Confusion from the Federal Circuit on Voluntary Dismissals and Attorney Fees

by Dennis Crouch

O.F. Mossberg & Sons, Inc. v. Timney Triggers, LLC (Fed. Cir. 2020)

Attorney Fees following Voluntary Dismissal: I recently posted a note on the Keith Manufacturing decision allowing for an attorney fee motion following a Fed. R. Civ. Pro. R. 41(a)(1)(A)(ii) stipulated dismissal with prejudice.  Mossberg involves attorney fees following a R. 41(a)(1)(A)(i) dismissal without prejudice.  The appellate court ultimately refused to award attorney fees against Mossberg because the dismissal was “without judicial imprimatur” and thus leaving no “prevailing party.”  As I note bellow, Keith and Mossberg are in some tension, even though both were penned by Judge Hughes and published less than 1-week apart.

FRCP Rule 41(a) covers voluntary dismissal of lawsuits:

(a)(1)(A) Voluntary Dismissal by the Plaintiff Without a Court Order:

… [T]he plaintiff may dismiss an action without a court order by filing:

(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or

(ii) a stipulation of dismissal signed by all parties who have appeared.

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