PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 17-2183

_____________

GERALD CARROLL; KENNETH CROSSWHITE; 

RAY FOSTER; CHARLES HOTTINGER;

LAWRENCE SHELDRAKE; RICHARD SHELTRA; 

KEVIN STUART; CHRISTOPHER TURNER;

ROBERT WELCH; WILLIAM WHETZEL; 

TERRY WILLIAMS; BERN CAPPELLI, LLP

v.

E ONE INC; PIERCE MANUFACTURING INC; 

SEAGRAVE FIRE APPARATUS LLC; 

FEDERAL SIGNAL CORPORATION

Gerald Carroll; Kenneth Crosswhite; Ray Foster;

Charles Hottinger; Lawrence Sheldrake; Richard Sheltra; 

Kevin Stuart; Christopher Turner; Robert Welch; 

William Whetzel; Terry Williams; *Bern Cappelli, LLP,

 Appellants

 *(Pursuant F.R.A.P. 12(a)) 
2

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(E.D. Pa. No. 2-15-cv-00562)

District Judge: Honorable J. Curtis Joyner

Argued on March 22, 2018

Before: SMITH, Chief Judge, HARDIMAN, and ROTH, 

Circuit Judges

(Filed: June 20, 2018)

Joseph J. Cappelli [ARGUED]

Shawn M. Sassaman

Bern Cappelli

101 West Elm Street, Suite 630

Conshohocken, PA 19428

Counsel for Appellants

Wayne A. Graver

Michael F. McKeon

Lavin O’Neil Cedrone & DiSipio

190 North Independence Mall West, Suite 500

Philadelphia, PA 19106
3

Jan P. Miller [ARGUED]

Thompson Coburn

One U.S. Bank Plaza

St. Louis, MO 63101

Counsel for Appellee

________________

OPINION

________________

SMITH, Chief Judge.

Plaintiffs are firefighters who allege that they suffered 

hearing losses caused by the loud noise emitted by a 

manufacturer’s fire sirens. A perfunctory investigation 

conducted by the manufacturer during discovery revealed the 

firefighters’ lawsuit to be clearly time-barred, and also 

revealed that one firefighter had not even suffered hearing loss 

attributable to noise exposure. Eventually, Plaintiffs requested

the District Court to dismiss the case with prejudice pursuant 

to Federal Rule of Civil Procedure 41(a)(2). In doing so, the 

District Court awarded attorneys’ fees and costs in favor of the 

manufacturer, making an explicit reference to Plaintiffs’

counsel’s practice of repeatedly suing the fire siren 

manufacturer in jurisdictions throughout the country in a

virtually identical fashion. 

On appeal, Plaintiffs’ counsel argues that awarding 

attorneys’ fees and costs is improper under Rule 41(a)(2). 

Plaintiffs’ counsel further challenges the District Court’s 
4

consideration of the nationwide scope of counsel’s litigation 

tactics—arguing that, in the Rule 41 context, a district court’s 

consideration of litigation in other jurisdictions constitutes 

reversible error. Plaintiffs’ counsel is wrong on both scores.

Although attorneys’ fees and costs are typically not 

awarded when a matter is voluntarily dismissed with prejudice, 

we conclude that such an award may be granted when 

exceptional circumstances exist. Exceptional circumstances 

include a litigant’s failure to perform a meaningful pre-suit 

investigation, as well as a repeated practice of bringing 

meritless claims and then dismissing them with prejudice after 

both the opposing party and the judicial system have incurred 

substantial costs. Because such exceptional circumstances are 

present in this case, the District Court’s award will be affirmed. 

I.

Plaintiffs-Appellants brought suit against DefendantAppellee Federal Signal Corporation, alleging that they

suffered occupational hearing loss due to the “omni-directional 

design” of Federal Signal’s sirens which “unnecessarily 

exposed the firefighters to dangerous levels of sound.” Carroll 

Br. 5. As Plaintiffs’ counsel notes in the first sentence of his

opening brief’s recitation of the facts, “[t]his action is but one 

of multiple actions, nationwide, involving Plaintiffs’ counsel 

and Federal Signal in which firefighters are seeking 

compensation for hearing loss caused by Federal Signal’s 

mechanical Q fire engine siren and its electronic counter part, 

the e-Q2b.” Carroll Br. 9. In its opinion awarding attorneys’ 

fees and costs, the District Court similarly took notice of the 
5

aggregate nature of counsel’s entrepreneurial litigation 

strategy:

The history of this case essentially 

mirrors that of many other cases instituted by 

Plaintiffs’ counsel against Federal Signal and 

several of the other original defendants in this 

action. As defense counsel testified . . . since 

sometime in 2011 when current Plaintiffs’ 

counsel became lead counsel, there have been 

some 1300 cases filed in approximately 23 

separate jurisdictions asserting claims for high 

frequency hearing loss which was allegedly 

caused by exposure to defectively designed fire 

sirens. In taking more than 100 plaintiff 

depositions across the country, defense counsel 

learned that the plaintiffs receive a notice at their 

fire departments either on a bulletin board or 

receive a letter through some web-based 

repository of their unions informing them that 

free hearing screening is being offered at the 

union hall. In many instances, those letters and 

notices have been prepared by Plaintiffs’ 

counsel’s law firm.

