Fourth Circuit Adopts An Intermediate Standard On The Issue.
The Fourth Circuit Court of Appeals in Andrews v. America’s Living Center, LLC, No. 15-1658 (4th Cir. June 28, 2016) (published) confronted a situation as to whether a plaintiff previously dismissing a FLSA suit, but later refilling, had to pay attorney’s fees as costs under F.R.Civ.P. 41(d). After observing there was a split in thinking on the subject, it joined the Seventh Circuit is determining that such fees, as costs, should not be granted as a matter of right. Instead, they could only be granted if (2) a statute so allowed for fee entitlement, or (2) the plaintiff acted in bad faith or was vexatious. Under this test, the lower court’s assessment of fees against the plaintiff was reversed and vacated, given that FLSA is silent on allowing a prevailing defendant to recover fees and nothing in the record that plaintiff was vexatious, simply dismissing the prior suit based on a magistrate’s rather strong suggestion to do so as one of several unfavorable options.