Berndt et al v. Townsend Farms, Inc. et al

Filing 90

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Defendant Purely Pomegranate Inc.'s Motion for Attorney Fees 85 is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LESLIE LEE,

Case No. 1:13-cv-00388-BLW

Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
TOWNSEND FARMS, INC., PURELY
POMEGRANATE, INC., FALLON
TRADING CO., INC. and UNITED
JUICE CORP.,
Defendant.

INTRODUCTION
Before the Court is Defendant Purely Pomegranate, Inc.’s Motion for Attorney
Fees. Dkt. 85. For the reasons stated below, the Court will deny the motion.
BACKGROUND
This action was one of nine national class actions brought against Townsend
Farms, Inc. alleging that the company was negligent in importing, manufacturing,
distributing, and selling a food product that was contaminated with the hepatitis A Virus.
See Complt., Dkt. 1-3. Defendant Purely Pomegranate, Inc. was added in the First
Amended Complaint for allegedly providing Townsend with pomegranate seeds present
in the contaminated product. See First Am. Complt. ¶ 1.3. Dkt. 1-4. Counsel for Plaintiff

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Leslie Lee brought all nine actions, but Lee was only named in the action before this
Court. See Pl. Response at 4, Dkt. 87.
Earlier in this litigation, named plaintiffs in all nine actions and three defendants,
including Purely Pomegranate, moved to transfer all actions to the United States Judicial
Panel on Multidistrict Litigation (MLD) for pretrial proceedings. See Joint Motion for
Transfer and Coordination or Consolidation, Dkt. 61. The MLD panel denied
consolidation, and Purely Pomegranate filed a motion to dismiss this action for lack of
personal jurisdiction. Dkt. 77.
In response, Lee moved to voluntarily dismiss this action (Dkt. 78), which was
granted by the Court. July 21, 2014 Order, Dkt. 82. Since this action was dismissed,
plaintiff’s counsel has filed a third amended complaint in the class action pending in the
United States District Court for the Central District of California, adding Lee as a named
plaintiff in that action. See Peterson v. Townsend, et al., Case No. SA CV-13-01292DOC (JCGx); Pl. Response at 3, Dkt. 87.
When granting Plaintiff’s motion to voluntarily dismiss, the Court provided that
Defendants may file a motion for costs and fees. July 21, 2014 Order, Dkt. 82. Defendant
Purely Pomegranate filed the instant motion seeking attorney fees and costs under
Federal Rule of Civil Procedure 41(d). Dkt. 85.
ANALYSIS
Federal Rule of Civil Procedure 41(d) provides that:
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:

MEMORANDUM DECISION AND ORDER - 2

(1) may order the plaintiff to pay all or part of the costs of that previous
action; and
(2) may stay the proceedings until the plaintiff has complied.
The decision whether to impose costs is within the discretion of the trial court. Wright &
Miller, Federal Practice and Procedure § 2375 (3d ed. 2008). The purpose of the rule is
to prevent the maintenance of vexatious law suits and to secure, where such suits are
shown to have been brought repetitively, payment of costs for prior instances of such
vexatious conduct.” United Transp. Union v. Maine Central R.R., 107 F.R.D. 391, 392
(D.Me. 1985).
Although the award of attorney fees under this provision is discretionary, the
language of Rule 41(d) suggests that that discretion should be exercised by the court with
jurisdiction over the pending action—here the United States District Court of the Central
District of California. Rule 41(d) states that the court may order costs of that previous
action and may stay the proceedings. A plain reading of this rule shows that the court
with the power to order costs is the same court with the power to stay proceedings. This
court has no power to stay proceedings pending in the Central District of California.
The Court has found no case suggesting that it is the court presiding over the
dismissed action which should award costs under Rule 41(d). In fact, all cases found by
the Court and cited by Purely Pomegranate point to the opposite conclusion. See e.g.,
Esquivel v. Arau, 913 F. Supp. 1382 (C.D. Cal. 1996) (Rule 41(b) motion considered by
court presiding over pending action); Jurin v. Google Inc., 695 F. Supp. 2d 1117 (E.D.
Cal. 2010)(same); Lloyd v. Pacificorp, No. CV-09-360-ST, 2009 WL 2392993 (D. Or.

MEMORANDUM DECISION AND ORDER - 3

July 31, 2009) (same); Bran v. Sun Pac. Farming Coop., No. CVF 06-0871 LJO TAG,
2007 WL 781865 (E.D. Cal. Mar. 13, 2007) (same).
Additionally, the Court is not persuaded that Rule 41(d) allows for the award of
attorney fees as requested here. The Ninth Circuit has yet to address this issue, and courts
that have addressed this issue are split. See Rogers v. Wal-Mart Stores, Inc., 230 F.3d
868, 874 (6th Cir. 2000)(finding attorney fees are unavailable under Rule 41(d)); but see
Evans v. Safeway Stores, Inc., 623 F.2d 121, 122 (8th Cir. 1980)(affirming an award of
attorney fees under Rule 41(d)); Esquivel v. Arau, 913 F. Supp. 1382, 1391 (C.D. Cal.
1996)(awarding attorney fees under Rule 41(d)). The Court agrees with the Sixth Circuit’s

reasoning in Rogers. “Where Congress has intended to provide for an award of attorney
fees, it has usually stated as much and not left the courts guessing. Further, the law
generally recognizes a difference between the terms ‘costs’ and ‘attorney fees’…we must
assume that Congress was aware of the distinction and was careful with its words when it
approved Rule 41(d).” Rogers, 230 F.3d at 874. This is especially true when looking at
Rule 41(d) in context, as other provisions of the Federal Rules expressly provide for the
award of attorney fees. See Fed. R. Civ. P. 30(g)(2), 37(a)(4), 37(c), 37(d), 56(g).
ORDER
IT IS ORDERED:
Defendant Purely Pomegranate Inc.’s Motion for Attorney Fees (Dkt. 85) is
DENIED.

MEMORANDUM DECISION AND ORDER - 4

DAT
TED: Dece
ember 15, 2014

__________
__________
_____
___
B. L
Lynn Winm
mill
Chief Judge
ited
District Cou
urt
Uni States D

MEMORA
ANDUM DECI
ISION AND ORDER - 5