Then when the firefighters who decide to 

accept the free hearing test offer go to the union 

hall, they go into a room, sometimes two 

firefighters at a time, where an audiologist puts 

headphones on them, plays pure tones and they 

are either directed to raise their hands or push a 

button when they hear the sounds. Through that 
6

testing, an audiometric result is generated. The 

firefighters are not told the results of their tests 

and often do not learn the results of their tests 

until months or sometimes years later, after they 

have become part of a lawsuit. The firefighters 

are not referred to a doctor or advised to wear 

hearing protection.

Typically, a complaint involving 20–50 

plaintiffs per case is then filed within two or 

three years often almost to the day of the hearing 

screen. Often, the firefighters do not learn that 

they are plaintiffs in an action until after suit is 

filed and they receive something in the mail from 

Plaintiffs’ counsel’s law firm. In one case, a 

Pittsburgh firefighter discovered he had been 

named as a plaintiff when he heard a television 

news story about the lawsuit. Frequently the first 

contact a firefighter plaintiff has with someone 

from Plaintiffs’ counsel’s law firm occurs at or 

around the time of their deposition. Although a 

number of these cases have gone to trial with 

some resulting in verdicts for the plaintiffs and 

some resulting in defense verdicts, there have 

been other instances in which Federal Signal’s 

attorneys have completed discovery in a matter 

and sometimes even taken a case to trial when 

Plaintiffs’ counsel dismisses the case.

JA 13–14 (District Court opinion). Although counsel objects 

to this portion of the District Court’s opinion as having 

inappropriately considered extra-jurisdictional litigation, the 
7

thrust of the opinion was more concerned with the history of 

the specific case before the District Court. A summary of that 

history follows. 

In January of 2015, Plaintiffs brought suit against 

multiple defendants in the Philadelphia Court of Common 

Pleas. Although Federal Signal is now the only remaining 

defendant in this matter, a previous co-defendant removed this

civil action to the Eastern District of Pennsylvania in February 

of 2015.

1 Federal Signal conducted depositions of Plaintiffs

from late March to early April of 2015. These depositions 

revealed two fatal flaws in Plaintiffs’ case.

First, deposition testimony revealed all Plaintiffs’ 

claims to be clearly time-barred. JA 15. As the District Court 

explained:

[T]his case is somewhat unique in that 

[Plaintiffs’] Fire Department has, since the 

1990’s, conducted routine annual audiological 

screenings of all of its firefighters as part of their 

required annual physical examinations. As a 

result, nearly all of the plaintiffs in this suit had 

been advised many years earlier that they had 

hearing loss that was very probably caused by the 

 

1

In addition to suing Federal Signal, the Plaintiffs sued

three other manufacturers: E-One, Incorporated, Pierce 

Manufacturing, Inc., and Seagrave Fire Apparatus, LLC. 

JA 64–65. Plaintiffs later voluntarily dismissed with 

prejudice all of their claims against those three companies.
8

loud noises to which they were exposed on the 

job and that they should be wearing hearing 

protection. Consequently, Plaintiffs’ claims were 

obviously time-barred when they filed in or 

around January 2015.

JA 14–15 (footnote omitted). The second fatal flaw uncovered 

during discovery was that one of the Plaintiffs, Christopher 

Turner, did not suffer from hearing loss attributable to noise 

exposure.2JA 15 n.1. As the District Court astutely pointed out, 

“had Plaintiffs’ counsel spoken with the individual plaintiffs or 

conducted any other type of investigation prior to commencing 

this litigation, [counsel] would have learned these facts.” JA 

15.

After discovery revealed these flaws in Plaintiffs’ case, 

Federal Signal wrote to Plaintiffs’ counsel on May 10, 2016, 

demanding voluntary dismissal with prejudice and informing 

Plaintiffs’ counsel that Federal Signal would be seeking fees 

and costs attributable to defending against Turner’s baseless 

claims. JA 271–73. Plaintiffs’ counsel countered with an offer 

to voluntarily dismiss all of the claims with prejudice so long 

as Federal Signal agreed to waive costs for all plaintiffs except 

for Turner. On May 23, 2016, Federal Signal rejected that 

offer, countering with a proposal to stipulate to a voluntary

dismissal upon repayment of the then still nominal costs 

attributable to litigating the meritless matter, as well as a 

 

2 Although Turner’s audiograms revealed that he suffered 

from hearing loss, it was not hearing loss attributable to 

loud noises. 
9

payment of fees associated with defending against Turner’s 

allegations.

3

JA 274–75. In its March 23rd letter, Federal Signal 

explained that it had rejected counsel’s offer, choosing instead 

to counter-offer, because of Plaintiffs’ counsel’s “failure to 

conduct any diligence regarding the legal viability of the 

individual cases or to otherwise properly screen in the first 

place.” JA 274.

Plaintiffs’ counsel ignored Federal Signal’s counteroffer, and on May 31, 2016—without seeking leave of the 

District Court—filed a “Notice of Dismissal,” asking the Clerk 

of Court to “mark the claims of all Plaintiffs as being dismissed 

without prejudice to all parties in this action.” JA 77 (emphasis 

added). As we explain in greater detail below, this “Notice of 

Dismissal” was improper under Rule 41.4 By that point,

 

3 Federal Signal’s counter-offer sought $7,871.10 in fees 

and costs, or approximately three percent of the 

$255,646.95 that it ultimately requested the District Court 

to award. The District Court awarded $127,823.47, which 

was half of that ultimate request. Neither side challenges 

the amount of the District Court’s award on appeal. JA 4, 

18.

