Opinion

Conley

Court: District Court, S.D. Florida
Filed: Jan 22, 2026
Cited by: 0 cases
Authority: More cited than 38.3%

dismissal with prejudice is an adjudication on the merits and alters legal relationship

How later courts described this case

dismissal with prejudice is an adjudication on the merits and alters legal relationship
court must “step[ ] into the shoes of the reasonable, paying client, who wishes to pay the least amount necessary to litigate the case effectively”
defendant may be prevailing party even if court’s final judgment rejects the plaintiff’s claim for a nonmerits reason
“[t]he court ... is itself an expert on the question [of fees] and may consider its own knowledge and experience concerning reasonable and proper fees ...”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-CV-60384-AHS

TODD CONLEY,

Plaintiff,

DANIEL S. VACANTI, et al.,

Defendants.

__________________________________________/

ORDER ON MOTION FOR ATTORNEYS’ FEES AND COSTS

THIS CAUSE is before the Court on the Defendants’ Motion for Award of

Attorneys’ Fees and Costs [ECF No. 188], which was referred to me by United States

District Judge Raag Singhal for a Report and Recommendation [ECF No. 195]. For

the following reasons, it is RECOMMENDED that the Motion be GRANTED IN

PART AND DENIED IN PART.

I. BACKGROUND

Plaintiff, Todd Conley, filed this action on February 28, 2023, against Daniel

S. Vacanti, alleging copyright infringement under the Copyright Act and unfair

competition under the Lanham Act, along with seven state law claims. ECF No. 1.

Mr. Conley amended his complaint four times, with the Fourth Amended Complaint

asserting one federal claim for copyright infringement and eleven state law claims

against Mr. Vacanti; his wife, Ann Vacanti; AMH Alba, LLC; Daniel S. Vacanti, Inc.;

and ActionableAgile, LLC. ECF No. 80. Mr. Vacanti also asserted a counterclaim for

breach of fiduciary duty against Mr. Conley. ECF No. 85. The parties filed cross

motions for summary judgment. ECF Nos. 107, 110, 113. The Court ultimately denied

Plaintiff’s Motion for Summary Judgment and granted in part and denied in part

Defendants’ Motion for Summary Judgment. ECF No. 182. Specifically, the Court

entered summary judgment in favor of Defendants on Mr. Conley’s only federal claim,

the copyright infringement claim, finding that the claim was time-barred. Id. at 9.

The Court then declined to exercise jurisdiction over the state law claims and

dismissed those claims. Id. Defendants now seek costs under Federal Rule of Civil

Procedure 54(d) and reasonable attorney’s fees under the Copyright Act, 17 U.S.C. §

505. ECF No. 189.

II. LEGAL PRINCIPLES

A. Attorney’s Fees

Section 505 of the Copyright Act provides:

In any civil action under this title, the court in its discretion may allow

the recovery of full costs by or against any party other than the United

States or an officer thereof. Except as otherwise provided by this title,

the court may also award a reasonable attorney’s fee to the prevailing

party as part of the costs.

17 U.S.C. § 505. “The Copyright Act gives the Court broad discretion to determine

whether a party is the prevailing party and whether the amount of fees is reasonable.”

Katz v. Chevaldina, 127 F. Supp. 3d 1285, 1296 (S.D. Fla. 2015). The prevailing party

bears the burden of establishing entitlement to attorney’s fees. Id.

In exercising this discretion, courts consider “whether imposition of attorney's

fees will further the goals of the Copyright Act, i.e., by encouraging the raising of

objectively reasonable claims and defenses, which may serve not only to deter

infringement but also to ensure that the boundaries of copyright law are demarcated

as clearly as possible.” MiTek Holdings, Inc. v. Arce Eng’g Co., Inc., 198 F.3d 840,

842–43 (11th Cir. 1999). Courts analyze the following non-exclusive factors set forth

in Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994): “frivolousness, motivation,

objective unreasonableness (both 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.; see also InDyne, Inc. v. Abacus Tech. Corp., 587 F.

App’x 552, 554 (11th Cir. 2014).

A “‘prevailing defendant does not need to establish that the plaintiff acted in

bad faith or brought a frivolous suit’ in order to be entitled to an award of fees.”

Caracol Tele., S.A. v. Telemundo Tele. Studios, LLC, No. 18-CV-23443, 2022 WL

17583608, at *3 (S.D. Fla. Aug. 4, 2022) (quoting Brandon v. New Power Gen., LLC,

No. 15-CV-22738, 2018 WL 1795468, at *1 (S.D. Fla. Jan. 31, 2018)). “Where a

defendant is the prevailing party in a copyright case, the presumption in favor of

awarding fees to the defendant is very strong.” Katz, 127 F. Supp. 3d at 1297.

B. Costs

Under the Federal Rules, prevailing parties are entitled to recover costs as a

matter of course unless otherwise directed by the court or statute. See Fed. R. Civ.

P. 54(d)(1). Rule 54(d) creates a presumption in favor of awarding costs to the

prevailing party. See Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639 (11th Cir.

1991). Such presumption, however, is not without limits and courts may only tax

costs as authorized by statute. See EEOC v. W&O, Inc., 213 F.3d 600, 620 (11th Cir.

2000) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987)).

Title 28, United States Code, Section 1920 enumerates expenses that a federal court

may tax as a cost under the discretionary authority found in Rule 54(d). Section 1920

provides in part:

A judge or clerk of any court of the United States may tax as costs the

following:

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded transcripts necessarily

obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any

materials where the copies are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of

interpreters, and salaries, fees, expenses, and costs of special

interpretation services under section 1828 of this title.

28 U.S.C. § 1920. In the exercise of sound discretion, the Court is accorded great

latitude in ascertaining taxable costs. See W&O, Inc., 213 F.3d at 621. “Absent

explicit statutory or contractual authorization, the Court is limited to those costs

specifically enumerated in 28 U.S.C. § 1920. See id. at 620; Crawford, 482 U.S. at 445

(1987).

The Court has an independent obligation to ensure that the fees are

reasonable, and costs awarded are proper. Am. C.L. Union of Georgia v. Barnes, 168

F.3d 423, 428 (11th Cir. 1999) (“[I]t is as much the duty of courts to see that excessive

fees and expenses are not awarded as it is to see that an adequate amount is

awarded.”).

III. DISCUSSION

The Motion argues that (1) Defendants are the prevailing party because the

Court entered summary judgment in their favor on Plaintiff’s copyright claim; (2)

Plaintiff’s pursuit of a time-barred copyright infringement claim was objectively

unreasonable; (3) Plaintiff’s litigation conduct, decisions, and unsupported settlement

demands evidence an improper motive; (4) awarding attorney’s fees to Defendants

would advance the purposes of the Copyright Act to discourage meritless, time-barred

claims; (5) the fees sought and rates are reasonable; and (6) Plaintiff’s counsel’s

vexatious conduct supports an award of fees under 28 U.S.C. § 1927. ECF No. 189.

