IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

RESERVE PLACE, LLC,

a Florida limited liability company, 

and RESERVE ACQUISITION GROUP,

LLC, a Florida limited liability company,

Plaintiffs,

vs. CASE NO. 3:10-cv-364/RS-MD

REGIONS BANK, an Alabama 

corporation. 

Defendant.

_________________________________________/

ORDER

Before me is Defendant‟s Motion for Dismissal and For Recovery of Costs and 

Stay of Proceedings (Doc. 10) and Memorandum in Support (Doc. 11), and Plaintiff‟s 

Memorandum in Opposition (Doc. 19). 

Background

Plaintiffs filed this eight-count complaint against Defendant Regions Bank in 

September 2010. Previously, Plaintiffs and Defendant were parties to an action in the 

Circuit Court of the First Judicial Circuit for Santa Rosa County, Florida, number 2009-

CA-002097. That state court case contained an eleven-count third-party amended 

complaint by which Plaintiffs brought suit against Defendant for essentially the same 

cause of action. All eight counts represented in this case (Doc. 1), were included, with 

substantially similar text, in the Plaintiff‟s state court First Amended Complaint (Doc. 11, 
attach. 4). The state court action was voluntarily dismissed by Plaintiffs without 

prejudice (Doc. 11, attach. 5), before this case was commenced. 

Analysis 

“If a plaintiff who previously dismissed an action in any court files an action based 

on or including the same claim against the same defendant, the court . . . may order the 

plaintiff to pay all or part of the costs of that previous action.” Fed. R. Civ. P. 41(d). 

There is no dispute that the same parties were involved in the previous litigation in 

Florida‟s First Judicial Circuit. And, having reviewed both Plaintiff‟s state court First 

Amended Complaint (Doc. 11, attach. 4) and the instant Complaint (Doc. 1), I find that 

the same claims are in dispute. Plaintiff does not take issue with this assessment, by 

agreeing to pay costs of $203.41, but not attorneys‟ fees (Doc. 19, p.6). 

The only real question here is not whether Rule 41(d) is applicable, but rather 

what is covered by the Rule‟s allowance for costs. “The costs available under Rule 41(d) 

have generally been held to include attorney's fees.” 8-41 MOORE'S FEDERAL PRACTICE -

CIVIL § 41.70 (2010). While the Eleventh Circuit Court of Appeals has not directly 

addressed the issue, district courts in our Circuit have allowed for the payment of 

attorneys‟ fees. See Wolf v. Pac. Nat'l Bank, N.A., 2010 U.S. Dist. LEXIS 36180 (S.D. 

Fla. 2010) (ordering attorneys‟ to be paid as “an element of cost under Rule 41(d)”); 

Groom v. Bank of Am., 2010 U.S. Dist. LEXIS 16082 (M.D. Fla. 2010) (agreeing with 

magistrate that “attorneys' fees are taxable as a „cost‟ under Rule 41(d)”); Cadle Co. v. 

Beury, 242 F.R.D. 695, 698 (S.D. Ga. 2007) (“Rule 41(d) gives the Court discretion to 

grant attorney's fees, as it may deem proper.”); Id. (“To interpret „costs‟ in Rule 41(d) to 
exclude attorney's fees would render that Rule a dead letter, eliminating any deterrence it 

would provide.”). 

Plaintiff contends that if attorneys‟ fees are allowed, bad faith is a necessary 

element. While some courts have reached this conclusion, others have not. Compare 

Groom v. Bank of Am., 2010 U.S. Dist. LEXIS 15746 (M.D. Fla. 2010) (“A showing of 

bad faith is not required to recover costs under the rule.”), adopted, 2010 U.S. Dist. 

LEXIS 16082, with Shaker Vill. Condo. Ass'n v. Certain Underwriters at Lloyd's, 

London, 2009 U.S. Dist. LEXIS 16483 (S.D. Fla. 2009) (noting payment reserved only 

for “vexatious and repetitive litigation and where the plaintiff has refiled the same 

previously dismissed suit in bad faith”). 

The most reasoned approach is that a showing of bad faith is not necessary, but is 

just one factor the court may consider in determining the amount of costs to award. In 

addition, several other factors must be considered in determining the appropriate amount 

of fees to award. Those factors include: (1) the costs incurred by the moving party on 

dispositive motions; (2) the preclusive effect of the moving party's successes in state 

court, if any, on matters both dispositive and non-dispositive, that may have been 

eliminated by the non-moving party's non-suit; and (3) the expense of relitigating issues 

that might be mitigated by recyclable legal work from the original case in state court. 

Wolf, 2010 U.S. Dist. LEXIS 36202. 
IT IS ORDERD:

1. The Motion for Recovery of Costs (Doc. 10) is GRANTED. The amount of 

costs will be determined by separate Order. 

2. This case is stayed, until such costs are determined and paid. 

3. Defendant shall file a memorandum, with supporting documentation, 

addressing the factors set forth in Wolf, supra, to determine the appropriate 

amount of costs to award not later than December 8, 2010. 

4. Plaintiffs shall file a responsive memorandum not later than December 22, 

2010. 

ORDERED on November 23, 2010

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE