Date: Feb 22, 2026

Rule 54(d) Copyright-Fee Motions Remain Collateral Despite a “Each Side Bears Its Own Fees” Final Judgment; Premature Fee Cross-Appeals Do Not Divest Jurisdiction; Lodestar/Johnson Findings Required

I. Introduction

Case: Loeb-Defever v. Mako, No. 24-20410 (5th Cir. Feb. 20, 2026) (per curiam) (unpublished).
Parties: Architect Zelma M. Loeb-Defever and Loeb Architects, L.L.C. (collectively, “Loeb”) as plaintiffs-appellants; a group of development-related entities and individuals, including Mako, L.L.C. d/b/a Padua Realty Company (“Padua Realty”) and numerous affiliated defendants, as defendants-appellees.
Background: Loeb designed early phases of a senior living center under contracts restricting reuse of her designs “on other projects or extensions” absent written agreement. After later phases were designed by another firm, Loeb believed her work had been used as the “starting point” and sued multiple participants in the development for copyright infringement under 17 U.S.C. § 501, claims under the Digital Millennium Copyright Act (“DMCA”), and breach of contract.

The district court ultimately dismissed Loeb’s claims with prejudice and entered a final judgment that, sua sponte, ordered: “Each party shall bear its own fees and costs.” While Loeb appealed the merits, defendants pursued fees under Rule 54(d), filed a protective cross-appeal regarding fees/costs, then dismissed that cross-appeal after the district court deferred fees until after the merits appeal. After the Fifth Circuit affirmed summary judgment on the merits, defendants renewed their fee motion; the district court awarded $500,000 under the Copyright Act.

Key issues on this appeal: (1) whether the district court had jurisdiction to award fees given the “each side bears its own fees” language, the pending merits appeal, and the defendants’ now-dismissed cross-appeal; and (2) whether the district court abused its discretion in (a) awarding fees under the Fogerty framework and (b) calculating the amount without the required lodestar/Johnson findings.

II. Summary of the Opinion

The Fifth Circuit held that the district court had jurisdiction to consider and grant defendants’ Rule 54(d) fee request notwithstanding the final judgment’s fee/cost language, the pending merits appeal, and the defendants’ protective (and later voluntarily dismissed) cross-appeal. In doing so, the court reaffirmed that fee motions are generally collateral to the merits and that post-judgment fee requests are properly treated under Rule 54(d), even if the final judgment itself references fees/costs.

On the merits of entitlement, the Fifth Circuit upheld: (1) defendants’ status as the prevailing party because the copyright/DMCA claims were dismissed with prejudice; and (2) the district court’s application of the Fogerty factors (objective unreasonableness, motivation, compensation/deterrence).

However, the Fifth Circuit vacated the $500,000 fee award and remanded because the district court failed to perform and explain the lodestar calculation and the Johnson factor analysis with sufficient specificity to permit meaningful appellate review.

III. Analysis

A. Precedents Cited (and How They Drove the Outcome)

1. Collateral nature of fee issues; Rule 54 vs. Rule 59(e)

Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988) and Pechon v. La. Dep't of Health & Hosps., 368 F. App'x 606 (5th Cir. 2010): the panel relied on the principle that attorney’s fees are not part of the “merits” and are instead a collateral matter, supporting continued district-court authority over fees while merits issues are on appeal.
Procter & Gamble Co. v. Amway Corp., 280 F.3d 519 (5th Cir. 2002): the opinion used this as Fifth Circuit authority for the proposition that district courts retain jurisdiction over collateral fee matters even during a merits appeal.
Moody National Bank of Galveston v. GE Life & Annuity Assurance Company, 383 F.3d 249 (5th Cir. 2004): this was the centerpiece. The court treated Moody as controlling for the rule that “any post-judgment motion addressing costs or attorney's fees must be considered a collateral issue even when costs or attorney's fees are included in a final judgment,” and therefore is properly characterized under Rule 54(d), not Rule 59(e). This defeated Loeb’s attempt to recast defendants’ motion as an untimely/jurisdictionally barred Rule 59(e) motion.
Buchanan v. Stanships, Inc., 485 U.S. 265 (1988) and Heck v. Triche, 775 F.3d 265 (5th Cir. 2014): used to emphasize Rule 59(e)’s tight, jurisdictional deadline—underscoring why classification matters and why the court refused to force the fee request into Rule 59(e).
Green v. Adm'rs of Tulane Educ. Fund, 284 F.3d 642 (5th Cir. 2002), Shame On You Prods., Inc. v. Banks, 893 F.3d 661 (9th Cir. 2018), and Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172 (3d Cir. 1999): cited to reinforce that Rule 54(d)’s 14-day deadline is not jurisdictional and can be managed flexibly when Rule 54’s notice purposes are satisfied.