The Response argues that (1) Defendants are not the prevailing party because

“the case was dismissed without prejudice for lack of subject matter jurisdiction”; (2)

Plaintiff’s copyright infringement claim was reasonable; (3) Plaintiff had no improper

motive with his litigation decisions and settlement demands; (4) Defendants fee

request under § 1927 is unwarranted and lacks evidentiary support; (5) Defendants’

attorneys’ rates and number of hours are unreasonable; and (6) Defendants failed to

follow procedural requirements to establish their entitlement to attorney’s fees and

costs. ECF No. 192.

Defendants reply that they satisfied all procedural requirements; that they

clearly are prevailing parties as they received a judgment in their favor on the

fees and costs; that they sufficiently supported a claim for fees under § 1927; and that

their rates and hours spent were reasonable.

A. Defendants are the prevailing party.

Under federal law, a litigant is a prevailing party if there is a “material

alteration in the legal relationship of the parties.” Texas State Tchrs. Ass’n v. Garland

Indep. Sch. Dist., 489 U.S. 782, 792–93 (1989). A party can be considered prevailing

even without succeeding on all of its claims. Head v. Medford, 62 F.3d 351, 354–55

(11th Cir. 1995) (citing United States v. Mitchell, 580 F.2d 789, 793–94 (5th Cir. 1978)

(party can prevail by obtaining “judgment on even a fraction of the claims

advanced.”)). The same “prevailing party” analysis applies whether the party is

asking for attorneys’ fees or costs. Royal Palm Properties, LLC v. Pink Palm

Properties, LLC, 38 F.4th 1372, 1377 (11th Cir. 2022).

Here, the Court entered summary judgment in favor of Defendants on

Plaintiff’s only federal claim, the copyright infringement claim, finding that it was

time-barred. ECF No. 182. Because only state law claims remained, the Court

declined to exercise supplemental jurisdiction over those claims and dismissed them

without prejudice. Id. at 10. Plaintiff incorrectly argues that Defendants are not

prevailing parties because “the case was dismissed without prejudice for lack of

subject matter jurisdiction,” ignoring the fact that summary judgment was entered

against him and, therefore, in favor of Defendants, on the copyright claim. ECF No.

192 at 8.1 Plaintiff then cites inapposite case law relating to entire cases that were

dismissed for lack of jurisdiction, and cites no authority to support an argument that

a defendant who obtains summary judgment on federal claims is not a prevailing

party when state law claims are dismissed. Id.

In Head, the district court entered summary judgment in the defendants’ favor

on the plaintiffs’ federal claims, and declined to exercise supplemental jurisdiction

over the related state law claims. Head, 62 F.3d at 355. In concluding that the

defendants were prevailing parties, the Eleventh Circuit explained:

There is no question but that the district court rendered a judgment in

defendants' favor by granting their motion for summary judgment on

plaintiff's federal claims although practically that apparently

constituted only a small part of plaintiff's claims. That the district court

declined to exercise its supplemental jurisdiction under 28 U.S.C. §

1367 and dismissed all of plaintiff's remaining state law claims, does not

impair the fact that, as far as the federal case was concerned, defendants

prevailed.

Id.; see also, Penrod Bros., Inc. v. City of Miami Beach, Fla., No 23-cv-23362, 2025

WL 2882003, at *8 (S.D. Fla. Sept. 2, 2025) (defendant was prevailing party when

federal claims were dismissed with prejudice even when state law claims remained

pending in state court); TEKsystems, Inc. v. Andiamo Consulting, LLC, 2023 WL

9196643, at *5 (M.D. Fla. Aug. 15, 2023) (defendants were prevailing party when

court entered summary judgment and declined to exercise jurisdiction over state law

claims).

1 Pinpoint citations to the parties’ filings refer to the number CM/ECF

generates at the top of the page.

Defendants are the prevailing party in this case. They obtained a judgment

that they are not liable for copyright infringement, which materially alters the legal

relationship between the parties. See Gray v. Koch Foods, Inc., 144 F.4th 1298, 1313–

14 (11th Cir. 2025) (“An enforceable judgment on the merits creates the ‘material

alteration of the legal relationship of the parties.’”) (quoting Buckhannon Bd. & Care

Home Inc. v. W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598, 604 (2001)); Vinson

v. Koch Foods of Ala., LLC, 12 F.4th 1270, 1278 (11th Cir. 2021) (dismissal with

prejudice is an adjudication on the merits and alters legal relationship); CRST Van

Expedited, Inc. v. E.E.O.C., 578 U.S. 419, 431–32 (2016) (defendant may be prevailing

party even if court’s final judgment rejects the plaintiff’s claim for a nonmerits

reason). Even if the state law claims remain pending in the state court, the federal

action is over, Plaintiff’s federal claim was rejected, Plaintiff cannot re-file the

prevailing party.

B. The Fogerty Factors

Having concluded that Defendants are the prevailing party, I now analyze the

above-mentioned Fogerty factors to determine whether Defendants are entitled to

attorney’s fees under Section 505.

1. Reasonableness

Defendants argue that Plaintiff’s decision to pursue a time-barred copyright

claim was objectively unreasonable, particularly because Plaintiff knew or should

have known at the outset of the litigation that the claim was untimely, or, in any

event, was put on notice of the claim’s untimeliness early in the litigation. ECF No.

189 at 9–10. In the Report and Recommendation on Motions for Summary

Judgment,2 ECF No. 176, I found that Plaintiff knew Defendants were using the

software in July 2019, and, therefore, the three-year statute of limitations had

expired before Plaintiff filed suit on February 28, 2023. Id. at 13. Plaintiff argued that

he was not aware of the legal implications until at least April or May 2020, and,

therefore, the statute of limitations should not have started running until that time.

However, Plaintiff’s argument amounts to a mistake of law, and it is well-established

that such a mistake is insufficient to invoke the discovery rule. See Mack v. Equable

Ascent Fin., LLC, 748 F.3d 663, 665 (5th Cir. 2014) (The “general approach under the

discovery rule [is] that a limitations period begins to run when a claimant discovers

the facts that give rise to a claim, and not when a claimant discovers that those facts

constitute a legal violation.”) (citing Merck & Co., 559 U.S. at 646); see Alexander v.

