Mosler v. Wagner

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 0:25-cv-60022-LEIBOWITZ/AUGUSTIN-BIRCH
WARREN MOSLER,
Plaintiff,
v.
JAMES TODD WAGNER,
Defendant.
__________________________/
ORDER MODIFYING
REPORT AND RECOMMENDATION
THIS CAUSE is before the Court upon United States Magistrate Judge Panayotta Augustin-
Birch’s Report and Recommendation to Deny an Award of Appellate Attorney’s Fees (the “R&R”)
[ECF No. 228], entered on February 17, 2026, recommending the denial of Plaintiff’s appellate
attorney’s fees [ECF No. 201]. The undersigned referred the matter to Magistrate Judge Augustin-
Birch pursuant to 28 U.S.C. § 636(b)(1)(B), Rule 72 of the Federal Rules of Civil Procedure, and Rule
1(d) of the Local Magistrate Judge Rules. [See ECF No. 205]. Objections were timely filed by Plaintiff
[ECF No. 233], which the Court has reviewed de novo. Having reviewed and considered the R&R in
light of the Objections, the parties’ papers, the relevant portions of the record, and the applicable law,
the Court concludes that Plaintiff may be entitled to appellate attorneys’ fees at a later time.
Accordingly, the Court hereby MODIFIES Magistrate Judge Augustin-Birch’s R&R [ECF No. 228].
Plaintiff’s Objections [ECF No. 233] to the R&R are SUSTAINED, for the reasons discussed below.
STANDARD OF REVIEW
In reviewing a Report and Recommendation, the district court “shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations to
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which objection is made.” 28 U.S.C. § 636(b)(1)(C). “Parties filing objections to a magistrate’s report
and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or
general objections need not be considered by the district court.” United States v. Schultz, 565 F.3d 1353,
1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal
quotation marks omitted). Absent objection, the district judge “may accept, reject, or modify, in whole
or in part, the findings and recommendations made by the magistrate judge,” 28 U.S.C. § 636(b)(1),
and “need only satisfy itself that there is no clear error on the face of the record” to accept the
recommendation. Fed. R. Civ. P. 72 adv. comm. note to 1983 amendment, subd. (b).
RULING ON OBJECTIONS
Plaintiff objects to Judge Augustin-Birch’s finding that Plaintiff failed to file a timely motion
for attorneys’ fees and therefore should be denied a fee award. 	[ECF No. 233 at 4]. 	In essence,
Plaintiff objects because he contends that the time to move for fees is not yet ripe. The Court agrees
that Plaintiff may file a motion for attorneys’ fees at a later time, consistent with the Eleventh Circuit’s
December 10, 2025 Order. Accordingly, to this extent the objections are SUSTAINED.
On December 10, 2025, after dismissing Defendant’s appeal for lack of jurisdiction, the
Eleventh Circuit issued an order transferring the consideration of Plaintiff’s entitlement to appellate
attorneys’ fees to this Court, “to be determined upon resolution of the claims below.” [ECF No. 200
at 1–2]. In her R&R, Judge Augustin-Birch recommended that Plaintiff be denied appellate attorneys’
fees because he failed to timely move for them under Local Rule 7.3. That Rule reads that a motion
for fees should “be filed and served within sixty (60) days of the entry of the final judgment or order
giving rise to the claim, regardless of the prospect or pendency of supplemental review or appellate
proceedings.” S.D. FLA . LOC. R. 7.3(a)(1). Because Plaintiff did not move for appellate fees within
sixty days of the Eleventh Circuit’s mandate dismissing the appeal or even within sixty days of the
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order transferring the issue of fees to this Court, Judge Augustin-Birch explained that a request for
appellate fees is untimely and should be denied pursuant to Local Rule 7.3. [ECF No. 228 at 1–2].
Plaintiff objects to this finding because the clock for requesting fees starts when the order that
forms the basis of the request is a final, appealable one. [See ECF No. 233 at 5–8]. In other words,
Plaintiff contends that it did not (and indeed, could not) move for fees now, as Defendant appealed a
non-final Order of this Court that the Eleventh Circuit had no jurisdiction to consider. [See id.].
This Court agrees. Several courts in this District have interpreted Local Rule 7.3(a) to mean
that a litigant is permitted to move for fees “at the conclusion of the litigation.” Temurian v. Piccolo,
No. 18-CV-62737, 2021 WL 1520588, at *6 (S.D. Fla. Mar. 3, 2021) (Valle, M.J.), report and
recommendation adopted, 2021 WL 112003 (S.D. Fla. Mar. 24, 2021) (Smith, J.); accord League of Women
Voters of Fla. v. Browning, No. 06-21265-CIV, 2008 WL 5733166, at *3 (S.D. Fla. Dec. 4, 2008)
(O’Sullivan, M.J.), report and recommendation adopted in relevant part, 2009 WL 701107 (S.D. Fla. Mar. 16,
2009) (Huck, J.). This can be reconciled with the Eleventh Circuit’s order for this Court to determine
appellate attorney’s fees “upon resolution of the claims below.” 	[ECF No. 200 at 2]. 	Under the
inverse view, however, a request for fees “would effectively become mandatory following the issuance
of every appealable order wherein attorney’s fees are recoverable.” League of Women Voters, 2008 WL
5733166, at *3. 	This piecemeal approach would run afoul of Local Rule 7.3(a) and would unduly
burden courts with countless motions for fees every time a party obtained a favorable ruling. 	See
Mazzota v. Citimortgage, Inc., No. 15-80012-CIV, 2015 WL 1189587, at *2 (S.D. Fla. Mar. 12, 2015)
(Marra, J.) (“The Court will not award attorney’s fees on a piecemeal basis every time Defendants
prevail on a motion initiated by Plaintiffs. The Court will consider the question of attorney’s fees at
the conclusion of the case.”).
Having said that, Judge Augustin-Birch correctly denied any request for appellate attorneys’
fees for now. The Court, however, modifies the R&R to deny the request without prejudice and with leave
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to refile at the appropriate time, consistent with this Order. See Vergara v. Davis Bancorp, Inc., No. 10-21746-
CIV, 2011 WL 666169, at *1 (S.D. Fla. Feb. 14, 2011) (Goodman, M.J.) (“Plaintiffs’ motion for fees
and costs, which is clearly premature, is denied without prejudice. Plaintiffs may renew their motion
once the matter becomes ripe . . . .”).
CONCLUSION
Accordingly, in view of the foregoing and upon due consideration, it is hereby ORDERED
AND ADJUDGED as follows:
1. 	The R&R [ECF No. 228] is MODIFIED IN PART as indicated in this Order.
2. 	The Motion for Attorney Fees [ECF No. 201] is DENIED without prejudice and with
leave to refile.
3. 	Plaintiff’s Objections [ECF No. 233] are SUSTAINED.
DONE AND ORDERED in the Southern District of Florida on March 26, 2026.
cc: 	counsel of record
James Todd Wagner, pro se
620 County Road 413 Unit #2
Spicewood, TX 78669
Email: j.todd.wagner@gmail.com
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