IP Law Daily, COPYRIGHT—5th Cir.: District court can award attorney fees even after appeal of merits, (Feb 24, 2026)

By Matthew Hersh, J.D.

The fact that attorney fees were briefly the subject of a cross-appeal also did not change the jurisdiction issue.

A district court had the power to award attorney fees to a prevailing party in a copyright case even though the case was already on appeal when the fee petition was filed, the U.S. Court of Appeals for the Fifth Circuit has held. The court, in unpacking a dispute that raised a wide range of questions about the jurisdiction of district court in connection with cases on appeal, also found that the attorney fees award was justified on the merits (Loeb-Defever v. Mako, L.L.C., No. 24-20410 (5th Cir. Feb. 20, 2026)).

The lawsuit arose out of the development of a senior living center. Real estate developer Padua Realty Company hired architect firm Loeb Architects to design the first two phases of the project. The developer then hired a different architect firm to design the rest of the project. Loeb, later coming to believe that the other firm had improperly borrowed from its plans for the remainder of the project design, filed a copyright infringement suit against two dozen individuals and entities involved in the project. After six of the parties reached a settlement with Loeb, the district court granted summary judgment in 2022 on all of the claims in the defendants’ favor. The Fifth Circuit, in an unpublished decision, affirmed.

While the merits of the lawsuit were now disposed of, the wrangling over attorney fees had only just begun. The district court’s 2022 judgment dismissed all of Loeb’s claims with prejudice and sua sponte ordered that “[e]ach party shall bear its own fees and costs.” Four days later, Loeb filed a notice of appeal. Ten days after that, defendants filed a motion for attorney fees under Rule 54 and also moved under Rule 59 to alter or amend the judgment to accomplish the same thing. Roughly two weeks after that, the defendants also filed—“out of an abundance of caution,” they emphasized—a cross-appeal in the appellate court on attorney fees.

The flurry of attorney fee filings at this point slowed for a moment—but only for a moment. The district court, eager not to decide an issue that might become moot, denied the attorney fees motion with leave for the defendants to refile it if they prevailed in their appeal. The defendants, now no longer concerned about their right to seek attorney fees at the appropriate time after appeal, then withdrew their cross-appeal.

But the attorney fee issue, as anticipated, came up anew after the court of appeals affirmed the judgments. The defendants, accepting the district court’s 2022 invitation, renewed their attorney fees motion. Loeb objected to the motion on a number of grounds, both jurisdictional and substantive. The district court, overruling the objections, granted the attorney fees motion and awarded $500,000 in fees.

Loeb appealed the fee award, leading to this opinion.

Jurisdiction. The court of appeals began by finding that the district court had the jurisdiction to award attorney fees to the defendants. Loeb identified three points at which the district court ostensibly lost jurisdiction to adjudicate the fee issue: (1) when the district court issued the final judgment; (2) when Loeb and the defendants filed their respective appeals of the final judgment; and (3) when the defendants voluntarily dismissed their cross-appeal. But none of these events deprived the district court of its right to award attorney fees, the court of appeals found.

The district court’s 2022 “final judgment” did not terminate its right to adjudicate attorney fees, the court of appeals found, because prevailing parties always have the right under the federal rules to seek fees within 14 days after the entry of judgment. Loeb argued that once the court of appeals issued its mandate affirming that 2022 judgment, the judgment became final and could no longer be altered to include fees. But Loeb did not raise the issue of attorney’s fees in its appeal of the final judgment, the court of appeals noted, and therefore “the issue was not addressed in this court’s opinion on the merits.” Thus, the court of appeals concluded, the issue remained ripe adjudication after the mandate came down.

Nor did it matter that the district court had sua sponte ordered each side to bear its own fees in its 2022 judgment, the court of appeals found. Loeb argued that in order to obtain an award of fees at this juncture, the defendants would have had to prevail on their Rule 59 motion to alter or amend the judgment, rather than the more traditional Rule 54 motion for fees. But as Fifth Circuit precedent made clear, the court of appeals noted, the requirement to alter or amend an undesirable judgment applied only to issues going to the merits of the action, not “collateral issues” like attorney fees. As a result, the court of appeals concluded, regardless of what the district court’s initial judgment said about attorney fees, a Rule 54 motion remained the proper recourse for requesting fees.