Sonny’s Real Pit Bar-B-Q, 701 F. App’x 931, 936 (11th Cir. 2017) (same); accord

Wakefield v. R.R. Ret. Bd., 131 F.3d 967, 970 (11th Cir. 1997) (“Ignorance of the law

usually is not a factor that can warrant equitable tolling.”). Accordingly, I

recommended that summary judgment be entered in Defendants’ favor on the

Recommendation. ECF No. 177.

2 The Court adopted the Report and Recommendation’s conclusion that

Plaintiff’s copyright infringement claim was time-barred. ECF No. 182 at 9–10.

Defendants cite several cases in which courts have concluded that it was

objectively unreasonable to bring copyright claims when a valid limitations defense

was asserted. For example, in Prop Solutions, Ltd. v. GOPD, LLC, No. 16-CV-1224,

2019 WL 10943309 (N.D. Ga. Oct. 28, 2019), the defendants sent the plaintiff a letter

claiming ownership of the software at issue in 2010. Id. at *1. In the plaintiff’s mind,

the defendants knew they did not own the software, so he viewed the claims as “idle

threats” and argued that the letter did not trigger the statute of limitations. Id. The

court rejected that argument and explained that the plaintiff’s “personal beliefs about

the strength of Defendants’ claims did not abdicate Plaintiff's responsibility to timely

assert its rights. Therefore, filing the claims almost six years after ownership was

initially disputed was objectively unreasonable, and this factor weighs in favor of an

award of attorneys’ fees.” Id. at *2. See also Mahan v. Roc Nation, LLC, No. 14-CV-

5075, 2015 WL 4388885, at *2 (S.D.N.Y. July 17, 2015); Zamoyski v. Fifty-Six Hope

Rd. Music Ltd., Inc., 767 F. Supp. 2d 218, 223 (D. Mass. 2011); Phills v. Fey, No. 22-

CV-7698, 2023 WL 7012699, at *3 (C.D. Cal. Sept. 19, 2023).

Plaintiff responds that because his copyright infringement claim survived a

motion to dismiss, it was not objectively unreasonable. ECF No. 192 at 11. However,

the Response provides no legal authority to support this position, and ample case law

demonstrates that untimely copyright infringement claims that advance to the

summary judgment stage may be found objectively unreasonable. E.g. Prop

Solutions, 2019 WL 10943309, at *1; Zamoyski, 767 F. Supp. 2d at 219. Plaintiff

further argues that the cases he relied on at summary judgment supported his

position and demonstrated that his claim was not objectively unreasonable. ECF No.

192 at 12. However, as the Court noted in the Report and Recommendation, those

cases involved plaintiffs who were unaware that someone else was using their

copyrighted work, whereas Plaintiff here knew Defendants were using the disputed

software. ECF No. 176 at 14–15. Thus, Plaintiff was mistaken about his legal rights,

which, as mentioned above, is not a basis for invoking the discovery rule. Accordingly,

Plaintiff’s choice to litigate a time-barred claim through five iterations of complaints

and summary judgment, when he knew or should have known it was untimely, was

objectively unreasonable under Section 505.

2. Improper Motive

The Motion next argues that Plaintiff evidenced an improper motive by (a)

continuing to press time-barred claims, (b) naming Ann Vacanti as a Defendant to

the copyright claim, and (c) making multi-million-dollar settlement demands without

competent evidence to support his damages. ECF No. 189 at 9–13. The Response

reiterates its arguments as to reasonableness and focuses on the settlement demands,

while failing to address the argument regarding Mrs. Vacanti. ECF No. 192 at 13–

16.

In analyzing motivation, courts consider whether the non-prevailing party

litigated in good or bad faith. Caracol Tele., 2022 WL 17583608, at *6. Factors include

whether the non-prevailing party initiated the lawsuit for an improper motive or

pursued the litigation in an unprofessional manner. Luken v. Int’l Yacht Council,

Ltd., 581 F. Supp. 2d 1226, 1245 (S.D. Fla. 2008).

Plaintiff’s decision to continue pressing his untimely copyright infringement

claim—his only federal claim—weighs somewhat in favor of finding an improper

motivation, as he should have realized early in the litigation, if not prior to the

litigation, that the claim would be subject to dismissal based on the statute of

limitations. However, that decision alone does not rise to the level of demonstrating

an improper motive. See Prop Solutions, 2019 WL 10943309, at *3 (no improper

motivation when plaintiff originally brought suit in good faith, even if decision was

misguided).

Plaintiff failed to respond to arguments that he had no grounds to name Mrs.

Vacanti in the copyright infringement claim and, therefore, conceded that argument.

Jones v. Bank of Am., N.A., 564 F. App'x 432, 434 (11th Cir. 2014) (“[A] party's failure

to respond to any portion or claim in a motion indicates such portion, claim or defense

is unopposed.”) (internal citation omitted) (bracket in original). In any event,

although the evidence at summary judgment indicated that Mrs. Vacanti was

involved in the business, Plaintiff set forth no evidence that Mrs. Vacanti had

particular knowledge regarding the software at issue or was aware of any alleged

weigh in favor of finding one.

Finally, the parties focus on Plaintiff’s settlement demands. Defendants argue

that Plaintiff made a pre-suit demand of $5,000,000 without any evidence or

discovery to support that figure, and continued making demands in that range for

most of the litigation, with a final demand of $3,404,876 after I recommended

granting Defendants’ motion for summary judgment as to the copyright infringement

claim. ECF No. 189 at 12–13. Defendants state that Plaintiff never specified any

dollar amount for damages in discovery responses or disclosures. Id. at 13. Plaintiff

responds that his settlement demands were based on his belief that he was entitled

to 50 percent of ActionableAgile’s revenues, based on tax returns, and to account for

Defendants’ unauthorized use of the software. Id. at 13–15.

Neither party offers legal authority that specifically supports its arguments.

Thus, this issue is neutral in the analysis as to whether Plaintiff had an improper

motive in seeking the specified damages. In any event, motivation is only one factor

to consider and a finding of “bad faith” is not a “precondition to the award of

fees.” Sherry Mfg. Co. v. Towel King of Fla., Inc., 822 F.2d 1031, 1034 (11th Cir.

1987); see also MiTek Holdings, 198 F.3d at 842 (“[T]he magistrate judge was correct

in noting that MiTek's good faith in bringing its suit was not determinative of the

issue of attorney’s fees.”).

3. Deterrence and Compensation Considerations

In analyzing this factor, courts consider whether awarding attorney's fees

would further the purposes of the Copyright Act, considering the Fogerty factors.

Caracol Tele., 2022 WL 17583608, at *7 (citing Malibu Media, LLC v. Pelizzo, 604 F.

