No deadline for attorney fee petition

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A petition for costs incurred on appeal may need to be filed within 14 days of entry of judgment, but a party need only be “diligent” in submitting a petition for attorney fees, the Seventh Circuit held on Nov. 28.

JCW Investments, Inc. won a jury verdict on a claim that Novelty, Inc., in-fringed its trademark on “Pull My Finger Fred,” a farting plush doll. The Seventh Circuit affirmed the judgment earlier this year. JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 921 (7th Cir. 2007).

Thirty days after the court entered judgment in JCW’s favor, it filed a petition for attorneys’ fees and costs (under the Copyright Act and the Lanham Act, a prevailing party can recover full costs and attorney fees incurred on appeal).

Novelty objected, arguing that the petition was untimely under Federal Rule of Appellate Procedure 39(d)(1), which requires that the bill of costs be filed
within 14 days.

In an opinion by Judge Diane Wood, the Seventh Circuit granted some of the requested attorney fees, but none of the costs.

Because Rule 39(d)(1) requires that the bill of costs must be filed within 14 days, and JCW waited 30 days, the court concluded it was untimely and denied the requested costs — $132.76.

However, the court held that the request for attorney fees was timely, because the rule applies only to costs, not attorney fees.

The court acknowledged that Federal Rule of Civil Procedure 54(d) provides that motions for both costs and attorney fees in the district court must be filed within 14 days.

However, the court declined to extend that rule by analogy to appeal, in the absence of a statutory deadline. Instead, the court concluded, “a general rule of diligence should govern.”

Applying that general rule, the court found that the petition, filed within 30 days, was diligently prepared and submitted.

However, the court also found that the amount of fees requested was unreasonable.

Tekky requested $77,905 in attorney fees on appeal. Included in that amount was a request for $14,962 to prepare the petition seeking attorney fees — 33.25 hours at a rate of $450 per hour.

However, the court concluded that an experienced litigator should not have required more than half that amount of time. Accordingly, the court halved the requested fee, to $7,481, and awarded a total of $70,424 in attorney fees.

Case analysis

There is a split of authority on this issue among the appellate courts.

Two other circuits are in accord with the Seventh Circuit — Rule 39(d)(1) does not apply to attorney fees incurred on appeal. Environmental Defense Fund, Inc., v. EPA, 672 F.2d 42, 61 (D.C.Cir.1982); and McDonald v. McCarthy, 966 F.2d 112, 114 (3rd Cir. 1992).

Two others hold that the rule does apply to attorney fees. Radvansky v. City of Olmsted Falls, 496 F.3d 609, 620 (6th Cir. 2007); and Davidson v. City of Avon Park, 848 F.2d 172, 174, fn. 4 (11th Cir. 1988).

It is noteworthy that both the D.C. Circuit and the Third Circuit analyze the issue more closely. In Radvansky, the Sixth Circuit had numerous other reasons to deny appellate costs, and its holding in regards to Rule 39 can generously be characterized as an afterthought.

Nevertheless, a split of authority does exist, so there exists a reasonable ground for seeking review in the U.S. Supreme Court in an appropriate case.

However, until the issue is settled by that court, or the statute is amended by Congress, the more important issue is what constitutes “diligence” in petitioning for attorney fees.

Here, the court found filing the petition within 30 days to be diligent. Presumably, that provides a safe haven, such that any request within 30 days will be found to be diligently filed.

Where a request is not filed within 30 days, and diligence is at issue, prevailing parties should be sure to cite Environmental Defense Fund. There, the request was not filed until nine months after judgment, and the court still held the request was filed within a reasonable time.

Such a late fee petition probably shouldn’t be deemed “diligent,” but persuasive authority does exist to support the proposition.