4 While Rule 41(a)(2) permits a plaintiff to voluntarily 

dismiss a claim with a court’s order, Rule 41(a)(1) permits 

a plaintiff to voluntarily dismiss a claim without a court 

order if the plaintiff does so “before the opposing party 

serves either an answer or a motion for summary 

judgment,” or with a “stipulation of dismissal signed by 
10

discovery had already closed, all of the defendants had 

answered the complaint, and the parties had not agreed to a 

stipulation of dismissal.

One month later, on June 30, 2016, Federal Signal filed 

a motion seeking fees and costs, and further challenging 

Plaintiffs’ counsel’s ability to “voluntarily” dismiss the 

firefighters’ claims without prejudice. JA 79–89. On July 8, 

Plaintiffs’ counsel opposed Federal Signal’s request for fees 

and costs, but was by that point agreeable to dismissing the 

matter with prejudice. JA 7, 447–50. Curiously, on July 21, the 

Clerk of Court entered an order dismissing the action “with 

prejudice, pursuant to agreement of counsel without costs.” JA 

459. It is unclear who informed the Clerk of Court that the 

parties had “agreed” to a dismissal without costs, as Federal 

Signal had repeatedly requested attorneys’ fees and costs in 

writing, and had already filed the instant action to collect those 

fees and costs. The District Court vacated the Clerk’s order, as 

erroneously entered, on July 27, 2016.

On September 6, 2016, the District Court issued a 

memorandum concluding that, because the defendants had 

already filed answers to the complaint prior to Plaintiffs’ 

counsel’s May 31 “Notice of Dismissal,” the firefighters “no 

longer had the option to voluntarily dismiss” their claims 

without the District Court’s permission. JA 464. The District 

Court explained that Plaintiffs had therefore “clearly erred in 

unilaterally filing a notice addressed to the Clerk of Court 

 

all parties who have appeared.” FED. R. CIV. P.

41(a)(1)(A)(i–ii).
11

asking that their claims be marked as being dismissed without 

prejudice.” JA 464. Nonetheless, the District Court explained 

further that the “facts certainly militate in favor” of granting 

dismissal under Federal Rule of Civil Procedure 41(a)(2). JA 

467. That Rule permits a court to dismiss an action “at the 

plaintiff’s request . . . on terms that the court considers proper.” 

FED. R. CIV. P. 41(a)(2). In order to develop the proper terms

for dismissal, the District Court stayed Federal Signal’s motion 

for fees and costs pending an evidentiary hearing. JA 467–70.

Hearings were held on both November 1, 2016 and December 

20, 2016. JA 532, 656. A defense attorney for Federal Signal 

testified; Plaintiffs’ counsel chose not to offer any witnesses. 

On April 25, 2017, the District Court granted Federal 

Signal’s Motion for Fees and Costs. JA 5. The memorandum 

accompanying that order set out the procedural history of the 

case, including the District Court’s determination in its 

September 6, 2016 decision that Plaintiffs had erred in filing 

the notice of dismissal without prejudice. The District Court 

additionally explained that “Federal Signal had adduced 

sufficient evidence that Plaintiffs’ counsel had failed to 

undertake any pre-suit investigation into the viability of the 

claims asserted.” JA 8. 

The District Court then recognized the “general rule” 

that attorneys’ fees are typically not available “when a plaintiff 

dismisses an action with prejudice absent exceptional 

circumstances,” JA 10, and further explained that such 

“circumstances include an abuse of the judicial process or bad 

faith conduct.” Id. The Court concluded that “there is no 

question that Rule 41 authorizes a court to award costs and 

attorneys’ fees as a condition of voluntary dismissal and 
12

numerous courts have done so where a voluntary dismissal has 

been granted.” JA 11.

Recognizing that any fee award must be compensatory 

rather than punitive, and mindful that the dismissal was with 

prejudice, the District Court awarded attorneys’ fees and costs

in the amount of $127,823.47, only half of the amount sought

by Federal Signal. JA 16–18. The Court directed that the action 

“shall be dismissed with prejudice.” JA 18–19. This timely 

appeal followed.

II.

The District Court exercised jurisdiction pursuant to 28 

U.S.C. § 1332 and § 1441. We have final order jurisdiction 

under 28 U.S.C. § 1291. We review a Rule 41(a)(2) order 

granting an award of attorneys’ fees and costs for an abuse of 

discretion. Westinghouse Elec. Corp. v. United Elec. Radio & 

Mach. Workers of Am., 194 F.2d 770, 771 (3d Cir. 1952). We 

review de novo any questions of law that underlie a district 

court’s Rule 41(a)(2) analysis. See AeroTech, Inc. v. Estes, 110 

F.3d 1523, 1527 (10th Cir. 1997).

III.

Though Plaintiffs’ counsel originally intended his May 

31, 2016 “Notice of Dismissal” to be filed pursuant to Federal 

Rule of Civil Procedure 41(a)(1), he now concedes “this was 

improper and the action should have been dismissed pursuant 

to Rule 41(a)(2).” Carroll Br. 22. We agree. 

Rule 41(a) provides:
13

(a) Voluntary Dismissal.

(1) By the Plaintiff.

(A) Without a Court Order. Subject 

to Rules 23(e), 23.1(c), 23.2, and 66 

and any applicable federal statute, the 

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.

(B) Effect. Unless the notice or 

stipulation states otherwise, the 

dismissal is without prejudice. But if 

the plaintiff previously dismissed any 

federal- or state-court action based on 

or including the same claim, a notice 

of dismissal operates as an 

adjudication on the merits.

