David W. Foley, Jr. v. Orange County

USCA11 Case: 25-13092 Document: 32-1 Date Filed: 08/25/2026 Page: 1 of 8

NOT FOR PUBLICATION In the

United States Court of Appeals

For the Eleventh Circuit ____________________ No. 25-13092 Non-Argument Calendar ____________________

DAVID W. FOLEY, JR., JENNIFER T. FOLEY,

Plaintiffs-Appellants, versus ORANGE COUNTY, a political subdivision of Florida, ASIMA M. AZAM, TIM BOLDIG, individually and together, in their personal capacities, FRED BRUMMER, RICHARD CROTTY, individually and together, in their personal capacities, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the Middle District of Florida

D.C. Docket No. 6:22-cv-00456-RBD-E_K ____________________

Before BRASHER, ABUDU, and ANDERSON, Circuit Judges.

PER CURIAM:

David and Jennifer Foley, proceeding pro se, appeal the dis- trict court’s order awarding (1) $52,250.00 in attorney’s fees to Or- ange County, Florida and (2) $62,881.50 in attorney’s fees to certain employees of Orange County whom the Foleys had sued in their individual capacity.

First, the Foleys argue that the district court abused its dis- cretion in finding excusable neglect as to the County’s and the Em- ployees’ supplemental motions for attorney’s fees, which were filed over 80 days after the deadline imposed by the local rules. Sec- ond, the Foleys argue that the district court abused its discretion in finding their claims frivolous and awarding attorney’s fees to the County and the Employees. Third, the Foleys argue that the fee order is void because it was based on a claim that the Foleys did not actually plead.

Upon review, we reject these arguments and affirm the award of attorney’s fees.

I.

We begin with the Foleys’ first argument: that the district court erred in granting a motion for attorney’s fees that was filed after the deadline imposed by the local rules. The district court de- termined that the failure to meet the deadline was excusable ne- glect. The Foleys argue that this decision was in error.

We review a district court’s finding of excusable neglect un- der an abuse-of-discretion standard. Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 997 (11th Cir. 1997). And we “give ‘great def- erence to a district court’s interpretation of its local rules’ and re- view a district court's application of local rules for an abuse of dis- cretion.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1302 (11th Cir. 2009) (quoting Clark v. Hous. Auth. of Alma, 971 F.2d 723, 727 (11th Cir. 1992)).

District courts may extend the time to file motions after the time for filing has elapsed if the party failed to act because of excus- able neglect. FED. R. CIV. P. 6(b)(1)(B). The relevant factors to con- sider in determining whether a litigant has shown excusable ne- glect are: (1) “the danger of prejudice” to the non-moving party; (2) “the length of the delay and its potential impact on judicial pro- ceedings”; (3) “the reason for the delay, including whether it was within the reasonable control of the movant”; and (4) “whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v. Brunswick As- socs. Ltd. P’ship, 507 U.S. 380, 395 (1993).

The Middle District of Florida’s Local Rule 7.01 requires a party seeking attorney’s fees to file a motion within 14 days of entry of judgment. M.D. Fla. R. 7.01(b). Once the court issues an order granting the motion, the party has 45 days to file a supplemental motion that details the amount and reasonableness of the re- quested fees, among other requirements. M.D. Fla. Civ. R. 7.01(c).

The Employees and the County failed to meet this deadline. Nevertheless, the district court determined that this error was ex- cusable neglect and granted their motions for attorney’s fees. The Foleys argue that this was in error.

But, because of the broad discretion that we give in inter- preting local rules, we cannot say that the district court erred in concluding that the error was excusable neglect. In making this de- termination, the court carefully applied the Pioneer factors. 507 U.S. at 395. The court determined that three of the four Pioneer factors weighed in favor of a finding of excusable neglect. But the Foleys make no argument challenging the court’s application of the Pio- neer factors, and we have no reason to think that the court applied the factors erroneously.

Further, contrary to the Foleys’ contention otherwise, we have never held that a district court is always barred from finding excusable neglect based on a mistake of law. We have previously held that a mistake of statutory law cannot constitute excusable ne- glect. Advanced Estimating, 130 F.3d at 998. This makes sense. Stat- utory law is binding on the courts. But district courts, again, have broad discretion over the interpretation and application of local rules. Accordingly, the Advanced Estimating rule about mistake of statutory law does not apply here, and we reject the Foleys’ first argument.

II.

We now turn to the Foleys’ second argument: that the dis- trict court erred when it concluded that their claims were frivolous and awarded the County and the Employees attorney’s fees.

