings, and ½ cup (8 Tblsp.) for 10.”

Id. at 212. After considering the label “as a whole,” the court con-

cluded that “as a matter of law” the label “would not have misled a

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reasonable consumer, who followed the instructions on the label,

in a manner that the consumer would find to be material.” Id. 2

In its order dismissing the complaint, the court discussed

Sheehan’s conduct. It stated that he regularly filed complaints alleg-

ing that products were misleadingly labeled, noting that he had

“filed over 70 such cases in the Second Circuit, and a few dozen

more in other circuits nationwide,” and that the “vast majority” of

these cases had been dismissed. Id. at 213 n.3. The court “admon-

ished” Sheehan because, in both the complaint and the opposition

to the motion to dismiss, he had misquoted the text of the coffee

canister’s label and reminded him of an attorney’s “ethical and pro-

fessional” responsibilities. Id. at 211 n.2.

B. The Durant Litigation

About a year after Devey was dismissed, Sheehan sued Big

Lots for a second time. This time he filed a lawsuit on behalf of

Durant in the Middle District of Florida, again alleging that the cof-

fee canister’s label was deceptive. Sheehan filed this lawsuit to-

gether with Florida attorney William Wright. The complaint rep-

resented that a pro hac vice application for Sheehan was

“[f ]orthcoming.” Doc. 1 at 18.

2 The court also concluded that even if the complaint plausibly alleged that a

reasonable consumer would have been misled by the label, each claim was

due to be dismissed for other, alternative reasons. Devey, 635 F. Supp. 3d at

213–19.

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Like the complaint in Devey, Durant’s complaint alleged that

the coffee canister’s label was deceptive because it was impossible

for a consumer following the instructions for brewing a single serv-

ing of coffee to make 210 servings from the canister. The com-

plaint also asserted that an “[i]ndependent laboratory analysis” re-

vealed that the canister made only 152 servings when the directions

on the label were followed. Id. at 3.

Sheehan filed the complaint as a putative class action. The

complaint asserted claims under the Florida Deceptive and Unfair

Trade Practices Act (“FDUTPA”), Fla. Stat. §§ 501.201–501.213, and

Florida’s false advertising statute, Fla. Stat. § 817.41. It also raised

claims under Florida law for breach of an express warranty and

fraud. It asserted that the amount in controversy exceeded $5 mil-

lion.

In this section, we review in more detail the proceedings on

two of the motions Big Lots filed: its motion to dismiss and its mo-

tion for attorney’s fees.

1. Proceedings on the Motion to Dismiss

Big Lots filed a motion to dismiss Durant’s complaint.

Throughout the Durant litigation, it was represented by the same

attorneys who represented it in the Devey litigation, a team from

the law firm Davis Wright Tremaine LLP.

In its motion, Big Lots explained that all Durant’s claims

rested on the premise that the coffee canister’s label was mislead-

ing. It argued that the label was not misleading as a matter of law

because “no reasonable consumer would be misled by the label”

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given the “alternative brewing instructions, as well as the qualifying

‘up to’ language.” Doc. 11 at 21.

Big Lots also raised alternative arguments about why indi-

vidual claims should be dismissed. It argued that (1) the FDUTPA,

false advertising, and fraud claims were due to be dismissed be-

cause the complaint failed to satisfy the heightened pleading stand-

ard under Federal Rule of Civil Procedure 9(b); (2) the fraud claim

was barred by the economic loss rule; and (3) the breach of express

warranty claim failed because Durant had not provided notice to

Big Lots before filing suit as Florida law required.

Big Lots also discussed Sheehan’s litigation history. It re-

viewed the Devey litigation and argued that Durant’s complaint was

an attempt by Sheehan “to relitigate already[ ]rejected mislabeling

claims . . . in a new judicial district.” Id. at 7. It also cited a recent

Northern District of New York case finding that Sheehan had a pat-

tern of filing frivolous lawsuits, holding him in contempt of court,

and sanctioning him under Federal Rule of Civil Procedure 11. See

Brownell v. Starbucks Coffee Co., No. 5:22-cv-1199, 2023 WL 9053058

(N.D.N.Y. Nov. 30, 2023). Big Lots noted that Sheehan “apparently

fabricat[ed] allegations of a laboratory analysis of the product at

issue” in that case. Doc. 11 at 10 (citation modified).

