USCA11 Case: 21-13715 Date Filed: 09/13/2022 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13715
Non-Argument Calendar
____________________
TEC SERV, LLC,
a Florida Limited Liability Company,
JOHN R. TOSCANO, INC.,
a Florida corporation,
Plaintiffs-Counter
Defendants,
MICHAEL ALAN CRABB,
individually,
Defendant-Third Party Plaintiff-
Counter Claimant-Appellant,
versus
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2 Opinion of the Court 21-13715
JOHN TOSCANO,
MARILYN TOSCANO,
Third Party Defendants-
Counter Defendants-Appellees,
A DESIGN AT SUNNINGHILL, INC.
a Florida Corporation,
Defendant-Third Party
Plaintiff-Counter Claimant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:11-cv-62040-WPD
____________________
Before LAGOA, BRASHER, and BLACK, Circuit Judges.
PER CURIAM:
In 2015, we remanded this case for the district court to de-
termine the amount of expenses and reasonable attorneys’ fees for
the services of John and Marilyn Toscano’s (collectively, the Tosca-
nos) attorneys in successfully defending Michael Crabb’s claims
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21-13715 Opinion of the Court 3
against them in their individual capacities. Crabb now appeals
from the district court’s award. Upon review, 1 we affirm.
I. BACKGROUND
Our earlier opinion more fully recounted the procedural his-
tory of this case, but in short, John Toscano formed a company,
John R. Toscano, Inc. (JRTI), which hired Crabb as an engineer.
The Toscanos and Crabb formed another company, Toscano En-
gineering and Construction Services, LLC (TEC Serv), and entered
into the TEC Serv Members’ Agreement (the Agreement). After
their business relationship deteriorated, Crabb sued TEC Serv and
the Toscanos. TEC Serv and JRTI, in turn, filed a separate 16-count
suit against Crabb, and Crabb filed a 13-count counterclaim and
third-party complaint against TEC Serv, JRTI, and the Toscanos in
their individual capacities.
Following a 12-day bench trial, the district court found in fa-
vor of TEC Serv on one claim but rejected the other claims of all
parties, observing “the outcome to the parties’ disputes should be
a wash.” The court noted TEC Serv would owe Crabb unpaid sal-
ary, retained earnings, and profit distributions, but any such funds
1 We review a district court’s award of attorneys’ fees and costs for an abuse
of discretion. Yellow Pages Photos, Inc. v. Ziplocal, LP, 846 F.3d 1159, 1163
(11th Cir. 2017). “An abuse of discretion occurs when a district court commits
a clear error of judgment, fails to follow the proper legal standard or process
for making a determination, or relies on clearly erroneous findings of fact.” Id.
“This standard necessarily implies a range of choices.” Id.
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4 Opinion of the Court 21-13715
were not due until July 11, 2013—a month after the district court’s
final order was entered. “Although perhaps dicta” to its order, the
district court would have found that amount to be $286,764.00.
After entry of judgment, TEC Serv, JRTI, and the Toscanos
jointly moved for attorneys’ fees and costs as prevailing parties
based on the terms of the Agreement. In the prior appeal, we
agreed with the district court that TEC Serv and JRTI were not
prevailing parties because they had lost on all but one of their
claims. However, we vacated the district court’s order because the
Toscanos, who are legally separable from TEC Serv, did not bring
any claims against Crabb and, instead, prevailed on every claim
brought against them. Accordingly, we concluded that the Tosca-
nos, as separate third-party defendants, were prevailing parties en-
titled to attorneys’ fees under the Agreement. We also granted the
Toscanos’ request for appellate attorneys’ fees as to entitlement
and transferred the matter for the district court to determine the
amount of the award.
On remand, the Toscanos promptly sought a determination
on appellate attorneys’ fees, and the district court awarded the
Toscanos $24,466.25. The court further awarded $2,800 in attor-
neys’ fees incurred in securing the award of appellate fees.
The Toscanos did not immediately seek a determination on
the trial level attorneys’ fees. Instead, they waited five years after
our mandate issued to move for entry of judgment on the appellate
fees award and for an award of attorneys’ fees, accounting fees, and
costs at the trial level based on our opinion on appeal.
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21-13715 Opinion of the Court 5
Crabb opposed the Toscanos’ motion for trial attorneys’
fees. 2 In her first report and recommendation (R&R), the magis-
trate judge agreed with Crabb, recommending the district court
deny the motion as untimely and for failure to comply with local
rules. The magistrate judge also stated the Toscanos failed to sup-
plement their motion with a computation of legal fees and ex-
penses separately attributable to the Toscanos’ defense in their in-
dividual capacities, which supported a finding that no additional
work was needed to defend the Toscanos.
