Legal Case Summary

. So you're telling us we don't have jurisdiction? It appears to me that you don't have jurisdiction. I do not want to tell you what to do, but in fact having read the law as it's been narrowed over the last decade by the Supreme Court, in fact, I think the leading case here I cited, Cobra, talks about... So what would happen if we were to agree with you? Now, we appointed Amicus, and now we got two parties here telling us we don't have jurisdiction. And so just hypothetically, so does it be. If we send this back, are you saying that you would then either pay the... the exaction in order to cure any jurisdictional problem or post the bond? Or... I don't think a payment or bond would cure the jurisdictional issue in this court. Back there, we will file a motion to have the fees paid into the clerk's registry. And if that's denied? We thought about that. We may be simply in a position where we'll have to pay that money to a defendant who claims he's insolvent and has no counsel in representing him in the court below. And we'll just have to try to get it back after we get a judgment in order to buy the court down the road. Well, you could refuse to pay, and the judge could dismiss it. Then you could feel it would be final order. Not suggestion you want to do that, but that is an idea, right? I suppose as long as it's not falling under that doctrine of creating the air so I can bring it up. Although the court gave you six months to pay it, is that right? I don't remember. There was something at every time given. There was some correctness. So the case is just going to rot on the barren or the district court? It's not going to rot on the line. We will have to make a decision because it was May of 2010 when we filed this action. So it's been almost five years. Yes. And we made a decision in the court below when the court told us I'm going to probably dismiss this under twomly. Why don't you dismiss and refile? We did that

. Looking back, that may have been a mistake. That was the Magistrate Judge. That was the Magistrate Judge. It was spur of the moment between Mr. Smith and Mr. Hunter. I was in trial and Kansas and cannot be there. It's the decision you make in the heat of battle. The recess was taken. It was everything was discussed, and that was the decision that was made. And as a result, doing what the Magistrate suggested, you have the transcript. We find ourselves now up here two and a half, almost three years later. If you win this lawsuit, if you won everything you were after, would there be any pocket for you to reach into? From our investigation of Mr. Hodges, we believe there clearly is a pocket. Is there a accessibility kind of thing or something? Well, all his LLCs in our opinion were basically shams. I see. And we're going after him. Yes. We are going after him. We know where he lives. The problem is it's been four to five years. Who knows where the assets are. But that's what we're facing. Spending more money, maybe spending the 13,000. Probably if past conduct, Mayor's future conduct, he will default. He's already been. And you'll be golden as far as liabilities can serve. Well, as I tell many clients, getting a judgment often is the easiest part of getting your money. Right

. So that's what I'm facing. I... Now, suppose we do have jurisdiction. Do you have an argument to make? Yes. If you want me to argue the merits, I certainly will. Well, not the merits, but the jurisdiction. You told us we don't have jurisdiction, but do you have an argument for why we do? No. No. Because this case is not in the... It's not fall ten years ago I would have. But if we do have jurisdiction, so we disagree with you. Right. And disagree with Professor Corzant and say we have jurisdiction on the prior lawyer doctrine. Well, you would say that the attorney's fees are not part of the cost. That the American rule precludes, including attorney's fees, as far of the cost, unless they're specifically mentioned as part of the cost. Absolutely. But... That's the argument, isn't it? It's the argument that I have a secondary argument, actually in my case, cares more weight. Because I've never engaged in a vexatious litigation in my life. And even if this court were to find that attorneys fees are costs, with whatever gymnastic, legal gymnastics you might use, because costs are costs, and attorneys fees are attorneys, under the American rule, you stop to find bad faith conduct, litigious conduct, vexatious conduct. We have a statute for that. I believe it's 28 USC 1927, that addresses that. So I don't view the four circuit as one of the more active circuits in the country

. I don't know how your honors might find with regard to the issue of costs. Historically, attorney fees are not costs. It's not in the texture of the statute or the rule. But certainly, many courts have found attorney fees are applicable. In fact, it's really an unsettling... The cases that say they have to be explicit, or the reference to attorney fees, has to be, say, cost, comma, including attorney fees. That would do it. Correct. But there are other... I mean, the cases, I mean, there's many, many more than that are cited. But it's an unsettled issue nationally. I think it's an unsettled issue in this circuit. And then, I believe there was an Eastern District and Middle District, North Carolina, cases that we cited, the go-buff ways that the magistrate may have relied on. But in the highly unlikely events, as I don't have Judge A. G. and his twin brother on this panel, after reading his dissent in Cobra, you know, it would be highly unlikely for you to find there is jurisdiction. But if you do find there is jurisdiction, and that this lady who's been waiting for about five years can get her to encode. How are you ruled on the issue of attorney fees? It's simply not applicable in a case where an FLSA complaint is filed. It is attacked with the 12-by-six motion, or Twombly. The magistrate just suggests he's probably going to grant it. Why don't we think about it? Maybe the better course is to dismiss and refile. The defendants ask for attorney fees at that time, and the magistrate just says no. So we volunteer to dismiss and refile. And then we get hit with attorney fees and to stay until they pay. And if we have to pay them, we'll have to take a look at what our rimmages are

