Costs: Does FRCP 41(d) Allow For Recovery Of Attorney’s Fees As Costs When Plaintiff Previously Dismissed An Action Based On Claims Against The Same Defendant In A District Court?

Answer: Courts Are Split – Some Say No, Some Yes In The Court’s Discretion, And Others Say Yes If The Claims In The Original Suit Allowed For Fee Recovery.

            Federal Rule of Civil Procedure 41(d) provides: “If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court … may order the plaintiff to pay all or part of the costs of that previous action.”

            Fair enough, but then the real meaning of “costs” takes significance—does that include attorney’s fees? Well, the answer to the question at the federal appellate level is not uniform at all.

            Horowitz v. 148 South Emerson Associates, LLC, 888 F.3d 13, 24-26 (2d Cir. 2018) has a nice discussion on the issue. It nicely summarized the different approaches on the issue: (1) the Sixth Circuit says “no, never;” (2) the Eighth and Tenth Circuit have said “yes, in the discretion of the district court;” and (3) the Fourth, Fifth, and Seventh Circuits have on a hybrid approach basis said “yes, narrowly, but only if the statute serving as the basis for the original suit itself allows for fees recovery.” Horowitz itself lined with approach (2), which allows a district court to award fees under FRCP 41(d) in its discretion.