Timing and Contents

Timing and Contents

A fee claim that belongs on the motion track must still satisfy Rule 54(d)(2)(B), which governs how the motion is made. That claim goes by motion unless the substantive law requires the fees to be proved at trial as an element of damages.¹ The rule then lists what the motion must do, and it opens with a qualifier: "Unless a statute or a court order provides otherwise, the motion must" meet the listed requirements.² Every item that follows is therefore a default. A statute can set a different time or different contents, and a judge can enter an order doing the same in the case at hand. A student who applies the defaults without asking whether a statute or an order says something else has skipped the step most likely to change the answer.

The list answers two questions: when the motion must be filed, and what it must say. The deadline comes first below, because it fixes the moment the claimant must act. The required contents follow. A last subsection takes up fees that a statute awards for collecting the judgment, a claim that does not fit a clock started by the judgment itself.

The Fourteen-Day Deadline

Rule 54(d)(2)(B)(i) starts the clock at judgment: unless a statute or court order provides otherwise, the motion must "be filed no later than 14 days after the entry of judgment."³ The rule has carried that deadline since 1993, when Rule 54(d) was amended to provide a new procedure for presenting fee claims, with a deadline of 14 days after final judgment unless the court or a statute specifies otherwise.⁴

The word "judgment" has a broad meaning here. For purposes of the rules, "judgment" includes a decree and any order from which an appeal lies, and a judgment should not include recitals of pleadings, a master's report, or a record of prior proceedings.⁵ The trigger is therefore entry of an appealable order, whatever title the document bears. A prevailing party counts 14 days forward from that entry, not from a later ruling on the amount of fees or from any other later event.

Courts apply the period as written, and local rules sometimes repeat it. In Mennen v. Easter Stores, the court treated the prevailing party as entitled to reasonable costs, including attorney's fees, under 29 U.S.C. § 2005(c)(3), which permits the court in its discretion to allow them. The court then noted that Rule 22(a) of the Northern District of Iowa's local rules required every post-judgment fee motion to be "filed within the time required by Fed.R.Civ.P. 54(d)(2)(B)," and it concluded that a motion under the federal statute had to be filed no later than 14 days after entry of judgment.⁶ The local rule created no second deadline. It adopted the federal one by reference.

In a diversity case, the question becomes which rulebook counts the days. In Clark v. Podesta, the right to fees came from an Idaho statute. The court rejected the contrary assertions of Podesta: federal law resolves procedural questions in diversity actions within the contours of the Erie doctrine, so the Federal Rules determine whether a fee motion is timely and what procedural standards it must meet, "even if the basis for the motion and the award is found in state statute."⁷ The court also observed that the federal rule, like Idaho Rule of Civil Procedure 54(d)(5), requires a fee motion within 14 days of entry of judgment.⁸ Because the two periods matched, the case shows which rulebook controls; it does not show a state period displaced by a different federal one. The distinction would matter whenever a state rule gave more or less time. The same opinion adds that federal courts treat a motion filed after judgment as timely when it comes within 14 days of the post-judgment order to which it relates, a measure taken up under post-judgment fees below.⁹

An exam stem on this point usually supplies a judgment date, a filing date, and a distraction. The work is to count from the right event under the right rule.

The usual distractions are a state rule with a different period in a diversity case, a fee amount the claimant has not yet worked out, and a belief that the clock starts only after the court has resolved everything else. None of them changes the starting event. The count begins with entry of judgment as the rules define it, and only a statute or a court order can move it.

Grounds, Amount, and Fee Agreements

The motion must "specify the judgment and the statute, rule, or other grounds entitling the movant to the award."¹¹ That requirement names two things. The judgment identifies the decision to which the fee claim attaches. The grounds identify the source of law that gives the movant a right to fees, whether a statute, a rule, or some other basis. A motion that says only that the movant wants fees leaves the opponent and the judge to guess which entitlement is in dispute.

The next requirement concerns the size of the claim. The motion must "state the amount sought or provide a fair estimate of it."¹² A stated figure gives the opponent something definite to contest and gives the judge something to test for reasonableness. The alternative of a fair estimate lets a movant who cannot yet state a final figure still comply. It does not let the movant omit a figure, because a motion with neither a number nor an estimate leaves the opponent with no idea what is at stake.

The third requirement is the only one that waits on the judge. The motion must "disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made."¹³ Unless the court orders disclosure, the movant need not describe how the client agreed to pay, and a motion that omits those terms is complete without them. The judge decides whether the terms are needed.