App’x 879, 881 (11th Cir. 2015) (compensation and deterrence are “inextricably

intertwined” with reasonableness and frivolity)). In particular:

[A] party that successfully prevails over unreasonable or bad faith

arguments should be awarded its fees and costs to promote enforcement

and demarcation of the Copyright Act, and conversely, a party that

asserts unreasonable or bad faith arguments should be deterred from

doing so by paying the fees and costs the prevailing party incurred. On

the other hand, a party that advances reasonable, good-faith positions

should not be deterred from doing so, even if ultimately unsuccessful, as

such claims or defenses help define the scope and limits of copyright

protection.

Oravec v. Sunny Isles Luxury Ventures, L.C., No. 04-CV-22780, 2010 WL 1302914, at

*8 (S.D. Fla. Mar. 31, 2010) (citing Donald Frederick Evans & Assocs., Inc. v.

Continental Homes, Inc., 785 F.2d 897, 916 (11th Cir. 1986)). Here, Plaintiff

continued to press his copyright claim through five iterations of his pleadings, and

Defendants successfully defended against that claim, eventually prevailing on their

motion for summary judgment. Under the deterrence and compensation factor,

Defendant should be compensated for successfully prevailing against a time-barred

After balancing the Fogerty factors, I conclude that Defendants are entitled to

reasonable fees under Section 505. In particular, Plaintiff’s continued pursuit of his

time-barred copyright infringement claim was objectively unreasonable, as case law

on this issue clearly supported Defendants’ statute of limitations defense, and

Plaintiff asserted this claim in every one of his five complaints through summary

judgment. See Prop Solutions, 2019 WL 10943309, at *3–4 (defendants entitled to

attorneys’ fees when plaintiff’s claims were time-barred). It serves the purposes of the

for defendants to be encouraged to defend against those claims. See Fogerty, 510 U.S.

at 527 (“[D]efendants who seek to advance a variety of meritorious copyright defenses

should be encouraged to litigate them to the same extent that plaintiffs are

encouraged to litigate meritorious claims of infringement.”).

C. Legal Principles in Calculation of Fees

In calculating attorney fee awards, courts use the lodestar method, whereby a

reasonable fee award is “properly calculated by multiplying the number of hours

reasonably expended times a reasonable hourly rate.” Barnes, 168 F.3d at 427 (citing

Blum v. Stenson, 465 U.S. 886, 888 (1994)). This “lodestar” may then be adjusted for

the results obtained. See Barnes, 168 F.3d at 427 (citing Loranger v. Stierheim, 10

F.3d 776, 781 (11th Cir. 1994)).

In computing the lodestar amount, courts should consider: (1) the time and

labor required, the novelty, complexity, and difficulty of the questions involved, and

the skill requisite to perform the legal service properly; (2) the likelihood that the

acceptance of the particular employment will preclude other employment by the

lawyer; (3) the fee, or rate of fee, customarily charged in the locality for legal services

of a comparable or similar nature; (4) the significance of, or amount involved in, the

subject matter of the representation, the responsibility involved in the

representation, and the results obtained; (5) the time limitations imposed by the

client or by the circumstances and, as between attorney and client, any additional or

special time demands or requests of the attorney by the client; (6) the nature and

length of the professional relationship with the client; (7) the experience, reputation,

diligence, and ability of the lawyer or lawyers performing the service and the skill,

expertise, or efficiency of effort reflected in the actual providing of such services; and

(8) whether the fee is fixed or contingent. Wachovia Bank v. Tien, No. 04-20834, 2015

WL 10911506, at *1 (S.D. Fla. Apr. 7, 2015) (citing Johnson v. Georgia Highway

Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974) (listing nearly identical factors to

consider in determining a reasonable attorney's fee)).

The reasonable hourly rate is defined as the “prevailing market rate in the

relevant legal community for similar services by lawyers of reasonably comparable

skills, experience, and reputation.” Barnes, 168 F.3d at 436 (quoting Norman v.

Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1999)). “Generally, the

‘relevant market’ for purposes of determining the reasonable hourly rate for an

attorney's services is ‘the place where the case is filed ...’ ” Procaps S.A. v. Patheon

Inc., No. 12-24356-CIV, 2013 WL 6238647, at *12 (S.D. Fla. Dec. 3, 2013) (quoting

Barnes, 168 F.3d at 427). The fee applicant bears the burden of establishing the

claimed market rate. See Barnes, 168 F.3d at 427. If the fees requested are not

representative of reasonable hourly rates in the place the case is filed, the Court has

leave to reduce the fees to reflect the local market. Five for Entm't, S.A. v. Ayala

Rodriguez, No. 11-24142-CV, 2017 WL 511085, at *6 (S.D. Fla. Feb. 2, 2017) (J.

Turnoff) (adjusting New York City and Washington D.C. rates to reflect the South

Florida legal market); City Place Retail, L.L.C. v. Wells Fargo Bank, N.A., 18-CV-

81689, 2021 WL 3361172, at *5 (S.D. Fla. Jan. 12, 2021) (“Palm Beach County

comprises a distinct legal market.”).

The Court must consider “what a reasonable, paying client would be willing

to pay,” bearing in mind “all of the case-specific variables that . . . courts have

identified as relevant to the reasonableness of attorney's fees,” including the Johnson

factors. Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522

F.3d 182, 184, 190 (2d Cir. 2008) (court must “step[ ] into the shoes of the reasonable,

paying client, who wishes to pay the least amount necessary to litigate the case

effectively”). In addition, the Court may consider prior hourly rates awarded to other

attorneys of similar experience in the community as well as the Court’s own

knowledge of the rates charged by local practitioners. See McDonald ex rel.

Prendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96–

97 (2d Cir. 2006) (“A district court may also use its knowledge of the relevant market

when determining the reasonable hourly rate.”). See also Norman, 836 F.2d at 1303

(“[t]he court ... is itself an expert on the question [of fees] and may consider its own

knowledge and experience concerning reasonable and proper fees ...”).

As to the type of evidence that the fee claimant should produce in support of a

fee claim, in Barnes, the Eleventh Circuit said,

The fee applicant bears the burden of establishing entitlement and

documenting the appropriate hours and hourly rates. That burden

includes supplying the court with specific and detailed evidence from

which the court can determine the reasonable hourly rate. Further, [ ]

counsel should have maintained records to show the time spent on the

different claims, and the general subject matter of the time expenditures

ought to be set out with sufficient particularity so that the district court

can assess the time claimed for each activity.

168 F.3d at 427 (citations and quotations omitted).

In submitting a request for attorney’s fees, fee applicants are required to

exercise “billing judgment.” Id. at 428 (quoting Hensley v. Eckerhart, 461 U.S. 424,

434 (1983)). If fee applicants do not exercise billing judgment by excluding “excessive,

redundant, or otherwise unnecessary” hours, which are hours “that would be

unreasonable to bill to a client and therefore to one's adversary irrespective of the

skill, reputation or experience of counsel,” the court must exercise billing judgment

for them. See Barnes, 168 F.3d at 428 (quoting Norman, 836 F.2d at 1301).