We review a district court’s decision on whether to award attorney’s fees for abuse of discretion. Ela v. Destefano, 869 F.3d 1198, 1203 (11th Cir. 2017). We also review a district court’s deter- mination that a case was frivolous for purposes of awarding attor- ney’s fees for abuse of discretion. Beach Blitz Co. v. City of Miami Beach, 13 F.4th 1289, 1297 (11th Cir. 2021).

“A claim is frivolous if it is without arguable merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). District courts consider the following factors when determining whether a claim is frivolous: “(1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case prior to trial or held a full-blown trial on the merits.” Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1189 (11th Cir. 1985). Another factor is “whether there was enough support for the claim to warrant close attention by the court.” Beach Blitz Co., 13 F.4th at 1302. And we have deter- mined that claims did not require close attention when they were “dismissed based on long-established precedent” and “[t]he district court was not required to grapple with a novel area of law, nor was there any case law supporting the claims.” Id. at 1303.

The court determined that the Foleys’ claims were frivolous because they were barred, on their face, by res judicata. When “‘a case arises out of the same nucleus of operative facts, or is based upon the same factual predicate, as a former action,’” res judicata applies. Griswold v. County of Hillsborough, 598 F.3d 1289, 1293 (11th Cir. 2010) (quoting Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1239 (11th Cir. 1999)). “Res judicata bars the filing of claims that were raised or could have been raised in an earlier proceeding.” Ragsdale, 193 F.3d at 1238.

Here, the district court did not abuse its discretion in finding that the Foleys’ claims were frivolous and awarding attorney’s fees to the County and the Employees. The Foleys had already raised their Fourteenth Amendment due process claim in state court and their Fifth Amendment takings claim arose out of the same nucleus of operative facts—as the Foleys themselves admit in their com- plaint. See Griswold, 598 F.3d at 1293. As a result, the Foleys’ claims were plainly barred by res judicata. Indeed, we previously held as much. See Foley v. Orange County, 2024 WL 49134 (January 4, 2024). Therefore, we cannot say that the district court abused its discre- tion in ruling that the Foleys’ claims were facially barred and, thus, frivolous.

Accordingly, we reject the Foleys’ second argument.

III.

We now turn to the Foleys’ third and final argument: that the district court impermissibly usurped their ability to define their claim when it dismissed their complaint. Because this Court has al- ready determined that res judicata barred the Foleys’ claims, the law-of-the-case doctrine precludes this argument. Accordingly, this argument, like the Foleys’ first two, fails.

We review a district court’s order granting a motion to dis- miss for failure to state a claim de novo. EEOC v. STME, LLC, 938 F.3d 1305, 1313 (11th Cir. 2019).

In sum, the Foleys’ argument goes like this: contrary to their assertion in the complaint that the underlying claims here arise out of the same “incidents” as their prior litigation, the regulatory tak- ings argument they raised below did not accrue until after the pre- vious incidents. But, because the district court dismissed their com- plaint on res judicata grounds, it denied them the ability to define their claim as distinct from those earlier claims. They argue this dismissal was in error and, thus, the award of attorney’s fees is void.

It is true that a regulatory takings claim does not accrue for statute of limitations purposes until state judicial authorities make a final determination on the status of the subject property and the state fails to provide an adequate post-deprivation remedy. New Port Largo v. Monroe County, 985 F.2d 1488, 1493-95 (11th Cir. 1993), abrogated in part by Knick v. Township of Scott, 588 U.S. 180 (2019). Accordingly, it is at least plausible that the Foleys’ takings argu- ment could be legally distinct from their earlier claims even if aris- ing out of the same original property dispute.

But we—in an earlier ruling—already determined that the Foleys’ claim here was not distinct from their earlier claims. Foley v. Orange County, 2024 WL 49134, at *3 (11th Cir. Jan. 4, 2024). Ac- cordingly, the Foleys’ argument that the claims are distinct, and that the district court erred in dismissing their complaint as a result, is precluded by the law-of-the-case doctrine. Stout by Stout v. Jeffer- son Cnty. Bd. of Educ., 882 F.3d 988, 1014 (11th Cir. 2018) (restating that the law-of-the-case doctrine “provides that earlier decisions bind all subsequent proceedings in the same case as to both findings of fact and conclusions of law” (citation modified)).

For this reason, we reject the Foleys’ third argument and AFFIRM the district court’s grant of attorney’s fees.