. You just have to have authority to vacate the stay on your motion, and then stay the payment pending resolution, okay? Certainly, as I said earlier, the court has- What did you ask him to do that? No, once we got this second- Yes, I mean, I've never seen a district court judge in Kansas, as we call them, also district court judges in the state. I've never seen a district court judge, state or federal, do the job of an attorney when the attorney failed to do the job and segregate time. It would be like me filing my brief without signing it to the record and telling your honors you go find it in the appendix or tell you a clerk to. Whatever reason, Judge O'Renninger went ahead and fly-speced the bill of cost filed in the attorney fee application that clearly violated, not only magistrate, judge, house, order, but a violate the North Carolina handbook on cost. And I put that in my opening brief. So that's why we came straight up. We figured that we, without looking as close as we should have at the collateral order doctor, we thought we're going to come up here and get this reversed because the prior order said we don't have the attorney fees. The collateral order doctor has been a stomach block for a lot of people in the federal court system. You know that? I've had a lot of law clerks come to work for me that didn't already think about it in the federal court. Maybe they ought to put it into a curriculum somewhere. Maybe Professor Corson can help us come back. That's a fine suggestion. Nonetheless, I wanted, having looked at the issue, I thought it was incumbent upon me to tell this court that they, upon the cases I read in the Supreme Court of authority and the Cobra decisions, that even though this is critical to my client and to Mr. Smith and me, I cannot see. Well, we appreciate your candor. It's commendable. And let's see what the other side has to say now. Maybe they got some suggestion. But let me also add this last comment. This last comment, and that is this, that I, Mr. Henry and I talked, and he said, Joe, they've set this for argument. They've appointed Amicus. You just got to go out there because I didn't know whether or not I should simply give up the battle and file a notice with the court or whatever. And I'm relying on Mr. Hunter, who I understand is a classmate of Professor Corson. He said, no, Joe, I've talked to the professor. Go out there and make the argument and tell them what we did. And I've told you what we did. Thank you

. Thank you very much. Now, short turn. Thank you, Your Honor. May it please the court, John Corson, again here for the awake parts of Pellet Clinic and under local rule 46A. I'd like to introduce the two law students involved in this appeal. First, the Karen Fowler and Second, Andrew Parrish. And just to say about jurisdiction, when I was appointed the Office of Standards Council mentioned, there might again be a jurisdictional issue. And we're, I apologize that we didn't raise it in our principal brief, but we certainly were happy to in the supplemental brief. And Ms. Fowler is happy to talk about jurisdiction, rule 41, both. That's what I've mentioned earlier. That happens a lot in that cobre case. I happen to be the author of a cobre decision. No one had raised it, no speech. And I don't know. We got supplemental briefs beforehand, I think, in that case. But anyway, that's not a, it's not unique that folks don't know about that. So, I'm sure you're right. I'm sure you're right. But it comes up more often, do you think? I would say just, the digress on law school. I'd say about one-fourth of our class three else get exposed to the collateral doctrine, but only in, if they've taken the right elective class. So it may be, we may look at ending it in a part of required courses, Greek, and somewhere. Thank you, you're right. Thank you very much, Ms. Fowler. May it please the court? My name is Karen Fowler on behalf of court assigned amicus in support of defendant's position on appeal. It is of course our first point today that the court does not have jurisdiction under the collateral order jurisdiction doctrine. But if this court does not have any further questions on the collateral order jurisdiction doctrine, we will go ahead and address the merits of the appeal itself in the rule 41D issue. Why in this case, different in Cobra? I mean, the Cobra won the rule 41 case and this stuff, these costs under rule 41 and have to be in pay to head of time