Big Lots also questioned the accuracy of Durant’s allegation

that independent laboratory testing of the product showed that the

coffee canister yielded far less than 210 servings of coffee. Big Lots

stated that before filing the motion to dismiss it had twice

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requested a copy of the laboratory analysis referenced in the com-

plaint, but Sheehan refused to provide it.

In response to the motion to dismiss, Durant withdrew her

claims for breach of express warranty and fraud. But she argued

that the complaint’s allegations were sufficient to establish that the

labeling was deceptive and stated claims for violations of FDUTPA

and Florida’s false advertising statute. Durant dismissed the Devey

case as an “out-of-circuit court decision” without mentioning that

it involved the exact same product and that Sheehan had filed the

case. Doc. 21 at 12. She requested permission to amend the com-

plaint if the court determined that she failed to state a claim for

relief.

In reply, Big Lots argued that Durant had “provide[d] no

grounds to distinguish her claims from those in Devey (there are

none)” and failed to “identify any basis to depart from the court’s

ruling there (there is none).” Doc. 24 at 5. It also opposed Durant’s

request for leave to file an amended complaint.

The court granted the motion to dismiss. It dismissed the

breach of express warranty and fraud claims because Durant had

withdrawn them. And it determined that Durant failed to state a

claim under FDUTPA or Florida’s false advertising statute because

the complaint did not show that Big Lots had engaged in a decep-

tive act. Given the number of servings that could be brewed by fol-

lowing the directions for preparing five or ten servings of coffee at

a time, the court concluded that it was “patently implausible that

any reasonable consumer would be deceived by the [p]roduct’s

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label.” Doc. 29 at 11. It explained that the complaint was “premised

on the position that [Durant] cast her eyes only upon the single

serve brew instructions and that because they alone do not satisfy

her ‘impression’ of what a subtle ‘up to’ statement means, the label

is misleading.” Id. But it found that this was not the conclusion that

“a reasonable consumer—or reputable lawyer” would reach. Id.

The court dismissed the complaint with prejudice. It did not

allow Durant to file an amended complaint because any amend-

ment would be futile.

2. Proceedings on the Motion for Attorney’s Fees

After the district court dismissed the complaint, Big Lots

filed a motion for attorney’s fees. It sought to collect attorney’s fees

from Durant and Sheehan but not Wright, the local counsel who

also represented Durant.

Big Lots asked the court to award fees pursuant to Florida

law and under the court’s inherent authority. It argued that it was

entitled to fees under both FDUTPA and Florida’s false advertising

statute. It explained that FDUTPA gave a court discretion to award

attorney’s fees to a prevailing party, Fla. Stat. § 501.2105(1), and the

false advertising statute required a court to award attorney’s fees to

a prevailing party, id. § 817.41(6).

Big Lots also asked the court to award fees under its inherent

authority as a sanction for Sheehan’s bad faith conduct. It argued

that Sheehan acted in bad faith by filing this action when he knew

that the claims were frivolous after the dismissal in Devey. Big Lots

pointed to other evidence to establish Sheehan’s knowledge. It

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reviewed Sheehan’s litigation history in which other courts had

identified deficiencies in his pleadings and “explicitly warned” him

that “his continued conduct would subject him to sanctions.” Doc.

35 at 25.

According to Big Lots, an attorney’s fee award was necessary

to deter Sheehan from filing frivolous lawsuits in the future. It

noted that despite previous warnings from courts, Sheehan had

continued to file “repeat, frivolous complaints,” showing that the

warnings had not changed his behavior. Id. On top of that, when

Sheehan was asked by a reporter whether the courts’ warnings

would alter his future behavior, “he exclaimed ‘No!’” Id. at 13

(quoting Sarah Larson, You’ve Been Served, The New Yorker (Sept.

11, 2023)).

In its motion for attorney’s fees, Big Lots also asked the court

to consider that Sheehan may have fabricated the allegation in the

complaint about independent laboratory testing. It explained that

Sheehan refused to provide a copy of the analysis.

Durant opposed the fee request. Her response was submit-

ted by Wright, Sheehan’s co-counsel. She argued that the court was

not required to award fees under Florida’s false advertising statute.

Although the statute stated that a prevailing party would recover

fees, Durant asked the court to look past this plain language and

conclude that only a prevailing plaintiff could recover fees. She also

urged the court not to exercise its discretion to award fees under

FDUTPA or pursuant to its inherent authority because there was a

good faith basis for the claims against Big Lots.

