So little used rule out there– if a Plaintiff dismisses a claim and then re-files it a Defendant can seek costs associated with the original case. But that’s not all it is cracked up to be–as Accuquote just found out.

In strict Bryant v. Byron Udell, Case No. 8:23-cv-2171-TPB-SPF (M.D. Fl. Dec. 19, 2023) the Defendant sought to recover $162,840.49 in costs and attorney’s fees that AccuQuote allegedly incurred defending a substantially similar or identical lawsuit in the Eastern District of Virginia.

The earlier lawsuit had been dismissed and re-filed. So Defendant took advantage of Rule 41(d) that provides: If a plaintiff who previously dismissed an action subsequently files a new action based on 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.”

One problem though.

The rule allows for a recovery of COSTS not ATTORNEYS FEES.

And yes, these are two different things.

Under the so-called “american rule” attorney’s fees are treated as “expenses” but not “costs” of litigation. Instead costs include things like expert fees and mailing and copying, etc.

The Court agreed with defendant that it should get its costs, but not its expenses.

So Defendant recovered about $1,200.00 for service, mailing and expert fees.

Yippee…

That’s less than it cost to bring the motion I am sure.

Still I like the aggressiveness. So nice try Accuquote.