2. Appellate-divestiture, premature appeals, and “protective” cross-appeals

Griggs v. Provident Consumer Disc. Co., 459 U.S. 56 (1982) and Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546 (5th Cir. 1996): provided the general divestiture principle (appeal transfers control of aspects involved in the appeal), which the panel then limited by classifying fees as collateral.
United States v. Hitchmon, 602 F.2d 689 (5th Cir. 1979) (en banc): supplied the key qualifier that a notice of appeal from a nonappealable order (or otherwise ineffective appeal) should not divest district-court jurisdiction—supporting the conclusion that a premature cross-appeal of a not-yet-final fee issue was a “nullity” for divestiture purposes.
S. Travel Club, Inc. v. Carnival Air Lines, Inc., 986 F.2d 125 (5th Cir. 1993), Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981), Shipes v. Trinity Indus., Inc., 883 F.2d 339 (5th Cir. 1989), and United States v. Cooper, 135 F.3d 960 (5th Cir. 1998): these framed finality in the fee context—especially that fee orders are appealable only when the fee question is finally disposed of (often requiring a “sum certain”). The panel used these principles to conclude that the defendants’ cross-appeal on fees was premature because a timely Rule 54(d) motion was pending.
Kira, Inc. v. All Star Maintenance, Inc., 294 F. App'x 139 (5th Cir. 2008): though unpublished and nonbinding, it was treated as persuasive on the combination of (a) collateral fee jurisdiction during a merits appeal and (b) the effect of voluntarily dismissing a cross-appeal.
Colbert v. Brennan, 752 F.3d 412 (5th Cir. 2014): supplied the consequence of voluntary dismissal—placing the party “in the same position as someone who had never filed an appeal”—which the panel applied to blunt Loeb’s waiver/jurisdiction arguments tied to dismissal of the cross-appeal.

3. Deferral mechanics during appeal: Rule 62.1 and Rule 54 advisory notes

Fed. R. Civ. P. 54(d)(2) advisory committee's note to 1993 amendment and Fed. R. Civ. P. 62.1: the court relied on these to explain that district courts may defer ruling on fee motions while an appeal is pending, including by denying without prejudice and setting a new filing period post-appeal.
Malik & Sons, LLC v. Circle K Stores, Inc., No. CV 15-6938, 2017 WL 2455648 (E.D. La. May 22, 2017) and Spirit Aerosystems, Inc. v. Paxton, No. 1:24-CV-472-RP, 2025 WL 1502559 (W.D. Tex. Feb. 13, 2025): district-court examples supporting the “routine” nature of deferral.
Nat'l Farmers' Org., Inc. v. Associated Milk Producers, Inc., 850 F.2d 1286 (8th Cir. 1988): used to validate deferral as a sensible practice, showing cross-circuit acceptance.
Mendia v. Garcia, 874 F.3d 1118 (9th Cir. 2017) and Smitherman v. Bayview Loan Servicing, L.L.C., 683 F. App'x 325 (5th Cir. 2017): invoked to reject the suggestion that a party must formally request an “indicative ruling” for a district court’s action to be treated as permissible under Rule 62.1 principles.
Winchester v. U.S. Att'y for S. Dist. of Tex., 68 F.3d 947 (5th Cir. 1995): cited for the proposition that a district court can deny a motion while an appeal is pending (consistent with Rule 62.1).

4. Waiver, mandate, and “jurisdictional” framing

United States v. Lee, 358 F.3d 315 (5th Cir. 2004) and Webb v. Davis, 940 F.3d 892 (5th Cir. 2019): used to define the mandate rule and to stress it is not jurisdictional; the mandate rule did not bar fees because the fee issue was not decided in the merits appeal.
Med. Ctr. Pharmacy v. Holder, 634 F.3d 830 (5th Cir. 2011): framed the waiver doctrine (issues that could have been raised on appeal but were not) and supported rejecting Loeb’s claim that dismissal of the cross-appeal forfeited fees.
Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, 138 F.4th 252 (5th Cir. 2025): used to clarify waiver is not jurisdictional—undercutting Loeb’s attempt to convert a waiver theory into a jurisdictional bar.