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Durant’s response also argued that Big Lots’s reliance on

cases involving Sheehan was “misplaced” because her lawsuit “was

not filed” by him. Doc. 37 at 13. Although Sheehan’s name ap-

peared on the complaint and multiple pleadings, Durant asserted

that Sheehan had not “participated” in the litigation because he

never filed an appearance in the case or moved for admission pro

hac vice. Id. at 19. Given this lack of involvement, Durant asserted

that requiring Sheehan to pay attorney’s fees would offend due pro-

cess. Notably, no declaration, affidavit, or other evidence was sub-

mitted to support the assertions in the response about Sheehan’s

lack of involvement.

The response also addressed the basis for the complaint’s al-

legation about independent laboratory testing of the coffee canis-

ter. It included a document that appeared to be an excerpt from a

spreadsheet showing that in 2021 Biogen Laboratory Develop-

ments, LLC tested the canister and determined that when using

one tablespoon of coffee—that is, following the directions to make

a single serving of coffee—the canister yielded 152.1 servings, not

210. Durant provided no additional information about the spread-

sheet or Biogen’s analysis. She then accused Big Lots of making

“defamatory and libelous” statements by suggesting that no labor-

atory testing had been performed. Id. at 32. 3

3 Despite the accusation that Big Lots made defamatory statements, Sheehan

has brought no defamation claim against Big Lots or its attorneys. This is un-

surprising. It is well established under Florida law that a party generally enjoys

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Big Lots’s reply primarily addressed Sheehan’s participation

in the lawsuit. It pointed out that he had brought the nearly-identi-

cal Devey case and was listed as plaintiff’s counsel on the complaint

and in other filings in this case, including the disclosure statement

in which Durant identified Sheehan’s law firm as having an interest

in the outcome of the case. And Big Lots submitted other evidence

of Sheehan’s participation in the case. One of its attorneys submit-

ted a declaration stating that Sheehan actively participated in a con-

ferral call about the motion to dismiss and sent multiple emails

about scheduling in this case.

In its reply, Big Lots also addressed the testing allegations in

the complaint. It noted that the testing document Durant attached

to her response was not authenticated. And it explained that

Sheehan had used the BioGen laboratory in other cases, and the

document submitted in this case did “not resemble an actual Bio-

Gen report,” but instead appeared to be “an attorney-generated ex-

cel spreadsheet.” Doc. 41 at 10.

After a hearing at which Sheehan had an opportunity to ad-

dress the court, the court awarded Big Lots attorney’s fees. It

awarded fees (1) under Florida’s false advertising statute, Fla. Stat.

an absolute privilege from a defamation claim when the alleged defamatory

statement was made in a document filed with a court so long as the statement

“bear[s] some relation to or connection with the subject” of the underlying

lawsuit. DelMonico v. Traynor, 116 So. 3d 1205, 1217 (Fla. 2013); see Grippa v.

Rubin, 133 F.4th 1186, 1193 (11th Cir. 2025) (“Florida law recognizes an abso-

lute privilege for conduct occurring during the course of a judicial proceed-

ing.”).

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§ 817.41(6); (2) under FDUTPA, Fla. Stat. § 501.2105(1); and (3) pur-

suant to its inherent authority.

The court found that Sheehan had “undeniably acted in bad

faith throughout this case.” Doc. 44 at 22. It explained that the mis-

labeling claims “were very unlikely to succeed when Sheehan filed

them in New York the first time, and they were patently implausi-

ble when [Sheehan] filed them again in this district, in bad faith,

seeking a better outcome.” Id. at 15 (citation modified). It also re-

jected as “frivolous” the contention that Sheehan had not appeared

in the matter or participated in the litigation. Id. at 9.

In addressing bad faith, the court also considered the com-

plaint’s allegations about independent laboratory testing of the cof-

fee canister. Although Durant purported to produce the laboratory

report with her response, the court found that the document was

“unauthenticated” and “little more than a single line of an excel

spreadsheet with some data in it.” Id. at 14–15. The court observed

that when Sheehan had an opportunity to address the court at the

hearing, he presented no additional evidence to show that testing

had occurred.

