UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-2372

STELLA ANDREWS, individually and on behalf of similarly 

situated persons,

Plaintiff - Appellant,

v.

AMERICA'S LIVING CENTERS, LLC, a for profit limited 

liability corporation, organized under the laws of the State 

of North Carolina, doing business as CAROLINA LIVING CENTER; 

CAROLINA LIVING CENTER #1; ZION HILL LIVING CENTER; GOLDEN 

HARVEST LIVING CENTER #1; GOLDEN HARVEST LIVING CENTER #2; 

UNION MILLS LIVING CENTER #1; UNION MILLS LIVING CENTER #2; 

UNION MILLS LIVING CENTER #3; FOUR SEASONS FAMILY CARE HOME; 

TRANSYLVANIA LIVING CENTER; KENNETH HODGES, individually & 

as mbr/mgr of America's Living Ctrs LLC, & owner &/or mgr of 

Carolina Living Ctrs; Carolina Living Ctr 1; Golden Harvest

Living Ctrs 1 & 2; Union Mills Living Ctrs 1, 2 & 3; Four 

Seasons Family Care Home; & Transylvania Living Ctr,

Defendants - Appellees.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Martin K. Reidinger, 

District Judge. (1:10-cv-00257-MR-DLH)

Submitted: October 30, 2012 Decided: January 4, 2013

Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.
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Joseph H. Cassell, ERON LAW OFFICE, P.A., Wichita, Kansas; 

Robert Carpenter, ADAMS HENDON CARSON CROW & SAENGER, P.A., 

Asheville, North Carolina, for Appellant. Grant B. Osborne, 

WARD AND SMITH, P.A., Asheville, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

In granting a motion for costs under Federal Rule of

Civil Procedure 41(d) (authorizing an order directing a 

plaintiff, who previously dismissed an action and filed a second 

action based on the same claim, to pay the costs of the previous 

action), the district court ordered that the parties confer on 

the amount of costs and, failing agreement, that the defendants

submit a bill of costs and affidavits to enable the court to 

determine the amount. The plaintiff appeals this order. 

Because it is interlocutory, however, we dismiss the appeal and 

remand the case for further proceedings.

Stella Andrews brought a collective action under the 

Fair Labor Standards Act (“FLSA”) against America’s Living 

Centers, LLC, and Kenneth Hodges, alleging that she and other 

similarly situated employees were owed unpaid overtime and 

minimum wages. After the district court conducted a hearing on 

the defendants’ motion to dismiss, Andrews voluntarily dismissed 

the complaint under Rule 41(a)(1)(A)(i). On that same day, 

however, she filed this action under the FLSA, again making the 

same claims and naming as defendants America’s Living Centers, 

LLC, and Hodges, as well as 10 family care homes that they 

allegedly own and operate. In response to this action, the 

defendants filed a motion, pursuant to Rule 41(d), for an award 

of costs, including attorneys’ fees, incurred in defending the 
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previously dismissed action and to stay the proceedings in this 

action until Andrews paid the costs of the prior action.

A magistrate judge granted the defendants’ Rule 41(d) 

motion and directed the parties to confer on the amount of costs 

reasonably incurred by the defendants. His order provided that 

if the parties could not agree on the amount of costs, the 

defendant should submit a bill of costs with supporting 

affidavits, and the court would determine the amount. The order 

also provided that the action be stayed pending Andrews’ payment 

of the costs after they were so determined. The district court 

affirmed the magistrate’s order and issued an order directing 

the parties to comply with it.

From the district court’s order, Andrews filed this 

appeal.

We conclude that the district court’s order is an

interlocutory order over which we do not have jurisdiction. An 

appellate court may exercise jurisdiction only over final 

orders, 28 U.S.C. § 1291, and certain interlocutory and 

collateral orders, 28 U.S.C. § 1292; Fed. R. Civ. P. 

54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-

46 (1949).

Andrews argues that the district court’s order is an 

appealable collateral order. But it is well established that in 

order for a collateral order to be appealable, it must “[1]
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conclusively determine the disputed question, [2] resolve an 

important issue completely separate from the merits of the 

action, and [3] be effectively unreviewable on appeal from a 

final judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006) 

(alterations in original) (internal quotation marks and 

citations omitted).

Here, where the district court has yet to determine 

even the amount of costs to be awarded, the question is not 

conclusively determined, and the order undoubtedly remains 

interlocutory and unappealable. Accordingly, we dismiss the 

appeal for lack of jurisdiction.

We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process.

DISMISSED