COMMODORES ENTERTAINMENT CORPORATION

v.

MCCLARY

Before the Court are: 1. Plaintiff’s Third Renewed Motion for Attorneys’ Fees and Costs (Doc. 554 (“Motion”)); 2. Defendants’ Opposition to CEC’s Third Renewed Motion for Attorneys’ Fees and Costs (Doc. 555); 3. U.S. Magistrate Judge Gregory J. Kelly’s Report and Recommendation (Doc. 557 (“R&R”)); 4. Defendants’ Opposition to Magistrate Judge’s Report and Recommendation (Doc. 559 (“Objection”)); and 5. Plaintiff’s Response in Opposition to Defendants’ Objections to Report and Recommendation (Doc. 561). On de novo review, the R&R is due to be adopted.

BACKGROUND

After the latest appeal resulted in the U.S. Court of Appeals for the Eleventh Circuit remanding consideration of attorney’s fees to this Court (Doc. 552), Plaintiff moved for an award of attorney’s fees and costs, arguing that it has won at every turn for nearly seven years, so this case is exceptional under 15 U.S.C. § 1117(A) and Octane Fitness. (Doc. 554.)¹ Defendants opposed, arguing their litigation position was strong and they did not litigate the case in an unreasonable manner. (Doc. 555.) Judge Kelly detailed Defendants’ unreasonable litigation tactics over the lengthy history of this case and accordingly recommended that Plaintiff be granted entitlement to fees. (Doc. 557, pp. 5–11.) But because Plaintiff did not specify or provide support for the amount of fees it was seeking—instead relying on old declarations submitted before the Phase II trial—Judge Kelly recommended that Plaintiff be required to file a supplemental motion to determine the amount. (Id.

at 11–16 (referencing Local Rule 7.01).)

Judge Kelly’s recommendation to bifurcate the entitlement and amount briefing inappropriately retroactively applies the new Local Rule 7.01 to Plaintiff’s older Motion. (Id. at 18–22.) Plaintiff responded in support of Judge Kelly’s R&R. (Doc. 561.) The matter is now ripe.

STANDARDS

When a party objects to a magistrate judge’s findings, the district judge must “make a de novo determination of those portions of the report . . . to which objection is made.” 28 U.S.C. § 636(b)(1). The district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. The district judge must consider the record independent of the magistrate judge’s report. See Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ., 896 F. 2d 507, 513 (11th Cir. 1990).

ANALYSIS

After an independent de novo review of the record, including Defendants’

Objection (Doc. 559), the Court agrees entirely with Judge Kelly’s well-reasoned and thorough R&R. Because the Objection largely restates arguments Defendants made in their original opposition (Doc. 555), there is no need to reiterate all of

Judge Kelly’s recommendations, with which the Court agrees. This is an exceptional case, and Plaintiff is entitled to fees.³ See Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 (2014). As to Defendants’ argument that Judge Kelly erred in recommending that the entitlement and amount briefing be bifurcated because Local Rule 7.01 did not yet apply to Plaintiff’s Motion, it is not well-taken. (Doc. 559, pp. 18–22.) Federal Rule of Civil Procedure 54(d)(2)(C) has long provided that courts may decide entitlement before amount, and such procedure is especially appropriate here given the tortuous history of this case. So the R&R is due to be adopted in full.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED: 1. Defendants’ Objection (Doc. 559) is OVERRULED. 2. The R&R (Doc. 557) is ADOPTED AND CONFIRMED and made a

part of this Order in its entirety. 3. The Motion (Doc. 554) is GRANTED IN PART AND DENIED IN PART:

a. Plaintiff is ENTITLED to an award of attorney’s fees under 15 U.S.C. § 1117(a). b. The parties are DIRECTED to comply with Local Rule 7.01(c) and (d) for a determination of the amount of attorney’s fees and

costs.

c. In all other respects, the Motion is DENIED. DONE AND ORDERED in Chambers in Orlando, Florida, on April 30, 2021.

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United States District Judge