The court concluded that an award of fees was necessary to

deter Sheehan “from re-filing this suit against [Big Lots] in Texas or

Ohio or the 46 other states from which [the claims] have yet to be

dismissed.” Id. at 16. It explained that a “chorus of courts around

this nation” had warned “Sheehan to abide by the standards and

rules governing this profession,” yet he continued to file frivolous

lawsuits. Id. The court found that “[a]bsent a financial cost for [his]

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intransigence,” Sheehan would “continue filing frivolous lawsuits

around the nation with impunity.” Id.

The court also found that Sheehan had perpetrated a fraud

on the court. It searched the CM/ECF database for the Middle Dis-

trict of Florida and found that Sheehan had appeared as an attorney

for plaintiffs in 29 cases in the district. In 24 of those cases, Sheehan

was directed to move for pro hac vice admission but did so in just

two cases. The court found that by failing to seek admission pro hac

vice in this case and others, Sheehan had committed “unabashed

violations of the Local Rules” that were part of a “concerted effort

to facilitate his improper maintenance of a regular practice of law

in Florida.” Id. at 20. (citation modified).

Based on its conclusions, the court ordered that Durant and

Sheehan were “liable for the reasonable attorney’s fees and costs

[Big Lots] is entitled to under the fee shifting provisions of the Flor-

ida statutes and this Court’s inherent authority.” Id. at 22. It then

directed Big Lots to submit an application addressing the amount

of the award. The court sent a copy of its order to the state bars for

New York and Florida. And it referred the matter to the Middle

District of Florida’s grievance committee for a determination

about whether to bar Sheehan from practicing in the Middle Dis-

trict of Florida.

Big Lots submitted a fee application requesting $144,407 in

attorney’s fees. This amount represented the fees that it incurred in

connection with the motion to dismiss and the motion for

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attorney’s fees. 4 Big Lots submitted detailed billing records reflect-

ing that four attorneys spent a total of 121.8 hours preparing the

motion to dismiss and reply and 60.6 hours preparing the motion

for fees and reply.

Big Lots also provided a declaration from Jacob Harper, its

lead counsel. Harper reviewed the qualifications of the attorneys

who worked on the case, explaining that each had “substantial ex-

perience in federal litigation and in defending against consumer

mislabeling class actions.” Doc. 46-1 at 2. In addition, the attorneys

had defended consumer mislabeling class actions brought by

Sheehan. Harper explained that the attorneys who worked on the

case were mostly based out of Davis Wright Tremaine’s Los Ange-

les office and had hourly rates ranging from $625 to $950 per hour.

He opined that these rates were commensurate with the attorneys’

experience and that each attorney’s rate was “conservative com-

pared to other rates typically charged by other business litigators

of [similar] experience and abilit[ies] in Los Angeles and other large

metropolitan areas.” Id. at 4–5.

Harper also reported that the number of hours billed on the

case was reasonable. He explained that the attorneys had spent

81 hours preparing the initial motion to dismiss and 40.8 hours pre-

paring the reply brief. As for the motion for attorney’s fees,

4 Big Lots also requested that the district court award it an additional

$36,011.75, an upward adjustment of 25%, given the extraordinary circum-

stances of this case. Because the court declined to grant the upward enhance-

ment, we discuss this request no further.

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36.9 hours were spent on the initial motion and 23.7 hours on the

reply brief. Based on his “extensive experience in class action con-

sumer mislabeling defense,” Harper opined that the time expendi-

tures were “reasonable and in line with what [his] firm has ex-

pended in preparing comparable motions to dismiss and for fees

and costs, as well as supporting reply briefs.” Id. at 9.

Harper noted that Big Lots was not seeking reimbursement

for all the attorney’s fees it incurred in the case. He removed

charges “for tasks that might be considered excessive, duplicative,

[or] clerical.” Id. at 7. He also left off time billed by one-off time-

keepers, librarians, and paralegals. He removed time entries for

“case management, procedural motions, review of . . . the Local

Rules of this District, preparation for motions that ultimately were

not filed (including research related to a contemplated Rule 11

sanctions motion), certain strategy discussions and analysis, and

strategy and travel time attributable to the hearing on the Motion

for Attorney’s Fees.” Id. Harper removed this time to “simplify” the

application and “reduce the amount of total fees sought to an

amount commensurate with fees typically deemed reasonable in

this District.” Id.

Big Lots also submitted a declaration from outside attorney

Adam Schachter. Schachter, who was admitted to practice in the

Middle District of Florida, provided an expert opinion that the

amount of the fee request was reasonable.