The district court, however, sustained the Toscanos’ objec-
tion to the R&R, explaining it should have considered the trial at-
torneys’ fees motion following remand and determined the reason-
able amount due without a new motion by the Toscanos. The
court also rejected the argument that our remand order intended
for the district court to determine only the fees and costs “separate
and apart” from TEC Serv’s fees and costs. The district court re-
ferred the trial fees matter back to the magistrate judge.
The court separately granted the Toscanos’ motion for a
separate judgment on appellate attorneys’ fees. The court was “un-
persuaded by Crabb’s argument that he can ignore the legal valid-
ity of and fail to pay the Toscanos [the awarded appellate
fees] based upon the Court’s finding of fact in its June 11, 2013
2 Crabb also opposed entry of judgment on the appellate attorneys’ fees, but
he does not challenge the appellate fees award on appeal.
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6 Opinion of the Court 21-13715
Order that TEC Serv would owe Crabb $286,764.00 two years after
his termination, on a future date which had not yet occurred.”
The magistrate judge directed the parties to identify any un-
objected to fees and costs, any undisputed amounts, and which
time entries on the submitted invoices related to the breach of con-
tract claims against the Toscanos. Following a hearing, the magis-
trate judge directed the parties to identify the number of counts in
Crabb’s third-party complaint against the Toscanos, the electronic
filing number of the Toscanos’ specific request for fees and costs,
and the parties’ positions on claimed costs pursuant to 28 U.S.C.
§ 1920.
In her second R&R, after detailing the parties’ extensive sub-
missions and noting that “[n]either party has suggested any defini-
tive method for assessing the cost of the Toscanos’ defense,” the
magistrate judge found “a reasonable amount for the fees and ac-
counting expenses is $250,000.00, or approximately 25% of the to-
tal amount claimed.” The magistrate judge also found the total
taxable costs to be $6,927.44.
On de novo review, the district court overruled Crabb’s ob-
jections to the second R&R, stating the magistrate judge had “care-
fully examined the record, billing statements, required numerous
additional submissions by the parties, and held several oral argu-
ments on the issues to determine a reasonable amount of costs, ex-
penses and attorneys’ fees.” The court reiterated the Toscanos’
motion was not procedurally barred and approved a total of
$256,927.44 in attorneys’ fees, account expenses, and taxable costs.
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21-13715 Opinion of the Court 7
II. DISCUSSION
“[T]he starting point in any determination for an objective
estimate of the value of a lawyer’s services is to multiply hours rea-
sonably expended by a reasonable hourly rate.” Norman v. Hous.
Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). This
lodestar calculation provides “an objective basis on which to make
an initial estimate of the value of a lawyer’s services.” Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). Crabb did not challenge the
hourly rate in the district court or on appeal, so the question is how
much of counsel’s time was reasonably spent defending Crabb’s
claims against the Toscanos while also prosecuting TEC Serv’s
claims against Crabb.3
The district court did not err in rejecting the Toscanos’ full
request for over $1 million in attorneys’ fees and accounting ex-
penses which would have included all the fees incurred while pros-
ecuting TEC Serv’s claims. As we explained previously, only the
Toscanos were prevailing parties entitled to attorneys’ fees.
Based on the parties’ submissions, the magistrate judge
stated there were $45,398 of billing entries which refer to claims
against the Toscanos of which $16,889 relate solely to the
3 Crabb generally objects to the total award of $256,927.44, but his brief on
appeal does not meaningfully challenge the award of $6,927.44 in taxable costs
under Federal Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680-81 (11th Cir. 2014)
(explaining issues not raised in briefing on appeal are abandoned).
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8 Opinion of the Court 21-13715
Toscanos. As the magistrate judge explained, however, those fig-
ures were insufficient to approximate the actual cost of defending
the Toscanos against Crabb’s claims because they did not include
many tasks, such as attending trial and reviewing discovery, which
“clearly applied to the defense of the Toscanos.”