(2) By Court Order; Effect. Except as 

provided in Rule 41(a)(1), an action may 

be dismissed at the plaintiff’s request only 

by court order, on terms that the court 
14

considers proper. If a defendant has 

pleaded a counterclaim before being 

served with the plaintiff’s motion to 

dismiss, the action may be dismissed over 

the defendant’s objection only if the 

counterclaim can remain pending for 

independent adjudication. Unless the 

order states otherwise, a dismissal under 

this paragraph (2) is without prejudice.

FED. R. CIV. P. 41.5 Because Federal Signal had already filed 

its answer prior to Plaintiffs’ counsel’s May 31, 2016 “Notice 

to Dismiss,” and had not stipulated to dismissal, Rule 41(a)(1) 

was not applicable. This is because Rule 41(a)(1) requires that 

 

5 The current text of Rule 41(a)(2) was the product of the 

2007 amendments to the civil rules. The predecessor to 

this rule provided: “An action shall not be dismissed at the 

plaintiff’s instance save upon order of the court and upon 

such terms and conditions as the court deems proper.” This 

change was considered non-substantive. See 9 Charles 

Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure, § 2361 (3d ed. 2008) (“Federal Rule 41 has 

been amended seven times since it originally was 

promulgated in 1938. The amendments, however, have 

been substantively insignificant. It is doubtful if a single 

case would have been decided differently if the rule stood 

as it did in 1938 . . .”). Accordingly, we consider the case 

law pertaining to the earlier version of this Rule to be 

instructive. 
15

such a filing be submitted either “before the opposing party 

serves . . . an answer,” Rule 41(a)(1)(A)(i), or be filed along 

with “a stipulation of dismissal signed by all parties who have 

appeared.” Rule 41(a)(1)(A)(ii). In light of Rule 41(a)(1)’s 

inapplicability, Plaintiffs’ counsel’s “Notice to Dismiss” 

properly falls within the scope of Rule 41(a)(2), which allows 

an action to be “dismissed at the plaintiff’s request only by 

court order, on terms that the court considers proper.” The 

District Court therefore properly considered dismissal under 

Rule 41(a)(2) rather than Rule 41(a)(1).

IV.

Under Rule 41(a)(2), the District Court was permitted

to dismiss the case “on terms that the court considers proper.” 

FED. R. CIV. P. 41(a)(2). In exercising that broad grant of 

discretion, the District Court concluded that its terms would 

include an award of attorneys’ fees and costs. As noted above, 

in coming to this conclusion the District Court recognized the

“general rule [that] defendants are not permitted to recover fees 

when a plaintiff dismisses an action with prejudice absent 

exceptional circumstances.” JA 10. This general rule 

acknowledges that, in the ordinary case, dismissal with 

prejudice protects a defendant from otherwise repetitive 

litigation, whereas dismissal without prejudice leaves a

defendant at risk of re-litigating dismissed issues. But this 

general rule was not applied to the case at hand because, as the 

District Court put it, “this case is unusual and it therefore calls 

for an unusual solution.” JA 18.
16

A.

This Court has yet to provide guidance as to when 

awarding attorneys’ fees and costs is appropriate under a Rule 

41(a)(2) dismissal with prejudice. We have, however, 

acknowledged a district court’s ability to attach conditions to 

Rule 41(a)(2) dismissal orders. In Raab v. City of Ocean City, 

we considered a district court’s ability to attach two terms to 

its order of dismissal: an explicit incorporation of a settlement 

agreement between the parties, and the requirement that the 

district court retain jurisdiction over that agreement. Raab v. 

City of Ocean City, 833 F.3d 286, 294 (3d Cir. 2016). An 

appellee in that case argued that the district court’s sua sponte

retention of jurisdiction was invalid because the parties did not 

consent to such a retention of jurisdiction over their agreement. 

In addressing that argument we noted a distinction between 

Rule 41(a)(1) and Rule 41(a)(2). With the former, the parties’ 

consent to a district court’s retention of jurisdiction is typically 

sought; with the latter, “the Supreme Court has indicated [that] 

district courts may retain jurisdiction without the parties’ 

consent.” Id. at 296.

In Raab, we referred to Kokkonen v. Guardian Life 

Insurance Co. of America, in which the Supreme Court 

explained that “[w]hen the dismissal is pursuant to [Rule]

41(a)(2) . . . the parties’ compliance with the terms of the 

settlement contract (or the court’s ‘retention of jurisdiction’ 

over the settlement contract) may, in the court’s discretion, be 

one of the terms set forth in the order.” Kokkonen v. Guardian 

Life Insurance Co. of America, 511 U.S. 375, 381 (1994). The 

Raab panel declared that “Kokkonen made clear that, for court 

dismissals made pursuant to [Rule] 41(a)(2), a district court 
17

may, in its discretion, ‘attach conditions to the parties’ 

stipulation of dismissal’—including the retention of 

jurisdiction over the settlement agreement.” Raab, 833 F.3d at 

296 (citation omitted).