. With a stay, if the situation may burden some on a litigant, to go forward, maybe that makes it different under that third prong maybe. Your honor, it might more burdensome, but it does not actually satisfy that third prong. The third prong is still not met. We suggest that the second and third prongs of the Cohen requirements are not met here, especially that third requirement. The third requirement, as stated in the Cobra case, it is an assessment of the order, the type of order as a whole, not the particular order at issue and any injustice that that might cause. We talked about it, it has to be an important issue too, doesn't it? Correct. For some, maybe the spring courts said that and we mentioned it too. Yes. But that would be an important issue, maybe in the context of rule 41, because it doesn't appear that other courts have given it much sway. Maybe that something I'll be out there about. Your honor, under Cobra, again, it's the category of order that's analyzed and the category of order here, the rule 41D, cost and attorneys fees, does not rise to the level of substantial public interest as those other categories that this court and the Supreme Court has deemed sufficient to satisfy that third requirement. Those categories of order have included things such as sovereign immunity, absolute immunity, 11th amendment, sovereign immunity and the protections of the double jeopardy clause. It is my problem, one of my problems. The procedural posture of this case contemplates that there will never be a final judgment. How can a district judge impose a cost order? Here, it's what, 25,000? It reduced to 13,000, whatever. Could a judge say plaintiff under 41A paid to defend at $100,000? I'm going to stay your second action until you pay it. Your honor. And you got the party's coming and saying, well, judge, it's been nine months. Plenty of hasn't paid it. Just dismiss this dog. And the judge said, no, my order says, you will pay it. And I intend for you to pay it. And unless and until you pay it, cases go and nowhere. I assume you would agree that at some point, 15 months, 18 months, 24 months, 12 years, the collateral order doctrine we kick in. And an appellate court would say, okay, this, you know, I mean, the district judge could die. And then you see what I'm getting at. Yes, your honor. So why isn't in order of the character and nature of the order in this case, sort of suingenerous under the collateral order doctrine on element three? Your honor, there are a lot of facets to that question. First and foremost, the, the, the, the thrust is the judge has control over the case

. And so I don't know when there's going to be a final judgment in this case. Even the plaintiff doesn't know when there's going to be a final judge. Right. In, in that case, it would be most prudent for the plaintiff to go ahead and pay the costs so that we can get to the final judge. What they would have been money. But what about the plaintiff went in and said, I'm not going to pay it. Go ahead and dismiss it. Then the entitled review, right? Be a file order. Correct. What if the plaintiff said, I'm not going to pay it? And you can hold me in contempt. Because I'm never going to be able to pay it. They could appeal the contempt citation. Correct, Your Honor. And it would be. They could view that way. They could move to vacate the stay and hold the cost award in a band spending the final order for something. If the court denied that, would that be a final order? And I think. And it's probably no. And I think that sometimes we've seen some case law where there's been suggested a writ of mandamus. Would be the proper remedy. Maybe a mandamus at what point would you when you get that after you get, if they won't vacate the stay and hold it in a band and won't do anything, won't dismiss it, won't hold them in contempt. They could ask for a writ of mandamus. I mean, maybe that's the remedy. Yes. I think that they would ask for the writ of mandamus to stay belifted so that the case can go forward. And it's important to note on the facts of this case, the plaintiff has never claimed an economic inability to pay the amount. So on the facts of this case, we simply, we don't have that issue. Well, they say that they have to never get it back because the defendant is impucudious. Right

. And your honor would be a contingent and speculative inability to not get that payment back. And they could pay it like Mr. Cacell. Suggest to pay it into the court. Yes, your honor. And they hold it or post a bond. Yes, your honor. Your honor, Deves. Yes. To it. But we don't have much leeway about expanding this collateral order document. No, your honor. And the co-inducting cannot be expanded to the point of disregard for the finality rule that's been imposed by Congress in section 1291. And because two of the three requirements are not satisfied under the co-instandered and the Cobra standard as articulated by this court just last year, there is no collateral order jurisdiction here today. Unless there are any other further questions. If you were going to tell us why, if there were jurisdiction, what they, why calls include attorneys to each. Yes, your honor. So you're going to argue that the American rule is done to fly to rule 41 proceeding. Your honor, our argument is that- That's an upstream battle, too. Your, our argument today is that the American rule, the exceptions to the American rule, as articulated by the Supreme Court in the Alaska pipeline case and the key tronic case, are interrelated exceptions that apply to the rule 41D context. And I will address each the context of the rule itself and the purpose of the rule as those interrelated exceptions. I will address them in turn. First. The purpose of the rule, go ahead. Well, your honor, I can address- In case of that, you got district judges saying that cost under 41 does conclude attorney's face. You got a couple of circuit courts that are split, right? Yes, your honor. And the majority of circuits, too, have addressed the issue, have addressed it in the affirmative to say that it does include attorneys' face. Those would be- The majority of what? The majority of circuits, too, have actually reached the issue. In which, and how many circuits are those? Well, there's four that have actually reached it

