code for the app pellant daniel hall the actually mr sergeant consumed nearly four months of federal court resources and forced my client mr hall to spend tens of thousands of dollars in attorney's fees and costs and then dissatisfied with the magistrate judges recommendation of dismissal mr sergeant voluntarily dismissed his case and refiled the same basic claims in florida state court rule forty one d gives district courts the discretion to award costs under these circumstances for three reasons one our position is supported by the better reading of rule forty one to use text to it harmonizes rule forty one a and rule forty one d and three you know voids creating a big loophole in rule forty one's who are purpose of deterring forum shopping with respect to the text our position a straightforward what we call the coverage provision of rule forty one d has two requirements one the plaintiff must have previously dismissed an action in any court and two must then file an action based on or or including the same claim against the same defendant let me ask you this on the textual part because the beginning sentence of rule forty one  when it talks about this missing in action it modifies that action by saying in any court it does your honor the nd time that an action is mentioned it doesn't say in any court how does that cut one way or another your honor i think the best way to understand why that's true is that the words in any court are there for emphasis as opposed to for expanding the definition of action let's start with the fact that the word action is not a defined term in the federal rules it's not as if the federal rules have a bunch have a definitional section and then define action with a capital s a action has a straightforward meaning which means a lawsuit in court the words in any court are there to emphasize that the previously dismissed action can be an action that was previously dismissed in state court but the absence of those words in the nd section are not meant to that the refiled action has to be in federal court the the the modifier in that nd phrase the thing that's important about the nd action is that it be based on the same facts of the same claims against the same defendant so let me ask you this question then this hypothetical popped up to me yesterday and maybe i've completely missed plaintive files lawsuit number one in state court yes right dismisses it yes that satisfies the st prong of forty one d right correct there are files a nd lawsuit yes  are in state court can you go to federal court and get costs no but not because of the language of rule forty one deals such but because the federal rules generally only apply to actions in federal court and so if neither action is in federal court then rule forty one to you never comes into play but again action is not a defined term that's limited to actions in federal court and it's not sensible to read it that way because it's not disputed that if this were a voluntary dismissal under rule forty one dollars a two a court would have every right to condition the dismissal of the st case on the payment of fees if another case were refiled whether or not that case were refiled in federal or state court and that's that goes to my nd point which is it's anomalous to say that if this is a rule forty one dollars a one dismiss and forty one dollars d therefore is what supplies the discretion to award fees that we can't do it in a federal to state context and with respect again to the purposes eliminating applicability of rule forty one d in a federal to state context such as we have here creates a giant loophole in the anti forum shopping purpose overall forty one so from a policy perspective i think you've got a good point how in a different context just as a written opinion for the supreme court explaining that once a court dismissed as a case pursuant to a settlement it doesn't have inherent authority to enforce the settlement the less it keeps the case what makes this scenario different does with district court grants a voluntary dismissal well i think i think them or apes and then has jurisdiction how to then grant cost under forty one d your interpretation is correct i think the answer to that is supplied by the supreme court's decision in the cooper and gale case where the court said that a district court retains jurisdiction to decide what are called collateral issues and among the classic collateral issues that are just record it can always retain jurisdiction to decide are the award of attorney's fees and costs in that particular case it was the award of attorney's fees and cost per pursuant to a rule levon motion that  was filed after again the dismissal of the case and the district and the supreme court had no trouble saying that falls squarely within the district court's ancillary jurisdiction and that's exactly what we think we ought to apply here yes of course st federal case was voluntarily dismissed but the district court retains jurisdiction to say if another case refiled again in whether in federal court or state court i can go back and  determine whether or not attorneys fees and costs ought to be awarded there's also a very good practical reason why the court in the st case ought to have the discretion to award attorneys fees and cost because it's the  court's time and resources that were wasted for one and the st court is much closer to the question of whether it's fair and equitable to put your argument extends beyond proposition because of the nd court where the federal court you know asked that nd court to grant costs to even if the st action was filed in state court and in that scenario the federal court would be the nd court not the st court that's true i think that's absolutely right if you get everything well no you don't get everything but it sure you can get costs anywhere you say they should be able to get them with the st