(a) Definitions; General. For the purposes of this
(1) "Fee motion"
means a motion, complaint or any other pleading seeking only an award of
attorney’s fees and related nontaxable expenses,
(2) "Movant" means
the party filing the fee motion,
means a party from whom the movant seeks payment, and
(4) "Related nontaxable
expenses" means any expense for which a prevailing party may seek
reimbursement other than costs that are taxed by the clerk pursuant to Fed.R.Civ.P.
Unless otherwise ordered by
the court, this rule does not apply to motions for sanctions under Fed.R.Civ.P.
11 or other sanctions provisions.
Sections (d) through (g)
govern a fee motion that would be paid by a party to the litigation rather than
out of a fund already created by judgment or by settlement.
(b) Time to File. Either before or after the entry of
judgment the court may enter an order with respect to the filing of a fee
motion pursuant to Fed.R.Civ.P. 54. Unless the court’s order includes a
different schedule for such filing, the motion shall be filed in accordance
with the provisions of this rule and shall be filed and served no later than 91
days after the entry of the judgment or settlement agreement on which the
motion is founded. If the court has not entered such an order before a motion
has been filed pursuant to Fed.R.Civ.P.
54(d)(2)(B), then after such filing the court may order the parties to
comply with the procedure set out in this rule as a post-filing rather than as
a pre-filing procedure.
(c) Effect on Appeals. The filing of a fee motion shall not
stop the running of the time for appeal of any judgment on which the motion is
Where the parties reach an
agreement as to the award and the award is to be based on a judgment, unless
the agreement provides otherwise, it shall affect neither a party’s right to
appeal the fee order resulting from the agreement nor a party’s right to seek a
subsequent increase, decrease or vacation of the agreed award in the event the
underlying judgment is reversed or modified by subsequent judicial proceedings
The time requirements of Fed.R.Civ.P.
59 are not changed by this rule.
(d) Pre-Motion Agreement. The parties involved shall confer and
attempt in good faith to agree on the amount of fees or related nontaxable
expenses that should be awarded prior to filing a fee motion.
During the attempt to agree,
the parties shall, upon request, provide the following information to each
(1) The movant shall provide
the respondent with the time and work records on which the motion will be
based, and shall specify the hours for which compensation will and will not be
sought. These records may be redacted to prevent disclosure of material protected
by the attorney-client privilege or work product doctrine.
(2) The movant shall inform
the respondent of the hourly rates that will be claimed for each lawyer,
paralegal, or other person. If the movant’s counsel or other billers have
performed any legal work on an hourly basis during the period covered by the
motion, the movant shall provide representative business records sufficient to
show the types of litigation in which such hourly rates were paid and the rates
that were paid in each type. If the movant’s counsel has been paid on an hourly
basis in the case in question or in litigation of the same type as the case in
question, records showing the rates paid for those services must be provided.
If the movant will rely on other evidence to establish appropriate hourly
rates, such as evidence of rates charged by attorneys of comparable experience
and qualifications or evidence of rates used in previous awards by courts or
administrative agencies, the movant shall provide such other evidence.
(3) The movant shall furnish
the evidence that will be used to support the related nontaxable expenses to be
sought by the motion.
(4) The movant shall provide
the respondent with the above information within 21 days of the judgment or
settlement agreement upon which the motion is based, unless the court sets a
(5) If no agreement is
reached after the above information has been furnished, the respondent shall,
within 21 days of receipt of that information, disclose the total amount of
attorney’s fees paid by respondent (and all fees billed but unpaid at the time of
the disclosure and all time as yet unbilled and expected to be billed
thereafter) for the litigation and shall furnish the following additional
information as to any matters (rates, hours, or related nontaxable expenses)
that remain in dispute:
(A) the time and work records
(if such records have been kept) of respondent’s counsel pertaining to the
litigation, which records may be redacted to prevent disclosure of material
protected by the attorney-client privilege or work product doctrine;
(B) evidence of the hourly
rates for all billers paid by respondent during the litigation;
(C) evidence of the specific
expenses incurred or billed in connection with the litigation, and the total
amount of such expenses; and
(D) any evidence the
respondent will use to oppose the requested hours, rates, or related nontaxable
By providing the opposing
party with information under this rule about the party’s hours, billing rates
and related nontaxable expenses, no party shall be deemed to make any admission
or waive any argument about the relevance or effect of such information in
determining an appropriate award.
Within 14 days after the
above exchange of information is completed and before the motion is filed, the
parties shall specifically identify all hours, billing rates, or related
nontaxable expenses (if any) that will and will not be objected to, the basis
of any objections, and the specific hours, billing rates, and related
nontaxable expenses that in the parties' respective views are reasonable and
should be compensated. The parties will thereafter attempt to resolve any
All information furnished by
any party under this section shall be treated as strictly confidential by the
party receiving the information. The information shall be used solely for
purposes of the fee litigation, and shall be disclosed to other persons, if at
all, only in court filings or hearings related to the fee litigation. A party
receiving such information who proposes to disclose it in a court filing or
hearing shall provide the party furnishing it with prior written notice and a
reasonable opportunity to request an appropriate protective order.
(e) Joint Statement. If any matters remain in dispute
after the above steps are taken, the parties, prior to the filing of the fee
motion, shall prepare a joint statement listing the following:
(1) the total amount of fees
and related nontaxable expenses claimed by the moving party (If the fee request
is based on the "lodestar" method, the statement shall include a
summary table giving the name, claimed hours, claimed rates, and claimed totals
for each biller.);
(2) the total amount of fees
and/or related nontaxable expenses that the respondent deems should be awarded
(If the fees are contested, the respondent shall include a similar table giving
respondent’s position as to the name, compensable hours, appropriate rates, and
totals for each biller listed by movant.);
(3) a brief description of
each specific dispute remaining between the parties as to the fees or expenses;
(4) a statement disclosing—
(A) whether the motion for
fees and expenses will be based on a judgment or on a settlement of the
underlying merits dispute, and
(B) if the motion will be
based on a judgment, whether respondent has appealed or intends to appeal that
The parties shall cooperate
to complete preparation of the joint statement no later than 70 days after the
entry of the judgment or settlement agreement on which the motion for fees will
be based, unless the court orders otherwise.
(f) Fee Motion. The movant shall attach the joint
statement to the fee motion. Unless otherwise allowed by the court, the motion
and any supporting or opposing memoranda shall limit their argument and
supporting evidentiary matter to disputed issues.
(g) Motion for
motion may be filed seeking instructions from the court where it appears that
the procedures set forth in this rule cannot be followed within the time limits
established by the rule or by order of court because of—
(1) the inability of the
parties to resolve a dispute over what materials are to be turned over or the
meaning of a provision of the rule,
(2) the failure of one or
more of the parties to provide information required by the rule, or
(3) other disputes between
the parties that cannot be resolved after good faith attempts.
The motion shall state with
specificity the nature of the dispute or items not turned over and the attempts
made to resolve the dispute or to obtain the items. The motion must be filed
not later than 14 days following the expiration of the time within which the
matter in dispute or the materials not turned over should have been delivered
in accordance with the time table set out in this rule or in the court’s order.
The court may on motion filed
pursuant to this section, or on its own initiative, modify any time schedule
provided for by this rule.
Amended July 6, 2000; April 3, 2008 (nunc pro tunc December 16, 2004);
and August 19, 2009