Schachter addressed whether the hourly rates were reasona-

ble for the Middle District of Florida. Although the hourly rates

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16 Opinion of the Court 24-13354

were “somewhat higher than rates commonly charged in Orlando

or elsewhere in the Middle District of Florida,” Schachter con-

cluded that the rates were reasonable. Doc. 46-2 at 14–15. He noted

that they were “lower than the hourly rates for other large law

firms that are routinely hired to defend against consumer class ac-

tions such as this one.” Id. at 15. Schachter also considered that the

attorneys had previously litigated against Sheehan at least seven

times. Given Sheehan’s “demonstrated history of vexatious, serial

filings across the country,” Schachter concluded that it was “reason-

able for Big Lots to seek out and retain outside counsel with spe-

cialized experience in defending against claims brought by []

Sheehan.” Id. at 15–16. Schachter also found that the fact that Big

Lots had actually paid these hourly rates supported a conclusion

that the rates were reasonable because a defendant in this type of

consumer class action typically would not expect to recover fees.

He also opined that the attorneys spent a reasonable number

of hours working on the case. He found that the number of hours

spent was “in line with what [he] would expect for” briefing the

two motions, “particularly in the context of a vexatious attorney

with a history of bad faith and misleading litigation conduct.” Id.

at 19. Schachter also determined that the attorneys had efficiently

staffed the case by having associates prepare the initial briefs and

then having the more experienced (and expensive) partner and

counsel review those drafts. Schachter also reviewed the billing rec-

ords and found that they did not include time spent on unnecessary

tasks or block billing.

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In finding the amount of the fee request reasonable,

Schachter also considered the limited scope of Big Lots’s fee re-

quest. He noted that it had not sought to recover more than

$25,000 worth of time billed for case management, procedural mo-

tions, reviewing the court’s local rules, preparing motions that

were not filed, reviewing filings from opposing counsel and orders

of the court, participating in certain strategy discussions, or travel.

In addition, Big Lots was not seeking to recover fees incurred in

preparing its application about the amount of the fee award.

Schachter opined that “these significant, generous cuts to the billa-

ble hours that Big Lots seeks to recover strongly support[] the con-

clusion” that its fee request was reasonable. Id.

Sheehan opposed the fee application. He argued that the at-

torneys’ hourly rates were above the reasonable market rate for the

Ocala Division where the suit had been filed. He also asserted that

the number of hours billed was unreasonable. He attached to his

response a spreadsheet in which he objected to certain time entries

as vague, duplicative, and/or including block billing. In his re-

sponse, Sheehan did not argue that awarding Big Lots the amount

of fees it had requested would violate the Constitution.

After reviewing the parties’ submissions, the district court

awarded Big Lots $144,047. The court calculated this amount by

using the lodestar approach and multiplying the number of attor-

ney hours reasonably expended by a reasonable rate.

The court began by finding the number of hours reasonably

expended. “[B]ased on its own knowledge and expertise,” the court

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concluded that the 121.8 hours spent on the motion to dismiss (for

the motion itself and the reply) and the 60.6 hours spent on the

motion for attorney’s fees (for the motion itself and the reply) were

reasonable. Doc. 52 at 13. In reaching this conclusion, the court

considered the “novelty” of the case as well as the “difficulty pre-

sented by aggressively defending Sheehan’s frivolous lawsuit.” Id.

The court considered Sheehan’s objections to certain time

entries as vague or duplicative or consisting of block billing. It con-

cluded that his “single-word objections” were inadequate under the

court’s local rules, which required a party to “detail the basis for

each objection.” Id. at 9–10 (quoting M.D. Fla. R. 7.01(d)). But even

considering the cursory objections, the court rejected the chal-

lenges to billing entries as duplicative, vague, or containing block

billing.

The court also found the attorneys’ requested hourly rates

were reasonable. It began by identifying the relevant legal market.

It explained that in general the relevant market was the “place

where the case is filed” but noted that there were cases “where use

of an attorney from a higher-rate market who had extensive prior

experience with a particular factual situation could be justified be-

cause of efficiencies resulting from that prior experience.” Id. at 15

(citation modified).