court but now you're saying the nd court too and maybe you're right maybe maybe the rule sweeps broadly enough that you can get them from any court anytime anywhere no matter the sequencing of the two lawsuits all i mean to say judge dorgan is that when the federal court is the st court and the nd court is a state court it there are still very sound practical reasons for allowing the st court to be the one to award attorneys fees because in some ways the st court is the court that was prejudiced by the voluntary  missal it you know judge reinhart's time was wasted on a motion to dismiss that he had had full briefing on oral argument recommended reporting recommendation of dismiss he presided over discovery disputes there was even a subpoena that was issued by mr sergeant in the southern district of new york that had to be litigated all in this three month period and then when judge rinehart said i don't think that these claims the complaint states a claim against mr hall mr sergeant said i'm just going to pack up my bags and go to state court so i think judge reinhardt is in a very good position in that context to say ok is that a legitimate use of the voluntary dismissal tool or should mr sergeant at the very least have to internalize the costs of that and i want to point out that the you know mr sargent's position rests very heavily on the notion that interpret in the rule this way somehow is in in in violation of the notion that there is an unconditional right to voluntary dismissal prior to the filing of an answer or a motion for summary judgment but it's not the voluntary  missal that has the price tag on it it's the filing of the nd complaint in other words you can pack your bags and go home but you can't get a nd bite at the apple without at least having the district judge have an opportunity to not if if we believe it should be subject and do we need to even address it or is it something we should send back to the dish court if we find you're correct in secondly it seems like to many that we would have a difficult time staying any case that since state court based upon this where would we get our ability to actually stay a state court proceeding and i guess rd would it be more appropriate for the court under their structure in this particular instance and their rules to decide whether or not they're going to tax collars they get it pierced me just as much interest they've got the parties in front of them in the litigation shouldn't they be the one decide if their rooms really would require taxing it cost let me try to answer those and in order your honor st of all with respect to the attorneys fees issue we think as we set out in our reply br that the issue has not been preserved by mr sergeant because you never objected to that aspect of matters or judge reinhart's report recommendation and so under this circuit's rule three dash pleasant that just basically dicta because they didn't give attorneys phages they just get any attorney's fees and so you know and there was no reason to object i'm not sure i agree with that your honor i think that this issue was joined below and if mr sergeant wanted to try to preserve that issue appeal for appeal he should have objected i don't think the court needs to reach that issue you know the as we set out in our brief it is an issue that has divided the circuit courts but what we all there is only also don't know if we if you win on the on the main issue we don't know whether attorneys fees would be granted we don't your honor they were recoverable theoretically because rule forty one dollars d is discretionary in nature yes and i think that's a very sound practical reasons for not deciding the issue now because it could be that when we go back below dr hart says even though in now i think i'm authorized to do this i'd decline to award any attorney's fees cost only or something like that and so that issue may never arise for the court with respect to the issue of the stay the all writs act we think does arguably allow under certain circumstances  the stay of a state court proceeding it's an issue that hasn't really been decided among the courts we have i believe a footnote to this effect in the reply brief the question would be whether there is an exception under the i'm sorry under the anti injunction act you know in aid of the court's jurisdiction and we think that arguably where what is going on is that the district court has ordered the payment of fees and cost and a party is refusing to comply with that order a stay of litigation that the party is trying to pursue in the face of that order may well fall within an exception to the anti injunction anti injunction and all sorts of federalism issues written all over it your honor i don't think the again this is an issue that i don't know how the federal court going to enforce that order is going to have the federal marshals go over to stay court across the street and prevent a state judge from handling the case your argument or you handle it through a contempt citation to the so called offending party your i don't want i don't mean to avoid answering your question but i think the for purposes of this appeal it's not a question the court needs to grapple with because even if one were to presume that it would be difficult or maybe even impossible for a federal court to stay a state court litigation our position is that that does not affect the proper interpretation of the coverage provision of rule forty one dollars it may just be that the nd part of the remedial provision of rule forty one dollars d will either rarely or ever come into play but as we set out in our brief that the fact that there are limitations on some remedies doesn't mean you import all those limitations back in to the coverage per provision of the rule and lastly judge cooler with respect to why the state court should do this it's possible that some states