The determination of fees “should not result in a second major litigation.” Fox

v. Vice, 563 U.S. 826, 838 (2011) (quoting Hensley, 461 U.S. at 437). The Court

explained:

The fee applicant (whether a plaintiff or a defendant) must, of course,

submit appropriate documentation to meet “the burden of establishing

entitlement to an award.” But trial courts need not, and indeed should

not, become green-eyeshade accountants. The essential goal in shifting

fees (to either party) is to do rough justice, not to achieve auditing

perfection. So trial courts may take into account their overall sense of a

suit, and may use estimates in calculating and allocating an attorney's

time.

Id. (internal citations omitted). Where a fee application is voluminous, an hour-by-

hour analysis of a fee request is not required, and courts may employ an across-the-

board reduction of hourly rates, hours expended, or both. Loranger, 10 F.3d at 783.

D. Application of Lodestar Method to This Case

1. Reasonable Hourly Rates.

Defendants seek reimbursement for work performed by thirteen timekeepers:

twelve from Stinson LLP (“Stinson”) and one from McHale & Slavin, P.A (“McHale”).

A review of the affidavits and biographies accompanying the Motion for Attorneys’

Fees provides the following information to assist the Court in assessing the

reasonableness of the rates charged:

Mr. Andrew Lockton has been an associate at McHale for approximately eleven

years, specializes in intellectual property law including copyright infringement

litigation, and served as local counsel in this case. ECF No. 189-1. He seeks an

average hourly rate of $450. Id.

Mr. David A. Barnard is a partner at Stinson and serves as Co-Chair for

Stinson’s Intellectual Property Litigation Group. ECF No. 189-5. Mr. Barnard has

specialized exclusively in intellectual property litigation since 2000, and has

approximately 40 years of experience as an attorney. Id. Mr. Barnard seeks an

average hourly rate of $627.50. Id.

Ms. Judith Araujo is a senior associate in Stinson’s Intellectual Property

Litigation Group, and began serving as the lead associate on this case following

summary judgment. Id. She has been practicing for approximately six years, and

seeks an average hourly rate of $455. Id.

Ms. Lisa Parks is a paralegal with 28 years of experience. Id. She performed

tasks such as drafting legal documents, managing case files, and preparing for and

attending proceedings. Id. She seeks an average hourly rate of $255.

Ms. Courtney Webb is an eDiscovery & Practice Support Consultant who

provided support for this case. Id. She seeks an average hourly rate of $272.50. Id.

Mr. Stephen J. Cosetino is a partner at Stinson who has been practicing for

approximately 28 years. ECF No. 189-8. He seeks an average hourly rate of $590.

ECF No. 189-5.

Mr. Luke VanFleteren is a partner at Stinson who has been practicing for

approximately nine years. ECF No. 189-8. He seeks an average hourly rate of $430.

ECF No. 189-5.

Ms. Adrianna M. Chavez is an associate at Stinson who has been practicing for

approximately six years. ECF No. 189-8. She seeks an average hourly rate of $412.50.

ECF No. 189-5.

Mr. Jacob R. Schlueter is an associate at Stinson who has been practicing for

approximately four years. ECF No. 189-8. He seeks an average hourly rate of $385.

ECF No. 189-5.

Mr. Benjamin Levin is an associate at Stinson who received his juris doctor in

2017. ECF No. 189-8. He seeks an average hourly rate of $452.50. ECF No. 189-5.

Mr. Austin R. Tapuro is an associate at Stinson who has been practicing for

approximately three years. ECF No. 189-8. He seeks an average hourly rate of $360.

ECF No. 189-5.

Mr. Austin C. Diehl is an associate at Stinson who received his juris doctor in

2023. ECF No. 189-8. He seeks an average hourly rate of $362.50. ECF No. 189-5.

Ms. Isabella T. Cuevas is an associate at Stinson who has been practicing for

an unspecified period of time, and was a summer associate when she worked on this

case. ECF No. 189-7, 189-8. She seeks an average hourly rate of $290. ECF No. 189-

Defendants seek a total of $731,574.50 in attorneys’ fees. ECF No. 202.

Defendants argue that they seek fees for a reasonable number of hours at

reasonable hourly rates, and attach declarations and billing records as exhibits to the

Motion. ECF Nos. 189, 189-1, 189-2, 189-5, 189-7. Plaintiff argues that Defendants’

time and rates are unreasonable because (1) the accounting is inaccurate;3 (2) the

time entries do not segregate the time spent on distinct claims; (3) the hourly rates

are unreasonable; and (4) the time entries contain improper pre-litigation work, block

billing, and vague descriptions.

As an initial matter, I find the hourly rates to be reasonable, with one

exception, noted further below. Mr. Lockton’s eleven years of experience in

intellectual property law more than support an hourly rate of $450. Recognizing that

Mr. Barnard is a partner and intellectual property practice group co-chair at an

AmLaw 200 firm with more than 450 attorneys, and has more than 25 years of

experience in intellectual property law, his average hourly rate of $627.50 is also

reasonable. See Gen. Star Nat'l Ins. Co. v. MDLV, LLC, No. 21-CV-24284, 2024 WL

3994657, at *9 (S.D. Fla. Aug. 13, 2024) (“the Court remains an expert on the issue

of hourly rates in its community and may properly consider its own knowledge and

3 The parties later filed a Joint Statement Regarding Meet and Confer, ECF

No. 202, in which they agree that Defendants seek $731,574.50 in attorneys’ fees.

Thus, I will consider this issue moot.

experience concerning reasonable and proper fees”) (quotations and citations

omitted); Tecnoglass, LLC v. Paredes, No. 22-CV-22356, 2025 WL 419340, *3 (S.D.

Fla. Jan. 13, 2025), adopted, 2025 WL 415760 (S.D. Fla. Feb. 6, 2025); CITGO

Petroleum Corp. v. Petroleum Logistics Serv. USA, Inc., No. 22-MC-20762, 2022 WL

17718802 (S.D. Fla. Nov. 30, 2022), adopted, 2022 WL 17716483 (S.D. Fla. Dec. 15,

2022); Alper Auto., Inc. v. Day to Day Imports, Inc., No. 18-CV-81753, 2022 WL

3904327, at *4 (S.D. Fla. July 26, 2022) (hourly rates from $388 to $675 were

reasonable for litigation in Palm Beach County). The hourly rates Defendants seek

for Stinson associates, ranging from $290 to $455 are also reasonable, as is the rate

of $255 for a paralegal with Ms. Parks’ experience. However, given that Ms. Cuevas

was a summer associate in 2023, when she worked on this case, I find that $290 per

hour is not reasonable and reduce her rate to $150 per hour. See Perland Title &

Escrow Servs. Corp. v. Autonomy Inv. Puerto Rico, LLC, No. 23-CV-21445, 2024 WL

5508134, at *3–4 (S.D. Fla. Nov. 6, 2024) (discussing summer associate rates in the

Southern District of Florida and reducing rate to $150). Ms. Webb’s work is not

compensable as attorneys’ fees, as her work was technical in nature and not the type

of work ordinarily performed by an attorney.