Other courts have more directly addressed a district 

court’s ability to award attorneys’ fees and costs as a proper 

term of dismissal under Rule 41(a)(2).6In doing so, courts have 

often recognized the same general principle that the District

Court recognized in this case: although attorneys’ fees and 

 

6 One persuasive example comes from the Supreme Court 

of the State of Hawai‘i, where the Court held that, under 

Hawai‘i District Rules of Civil Procedure (“HDCRCP”)

Rule 41(a)(2), “a trial court has discretion to impose terms 

and conditions, including attorney’s fees and costs” as 

long as the court provides the plaintiff with the opportunity 

to either withdraw the request for dismissal or accept the 

court’s terms. Tagupa v. VIPDesk, 353 P.3d 1010, 1020 

(Haw. 2015). The Tagupa Court noted that “[w]hile this 

court has not previously addressed whether attorney’s fees 

may be imposed as a term or condition of voluntary 

dismissal under HDCRCP Rule 41(a)(2), there is abundant 

authority interpreting comparable provisions of the 

Federal Rules of Civil Procedure,” and since HDCRCP 

Rule 41(a)(2) was “essentially identical” to FRCP Rule 

41(a)(2), “cases interpreting and applying HRCP Rule 

41(a)(2) and FRCP Rule 41(a)(2) may be consulted for 

guidance in interpreting HDCRCP Rule 41(a)(2).” 

Tagupa, 353 P.3d at 1018.
18

costs may be frequently awarded when dismissal is without

prejudice, attorneys’ fees and costs are not typically 

appropriate when dismissal is with prejudice. Importantly, 

however, these cases do not hold that fees can never be 

awarded in light of extraordinary circumstances. Indeed, courts 

have held that awarding attorneys’ fees and costs as a term of 

a Rule 41(a)(2) dismissal may be appropriate where such fees 

and costs were unnecessarily incurred.

7

One case applying the general rule against awarding 

attorneys’ fees and costs when dismissal is with prejudice 

comes from the Sixth Circuit. In Smoot v. Fox, 353 F.2d 830 

(6th Cir. 1965), the Court explained that “cases permit 

allowance of attorney’s fees against the dismissing party where 

the action is dismissed without prejudice.” Smoot, 353 F.2d at 

833. This was contrasted against “dismissal with prejudice,” 

which “finally terminates the cause” meaning that “the 

defendant cannot be made to defend again.” Id. After noting 

this distinction, the Sixth Circuit cast doubt on the 

appropriateness of awarding attorneys’ fees and costs when 

 

7 For example, in GAF Corp. v. Transamerica Insurance

Co., 665 F.2d 364, 367 (D.C. Cir. 1981) (footnote 

omitted), the D.C. Circuit explained that the purpose of the 

“terms and conditions” clause in an earlier version of Rule 

41(a)(2) was “to protect a defendant from any prejudice or 

inconvenience that may result from a plaintiff’s voluntary 

dismissal. Attorneys’ fees and costs are commonly 

awarded as one such ‘term and condition’ for a voluntary 

dismissal, for those costs were undertaken unnecessarily 

in such a case.”
19

dismissal was with prejudice, citing to a district court’s holding

“that attorney’s fees are not proper where the dismissal is with 

prejudice.” Id. (citing Lawrence v. Fuld, 32 F.R.D. 329 (D. Md. 

1963)). 

The Seventh Circuit has similarly questioned the 

appropriateness of awarding attorneys’ fees and costs when 

dismissal is with prejudice. In Cauley v. Wilson, 754 F.2d 769 

(7th Cir. 1985), the Seventh Circuit considered a challenge to 

an award of attorneys’ fees granted in response to an oral Rule 

41(a)(2) motion for voluntary dismissal without prejudice. The 

Court noted that “[f]ees are not awarded when a plaintiff 

obtains a dismissal with prejudice because the ‘defendant 

cannot be made to defend again.’” Cauley, 754 F.2d at 772 

(quoting Smoot, 353 F.2d at 833). This was to be distinguished

from “the case of a dismissal without prejudice” since there 

“the defendant may have to defend again at a later time and 

incur duplicative legal expenses.” Id. Applying “these general 

standards” to the fees awarded in the motion for voluntary 

dismissal without prejudice then before the Court, the Seventh 

Circuit explained that it would “affirm the fees award unless 

the award constitutes an abuse of discretion by the district 

court.” Id. But because the “request for attorney’s fees lacked 

sufficient detail to permit the district court to determine a 

reasonable award,” the Seventh Circuit remanded the case so 

that the district court could “receive additional evidence and to 

reconsider the fees issue.”8Id.

 

8

In what now seems to be an almost quaint reference, the 

Seventh Circuit also “question[ed] . . . whether a lawyer 
20

While Smoot and Cauley illustrate a general hesitation 

to award attorneys’ fees and costs when dismissal is with 

prejudice, we read these cases as simply stating a general rule. 

Indeed, this general rule is one that courts in this circuit must 

similarly adhere to. But our recognition of this general rule 

does not end our analysis. As with many areas of the law, 

limited and principled exceptions to general rules often 

develop over time.

Other circuits have distinguished Rule 41(a)(2) 

dismissals with and without prejudice in a more textured 

manner. These courts have explained that, although a dismissal 

with prejudice does not ordinarily warrant an award of fees and 

costs, there are times when such an award will be appropriate. 

For example, in Colombrito v. Kelly, 764 F.2d 122 (2d Cir. 

1985), the Second Circuit explained that although an award of 

attorneys’ fees and costs is not ordinarily paired with a 

dismissal with prejudice, the Second Circuit’s “reading of Rule 

41(a)(2) does not altogether foreclose fees in the event of a 

dismissal with prejudice.” Id. at 134. Specifically, “such an 

award might be one of the appropriate ‘terms or conditions’ 

authorized by Rule 41(a)(2), e.g., if a litigant had made a 

practice of repeatedly bringing potentially meritorious claims 

and then dismissing them with prejudice after inflicting 

substantial litigation costs on the opposing party and the 

judicial system.” Id. at 134–35. Because the Second Circuit 

concluded that such circumstances were not present in the case 

 

less than three years out of law school was justified in 

charging $100 per hour in 1975.” Cauley, 754 F.2d at 772.
21

before it, the Court reversed the district court’s award. Id. at 

135.

