United States District Court, W.D. Virginia, Lynchburg Division
James M. Barber, ET AL, Plaintiffs,
Sam's Club East, Inc., ET AL, Defendants.
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants Sam's Club East,
Inc. and Taylor Farms Retail, Inc.'s
(“Defendants”) motion for costs and to stay the
proceedings pursuant to Fed.R.Civ.P. 41(d). (Dkt. 11). The
instant action was filed by Plaintiffs James, Sarah, and
Jared Barber (“Plaintiffs”) against Defendants in
September 2018. Plaintiffs' complaint is substantially
similar to the complaint they filed in April 2017. (No.
6:17-cv-35, dkt. 1). Plaintiffs' 2017 suit was
voluntarily dismissed in April 2018. Defendants argue that
they are entitled to costs and attorney's fees pursuant
to Rule 41 because Plaintiffs' conduct in re-filing a
complaint with similar claims against the same defendants is
“vexatious.” For the reasons discussed below,
Defendants motion for costs will be granted, but the Court
will not include attorney's fees in that award.
finding a dead mouse in bagged salad they had consumed,
Plaintiffs filed a lawsuit against Sam's Club East, Inc.,
Taylor Farms Retail, Inc., and Wal-Mart Stores, Inc. alleging
willful and wanton negligence, gross negligence, breach of
implied warranty of fitness and wholesomeness, breach of
implied warranty of merchantability, and breach of express
warranty. Plaintiffs filed a motion to voluntarily dismiss
that case in April 2018. (No. 6:17-cv-35, Dkt. 52). In
September 2018, Plaintiffs filed the instant action. There is
no dispute that the new complaint includes the same claims
and is against defendants named in the previous action, the
only difference being that Wal-Mart Stores, Inc. is no longer
named as a defendant. Accordingly, Defendants filed this
motion, arguing that, pursuant to Fed.R.Civ.P. 41(d), they
are entitled to costs and attorney's fees totaling $98,
149.70 ($4, 259.70 in costs and $98, 149.70 in attorney's
Civ. P. 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: (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.”
“Rule 41(d) does not provide for an award of
attorney's fees as a matter of right; instead a district
court may award attorney's fees under this rule only
where the underlying statute provides for attorney's
fees. A court may also, within its discretion, award
attorney's fees where it makes a specific finding that
the plaintiff has acted in bad faith, vexatiously, wantonly,
or for oppressive reasons.” Andrews v.
America's Living Centers, LLC, 827 F.3d 306, 311
(4th Cir. 2016) (internal quotations omitted). The Fourth
Circuit defines “vexatious” as “without
reasonable or probable cause or excuse.” Id.
(internal quotations omitted).
the claims in this case directly provide for attorney's
fees. Thus, to determine if attorney's fees are
appropriate, the Court must find that Plaintiffs' conduct
was vexatious, wanton, oppressive, or in bad faith.
Andrews, 827 F.3d at 314. This Court looks to the
Fourth Circuit's decision in Andrews to guide
that analysis. In Andrews, the plaintiff responded
to the defendant's motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) by voluntarily dismissing the action
and filing a new complaint the same day. The Fourth Circuit
found attorney's fees were not warranted because the
magistrate judge had suggested that voluntary dismissal was a
valid option and the new complaint was “much more
detailed.” Id. at 312. In further support of
this conclusion, the Fourth Circuit cited decisions finding
no vexation where no discovery had occurred and no
substantial motions practice had been initiated by plaintiff.
Id. (citing Wishneski v. Old Republic Ins.
Co., No. 5:06-cv-148-oc-10grj, 2006 WL 4764424, at * 4
(M.D. Fla. Oct. 10, 2006); CIVCO Med. Instruments Co. v.
Protek Med. Prods., 231 F.R.D. 555, 564 (S.D. Iowa
2005)). The Fourth Circuit rejected the argument that the
plaintiff's behavior was vexatious because it “had
the result of increasing the costs of defending the previous
action, wasting judicial resources, and avoiding an adverse
the Fourth Circuit made clear in Andrews that it did
not consider the plaintiff's behavior to be in bad faith,
wanton, or oppressive, the Fourth Circuit did not define
those terms. However, district courts examining motions for
costs pursuant to Rule 41(d) have looked to how bad faith is
defined in cases considering attorney's fees under Rule
54(d). See, e.g., McGlothlin v. Hennelly, No.
