Wellin v. Wellin et al

Filing 102

ORDER re 83 Response in Opposition to Motion for Voluntary Dismissal, filed by South Dakota Trust Company, LLC. South Dakota Trust Company, LLC's request for costs and attorneys' fees, made pursuant to Federal Rule of Civil Procedure 41(d), is premature and therefore is denied. Signed by Honorable David C Norton on 02/10/2014. (gcle, 2/10/14)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
KEITH WELLIN,
Plaintiff,
vs.
PETER J. WELLIN, et. al.,

Defendants.

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No. 2:13-cv-1831-DCN

ORDER

This matter is before the court on a request for costs and attorneys’ fees brought
by the South Dakota Trust Company. SD Trust’s Opp’n to Mot. to Dismiss 12-13, ECF
No. 83. On January 22, 2014, the court granted plaintiff Keith Wellin’s motion for
voluntary dismissal and dismissed South Dakota Trust Company (“SD Trust”) as a
defendant in this case. Order 22-23, ECF No. 91. The court dismissed SD Trust from
this case without prejudice. Id. The court’s order did not address SD Trust’s request
that, pursuant to Rule 41(d) of the Federal Rules of Civil Procedure, “this Court impose
as a condition of the dismissal that Plaintiff pay [SD Trust’s] costs, including attorneys’
fees, in subsequent litigation . . . .” SD Trust’s Opp’n 12-13. The court now addresses
that request.
Rule 41(d) of the Federal Rules of Civil Procedure states:
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: (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.
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As an initial matter, there are conflicting opinions regarding whether attorneys’ fees are
“costs” that can be awarded under Rule 41(d). More importantly, the plain language of
the rule requires a court to make its decision about the costs of the first litigation only
after the second litigation has been filed. The rule does not allow the court to
prospectively decide that any hypothetical future lawsuit that Mr. Wellin may file against
SD Trust is sufficiently related to the present lawsuit such that a Rule 41(d) award of
costs would be appropriate. In short, SD Trust’s request is premature.
For the reasons set forth above, the court DENIES SD Trust’s Rule 41(d) request
without prejudice.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
February 10, 2014
Charleston, South Carolina

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