The decisions that recite these requirements treat them as a checklist. In Mennen v. Easter Stores, the court identified 29 U.S.C. § 2005(c)(3) as the source of the prevailing party's entitlement, then recited what the motion that party would have to file must do: specify the judgment and the grounds entitling the movant to the award, and state the amount or a fair estimate of it.¹⁴ In Clark v. Podesta, the court recited all four requirements, including the duty to disclose fee-agreement terms if the court orders it.¹⁵ Its disposition then put two of them to work. The court found the motion premature because the post-judgment activity generating the fees had not concluded and the amount could not be ascertained, and it allowed a renewed motion only with a memorandum itemizing each claimed expense and including the terms of any agreement about fees for the services at issue.¹⁶ The first half of that disposition shows the amount requirement enforced, because without a figure or an estimate there is nothing to rule on. The second half shows a court exercising its power to call for fee-agreement terms. The fees in Clark were incurred in collecting the judgment, a wrinkle the next subsection takes up.

Exam stems on this subject usually hide the point in what the motion omits or in what the judge has not done. A motion silent about retainer terms is complete when no order called for them. A motion silent about its grounds or its amount is incomplete however strong the underlying claim to fees may be. And a fair estimate satisfies the amount requirement only because it is a figure the claimant stands behind; it gives no cover to a motion that offers no number.

Post-Judgment Collection Fees

The 14-day clock and the content requirements are defaults, and they yield to an applicable statute or court order, as the Clark court's recital of the four requirements makes plain.¹⁸ They stop fitting when a statute awards fees for work that has not happened by the time judgment is entered. The usual example is the expense of collecting a judgment from a debtor who will not pay. Clark v. Podesta arose in diversity under an Idaho statute of that kind, and it shows what becomes of a clock that starts at judgment when the work generating the fees has barely begun.

Clark sought fees as the prevailing party under two subsections of Idaho Code § 12-120. Subsection (3) reaches a prevailing party in a civil action related to a commercial transaction, and subsection (5) provides for attorney fees incurred after the judgment has been entered. The court held that a party need not actually receive an award of pre-judgment fees under subsection (3) to recover post-judgment fees under subsection (5). The requirement is that, at the time of judgment, the party seeking post-judgment fees was entitled to receive fees as a prevailing party in such an action.¹⁹

On procedure, the court held that federal law governs the timing and standards of the fee motion in a diversity case, and that Clark properly claimed fees by motion because the Idaho statute does not require them to be proved as an element of damages.²⁰ It then drew the distinction that decides this subsection. The federal rule, like Idaho's, requires a fee motion within 14 days of entry of judgment, but neither rule applies to Idaho Code § 12-120(5), which provides for attorney fees incurred after the judgment has been entered.²¹

The court called the application of the federal 14-day provision to collection fees illogical, and it gave two reasons. A prevailing party will often not know that collection action is needed until well after 14 days have passed from entry of judgment. And post-judgment actions often take months, even years, to conclude, so until they do, the party cannot give the court the amount sought or even a fair estimate.²² Applied to such fees, the deadline would expire before the party knew the claim existed, and the amount requirement would demand a number no one yet has.

The court therefore found Clark entitled to reasonable post-judgment fees and costs but held the motion premature, because the post-judgment action had not concluded and the amount of fees could not be ascertained. It dismissed the motion without prejudice, so Clark could renew it once the post-judgment activity ended, and it required the renewed motion to come with a memorandum itemizing each claimed expense, including the terms of any agreement about fees for the services at issue.²³ Dismissal without prejudice leaves the fee claim alive. The claimant gives up only the chance to be paid early. The amount and fee-agreement items the rule would demand within 14 days are deferred until the work is done, then supplied in full.

The court took care to separate collection fees from fees tied to a discrete post-judgment order. In Marmor, the court entered an order awarding pre-judgment fees and costs, and the prevailing party later filed a memorandum seeking the fees and costs incurred in obtaining that order, more than 14 days after the order issued. The court measured the 14 days from the date of the fee order, not from the final judgment. Federal courts likewise treat a post-judgment fee motion as timely when it is filed within 14 days of the post-judgment order to which it relates.²⁴ A specific order supplies a dated event from which to count, so a clock can run in that setting. Collection fees become ascertainable only when the collection work ends.

An exam stem that reports a fee motion filed long after the 14-day mark invites the reflex answer that the motion is untimely, and Clark shows where that reflex fails. The first question is what the fees were incurred for. Work that produced the judgment keeps the ordinary clock, fees tied to a later post-judgment order are measured from that order, and a statute that pays for the cost of collecting the judgment creates a claim that matures only when the collection effort ends.