Circuit Split Widens on Attorneys' Fees, Rule 41(d)

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By Patrick Gregory

June 29 — A district court can sometimes award attorneys' fees under Federal Rule of Civil Procedure 41(d), the U.S. Court of Appeals for the Fourth Circuit held June 28 ( Andrews v. Am.'s Living Ctrs., LLC, 2016 BL 206482, 4th Cir., No. 15-1658, 6/28/16 ).

The decision splits with the Sixth Circuit, which held that “costs” provided for in Rule 41(d) don't include attorneys' fees.

Joining the Seventh Circuit, the Fourth Circuit's opinion by Judge Roger L. Gregory found that Rule 41(d) allows such fees if a lawsuit's underlying statute provides for them.

A court also has discretion to award attorneys' fees if it specifically finds that an opposing party was vexatious or acted in bad faith, the Fourth Circuit said.

The Eighth and Tenth circuits have allowed fees under Rule 41(d), but “without much explanation,” the Fourth Circuit said.

FLSA, No Fees

Fees awarded here to America's Living Centers LLC, a defendant in a Fair Labor Standards Act suit, were improper, the court held.

That's because FLSA, 29 U.S.C. §216(b), “is silent as to attorneys' fees in suits where the defendant prevails.”

Further, Stella Andrews didn't act vexatiously by voluntarily dismissing her lawsuit and then filing a more detailed complaint the same day, the court held.

A magistrate judge gave Andrews options that “at least included, if not encouraged, voluntary dismissal,” the court said.

The court vacated the dismissal of Andrews' second suit for failure to pay attorneys' fees in connection with the first suit.

Chief Judge William B. Traxler Jr. and Senior District Judge Joseph F. Anderson Jr., sitting by designation from the U.S. District Court for the District of South Carolina, joined the opinion.

Eron Law P.A. argued for Andrews.

Wake Forest University School of Law argued as court-assigned amicus counsel supporting the defendant.

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at and Jeffrey D. Koelemay at

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