9:18-cv-00246-DNC, 2018 WL 3548693, at *2 (D.S.C. July 24,
2018). “When considering whether to award
attorney's fees under Rule 54(d), courts have found that
attorney's fees are warranted when the party has been
notified by a prior court that the claim is insufficient or
has no merit and files a subsequent action anyway.”
Id. (citing Zuraf v. Clearview Eye Care,
Inc., 261 F.Supp.3d 637, 645 (E.D. Va. 2017).
case, Defendants claim they “are entitled to
attorney's fees as part of costs because the conduct of
the Plaintiffs in dismissing the case and re-filing identical
claims fall[s] under the category of vexatious conduct which
this Court seeks to deter.” (Dkt. 12 at 3). In support
of this argument, Defendants note that the parties engaged in
extensive discovery and motions practice in the previous
action, the results of which were destroyed pursuant to a
protective order. (Id.). Plaintiffs counter that
their actions were supported by reasons that provide
“good and probable cause or excuse and do not rise to
the level of vexatious.” (Dkt. 16 at 3). Specifically,
Plaintiffs state that their previous counsel was preparing to
leave the firm where he had been employed at the time the
suit was filed. Plaintiffs opted to stay with the firm rather
than the attorney himself. (Id. at 2). The firm then
hired replacement counsel in mid-March 2018. (Id.).
Upon review of the case, Plaintiffs' new counsel
“determined that a needed expert witness had never been
disclosed for the Plaintiffs, ” and that he
“simply did not have enough time to become familiar
with the extensive discovery in the case in order to prepare
for a trial in June 2018.” (Id.). Finally,
Plaintiffs claim that their present counsel “determined
that there were a number of discovery requests that were
never made which in his estimation were necessary to properly
prosecute the case.” (Id.).
as Plaintiffs' voluntarily dismissal may have been a
strategic move meant to avoid an adverse ruling, such a
strategic move is not alone sufficient cause for the Court to
label Plaintiffs' actions vexatious. See
Andrews, 872 F.3d at 312 (rejecting the district
court's conclusion that re-filing was vexatious because
the plaintiff dismissed the action in order to avoid negative
rulings). Similarly, the fact that Plaintiffs' second
complaint was substantially similar to their initial
complaint does not necessarily demonstrate bad faith.
Plaintiffs had no indication that their complaint was
meritless as filed. In fact, this Court denied two of
Defendants' motions to dismiss pursuant to Rule 12(b)(6),
indicating that Plaintiffs' complaint had, at the very
least, stated a claim upon which relief could be granted.
(No. 6:17-cv-35, Dkts. 24, 32). Finally, at oral argument,
Plaintiffs' counsel noted that Defendants were aware that
the suit would be re-filed, yet Defendants chose to leave the
protective order in place, resulting in the destruction of
documents obtained during discovery. (No. 6:17-cv-35, Dkts.
39, 55). Based on these circumstances, Court does not find
that Plaintiffs' behavior was vexatious, wanton,
oppressive, or in bad faith such that attorney's fees are
the Court does not find attorney's fees to be justified,
it does find it appropriate to exercise its discretion to
award costs associated with the previous litigation. See
Noffz v. Austin Maintenance & Construction, Inc.,
No. 8:16-208-MGL-KFM, 2016 WL 4385872 at *7 (D.S.C. July 25,
2016) (determining that plaintiffs conduct did not warrant
attorney's fees, and making a separate determination that
no award of costs was warranted). Here, the parties underwent
extensive discovery and Plaintiffs voluntarily dismissed the
case just two months prior to the scheduled trial. Plaintiffs
did not attempt to reopen discovery or seek a continuance
prior to filing their dismissal. Thus, while Plaintiffs'
behavior was not “without reasonable or probable cause
or excuse, ” the Court nonetheless finds that
Defendants are entitled to some relief pursuant to Rule 41.
Andrews, 827 F.3d at 311.
reasons stated above, the Court will grant Defendants'
motion for costs and to stay the proceedings pursuant to
Fed.R.Civ.P. 41(d) and will award Defendants' costs
associated with the prior litigation. However, because
Plaintiffs' behavior was not vexatious, wanton,
oppressive, or in bad faith, the Court will not include