For similar reasons, the court of appeals found, neither the appeal on the merits nor the cross-appeal on attorney fees limited the district court’s ability to decide the fee issue. Loeb’s appeal on the merits, the court of appeals noted, plainly did not divest the court of jurisdiction to decide the fee issue because attorney fees did not involve the merits. As to the defendants’ cross-appeal of the initial judgment that declined to award attorney fees, the court found, that had no impact here because the cross-appeal was simply premature. Under the unusual circumstances presented here, the court noted, “the defendants’ first fee motion here “made the denial of fees and costs in the ‘final judgment’ no longer final.” Thus, the court of appeals concluded, “the first fee motion remained pending and unresolved when the defendants filed their cross-appeal.”

Indeed, the court of appeals found, the award of attorney fees under the unusual circumstances of this case would have been appropriate even if the defendants’ cross-appeal had been effective. Loeb argued that as soon as it filed its cross-appeal on attorney fees, the district court lost not only the ability to adjudicate a request for attorney fees but also the right to even extend the deadline for such a request. As such, Loeb argued, once the case went back to the district court after the circuit court’s mandate, time had run out for the refiling of the fee motion. But that could not be consistent with the spirit of Rule 54, the court of appeals found. After all, the court noted, the fee issue was timely raised in the defendants’ first fee motion, and the district court indicated its intent to rule on the issue after the conclusion of the merits appeal. “As a result,” the court of appeals emphasized, Loeb was properly notified of the defendants request for attorney’s fees.” As such, even if the second fee motion was untimely and failed to comply with Rule 54’s formal requirements because the district court’s extension was invalid due to the cross-appeal, the court of appeals stressed, “the district court could nevertheless consider the second fee motion because the purposes of Rule 54 were satisfied.”

Merits of the attorney fee award. Having found that the district court had the power to award attorney fees under the facts of this case, the court of appeals also affirmed the district court’s decision that attorney fees were merited. Under Fifth Circuit precedent, the court emphasized, an award of attorney’s fees to the prevailing party in a copyright action is “the rule rather than the exception and should be awarded routinely.” There was no reason to set aside that rule here, the court found. Most importantly, the court of appeals noted, Loeb’s copyright claim was objectively unreasonable because the language of the parties’ license agreement “clearly contemplated that the defendants were permitted to use the preliminary design schematics in subsequent phases.” Given that the license at issue “authorized the conduct that Loeb complained of in this case,” the court of appeals noted, “the district court did not err in finding Loeb’s claims to be objectively unreasonable.”

No other factor altered the equation in Loeb’s favor, the court of appeals found. Loeb brought claims seeking hundreds of millions of dollars against 24 defendants, the court of appeals noted, “nearly all of whom had at most a tangential connection to the alleged infringement. The district court therefore had a reasonable basis to find Loeb had “an improper motive in bringing this lawsuit,” the court of appeals noted. Nor did it matter that Loeb was not a “serial litigant” in the tradition meaning of the term, the court found. Loeb’s demand for heavy damages against so many defendants on such a weak case “presents, at best, an overaggressive assertion of Loeb’s copyright claims,” the court of appeals noted. The district court therefore did not abuse its discretion in determining that a fee award would “serve the considerations of compensation and deterrence,” the court of appeals concluded.

Amount of award. But while the court of appeals ruled against Loeb on the defendants’ entitlement to attorney fees, the court did allow Loeb a chance to challenge the amount of those fees. Here, the court noted, the defendants requested more than $1.5 million in total attorney’s fees, but the district court, “in its discretion,” only awarded $500,000. But the district court “provided no explanation for the reduction,” the court of appeals noted, “and it did not discuss the rates or hours expended on this case or the lodestar request.” Without a means to assess the amount of fees awarded, the court of appeals concluded, “we must vacate the fee award and remand for the district court to consider whether the defendants properly segregated the fees for their claims and to conduct proper lodestar-fee and [related] analyses.”

The Case is No. 24-20410.

Judge: Per Curiam.

Attorneys: Patrick Zummo (Law Office of Patrick Zummo) for Zelma M. Loeb-Defever. John Joseph Edmonds (Edmonds & Schlather, P.L.L.C.) for Mako, L.L.C.

Companies: Mako, L.L.C.

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