Similarly, in AeroTech, Inc. v. Estes, the Tenth Circuit 

considered whether a district court had “abuse[d] its discretion 

in declining to award attorneys’ fees as a ‘term or condition’ 

under Rule 41(a)(2) when a plaintiff dismisse[d] its action with 

prejudice.” AeroTech, 110 F.3d 1523, 1528 (10th Cir. 1997). 

The Tenth Circuit began its analysis by noting that it 

“continue[d] to adhere to the rule that a defendant may not 

recover attorneys’ fees when a plaintiff dismisses an action 

with prejudice absent exceptional circumstances.” Id. That 

court went on to clarify that “[o]f course, when a litigant makes 

a repeated practice of bringing claims and then dismissing 

them with prejudice after inflicting substantial litigation costs 

on the opposing party and the judicial system, attorneys’ fees 

might be appropriate.” Id. Because the Tenth Circuit found that 

“such an exceptional circumstance [wa]s not present,” the 

Court “conclude[d] that the district court did not abuse its 

discretion in denying attorneys’ fees under Rule 41(a)(2).”9Id.

 

9 The Tenth Circuit has reaffirmed its rationale in AeroTech. 

Steinert v. Winn Grp., Inc., 440 F.3d 1214, 1222 (10th Cir. 

2006) (“But if the dismissal is with prejudice, attorney fees 

may be imposed under Rule 41(a)(2) only in ‘exceptional 

circumstances.’ AeroTech, 110 F.3d at 1528. An example of 

such a circumstance is ‘when a litigant makes a repeated 

practice of bringing claims and then dismissing them with 

prejudice after inflicting substantial litigation costs on the 

opposing party and the judicial system.’” (citation omitted)); 

Ryan v. Donley, 511 F. App’x 687, 692 (10th Cir. 2013) 
22

We conclude, in step with our colleagues on the Second 

and Tenth Circuits, that although attorneys’ fees and costs

should not typically be awarded in a Rule 41(a)(2) dismissal 

with prejudice, exceptional circumstances may sometimes 

warrant granting such an award. The facts of the instant case

exemplify such exceptional circumstances: a litigant’s failure 

to perform a meaningful pre-suit investigation, coupled with a 

litigant’s repeated practice of bringing claims and dismissing 

them with prejudice after inflicting substantial costs on the 

opposing party and the judicial system.

B.

As to a litigant’s failure to perform a meaningful presuit investigation, we start by noting that this standard 

constitutes a high bar for litigants to meet. The run-of-the-mill 

case will not meet such a bar, even when a jurist believes that 

a more thorough pre-suit investigation should have been 

conducted. The instant case, however, provides an example of 

the very sort of exceptional circumstances warranting an award 

of attorneys’ fees and costs, despite a dismissal with prejudice. 

We turn first to the circumstances surrounding Turner, 

a plaintiff who did not even suffer the type of hearing loss 

alleged in the underlying lawsuit. Had Plaintiffs’ counsel even 

looked at Turner’s audiograms, he would have recognized the 

 

(unpublished) (“Although AeroTech acknowledged that a fee 

award ‘might be appropriate’ if there were exceptional 

circumstances, this case does not present any such exceptional 

circumstances.”) (internal citation omitted); see also JA 10–11 

(citing Steinert, 440 F.3d at 1222).
23

deficiency in the claim. JA 260 (“None of [Turner’s] hearing 

tests, including the November 28, 2011 hearing test sponsored 

by [Plaintiffs’ counsel’s law firm] shows any features 

consistent with noise-induced hearing loss.”). Plaintiffs’ 

counsel conceded this point at oral argument. Oral Argument 

Transcript at 12–13 (“Judge . . . you can have high frequency 

hearing loss that an expert would say is not noise related . . . 

but caused by conduction . . . [as] somebody who looks at 

audiograms I will tell you that [Turner’s hearing loss] is most 

likely caused by conductive hearing loss.”); id. at 12 

(“[C]learly [Turner’s] audiogram was more of a conductive 

nature.”).

When Federal Signal wrote to Plaintiffs’ counsel on 

May 10, 2016, demanding voluntary dismissal with prejudice,

Federal Signal alerted Plaintiffs’ counsel to the fact that

Turner’s audiograms revealed that he “does not have noiseinduced hearing loss.” JA 273. Federal Signal further wrote 

that, had Plaintiffs’ counsel “reviewed Turner’s audiogram at 

any point before filing this lawsuit, you would have realized 

this.” JA 273. Moreover, Federal Signal’s letter memorializes

a conversation that had occurred between opposing counsel

“[o]n the morning of March 23, 2016, while there was still

sufficient time to cancel” Turner’s deposition. JA 273. In that 

conversation, Federal Signal explained to Plaintiffs’ counsel 

that if he “declined to dismiss Turner and instead forced 

[Federal Signal] to go forward with his deposition, [Federal 

Signal] would seek our fees and costs.” JA 273. Plaintiffs’ 