rules may have an analogue to rule forty one they already have jurisdiction it may be of interest in the quote on the question of whether as a matter of discretion the district court should award fees and costs in this circumstance but i don't think it's of interest in whether or of rule forty one dollars it undermines established precedent it increases the burden on federal courts it's funny it's funny that in a case that i think is textually difficult both sides say that the statutory language is clear i do think that  as they i didn't mean to interrupt you go ahead well and i was going to conclude my my my o b since that extends the reach of the federal rules to state foreign courts and tribunals and i want to if i might start on that th point just addressing a question cooler you've raised about whether florida has a companion a corollary procedure alabama has on earth or georgia in the circuit and i think that that really does demonstrate why this belongs with the nd court and i'll come back to the textual point but it belongs with the court because for example the state of alabama does have a corollary state alabama follows the federal rule and it has a similar rule that that has the if in any action and then the an action filed and so the nd filed action in alabama if you were to dismiss in federal court go to alabama state court and then that court would have jurisdiction over that issue and under alabama's rules of procedure the court would have the ability to determine whether or not as a condition of proceeding forward that those costs from the prior action should be assessed florida has a slightly different provision and maybe that's why we're here florida confines its rule wholly to see the state court proceeding so instead of saying it  previously dismissed action in any court it uses the term any court of this state and so it's slightly different and i would say that that's as it should be because the federal rules are designed to govern practice and procedure in the federal court system and so to the extent you come before the federal courts as we did here you assert federal claims and state claims and there's a motion to dismiss the court determine that you don't have any federal claims i mean in this case the record is fairly clear there was quite a disagreement over the application of rodriguez in the to the computer fraud and abuse act interpretation so mr sergeant following rainy all state following the precedent of the th circuit determined well there's no reason to continue the utilization of federal court resources anymore we've got a court that is saying i don't see how you're ever going to plead these federal claims none of them are dismissed with prejudice so mr sergeant decided to take his holy state law claims to the only form of ala bill under this court's precedent it's a court had we stayed in federal court and asserted just the state law claims then certainly the appellant would be arguing that there is no supplemental jurisdiction citing r fact the appellant cited raney v whole state in the court below and the judge acknowledged that as well so so we go to state court and that is the nd filed action and to the extent that the state court has i'm let me interrupt us here would in the district judge subsection you could under a two and that's that's really the difference appellant argues in the briefing that there's no reason to read these differently except they say different things so under a one it's unconditional there's no court order necessary and this court's precedent in ma and again the other circuits say that it is unconditional you can attach conditions at that moment so to your question judge as you filed an answer to for summary judgment that this record to authority kicks in correct and can condition a dismissed will based on the payment of at least cost or other things when a nd action is filed yes your honor or other things there are other things that could be imposed i mean in the in the cases demonstrate that but that is that is the real fundamental distinction  appellant's position completely reads out and asked this court to ignore then forty one d is really not designed as a sanction for past conduct is designed as a cost of proceeding forward so if you get your unconditional right to dismissal as the court this th circuit and the other circuits say you do you can leave for any reason even to choose another forum the beach a case i think we c is that as well that you can choose another forum however if you choose to come back to federal court then under forty one d before you can proceed forward you need to address you have the potential to address the court can ask you to pay the cost of the prior action and if you don't pay those costs if you don't comply with the order then the court can stay the proceeding that it has jurisdiction over until you do so you can't move and it doesn't create the sort of dueling courts issue that i think the colloquy with the appellants council raised this whole issue of well if you file over in state court then what happens i mean you could still proceed over there because the federal court might not have the ability to stay the the co d the state court proceeding what if mr sergeant had proceeded against mr hall in london in the high court of justice if we had filed an i c c arbitration if we had filed a aaa arbitration or we had filed in washington state or arkansas at what point does this this this the federal jurisdiction have a limit in terms of a state it completely their position completely reads the state provision out of existence in those contexts all of the examples that i just gave would qualify under repellents terminology it's the same plaintiff it is an action it just may be an action in london or paris or in an arbitration and it is against the same defendant based on the same claims and so now you've got the federal