The court concluded that the applicable legal market in this

case was central Florida. including cities in the Middle District of

Florida. It acknowledged that this case had been filed in Ocala, a

“small, rural division in the Middle District of Florida without a

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sitting district judge” and that “[a]ttorney rates in Ocala would nor-

mally be less than rates in the larger divisions of this Court like

Orlando, Tampa, and Jacksonville.” Id. at 17. But it determined that

“in a case of this magnitude,” in which the plaintiff brought a na-

tionwide class action seeking more than $5,000,000 in damages, a

defendant “would most likely seek counsel” from one of the Mid-

dle District’s larger divisions. Id.

“Based on [its] own knowledge and experience as a commer-

cial litigator and district judge for the past fifty years,” the court

found that the rates charged by the attorneys for Big Lots were “ap-

proximately 25% higher than comparable counsel in the major le-

gal markets in the Middle District of Florida.” Id. at 18. But the

court determined that the “extenuating circumstances of this case”

warranted these “modestly higher rates.” Id. at 19. It explained that

this was not a run of the mill case but instead a national consumer

class action where Big Lots faced substantial exposure. The court

found that the decision by Big Lots to hire the team from Davis

Wright Tremaine who were “expert[s] when it comes to litigating

against Sheehan” was a “reasonable” choice, particularly given that

these attorneys had successfully obtained dismissal of a “nearly

identical claim brought against [Big Lots] by another of Sheehan’s

clients in New York.” Id. The court emphasized the importance of

hiring attorneys familiar with Sheehan’s litigation tactics that in-

cluded submitting “bad faith filings,” making “incredulous allega-

tions,” and pursuing “meritless claims” Id. at 20.

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20 Opinion of the Court 24-13354

The court identified other support for its decision that the

hourly rates were reasonable. It mentioned that Big Lots had ex-

cluded from its request hours expended to prepare the fee applica-

tion and certain other filings. And the court found that Big Lots had

paid its attorneys’ bills was further evidence that the hourly rates

were reasonable. It explained that Big Lots was “a large, sophisti-

cated consumer of legal services” and had paid the attorney’s rates,

even though it knew that recovering its fees “would not represent

a typical outcome.” Id. at 20–21.

After multiplying the reasonable hourly rates by the number

of hours reasonably expended, the court determined that Big Lots

was entitled to $144,047. It ordered that Sheehan and Durant were

liable for the fee award.

This is Sheehan’s appeal.

II.

We review the amount of an attorney’s fees award for abuse

of discretion. See McMahan v. Toto, 311 F.3d 1077, 1084 (11th Cir.

2002). “An abuse of discretion occurs if the judge fails to apply the

proper legal standard or to follow proper procedures in making the

determination, or bases an award upon findings of fact that are

clearly erroneous.” ACLU of Ga. v. Barnes, 168 F.3d 423, 427 (11th

Cir. 1999) (citation modified). “[T]he determination of what con-

stitutes a reasonabl[e] hourly rate is a finding of fact subsidiary to

the total award and is therefore reviewed under the clearly errone-

ous standard.” Id. at 436 (citation modified).

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24-13354 Opinion of the Court 21

We review constitutional issues de novo. See Eagle Hosp. Phy-

sicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1303 (11th Cir.

2009).

III.

On appeal, Sheehan raises two challenges to the amount of

the fee award. First, he disputes the district court’s lodestar calcu-

lation. Second, he says that the amount of the fee award runs afoul

of the Constitution’s Excessive Fines Clause. We address each issue

in turn.

A.

To determine the amount of the fee award in this case, 5 the

district court used the lodestar approach and “multipl[ied] the

number of hours reasonably expended on the litigation times a rea-

sonable hourly rate.” ACLU of Ga., 168 F.3d at 427 (citation modi-

fied). On appeal, Sheehan attacks the district court’s lodestar calcu-

lation, arguing that it erred in determining the number of hours

reasonably expended and in setting a reasonable hourly rate. We

5 Here, the district court determined that Sheehan was liable for fees under

Florida law as well as under its inherent authority. To determine the amount

of a reasonable fee under Florida law or federal law, courts use the same lode-

star approach. See Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla.

1985); id. at 1146 (stating that Florida has adopted the “federal lodestar ap-

proach for computing reasonable attorney fees”); Resol. Tr. Corp. v. Hallmark

Builders, Inc., 996 F.2d 1144, 1148 (11th Cir. 1993) (recognizing that “Florida

follows the lodestar approach as developed by federal case law”).

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22 Opinion of the Court 24-13354

begin by reviewing the district court’s determination about the

number of hours expended.