2. Segregation of Different Claims

Next, Plaintiff argues that Defendants’ billing entries fail to segregate time

spent on the copyright infringement claim from time spent on other claims, so

Defendants should only recover one-twelfth of their requested fees. ECF No. 192 at

19. Plaintiff cites a single case for this argument, Bostic v. Bodie, No. 22-CV-60661,

2023 WL 8701363 (S.D. Fla. Dec. 15, 2023), in which the plaintiff moved for attorney’s

fees after prevailing on two counts and losing on the merits on the other two counts.

Id. at *1. The Court concluded that a 25 percent reduction would adequately account

for the plaintiff’s lack of success on two of the four claims. Id. at *2. Defendants

respond that “this case has always been focused on the alleged misuse of Conley’s

claimed copyrighted software,” and that Plaintiff did not add many of the claims and

defendants until he filed his Fourth Amended Complaint. ECF No. 200 at 10–11.

“[T]he Supreme Court has frowned on a strictly mathematical approach

calculating attorney's fees based on a ratio of total claims to successfully litigated

ones, explaining that ‘[s]uch a ratio provides little aid in determining what is a

reasonable fee in light of all the relevant factors.’” Yellow Pages Photos, Inc. v.

Ziplocal, LP, 846 F.3d 1159, 1164 (11th Cir. 2017) (quoting Hensley, 461 U.S. at 435

& n.11). If “successful and unsuccessful claims are intertwined and share a ‘common

core’ of facts or a related legal theory, then a reasonable fee is allowed as to all hours

expended on both sets of claims.” Id. at 1163 n.3 (citing Popham v. City of Kennesaw,

820 F.2d 1570, 1578 (11th Cir. 1987)). A court may also consider an across-the-board

reduction of the lodestar in cases where there is time spent on multiple claims where

it is difficult to allocate fees among those claims. See also Lanard Toys Ltd. v. Toys

“R” Us Del., Inc., No. 15-CV-849, 2022 WL 2235950, at *6–7 (M.D. Fla. June 22, 2022)

(awarding 70 percent of fees in case involving Lanham Act, FDUTPA, and copyright

claims).

Defendants submitted 287 pages of billing records reflecting work done from

December 18, 2022, through July 31, 2025. ECF No. 189-7. In reviewing these

records, I find that a small percentage of the work concerns the state law claims

specifically; however, the vast majority of the work involved general legal work

related to all claims or work relating to the copyright claims. Further, the sole basis

for federal subject matter jurisdiction in this case is the copyright infringement claim.

Plaintiff’s decision to assert a single, unreasonable federal claim along with numerous

state law claims among five different pleadings required Defendants to defend all the

claims here when they should have been litigated in state court all along. In addition,

Plaintiff failed to plead diversity jurisdiction under 28 U.S.C. § 1332. Still, summary

judgment was not entered on the merits of those claims, and a minor fee reduction is

warranted to account for those claims.

3. Content of the Time Entries: Pre-Litigation, Block Billing, Vague

Entries, Excessive Time, and Clerical Work

The Response argues that many time entries are improper, and attaches a

chart containing objections to certain time entries, attributing one or more of the

following characterizations: pre-litigation, excessive, vague, unreasonable, improper

bundling, duplicative, redundant, and clerical. ECF No. 192-3. According to the chart,

any fee award should be reduced by $114,102.12 based on improper billing entries.4

(a) Pre-Litigation Work

4 It is unclear if Plaintiff’s chart accounts for the reduction in the hourly rates

he seeks; however, I have already concluded that the hourly rates are reasonable with

the exception of the summer associate rate.

Plaintiff cites only one case in which the court in its discretion declined to

award fees for pre-litigation work, and no cases indicating that a prevailing party

cannot receive a fee award for work relating to copyright infringement prior to the

filing of a complaint. ECF No. 192 at 20 (citing Nwosuocha v. Glover, 2025 U.S. Dist.

LEXIS 30550, at *[]7 n.7 (S.D.N.Y. Feb. 20, 2025)). Here, the time entries prior to the

commencement of the litigation indicate Defendants’ counsel were responding to a

cease-and-desist letter from Plaintiff concerning allegations of copyright

infringement, which ultimately became claims in this litigation. ECF No. 189-7 at 7–

14. See Imposter Pastor Movie, LLC v. Oliver, No. 24-CV-115, 2025 WL 819117, at *8

(E.D.N.C. Mar. 14, 2025) (awarding fees for pre-litigation work relating to copyright

claim). Thus, it is appropriate for the Court to award fees for Defendants’ counsel’s

pre-litigation work.

(b) Block Billing

Block billing occurs when an attorney “often lump[s] together all the tasks

performed by an attorney on a given day without breaking out the time spent on each

task.” Smith v. Comm’r of Soc. Sec., No. 24-11241, 2025 WL 263388, at *2 (11th Cir.

Jan. 22, 2025) (quoting Barnes, 168 F.3d at 429). The Eleventh Circuit has noted that

some block billing results in “imprecision” and has approved across-the-board

reductions in block-billed hours to offset the negative effects. Ceres Env’t Servs., Inc.

v. Colonel McCrary Trucking, LLC, 476 F. App’x 198, 203 (11th Cir. 2012). “[T]he

mere fact that an attorney has included more than one task in a single billing entry

is not, in itself, evidence of [impermissible] block-billing. When those tasks are

intertwined, including a thorough description of the activities performed clarifies,

rather than obscures, the record.” Zendejas v. Redman, 2019 WL 1429403, at *1 (S.D.

Fla. Mar. 27, 2019) (quoting Williams v. R.W. Cannon, Inc., 657 F. Supp. 2d 1302,

1312 (S.D. Fla. 2009)); see also Home Design Servs., Inc. v. Turner Heritage Homes,

Inc., No. 08-CV-355, 2018 WL 4381294, at *6 (N.D. Fla. May 29, 2018) (“As a general

proposition block billing is not prohibited so long as the Court can determine from the

time entry the services that were performed.”).

There are several lengthy time entries in which attorneys, particularly Mr.