5. Copyright Act fees: prevailing party, Fogerty, and discretion

Virgin Recs. Am., Inc. v. Thompson, 512 F.3d 724 (5th Cir. 2008) and Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357 (5th Cir. 2004): supplied Fifth Circuit framing that fee awards to prevailing parties are “the rule rather than the exception,” while still discretionary.
Digital Drilling Data Sys., L.L.C. v. Petrolink Servs., Inc., 965 F.3d 365 (5th Cir. 2020): used for the standard of review (abuse of discretion) and, substantively, for the point that prevailing-party analysis under the Copyright Act is not altered by success/failure on non-copyright claims.
Schwarz v. Folloder, 767 F.2d 125 (5th Cir. 1985) and Anthony v. Marion Cnty. Gen. Hosp., 617 F.2d 1164 (5th Cir. 1980): supported the proposition that dismissal with prejudice is tantamount to a merits judgment for prevailing-party purposes.
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) and Lieb v. Topstone Indus., Inc., 788 F.2d 151 (1986): provided the nonexclusive factors (frivolousness, motivation, objective unreasonableness, compensation/deterrence) guiding fee-shifting discretion.
Hunn v. Dan Wilson Homes, Inc., 789 F.3d 573 (5th Cir. 2015) and Compaq Comput. Corp. v. Ergonome Inc., 387 F.3d 403 (5th Cir. 2004): emphasized that the Fogerty factors are helpful but not a verbatim checklist.
Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016): central to the panel’s acceptance of broad district-court discretion—including awarding fees even where the losing party had some reasonable arguments, and using fees to deter “overaggressive assertions of copyright claims.”
Baisden v. I'm Ready Prods., Inc., 693 F.3d 491 (5th Cir. 2012) and Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357 (5th Cir. 2004): used to counter the notion that surviving early motions (e.g., Rule 12(b)(6)) alone makes claims reasonable enough to avoid fees.
Batiste v. Lewis, 976 F.3d 493 (5th Cir. 2020) and Bell v. Eagle Mountain Saginaw Indep. Sch. Dist., 27 F.4th 313 (5th Cir. 2022): cited to reinforce that bad faith is not a prerequisite for awarding fees and that deterrence considerations can properly support an award.
Womack+Hampton Architects, L.L.C. v. Metric Holdings Ltd. P'ship, 102 F. App'x 374 (5th Cir. 2004): addressed and distinguished as dealing with frivolousness rather than objective unreasonableness.

6. Fee calculation: lodestar, Johnson factors, and adequate findings

McClain v. Lufkin Indus., Inc., 519 F.3d 264 (5th Cir. 2008): controlling framework for lodestar calculation and remand when a district court reduces or sets fees without sufficient explanation.
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974): the well-known twelve factors for possible lodestar adjustment; the panel required the district court to engage these on remand.
In re High Sulfur Content Gasoline Prods. Liab. Litig., 517 F.3d 220 (5th Cir. 2008) and Riley v. City of Jackson, 99 F.3d 757 (5th Cir. 1996): mandated findings “complete enough” for appellate review; remand is required when Johnson factors are not evaluated/explained with reasonable specificity.
City of Riverside v. Rivera, 477 U.S. 561 (1986): cited for the Johnson factor list (as referenced by the Supreme Court).

B. Legal Reasoning (What the Court Actually Did)

1. Jurisdiction and procedure: why the fee award was not barred

The panel’s procedural holding is best understood as a three-part chain:

Fees are collateral to the merits. Under Budinich v. Becton Dickinson & Co. and Procter & Gamble Co. v. Amway Corp., a district court generally retains jurisdiction to consider fee motions while the merits are on appeal.
A post-judgment fee motion stays a Rule 54(d) matter even if the judgment mentions fees. Relying on Moody National Bank of Galveston v. GE Life & Annuity Assurance Company, the court rejected Loeb’s argument that the judgment’s “each side bears its own fees” language made fee denial “final” such that defendants had to proceed through Rule 59(e). The Fifth Circuit treated defendants’ motion as a proper Rule 54(d) fee request.
The protective cross-appeal did not strip jurisdiction because it was premature. With a timely Rule 54 motion pending, the fee issue was not yet “final” for appeal purposes (citing Shipes v. Trinity Indus., Inc., S. Travel Club, Inc. v. Carnival Air Lines, Inc.). Therefore the cross-appeal was premature and did not divest the district court of authority (invoking United States v. Hitchmon).

The court also addressed a counterfactual: even if the cross-appeal had divested jurisdiction, the district court’s October 7 order could be treated as a permissible deferral under Rule 62.1 (or as a denial without prejudice plus an extended filing period under Rule 54), and Rule 54’s non-jurisdictional timing plus the notice-focused approach of Green v. Adm'rs of Tulane Educ. Fund and Romaguera v. Gegenheimer would still allow the fee request to proceed.