In the fee application, Big Lots sought fees incurred for the

work its attorneys performed in preparing the motion to dismiss

and the motion for attorney’s fees. It reported that three attorneys

spent 121.8 hours on the motion to dismiss and four attorneys

spent 60.6 hours on the motion for attorney’s fees.

We agree with the district court that 182.4 hours was a rea-

sonable amount of time “given the novelty and difficulty presented

by aggressively defending Sheehan’s frivolous lawsuit.” Doc. 52 at

13. In preparing the motion to dismiss and reply, the attorneys rea-

sonably expended 121.8 hours preparing thorough briefs examin-

ing numerous issues including whether: (1) the allegations in the

complaint plausibly alleged that the coffee can’s label included a

misrepresentation; (2) the FDUTPA, false advertising, and fraud

claims failed because the complaint failed to satisfy Rule 9(b)’s

heightened pleading standard; (3) the fraud claim was barred by

the economic loss rule; (4) the breach of express warranty claim

failed because Durant did not give notice to Big Lots before filing

suit; and (5) Durant should be granted leave to amend her com-

plaint. And in preparing the motion for attorney’s fees and reply,

the attorneys reasonably spent 60.6 hours addressing why Big Lots

was entitled to attorney’s fees under FDUTPA, under Florida’s false

advertising statute, and pursuant to the court’s inherent authority,

including explaining why the action was frivolous and Sheehan

acted in bad faith. To show that Sheehan had acted in bad faith, the

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24-13354 Opinion of the Court 23

attorneys carefully and thoroughly described his pattern of bring-

ing frivolous lawsuits in courts around the country, including in

Florida, and how he continued to file frivolous lawsuits despite be-

ing repeatedly admonished. And in their reply, the attorneys had to

respond to frivolous arguments, including that Sheehan did not

participate in the litigation and that ordering him to pay attorney’s

fees would violate principles of due process.

Sheehan nevertheless asserts that the 121.8 hours spent on

the motion to dismiss was excessive because the attorneys already

were familiar with the dispute from their work performed on the

Devey case. He says that because “this matter and the New York

matter are nearly identical in both facts and arguments, and the

Defendant’s [sic] filed a motion to dismiss in both cases,” the attor-

neys should have spent less time on the motion to dismiss in this

case. 6 Appellant’s Br. 13. Certainly, the attorneys’ familiarity with

the dispute and Sheehan’s litigation tactics saved them some time

in responding to the motion to dismiss. But they still had to prepare

the motion and address the multiple causes of action arising under

Florida law that Sheehan chose to raise in this lawsuit. They also

reasonably chose to describe in these filings Sheehan’s litigation his-

tory and what occurred in the Devey lawsuit. Given this context and

the large amount of money at issue in this nationwide class action,

6 Although Sheehan now concedes that the allegations in this case and Devey

are “nearly identical,” Appellant’s Br. 13, this was not the tact that he took in

litigating the motion to dismiss. At that stage, he never acknowledged the sim-

ilarities with the Devey case; instead, he simply wrote off the Devey order as an

“out-of-circuit court decision.” Doc. 21 at 12.

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24 Opinion of the Court 24-13354

it was reasonable for the attorneys to spend approximately 80 hours

preparing the motion to dismiss and 40 hours preparing the reply.

Sheehan also raises other challenges to the number of hours

expended. He complains that Big Lots had multiple attorneys

working on the case and suggests that some of their time entries

were duplicative. But “there is nothing inherently unreasonable

about a client having multiple attorneys” and “a reduction for re-

dundant hours is warranted only if the attorneys are unreasonably

doing the same work.” ACLU of Ga., 168 F.3d at 432 (citation mod-

ified). We are not persuaded that the district court abused its dis-

cretion when it refused to reduce the number of hours.

Sheehan also asserts that the district court should have ex-

cluded certain hours because Big Lots engaged in block billing. But

including more than one task in a time entry does not constitute

impermissible block billing when the entry is sufficiently detailed

for the court to determine the services performed and the reason-

ableness of the time spent. See id. at 429. Given the detail in the

time entries here, we see no error. See id.; Spanakos v. Hawk Sys.,

Inc., 362 So. 3d 226, 242 (Fla. Dist. Ct. App. 2023).

We now turn to the hourly rates. The district court found

that hourly rates of $625 to $950 per hour were reasonable in this

case. We cannot say that this finding is clearly erroneous. See ACLU

of Ga., 168 F.3d at 427.