Barnard, describe multiple tasks. Those tasks generally contain sufficient detail for

the Court to accurately assess the time claimed for each activity; however, some are

vague and imprecise, and some are a mix of both. For example, Plaintiff identifies the

following time entry by Mr. Barnard for 1.6 hours as “excessive, vague, improper

bundling, clerical, and unreasonable”:

Planning and general work on schedule and game plan; telephone

conference with Ms. Chavez regarding same; review Ms. Chavez email

regarding key issues and discussion points; emails with adverse counsel

regarding setting up mediation; telephone conference with Ms. Chavez

regarding gathering documents and specific accounting document issues

for early production in order to help move mediation forward; prepare

for and Zoom meeting with client and Ms. Chavez regarding analysis of

insurance coverage issues, mediation, document gathering, and general

discovery items and game plan; follow up regarding same; review Ms.

Chavez email to Mr. Hecht regarding insurance; respond regarding

same.

ECF No. 192-3 at 11. Parts of the entry are sufficiently specific to apprise the Court

of Mr. Barnard’s activities, such as specific topics discussed in emails and

conversations, topics for analysis, and reasons for communications. However, the

entry also contains vague and general comments and references that do not provide

sufficient specificity. Still, 1.6 hours is a reasonable amount of time for an attorney

to have spent on these activities. The billing records contain additional lengthy time

entries that provide adequate detail and some that do not.

While many time entries are appropriate, there are some problematic entries,

such as a handful of extremely lengthy entries that comprise some recoverable

activities and some non-recoverable tasks. For example, Mr. Barnard seeks fees for

an 11.1 hour time entry that includes discussions of flight logistics, preparation for a

hearing, travel time, and telephone calls. ECF No. 189-7 at 242. This is an example

of improper block billing and is not recoverable.

A court may deduct time if it finds that billing entries are unacceptably vague

in that the court cannot discern the legal services provided. See EWC Franchise, LLC

v. DOC Dev., LLC, No. 20-CV-60035, 2010 WL 8093447, at *4 (S.D. Fla. Dec. 23,

2020), adopted, 2021 WL 124415 (Jan. 13, 2021). Again, the majority of Defendants’

time entries provide adequate detail of the claimed activities, but some do not.

Problematic entries include attorneys “working on” generic tasks or researching

unspecified “issues”, such as “[c]ontinue researching issues for discussion at team

meeting,” “work on summary judgment strategy,” “work on subpoena.” See, e.g., ECF

No. 189-7 at 62, 87, 108, 115, 124, 241. The Court cannot discern what was involved

in working on a strategy, researching issues, or working on a document without

additional detail.

(d) Excessive Time

“A court should exclude from the fees award compensation for hours that are

‘excessive, redundant or otherwise unnecessary.’” Moussa v. Certain Underwrites at

Lloyd’s, London, No. 20-CV-22313, 2022 WL 2195305, at *5 (S.D. Fla. Mar. 7, 2022)

(quoting Norman, 836 F.2d at 1301). While many of Defendants’ counsel’s time

entries are not excessive, there are instances where counsel spent excessive time on

certain tasks. For example, three Stinson lawyers spent a total of 38.4 hours on

Defendants’ motion to dismiss Plaintiff’s original complaint. Even with the

understanding that the complaint asserted eleven counts and required a fair amount

of time to research, 38.4 hours is excessive. In another example, an associate spent

9.3 hours drafting a “Discovery Deficiency Letter.” ECF No. 189-7 at 114–15, 119.

Turning to Defendants’ motion for summary judgment, the time entries contain

approximately 288 hours spent strategizing and working on that motion by at least

six attorneys. While summary judgment motions are labor-intensive and often

require a significant number of hours and more than one attorney, 288 hours and six

lawyers are excessive. In addition, many of the entries contain vague language such

as “work on summary judgment motion” without any detail. Thus, any fee award

should be subject to a reduction based on excessive hours and attorneys.

(e) Clerical Tasks

Next, Plaintiff argues that many of the time entries indicate non-recoverable

clerical work. I do not find that Defendants are seeking recovery for any clerical work

by attorneys; however, Ms. Parks’ clerical work is not recoverable. A court may award

fees for paralegal work only when paralegals perform work typically done by lawyers,

and not for any clerical work. Jean v. Nelson, 863 F.2d 759, 778 (11th Cir. 1988). Ms.

Parks performed a substantial amount of work that typically falls within a lawyer’s

purview, such as drafting and revising substantive materials. But, the bills also

reflect she performed a number of tasks such as serving and filing documents,

handling scheduling and calendar matters, and organizing materials. (e.g. ECF No.

189-7 at 32, 43, 51, 53, 55, 86, 97, 158). Accordingly, I will reduce Ms. Parks’ hours

by 50 percent, resulting in 36.9 hours.

4. Procedural Requirements Relating to Attorneys’ Fees

Plaintiff argues that Defendants’ Motion should be “denied on procedural

grounds” with respect to attorneys’ fees because the Motion fails to include (1) a

certificate of conferral under Local Rules 7.3(a)(8) and 7.1(a)(2), and (2) the terms of

the relevant fee agreements under Local Rule 7.3(a)(4). Defendants respond that

attorney Andrew Lockton’s declaration, which contained a meet-and-confer

certification, satisfies the referral requirements. ECF No. 200 at 6. Defendants

further respond that the relevant engagement letters that provide fee arrangements

are attached to their Motion. ECF No. 200 at 8; ECF Nos. 189-2, 189-6.

Regarding the conferral, the parties have sufficiently conferred. In addition to

Mr. Lockton’s declaration, the Court ordered an additional conferral to provide the

Court with information on what was resolved and specific amounts sought in the

Motion. ECF No. 201. The engagement letters suffice to provide the terms of the fee

agreement.

5. Fee Award Under 17 U.S.C. § 505

Having found that a fee award under Section 505 is appropriate, I now turn to

the amount of fees that should be awarded. Defendants seek $731,574.50 in fees.

After reducing the paralegal hours by 50 percent, reducing the summer associate

hourly rate from $290 to $150, and removing amounts attributed to e-discovery

consultant Ms. Webb, the total amount sought becomes $713,533.50. Then,

considering the instances of block billing, excessive time spent on certain tasks, vague

time entries, and some time spent solely on state law claims, I conclude that a 20

percent across-the-board reduction is appropriate. Thus, I will recommend that

Defendants recover their reasonable and necessary attorneys’ fees in the amount of

$570,826.80.

