1

Because there was no class certification, the dismissal was without prejudice to the putative class. 

Tony WOODARD, on behalf of himself and all others similarly situated, Plaintiff-Appellant,

v.

STP CORPORATION and First Brands Corporation, Defendants-Appellees.

No. 97-6581.

United States Court of Appeals,

Eleventh Circuit.

March 23, 1999.

Appeal from the United States District Court for the Northern District of Alabama. (No. CV-97-AR-944-E),

William M. Acker, Jr., Judge.

Before TJOFLAT, Circuit Judge, and GODBOLD and HILL, Senior Circuit Judges.

TJOFLAT, Circuit Judge:

The plaintiff, Tony Woodard, filed this suit on behalf of himself and all others similarly situated

against the defendants in Alabama state court. The state court—prior to any service of process on the

defendants—granted conditional class certification. The defendants, after receiving the complaint, removed

the case to the United States District Court for the Northern District of Alabama on the basis of diversity of

citizenship. See 28 U.S.C. § 1441 (1994). The plaintiff moved the district court, pursuant to 28 U.S.C. §

1447(c), to remand the case to state court. The motion was denied, and the district court vacated the state

court's conditional class certification.

The plaintiff then filed a motion for voluntary dismissal. The defendants opposed the motion on the

ground that they had already invested substantial resources in the litigation and did not want to relitigate the

same claims in another forum. The district court granted the plaintiff's motion, but with prejudice1

 and subject

to the condition that if

any present counsel for Tony Woodard hereinafter files an individual or putative class action

complaint against these defendants, or either of them, in any forum whatsoever and wheresoever, this

court maintains the right on defendants' motion to assess against Tony Woodard and his present

counsel the attorneys fees and expenses incurred by defendants in this case.
 2

The plaintiff filed a motion for certification in the district court, but then filed a motion for voluntary

dismissal prior to obtaining a ruling on the motion for certification. The district court, in granting the

motion for voluntary dismissal, dismissed the motion for certification as moot. 

 3Under the American Rule, each party bears its own costs in litigation. There are common law

exceptions to this rule when an action is brought in bad faith, when a party wilfully disobeys a court

order, or when an action creates a "common fund" or "common benefit." See Alyeska Pipeline Serv. Co.

v. Wilderness Soc'y, 421 U.S. 240, 257-59, 95 S.Ct. 1612, 1621-22, 44 L.Ed.2d 141 (1975). In addition,

assessment of attorneys' fees and costs may be authorized by contract or statute. See Johnson Enters. of

Jacksonville, Inc., v. FPL Group, Inc., 162 F.3d 1290, 1329 (11th Cir.1998). None of the common law

exceptions is applicable, there is no relevant contractual provision, and the only statutory exception of

any possible relevance is Rule 11. 

2

See Fed.R.Civ.P. 41(a)(2) (giving the district court authority to impose "terms and conditions" on a

dismissal). Following the entry of judgment pursuant to the district court's dismissal order, the plaintiff took

this appeal. He challenges the district court's denial of remand and the condition placed on the dismissal.

 Denial of a motion to remand is an interlocutory order reviewable pursuant to district court

certification under 28 U.S.C. § 1292(b) or on appeal from a final judgment. See Sheeran v. General Elec.

Co., 593 F.2d 93, 97 (9th Cir.1979). The plaintiff did not obtain district court certification, and therefore

cannot appeal directly from the order denying remand.2

 He did, however, obtain a final judgment when the

court granted with prejudice his motion for voluntary dismissal. See Druhan v. American Mut. Life Ins. Co.,

166 F.3d 1324,---- n. 4 (11th Cir.1999). That judgment is not appealable, however, because it was obtained

at the request of the plaintiff and there is therefore no "case or controversy" in regard to it. See id. at 1324.

We therefore lack jurisdiction to hear any challenge to the district court's denial of remand.

 The condition imposed on the dismissal order is a more complex matter. In the order, the district

court retains jurisdiction to assess, upon the defendants' motion, attorneys' fees and costs for this case against

the plaintiff and his attorneys in the event that any of the plaintiff's present attorneys brings an action against

the defendants in another forum. The only basis for granting such a motion would be as a sanction under

Rule 11 of the Federal Rules of Civil Procedure.3

 See Fed.R.Civ.P. 11(c)(2) (stating that "attorneys' fees and

other expenses incurred" are an appropriate form of sanction under the rule). By not imposing Rule 11
3

sanctions at the time the case was dismissed, however, the district court implicitly held that such sanctions

are not appropriate in this case. Instead, the sanctions would serve as punishment for bringing a subsequent

lawsuit. This is an improper use of Rule 11. Rule 11 sanctions are properly applied only to cases before the

court, not to cases in other courts. If Rule 11 sanctions are warranted in a subsequent lawsuit brought by the

plaintiff or his attorneys, it is the job of the court hearing the subsequent lawsuit—and not the court in this

case—to impose such sanctions. Consequently, the district court abused its discretion in retaining jurisdiction

to assess attorneys' fees and costs against the plaintiff and his attorneys. Cf. Kokkonen v. Guardian Life Ins.

Co. of Am., 511 U.S. 375, 381, 114 S.Ct. 1673, 1677, 128 L.Ed.2d 391 (1994) (noting that the retention of

jurisdiction pursuant to a conditional dismissal under Rule 41(a)(2) is a matter of judicial discretion).

We therefore REVERSE the district court's judgment insofar as it purports to retain jurisdiction over

this suit, and instruct the district court, upon receipt of this mandate, to delete the relevant portion of its

dismissal order. In all other respects, the appeal is DISMISSED.