Unpacking The Circuit Split Over A Federal Atty Fee Rule

Rule 41(a)(1) of the Federal Rules of Civil Procedure allows a plaintiff to voluntarily dismiss an action without prejudice early in litigation.

Under Rule 41(d), however, 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: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied.”

Defendants who assert Rule 41(d) often request attorney fees as part of the “costs of that previous action.”

In Adams v. Fox, decided on March 25, the U.S. District Court for the District of Nevada grappled with how to handle a motion for costs, including attorney fees, under Rule 41(d).¹