E. Attorneys’ Fees and Costs Under 28 U.S.C. § 1927

Under 28 U.S.C. § 1927, an attorney “who so multiplies the proceedings in any

case unreasonably and vexatiously may be required by the court to satisfy personally

the excess costs, expenses, and attorneys' fees reasonably incurred because of such

conduct.” 28 U.S.C. § 1927. Thus, before a court may impose Section 1927 sanctions,

three conditions must be met: (1) the attorney “must engage in unreasonable and

vexatious conduct,” (2) the attorney’s conduct “must multiply the proceedings,” and

(3) “the dollar amount of the sanction must bear a financial nexus to the excess

proceedings, i.e., the sanction may not exceed the ‘costs, expenses, and attorneys’ fees

reasonably incurred because of such conduct.” Celsius Holdings, Inc. v. A SHOC

Beverage, LLC, No. 22-12687, 2025 WL 2887300, at *5 (11th Cir. Oct. 10, 2025)

(quoting Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997)).

Defendants bear the burden of justifying sanctions. Mack v. Delta Air Lines,

Inc., No. 1:13-CV-1162-LMM, 2014 WL 12628621, at *15 (N.D. Ga. Nov. 26,

2014), report and recommendation adopted, 2015 WL 12862475 (N.D. Ga. Mar. 30,

2015), aff'd, 639 Fed. Appx. 582 (11th Cir. 2016). The Eleventh Circuit has

described § 1927 as “penal,” and thus it is strictly construed. Id. at *14.

Sanctions are available under § 1927 only upon a showing of bad faith. In

examining whether conduct constitutes bad faith under § 1927, courts use an

objective standard such that a “court may impose sanctions for egregious conduct by

an attorney even if the attorney acted without the specific purpose or intent to

multiply the proceedings.” Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230,

1241 (11th Cir. 2007). As the Eleventh Circuit has summarized:

To justify an award of sanctions pursuant to section 1927, an attorney

must engage in unreasonable and vexatious conduct; this conduct must

multiply the proceedings; and the amount of the sanction cannot exceed

the costs occasioned by the objectionable conduct. For sanctions

under section 1927 to be appropriate, something more than a lack of

merit is required. Id. at 1129. The statute was designed to sanction

attorneys who “willfully abuse the judicial process by conduct

tantamount to bad faith.”

“Bad faith” is the touchstone. Section 1927 is not about mere negligence.

A determination of bad faith is warranted where an attorney knowingly

or recklessly pursues a frivolous claim or engages in litigation tactics

that needlessly obstruct the litigation of non-frivolous claims.

Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225–26 (11th Cir. 2003) (citations

omitted) (emphasis in original).

Defendants contend that they are entitled to fees under § 1927 because

Plaintiff maintained a time-barred claim through summary judgment and because

Plaintiff repeatedly made multi-million-dollar settlement demands without

competent evidence. ECF No. 189 at 19–20. Plaintiff responds that the Motion fails

to provide any evidence of vexatious conduct, how the conduct multiplied the

proceedings, and how the fee request relates to the conduct, to make any showing

that counsel’s conduct was “so egregious that it is tantamount to bad faith.” ECF No.

192 at 16–17 (quoting ECF No. 189 at 20).

Defendants have not met their burden to show that Plaintiff’s counsel’s actions

were in bad faith. They assert few facts, and simply continue their argument

regarding the copyright infringement claim. While the Court did enter summary

judgment in favor of Defendants on Plaintiff’s copyright claim and now concludes that

continuing to pursue the claim was objectively unreasonable, those findings do not

rise to the level of vexatious conduct and bad faith. Finally, Defendants fail to

quantify the amount of fees attributable to any alleged extra work caused by counsel’s

conduct. Accordingly, Defendants request for sanctions under § 1927 should be

denied.

F. Costs

Under Local Rule 7.3, “A bill of costs pursuant to 28 U.S.C. § 1920 shall be filed

and served within thirty (30) days of entry of final judgment or other appealable order

that gives rise to a right to tax costs under the circumstances listed in 28 U.S.C. §

1920.” S.D. Fla. L.R. 7.3(c). In addition, “The bill of costs shall attach copies of any

documentation showing the amount of costs and shall be supported by a

memorandum not exceeding ten (10) pages.” Id.

Plaintiff argues that because Defendants failed to file a bill of costs and 30 days

have expired since entry of summary judgment and dismissal of this case, they are

precluded from seeking costs. ECF No. 192 at 4–5. Plaintiff also points out that

Defendants failed to attach any documentation to support the amounts sought. Id.

Defendants respond that their counterclaim—a single, state-law claim for breach of

fiduciary duty—remains pending, so there is no final judgment and, thus, a bill of

costs is premature. ECF No. 200. Defendants are incorrect. The Court entered

summary judgment in favor of Defendants on the copyright claim, dismissed all

remaining claims in the operative complaint, terminated all motions and deadlines,

and closed the case. ECF No. 182. The Order entering summary judgment and

dismissing the state law claims is a final, appealable order, regardless of whether

Defendants’ counterclaim was specifically mentioned, and no one contends that the

parties are still litigating Defendants’ counterclaim here. Id.; Mejia v. Ocwen Loan

Servicing, LLC, No. 16-CV-81269, 2016 WL 8787061, at *1 (S.D. Fla. Dec. 22, 2016)

(party could not recover costs when it to file bill of costs within 30 days of dismissal

of complaint; no final judgment entered on docket), adopted, 2017 WL 1424630 (S.D.

Fla. Jan. 6, 2017); Fetzko v. Winn-Dixie Stores, Inc., No. 22-CV-14271, 2025 WL

2899727, at *2 (S.D. Fla. Mar. 17, 2025). As Defendants did not file a bill of costs

within 30 days of the entry of summary judgment and closing of the case, I

recommend that Defendants’ request for costs under § 1920 be denied.

RECOMMENDATION

For these reasons, I RECOMMEND that Defendants’ Motion for Award of

Attorneys’ Fees and Costs be GRANTED IN PART AND DENIED IN PART in

that (1) Defendants be awarded $570,826.80 in attorneys’ fees, and (2) Defendants do

not recover costs.

NOTICE OF RIGHT TO OBJECT

A party shall serve and file written objections, if any, to this Report and

Recommendation with the Honorable Raag Singhal, within FOURTEEN (14) DAYS

of being served with a copy of this Report and Recommendation. Failure to timely file

objections shall constitute a waiver of a party’s “right to challenge on appeal the

district court’s order based on unobjected-to factual and legal conclusions.” 11th Cir.

R. 3-1 (2016).

If counsel do not intend to file objections, they shall file a notice

advising the District Court within FIVE DAYS of this Report and

Recommendation.

DONE and SUBMITTED in Chambers at West Palm Beach, Palm Beach

County, in the Southern District of Florida, this 22nd day of January 2026.

BRUCE E. REINHART

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.