We have recognized “the utility of across-the-board percent-
age cuts either in the number of hours claimed or in the final lode-
star figure” where a fee motion is voluminous. Loranger v. Stier-
heim, 10 F.3d 776, 783 (11th Cir. 1994). Moreover, “[m]uch of
counsel’s time will be devoted generally to the litigation as a whole,
making it difficult to divide the hours expended on a claim-by-claim
basis.” See Hensley, 461 U.S. at 435. Allowing the district court
discretion in determining the amount of a fee award “is appropriate
in view of the district court’s superior understanding of the litiga-
tion and the desirability of avoiding frequent appellate review of
what essentially are factual matters.” Id. at 437.
The magistrate judge clearly spent considerable time and ef-
fort hearing, recounting, and reviewing the parties’ arguments,
briefs, and supplemental submissions. After considering all of this,
she found that “$250,000.00, or approximately 25% of the total
amount claimed,” was a reasonable amount for the fees and ac-
counting expenses. Judge Dimitrouleas—the same district judge
who presided over the 12-day bench trial in this case—conducted a
de novo review of the record and agreed that $250,000 was reason-
able.
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21-13715 Opinion of the Court 9
The record also supports the $250,000 award. The Toscanos
would have had to attend the bench trial regardless of whether they
were represented by the same counsel as TEC Serv and discovery
for defending TEC Serv also benefited the Toscanos. It does not
matter that fewer than all of Crabb’s counterclaims were directed
solely at the Toscanos because, as we noted previously, in denying
the Toscanos’ motion for summary judgment, the district court
highlighted that the Toscanos had signed the Agreement as indi-
viduals and could have been held personally liable for any damages
Crabb sustained as a result of their alleged breach.
In their status report, the Toscanos identified somewhat
overlapping categories of fees, including over $60,000 for trial at-
tendance, over $120,000 for discovery, nearly $170,000 in account-
ing fees, and over $350,000 in attorneys’ fees related to accounting
fees. While not all of these fees were directly attributable to the
defense of the Toscanos, “[t]here is no precise rule or formula
for making these determinations.” Hensley, 461 U.S. at 436. Under
the circumstances, the $250,000 award was not an abuse of discre-
tion.4
Crabb contends the district court abused its discretion by
failing to consider his argument for a downward adjustment based
4 In their response brief, the Toscanos assert they were entitled to, at least, the
attorneys’ fees and accounting fees that were unobjected to during the original
fees proceedings more than eight years ago, which total nearly $400,000. But
they did not cross appeal from the award, and, in any event, $250,000 was a
reasonable award.
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10 Opinion of the Court 21-13715
on the results obtained and other equitable factors. Crabb’s argu-
ment fails both because the district court considered and rejected
these arguments and because the district court did not abuse its dis-
cretion in doing so.
First, it is the law of the case that the Toscanos prevailed on
every claim. See This That & the Other Gift & Tobacco, Inc. v.
Cobb Cnty., 439 F.3d 1275, 1283 (11th Cir. 2006). Crabb might—
or might not—have been able to recover some amount of unpaid
salary, retained earnings, or profit distributions. Regardless of the
viability of that claim, the district court rejected Crabb’s argument
that the amount of appellate attorneys’ fees should be adjusted
based on the court’s comment in its 2013 order—which was recog-
nized as dicta at the time—that TEC Serv would owe Crabb
$286,764.00 on a date which had yet to come. This reasoning is
also applicable to the award of trial level attorneys’ fees, and the
district court did not abuse its discretion by not offsetting the award
based on a claim that Crabb did not raise once it ripened. 5
5 Crabb also argues the district court should have allowed him time to respond
to the Toscanos’ objections to the magistrate judge’s first R&R. Although
Crabb was permitted by the local rules to file a response to the objections, the
district court did not err in referring the matter back to the magistrate judge
before the response time had run where the court considered our mandate,
the pending motions, the R&R, and the entire record. See S.D. Fla. Mag. R.
4(b) (permitting any party to respond to another party’s objections to an R&R
within 14 days of being served with a copy thereof, or within such other time
as may be allowed by the magistrate judge or district court).
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21-13715 Opinion of the Court 11
Second, in referring the trial level attorneys’ fees back to the
magistrate judge, the district court explained the Toscanos were
not required to file a new motion for fees and costs and that the
court, not the Toscanos, should have acted on our remand order.
Aside from the delay itself, Crabb offers no evidence to support his
speculation the Toscanos intentionally waited to seek an award on
attorneys’ fees until the statute of limitations had run on Crabb’s
retained earnings claim so as to lure Crabb into not pursuing that
claim. The district court’s leniency in refusing to hold the delay
against the Toscanos was not an abuse of discretion.
Accordingly, we AFFIRM the court’s award of attorneys’
fees and costs.