court grappling with this issue of of well how do i stay those proceedings in addition there appears no argument under the cases or between the parties that the nd court always has the ability to do this so in the scenario where the nd filed action is in federal court district of florida mr sergeant dismissed they're involved in the southern district of new york so based on appellants articulation both courts really would have the ability then to address the the cost issue because because you can't really read the rule is dependent on where   nd action is filed it doesn't change it it's either always the st court or always the nd chord as far as i could tell both of the leading treatises on federal civil practice take no position on this issue right right and miller says nothing about it and morse federal practice says nothing either is that accurate that is that is our understanding as well and i think it's simply because respectfully the language is so straightforward that that the way it has to operate is so straightforward because an action has to be mean in it to your question earlier judge jordan about the difference between in any court versus an action it must mean in the nd court it must mean in federal court  your question judge jordan about the justice justice scalia opinion about jurisdiction appellant cites these other cases cooter and gill the p t a case the thomas case the prime insurance case these inherent authority and retention of jurisdiction cases but but taking cooter and gail for example that case and all the others they involve conduct that predates the dismissal they don't involve the federal court in a prior  dismissed action a closed case reaching out and taking jurisdiction over future conduct that isn't to enforce an order of the court or to address conduct that took place prior to the dismissal so in cooter a gal yes you have an additional right to dismiss under rule forty one dollars a one but that doesn't mean that if you have done something prior to that dismissal that would give rise to a sanction of some kind of appropriate sanction that the courts lost jurisdiction immediately to deal with that so you can't evade your conduct in the prior action however once you have dismissed once the case is closed once it leaves the federal courthouse under rule forty one dollars a one and there's no ret was entered prior to the dismissal or as a condition of the dismissal and so there of course the court retains inherent authority of course the court retains jurisdiction to reach out and address excuse me address future conduct based on a violation of a prior order but here what the palin is asking this court to condone is that there is this sort of an ending jurisdiction in this sort of limitless space in which at some point in the future if parties if a plaintiff who is no longer before the court takes an action in another forum or a foreign tribunals now the court is allowed to reopen the previously closed case not for purposes of addressing conduct that took place part of this missile not for purposes of addressing an order that was entered as part of the dismissal or enforcing an order that was injured during that case but now he's just this this sort of grab of jurisdiction of the parties while they're proceeding in another forum which may itself as in the case of two of the three states within this court's jurisdiction alabama georgia have a corollary rule a corresponding rule where that court can address the costs issue does the fact that a court like say for instance florida that their rule is different would that not being the expression of their that court's interest in what they decided how they decided to handle a particular issue yes your honor and i think that's exactly the reason that the nd filed action must be read here under rule forty one as being in federal court because and shouldn't we be are should we not be careful before we go in change their rule in effect by what we do yes your honor and that really goes to my opening point about how how appellants construction would extend the reach of the federal rules into state and foreign tribunals are you re ally this is a matter for the states if if a state like florida wants to to tailor its rule to two to a tax costs only where you've taken the nd bite at the apple in the state court system not where you come from proceed at all in stay the case order of the dish the state court to stay the case until that particular spread of district judges ruling on costs were complied  with i would say no your honor because i well because because there would be no basis for that i mean what would the court what would the federal court be enforcing a cost and order under the would we have jurisdiction how would the court i guess that goes back to my fundamental point about how the court wouldn't have gerson how does the federal court have jurisdiction it's a closed case the parties are no longer before the court the court is not enforcing an order that he'd made prior to the dismissal if if this particular district judge was allowed to mike the ruling on the motion motion dismissed as what was pending is that correct yes or was it a subject matter jurisdiction issue it was not so if the district court of the district wasn't considering  whether the case would stay or not in federal court whether it was properly before federal court it was deciding whether or not the merits of the case would succeed yes your honor are you going well and so so again it oh voiding this sort of dueling court situation respecting the lines of jurisdiction both for the federal system and for the state system if if you come back to federal court the nd time then that is a matter of  legitimate concern for the federal rules in the federal courts you had your fortune mr who right that you take you should take into account the existence of a state court mechanism in