In determining an hourly rate, “the most critical factor” is

“the ‘going rate’ in the community.” Martin v. Univ. of S. Ala.,

911 F.2d 604, 610 (11th Cir. 1990). As we have explained, a

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24-13354 Opinion of the Court 25

reasonable hourly rate generally is “the prevailing market rate in

the relevant legal community for similar services by lawyers of rea-

sonably comparable skills, experience, and reputation.” Norman v.

Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). The

“relevant market” is “the place where the case is filed.” ACLU of

Ga., 168 F.3d at 437 (citation modified). But we have recognized

that in certain narrow circumstances the “use of an attorney from

a higher-rate market who had extensive prior experience with a par-

ticular factual situation could be justified because of efficiencies re-

sulting from that prior experience.” Id. at 438. The district court is

“itself an expert” on the reasonableness of hourly rates and “may

consider its own knowledge and experience” on the topic.

Loranger v. Stierheim, 10 F.3d 778, 781 (11th Cir. 1994).

We conclude that the district court did not clearly err when

it determined that the hourly rates in this case, ranging from $625

to $950 per hour, were reasonable. As an initial matter, the district

court properly centered its analysis on the relevant legal commu-

nity—the Middle District of Florida—where the case was filed and

identified a reasonable hourly rate for that community. 7 See ACLU

of Ga., 168 F.3d at 437.

7 Sheehan argues that instead of considering rates in the Middle District of

Florida generally, the court was required to look at rates in Ocala, the division

where the lawsuit was filed. But he cites no case holding that a district court

abuses its discretion when it considers a reasonably hourly rate in the relevant

district instead of a particular division in the district.

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26 Opinion of the Court 24-13354

It is true that in awarding fees in this case, the district court

used hourly rates that were higher than the market rate for attor-

neys in the Middle District of Florida. But it used these higher rates

because Big Lots’s attorneys had unique experience that equipped

them to litigate the case effectively and efficiently. They had previ-

ously defended several mislabeling cases brought by Sheehan. And

the attorneys represented Big Lots in the Devey litigation, defending

the company against mislabeling claims that Sheehan brought in-

volving the same product. Given these unique circumstances, the

court did not clearly err in setting the reasonable hourly rates. See

id. at 438.

For the reasons set forth above, we conclude that the district

court did not abuse its discretion when it ordered Sheehan to pay

Big Lots $144,047 in attorney’s fees.

B.

Sheehan raises one other challenge to the district court’s fee

award. He asserts that the district court’s order requiring him to

pay Big Lots $144,047 violates the Eighth Amendment’s prohibi-

tion on excessive fines.

Sheehan forfeited this argument by failing to raise it in the

district court. When Big Lots submitted its fee application, Sheehan

knew that it was seeking a fee award from him in the amount of

$144,047. When he opposed the application, he never raised the is-

sue of whether a fee award in this amount was unconstitutional

under the Eighth Amendment’s Excessive Fines Clause. Because he

did not raise this issue in the district court, it is forfeited, and we

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24-13354 Opinion of the Court 27

need not consider it on appeal. See United States v. Campbell, 26 F.4th

860, 873 (11th Cir. 2022) (en banc).

But even assuming that Sheehan had not forfeited this issue,

his Eighth Amendment challenge fails on the merits. As the Su-

preme Court has explained, the Excessive Fines Clause does not

apply to an award “to a private party in a civil suit when the gov-

ernment neither has prosecuted the action nor has any right to re-

ceive a share of the damages.” Austin v. United States, 509 U.S. 602,

606 (1993). Because the Eighth Amendment was “intended to pre-

vent the government from abusing its power to punish,” the Exces-

sive Fines Clause reaches “only those fines directly imposed by, and

payable to, the government.” Id. at 607 (quoting Browning-Ferris In-

dus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 268 (1989)); see

also Yates v. Pinellas Hematology & Oncology, P.A., 21 F.4th 1288, 1308

(11th Cir. 2021) (stating that the “Excessive Fines Clause applies

only to payments imposed by the United States (or the States) and

payable to it (or them)”). Because Sheehan was not ordered to pay

any amount to the United States or a state, his Excessive Fines chal-

lenge fails on the merits.

IV.

For the reasons given above, we affirm the district court’s fee

award.

AFFIRMED.