Cross

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MARY RHUDE CROSS, as

guardian of A.C., a minor, J.C., a

minor, and L.C., a minor, ANY

UNKNOWN CHILDREN OF

CHAUNDRE K. CROSS,

Plaintiff,

v. Case No. 2:23-cv-851-SPC-KRH

THE NORTHWESTERN MUTUAL

LIFE INSURANCE COMPANY,

Defendant.1

ORDER

At issue is Defendant The Northwestern Mutual Life Insurance

Company’s Motion for Entitlement to Attorney’s Fees. (Doc. 169). Plaintiff

Mary Rhude Cross responded in opposition (Doc. 172), to which Defendant

replied (Doc. 179). The Court denies the motion without prejudice pending

appeal.

Background

This case went to trial. Where relevant, Defendant prevailed. So the

Court entered its opinion and judgment. (Doc. 162; Doc. 168). Defendant

1 The Court uses the case style from trial for ease of reference. (Doc. 126 at 3).

moved for attorney’s fees under Florida law based on a proposal for settlement.

See Fla. Stat. § 768.79; (Doc. 169). Plaintiff opposed Defendant’s fee request.

(Doc. 172).

Then, Plaintiff appealed. (Doc. 175). That appeal remains pending.

Cross v. The Northwestern Mut. Life Ins. Co., No. 26-11082 (11th Cir.).

Plaintiff’s initial brief is due in a few weeks.

Discussion

“As a general rule, the filing of a notice of appeal divests a district court

of jurisdiction on any matter involved in the appeal.” Elver v. Whidden, No.

2:18-cv-102-FtM-29CM, 2019 WL 718536, at *1 (M.D. Fla. Feb. 20, 2019);

Green Leaf Nursery v. E.I. DuPont de Nemours & Co., 341 F.3d 1292, 1309

(11th Cir. 2003). But district courts may retain power to consider issues

collateral to those on appeal, like attorney’s fees and costs. Briggs v. Briggs,

260 F. App’x 164, 165 (11th Cir. 2007); Rothenberg v. Sec. Mgmt. Co., 677 F.2d

64, 65 (11th Cir. 1982). So this jurisdictional limit does not prohibit seeking

fees before an appeal concludes.

That said, courts have broad discretion to defer or deny a motion for

attorney’s fees without prejudice with leave to refile after the appeal. E.g.,

The Indigo Room, Inc. v. City of Fort Myers, No. 2:12-CV-39-FTM-38CM, 2014

WL 1174355, at *1 (M.D. Fla. Mar. 21, 2014). As the Advisory Committee

explained:

If an appeal on the merits of the case is taken, the court

may rule on the claim for fees, may defer its ruling on the

motion, or may deny the motion without prejudice,

directing under subdivision (d)(2)(B) a new period for filing

after the appeal has been resolved.

Fed. R. Civ. P. 54(d) Advisory Committee Note to 1993 Amendment.

Exercising that discretion, judges routinely deny without prejudice or

defer rulings on fees. E.g., Magma Glob., LLC v. NHT SP, LLC, No. 8:23-cv-

2076-SDM-AEP, 2024 WL 5480052, at *1 (M.D. Fla. Dec. 16, 2024); Pinto v.

Rambosk, No. 2:19-cv-551-JLB-MRM, 2021 WL 4263404, at *2 (M.D. Fla. Sept.

20, 2021). This decision often serves the twin aims of promoting judicial

economy and securing an efficient resolution of the action. E.g., Bowers v.

Universal City Dev. Partners, Ltd., No. 603CV985ORL18JGG, 2005 WL

1243745, at *2 (M.D. Fla. May 19, 2005) (“If the district court were to resolve

the fee and cost issue while an appeal remains pending, it would be asked to

repeat the procedure following the appeal. This Court prefers to avoid the

piecemeal resolution of fee disputes.”); U.S. ex rel. Ragghianti Foundations III,

LLC v. Peter R. Brown Constr., Inc., No. 8:12-cv-942-T-33MAP, 2014 WL

5307490, at *1 (M.D. Fla. Oct. 16, 2014); Yellowpages Photos, Inc. v. YP, LLC,

No. 8:17-cv-764-T-36JSS, 2020 WL 6729719, at *2 (M.D. Fla. Oct. 29, 2020).

This is especially true where—as here—a party seeks fees under § 768.79,

which can include appellate fees. See Bandsuch v. Werner Enters., Inc., No.

2:05-cv-305-FtM-99SPC, 2010 WL 11507000, at *1 (M.D. Fla. Nov. 16, 2010).

The Court finds that justice would be better served by denying the

motion without prejudice with leave to refile after the appeal wraps up. This

was an involved case resulting in a six-day trial, which is now on appeal. If

Plaintiff succeeds, any fees awarded may be nullified; if Defendant succeeds,

any fees awarded may be incomplete. So either outcome presents reason to

defer making a final decision on fees until after the appeal resolves.

Because Plaintiff’s appeal is pending on these issues, the Court denies

the motion without prejudice. If necessary, Defendant may refile the motion

within twenty-one days after the appeal concludes (i.e., after the Eleventh

Circuit issues a mandate). See Byndom v. Waffle House, Inc., No. 6:23-cv-

1971-JA-LHP, 2025 WL 1456595, at *1 (M.D. Fla. May 21, 2025); Gimenez v.

McLane Foodservice, Inc., No. 6:23-cv-1102-GAP-RMN, 2024 WL 6881921, at

*1 (M.D. Fla. Aug. 19, 2024); Action Nissan, Inc. v. Hyundai Motor Am., No.

6:18-cv-380-WWB-EJK, 2022 WL 17409415, at *1 (M.D. Fla. Feb. 7, 2022)

(Kidd, J.).

Accordingly, it is now

ORDERED:

1. Defendant’s Motion for Entitlement to Attorney’s Fees (Doc. 169)

is DENIED without prejudice.

2. Defendant may file a renewed motion (if appropriate) within

twenty-one days after the Eleventh Circuit issues a mandate on the pending

appeal.

DONE and ORDERED in Fort Myers, Florida on July 24, 2026.

, tite WObLatrat he 7

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record