figuring out whether to exercise discretion but that that sort of inquiry or look can't tell you what the textual answer to the rule is in the st instance i think that's right i think the textual answer has to be is it has to be that an action must be an action in federal court because once you start reading i'm saying that that whatever the answer to that textual question is that answer exists whether or not the particular state has a mechanism to throw all that problem correct right  bly whether the whether florida has an identical rule or a softer rule or a harsher rule correct and so in this circuit you would have a scenario under which two of the three states would have this sort of competing jurisdiction over the cost issue in georgia and alabama that have corollary provisions the nd filed action in their courts that court clearly would have jurisdiction over taxing the costs of the st filed action but yet if you determine that the federal court in the previously dismissed long closed case also has jurisdiction now you've got a federal court undertaking this a state court with the authority to undertake it and a dueling system and this really creates numerous ancillary proceedings in the federal courts i mean why in a closed case where the parties have long since left the courthouse does the court want to get into these issues if a year later or two years later the same plaintiff files another case and  the federal court has to reopen the file and undertake this analysis of whether the same claims with not the same claims all of this belongs as it should be in the nd court just like under the federal should be it should be interpreted logically and it's frankly the only way to harm i see my time thank you very much thank you thank you joe jordan and may please the court if the court thinks that the textural issue is difficult then it should look to the structure of the rule and its purposes to decide who has the better interpretation and on the structure i think it is undisputed by the parties that if we had already filed an answer or moved for summary judgment it would be absolutely within the district court's power to condition the voluntary dis a case either in federal court or in state court in fact the ponton berg case of this court from two thousand and one said rule forty one authorizes the district court to require the plaintiff to pay the defendant's costs of the dismissed action upon refiling of the action and it specifically approved of a district court's imposing that condition in a rule four thousand one hundred and eighty two context the question then is why should it be different if no answer had been filed or no motion for summary judgment had been filed and we would respectfully submit that the answer should not be different i doesn't matter from possible one possible answer is that the federal rules are more pro plaintive up to that point in the proceeding in other words if you have not answered the defendant hasn't answered or hasn't moved for summary judgment the case is quote not at issue and the plaintiff is given much more leeway to do as he or she or it wishes without necessarily a penalty but if you're going to dismiss after the defendant takes that substantive action of answering a summary judgment then your options are curtailed i'm not sure that's the answer but that's a possible answer i don't i don't disagree with that at a high level but i don't think that that can explain why you would distinguish between refiling in federal court and refiling in state court in both instances the federal court's time has been wasted and the parties time and energy in the st case has been wasted and it may well be again in the exercise of the district courts discretion that in in a pre answer context there is more leeway and a higher bar for the plaintiff to actually get attorney's fees and cost but i don't think it's a sensible line to draw between federal court refiling and state court refiling that line does does not exist in the fo context and again from the standpoint of the purposes of the rule it doesn't that distinction shouldn't matter the forum shopping is something to be deterred regardless of whether you're shopping from federal court to state court or from one federal district court to another and i think that the fact i appreciate my friends a knowledge of florida state law in alabama state law but what i think his own argument points out is that if rule forty one dollars d were to be interpreted in the way that they suggest there would be many instances in which a federal district court whose time has been wasted would be essentially powerless to protect itself because florida apparently is not going to tax attorneys fees or costs for the time that was wasted in the court below has no ability to say look you were here for months we did all this stuff but the parties had to expend lots of time and energy and this was a pure forum shopping maneuver you should have to pay if that's not a possibility then in a case like this there will never be any relief for a party like my client who was subject to all the fees and costs of having to deal with the st action and lastly i would say with respect to the inherent authority point that my friend argued you know i think it's fair to say that if a i think and well settled that if a if a party violates protective order let's say long after a case has been dismissed there is still inherent authority on the part of the district court to remedy things like that and i don't think that rule forty one d is fundamentally any different it is simply saying that if you are going to voluntarily dismiss and then take your case elsewhere for the pure reason of forum shopping it is at least on the table for you to have to pay your a fees and costs if the court has no further questions thank you for the court's time or i thank you both very much it was helpful