2. Entitlement to fees: prevailing party and Fogerty/Kirtsaeng discretion

After clearing jurisdictional/procedural objections, the panel largely endorsed the district court’s entitlement analysis:

Prevailing party: Because Loeb’s copyright claims were dismissed with prejudice, defendants were prevailing parties (citing Schwarz v. Folloder and Anthony v. Marion Cnty. Gen. Hosp.). The voluntary dismissal of Padua Realty’s breach-of-contract counterclaim did not matter to Copyright Act “prevailing party” status (citing Digital Drilling Data Sys., L.L.C. v. Petrolink Servs., Inc.).
Objective unreasonableness: The panel relied on its prior merits determination (in Loeb-Defever v. Mako, L.L.C., No. 22-20362, 2023 WL 5611042) that the contract “clearly contemplated” defendants’ use of preliminary design schematics and third-party implementation, undermining Loeb’s infringement theory and supporting the district court’s objective-unreasonableness finding.
Motivation and deterrence/compensation: Applying Fogerty v. Fantasy, Inc. and emphasizing Kirtsaeng v. John Wiley & Sons, Inc., the panel accepted that suing twenty-four defendants for massive damages for conduct allegedly authorized by the contract could support a finding of improper motive (nuisance-value settlement extraction) and justify deterrence.

3. The reversal point: calculation without lodestar/Johnson findings

The decisive error was not “whether fees” but “how much and why.” The defendants sought over $1.5 million, and the district court awarded $500,000 “in its discretion,” but without: (i) identifying reasonable hourly rates, (ii) determining reasonable hours, (iii) computing a lodestar, or (iv) explaining adjustments under Johnson v. Georgia Highway Express, Inc..

Under McClain v. Lufkin Indus., Inc. and Riley v. City of Jackson, that level of opacity prevents meaningful appellate review. The panel therefore vacated and remanded for (1) fee segregation analysis and (2) a proper lodestar and Johnson analysis with adequate findings.

C. Impact (Why This Opinion Matters)

Fee language in a final judgment is not the last word if a timely Rule 54(d) motion follows. The opinion reinforces that even an express “each party bears its own fees and costs” clause does not foreclose post-judgment Rule 54(d) fee litigation, consistent with Moody National Bank of Galveston v. GE Life & Annuity Assurance Company.
Protective cross-appeals on fees are risky and may be jurisdictionally premature. The panel’s finality analysis underscores that appealing fee issues before the district court has finally resolved a pending Rule 54 fee motion can be premature, and such premature appeals may not divest district-court jurisdiction.
Rule 62.1-style deferral is validated as a practical case-management tool. District courts (and litigants) receive clear approval to defer fee decisions until after merits appeals, including via denial without prejudice and setting a refiling window after appellate disposition.
Entitlement discretion remains broad, but arithmetic must be transparent. Even where a district court has broad discretion under Fogerty v. Fantasy, Inc. and Kirtsaeng v. John Wiley & Sons, Inc., the amount must be anchored in lodestar methodology and explained through Johnson factors as needed.

IV. Complex Concepts Simplified

“Collateral” fee issue: A fee dispute is treated as separate from the merits (who wins the underlying claims). That is why a district court can often decide fees even while the merits are on appeal.
Rule 54(d) vs. Rule 59(e): Rule 54(d) is the normal vehicle for post-judgment attorney’s fee requests; it has a default 14-day deadline that is generally not jurisdictional and can be adjusted by court order. Rule 59(e) alters or amends the judgment and has a strict 28-day jurisdictional deadline. This opinion, following Moody, rejects converting fee motions into Rule 59(e) simply because the judgment contains fee/cost language.
Divestiture of jurisdiction on appeal: Ordinarily, once an appeal is properly taken, the district court can’t change what is being appealed. But appeals that are premature (not from a final decision) do not necessarily divest the district court, and collateral issues like fees often remain within district-court authority.
Rule 62.1 “indicative ruling” / deferral: When an appeal is pending, Rule 62.1 lets a district court deny a motion or defer it (or state it would grant it if the court of appeals remands). Here, the district court’s “deny without prejudice and refile later” approach functioned as an approved deferral mechanism.
Lodestar and Johnson factors: “Lodestar” is the baseline fee: reasonable hours × reasonable hourly rate. “Johnson factors” are additional considerations that may justify adjusting the lodestar (e.g., complexity, results obtained, customary fees). A court must explain enough to allow appellate review.

V. Conclusion

Loeb-Defever v. Mako consolidates several procedural and remedial principles relevant to federal fee litigation in copyright cases: (1) post-judgment fee motions remain collateral and properly proceed under Rule 54(d) even when the final judgment states each side bears its own fees and costs (consistent with Moody National Bank of Galveston v. GE Life & Annuity Assurance Company); (2) protective cross-appeals over unresolved fee motions can be premature and need not divest the district court of jurisdiction; (3) district courts may defer fees during merits appeals using Rule 62.1-style tools; and (4) even when entitlement to fees is upheld under Fogerty v. Fantasy, Inc. and Kirtsaeng v. John Wiley & Sons, Inc., the fee amount must be explained through lodestar and Johnson analyses.

The practical message is dual: fee entitlement is discretionary and can be robustly enforced against overreaching copyright claims, but fee calculations must be transparent, structured, and reviewable—or they will be vacated and remanded.