counsel, fully aware that Turner had no viable claim, still

forced Federal Signal to go forward with depositions. 
24

But though the circumstances surrounding Turner 

provide the most egregious evidence of counsel’s failure to 

conduct a meaningful pre-suit investigation, it is not the only 

evidence supporting an extraordinary circumstances 

determination. As counsel for Federal Signal noted in one of 

the evidentiary hearings conducted by the District Court, 

depositions revealed that many of the plaintiffs freely 

acknowledged that they had participated in annual hearing 

checks for many years before the complaint was filed, during

which they were notified that loud noise likely caused their 

hearing loss. JA 554. Plaintiffs’ counsel did not take the 

opportunity to put on any evidence to refute this testimony 

during either of the two evidentiary hearings conducted by the 

District Court. JA 15 (referring to the evidence which was 

“undisputed and wholly uncontradicted by the plaintiffs”). Nor 

does it appear counsel could have done so, since even a brief 

discussion with these clients in advance of filing would have 

alerted counsel to the reality that Plaintiffs knew about their 

hearing loss for multiple years in advance, making their claims 

obviously time-barred.

10

 

10 Plaintiffs’ complaint sought to hold Defendants either 

strictly or negligently liable for damages allegedly caused by 

Defendants’ products. Under Pennsylvania law, Plaintiffs 

would have ordinarily been required to commence their actions 

within two years of their injury. 42 PA. CONS. STAT. §§ 

5521(b), 5524(2). Pennsylvania, however, recognizes the 

“discovery rule,” which tolls the running of a statute of 

limitations for “that period of time during which a party who 

has not suffered an immediately ascertainable injury is 
25

One plaintiff, for example, confirmed that he had been 

aware of his hearing results since 2011, explaining that his 

results were “[n]ot good,” JA 210, and that he had been

referred to a specialist because he was losing his hearing. JA 

211. Similarly, Gerald Carroll confirmed that he had been told 

of his hearing loss since at least 2011. JA 231–32. Indeed, 

Carroll learned that his hearing loss was likely attributable to 

his job as a firefighter no later than 2011. JA 232. The 

depositions of other plaintiffs revealed similar issues.11

 

reasonably unaware he has been injured, so that he has 

essentially the same rights as those who have suffered such an 

injury.” Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005). In light 

of the discovery rule, Plaintiffs might have been excused from 

commencing their claims if they had not learned of their injury 

until much later. But as the District Court noted, since “nearly 

all of the plaintiffs in this suit had been advised many years 

earlier that they had hearing loss that was very probably caused 

by the loud noises to which they were exposed on the job and 

that they should be wearing hearing protection . . . Plaintiffs’ 

claims were obviously time-barred when they were filed in or 

around January, 2015.” JA 14–15 (footnote omitted). 

Plaintiffs’ counsel concedes that his clients’ claims were timebarred. Carroll Br. 31 (“Clearly Dr. Malomo’s testimony was 

enough to lead the trier of fact [to find] that both prongs of the 

discovery rule test were satisfied and that action was no longer 

tenable.”).

11 For example, one plaintiff noticed his hearing loss when he 

was riding ambulances in either 1975 or 1976. JA 168. Another 

plaintiff acknowledged that his ringing in the ears started 
26

It is unremarkable that Plaintiffs did not exhibit an 

understanding of Pennsylvania tort law sufficient to permit 

them to conclude that their claims were time-barred. Any 

plaintiff would have likely learned of that reality only after 

discussing the matter with counsel. In stark contrast to the 

routine discussions that an attorney should have with a client

before filing suit, Carroll clarified in his deposition that he 

learned of his participation in this lawsuit only after he received

an e-mail from Plaintiffs’ law firm. JA 227. Such an 

uninformed rush to the courthouse skirts the norms of proper 

legal practice in pursuit of the fruits of aggregation. It should 

not be condoned. 

Plaintiffs’ counsel argues that he was not put on notice 

of the time-barred nature of his clients’ claims until the 

deposition of Dr. Malomo, a medical director of the police and 

fire clinic that provided annual hearing tests to Plaintiffs.

Carroll Br. 6; JA 234–37. But even if true, it only provides 

further evidence of counsel’s failure to conduct a meaningful 

pre-suit investigation. Rather than wait for the deposition of

Dr. Malomo, counsel could simply have asked his clients 

during a routine interview when they had first discovered that 

they were suffering from hearing loss attributable to their jobs 

as firefighters. By failing to do so, counsel shifted the costs of 

a pre-suit investigation onto Federal Signal by requiring 

Federal Signal to take depositions in order to ask Plaintiffs the 

 

within the last ten years, and that he had been told at his yearly 

physicals over those years that he had failed his hearing tests. 

JA 183–85. 
27

very questions that their own lawyer should have asked prior 

to filing suit. 

Plaintiffs’ counsel argues that the District Court 

inappropriately took him “to task for allegedly not conducting 

a proper investigation even though all parties recognize that 

[Plaintiffs] are subject to a hearing program that has no equal 

in any of the fire departments from which these [nationwide] 

claims have arisen.” Carroll Br. 30. Not so. The fact that 

Plaintiffs’ fire department conducts annual hearing 

examinations, unlike other departments throughout the 

country, does not excuse counsel from speaking to his own 

clients before filing a lawsuit on their behalf. It highlights the

importance that counsel treat each individual case in this 

aggregate litigation as just that, its own individual case. Neither 

this panel nor the District Court has pronounced judgment as 

to whether Plaintiffs’ counsel exhibited the characteristics of a 

“good” or “bad” lawyer during this litigation. What we can say, 

however, is that this case is an example of some of the excesses 

of modern mass tort litigation—when attention to an individual 

case is sacrificed for the sake of pursuing mass filings. In 

granting an award, the District Court appropriately offset some 

of the costs incurred by Defendants which resulted from 

Plaintiffs’ counsel’s failure to pay attention to detail.

C.

In awarding attorneys’ fees and costs, the District 

Court’s analysis did more than take account of the lack of 

meaningful pre-suit preparation. Specifically, the District 

Court considered circumstances that extended beyond the 

geographic boundaries that make up the Eastern District of 
28

Pennsylvania. Plaintiffs’ counsel makes much of this portion 

of the District Court’s opinion, going as far as stating that the 

District Court “appoint[ed] itself the policeman of this 

nationwide litigation” by “unilaterally usurp[ing] the powers 

of the other courts.” Carroll Br. 25–26. Putting aside counsel’s 

overheated rhetoric, we conclude that the District Court did not 

abuse its discretion when it explicitly considered the entirety 

of this “nationwide litigation.”

Far from seeking “any excuse to impose[] what would 

be the equivalent of sanctions on Plaintiff[s’] counsel,” Carroll 

Br. 25, the District Court properly took notice of how the case 

before it fit within the larger network of cases brought by 

Plaintiffs’ counsel throughout the country. In doing so, the 

District Court acted in accord with the reasoning of the Second 

Circuit in Colombrito, and the Tenth Circuit in AeroTech—

courts that have explicitly made clear that attorneys’ fees and 

costs may be appropriately awarded, despite dismissal with 

prejudice, in those rare instances when a litigant repeatedly

brings and dismisses claims with prejudice after inflicting 

substantial costs on the opposing party and the judicial 

system.12 The District Court concluded that that exception 

 

12 Colombrito v. Kelly, 764 F.2d 122, 134–35 (2d Cir. 1985) 

(“Conceivably such an award might be one of the appropriate 

‘terms or conditions’ authorized by Rule 41(a)(2), e.g., if a 

litigant had made a practice of repeatedly bringing potentially 

meritorious claims and then dismissing them with prejudice 

after inflicting substantial litigation costs on the opposing party 

and the judicial system.”); AeroTech, Inc. v. Estes, 110 F.3d 

1523, 1528 (10th Cir. 1997) (“Of course, when a litigant makes 
29

should apply to the case at hand, and we conclude that the 

Court did not abuse its discretion in doing so. See, e.g., JA 14 

(referring to “instances in which Federal Signal’s attorneys 

have completed discovery in a matter and sometimes even 

taken a case to trial when Plaintiffs’ counsel dismisses the 

case.”).

Plaintiffs’ counsel attempts to limit this exception to the 

general rule against awarding attorneys’ fees and costs. 

Specifically, Plaintiffs’ counsel argues that a district court 

should only be permitted to inquire into abusive litigation 

practices that occur within the district court’s own jurisdiction. 

See Carroll Br. 24. To the extent that our sister circuits were

unclear on this point, we take this opportunity to clarify that a 

district court in this Circuit need not restrict its inquiry into 

litigation activity to any single jurisdiction. In cases like the 

one at hand, where counsel has made a habit of filing 

essentially identical claims in multiple jurisdictions, and has 

voluntarily dismissed those claims after their opposing party 

(and the judiciary) have incurred substantial costs, a district 

court may, in its discretion, give weight to such facts when 

considering terms of dismissal under Rule 41(a)(2). To hold 

otherwise would be to permit counsel to frivolously expose

their adversaries to unnecessary litigation costs. We will not 

 

a repeated practice of bringing claims and then dismissing 

them with prejudice after inflicting substantial litigation costs 

on the opposing party and the judicial system, attorneys’ fees 

might be appropriate.”).
30

require district courts to wear blinders when exercising the 

broad discretion afforded them under Rule 41(a)(2).

Finally, Plaintiffs’ counsel argues in the alternative that 

if “evidence of other actions is somehow relevant to the District 

Court’s decision . . . . Plaintiffs’ counsel would direct the 

Court’s attention to the fact that Federal Signal has sought fees 

and costs in Philadelphia Common Pleas for improper 

dismissal and its motions were denied by the Court.” Carroll 

Reply Br. 9. As Plaintiffs’ counsel put it in his opening brief, 

“[l]ogically, if the Court accepted the evidence, proffered by 

Federal Signal of Plaintiffs’ counsel’s litigation strategy in 

other jurisdictions, it should have taken heed of the results of 

Federal Signal’s motions for fees and costs in those 

jurisdictions.” Carroll Br. 21. Perhaps so. But while it might be 

worthwhile in a particular case for a district court to consider 

whether other courts have found it appropriate to award fees 

and costs, a district court is not bound by the decisions of other

state and federal trial courts throughout the country. After 

conducting two evidentiary hearings in order to determine the 

appropriateness of awarding attorneys’ fees and costs in this

case, the District Court was free to exercise its discretion in 

deciding whether granting the request for fees and costs was 

appropriate.

V.

Although attorneys’ fees and costs are typically not 

awarded when a matter is voluntarily dismissed with prejudice

under Rule 41(a)(2), we conclude that such an award may be 

granted when exceptional circumstances are demonstrated. 

Exceptional circumstances include a litigant’s failure to 
31

perform a meaningful pre-suit investigation, and a repeated 

practice of bringing claims and dismissing them with prejudice 

after inflicting substantial costs on the opposing party and the 

judicial system. As those exceptional circumstances were 

present in this case, we conclude that the District Court did not 

abuse its discretion in awarding attorneys’ fees and costs. The 

District Court’s judgment will be affirmed.