. And two of which, the eighth and the tenth have said yes. It includes attorneys' face. The seventh has said yes, but has taken a middle road approach to say that only if the underlying statutory cause of action provides for attorneys' face, then they may be included. And then it is the sixth circuit standing alone that says attorneys' face are not included. So it really is two to two. The seventh circuit, the saying it has to say so. Right, but in the circumstances- There's no majority. It's- there's a direct split, two to two. A majority, in the sense that the tenth and eighth say yes, always. Well, then the tenth just say we follow the eighth without analysis. They did. It was a very cursory opinion. In fact, that- So it's one to one, isn't it? We're dwindling them down slowly, sir. But needless to say, this is an issue that has not been reached often. But we asked the court today if we were to reach the merits of the action to determine that attorneys' face are appropriate under Rule 41D because of the context of Rule 41 as a whole and the purpose of the rule itself. But if the last authority say the term, the provisions have to be explicit. Justice Judge John Wilkinson, wrote a opinion here three or four years ago. It said that the American rule applies unless it's explicit otherwise. Right? That's a Tory provision that explicitly says, including attorneys' face. Your honor. How do you get around that? What's the name of that case? I don't have the particular name of that case that you're referring to, but- No, no, it's the droid. Under- I do know that under the key tronic case by the Supreme Court that if there is an other- if the statute itself otherwise shows an intent to provide for attorney's fees, then there need not be explicit reference to attorneys fees in the statute itself. And that brings me to my first point that the intent for attorneys fees to be included as cost is clearly evidenced by the rules interpretation as a whole. This might be the gymnastics route that opposing council was referring to, but if we look at Rule 41D, it Rule 41 as a whole, Rule 41A1 refers to where a plaintiff may voluntarily dismiss an action as a right before the defendant has filed an answer or a motion to dismiss. And this voluntary dismissal as a right is without prejudice, and the court cannot condition that dismissal. But under Rule 41A2, a plaintiff may voluntarily dismiss an action after the defendant has answered or filed a motion for summary judgment, only upon stipulation of all parties involved or by court order. And in that case, the court may condition the dismissal. And as this court explained in the Davis case in 1987, the court has wide discretion in determining what conditions must be satisfied in order to state. This was the 41A1, right? This was a 41A1, dismissal. Court has nothing to do with it, right? Has nothing to do with the dismissal, your honor. And that's exactly where Rule 41D comes into play. Rule 41D by its plain language says that where a plaintiff has dismissed voluntarily and then decides to refile a second complaint against the same defendant under the same cause of action, that the court may then condition the refiling. So Rule 41D in this order, speaking specifically to your point, Rule 41D serves a logical and necessary gap-filling function. A plaintiff should not be able to take that voluntary dismissal and not be held accountable for what occurs in dismissing the first action and then refiling it. Thus, so because the court has a discretion to condition the dismissal under Rule 41A2 upon payment of attorney's fees, the court should have an equal level of discretion in conditioning the refiling. Why? Well, this is specifically. Because they won and there's a two. That is correct. Why should we import a two and a one when it comes to attorney's fees in light of the strong tradition of under the American rule? Well, your honor, that goes to the purpose of the rule itself. And that is to detire vexatious litigation to prevent form shopping and to prevent a party from taking an adverse ruling in order to gain a tactical advantage. Now, did the district court deny the refiling then? No, the second filed complaint, is that what you're asking about? No. They said that you are allowed to go forward with your second action as long as you pay the cost and attorney's fees that were incurred in defending the first action. Well, but the second action had already been filed before the district court imposed this order. That is correct. Because the fendants moved for the cost and attorney's fees. So it was almost kind of punitive. Well, there is the deterrence factor that comes into play under the 21. Or what's the third here? If the rule says you can dismiss freely, pre-answer, what is there to deter? Your honor, it's this idea of you are allowed, they are allowed to take that second bite of the apple, but that wasn't a license to vex and a license to use the court structure in a second way. In order. Or to find these a vexatiousness here. Your honor, we can look specifically to pages 87 of the appendix. Their judge, Ridinger, explained that the end result of such conduct is repeated litigation of the same claim against the same defendant. That is vexatious litigation, end quote. He was specifically referring to plaintiffs attempt to avoid an adverse ruling in the first action and refile a complaint in order to gain a tactical advantage. And that conduct of refiling to gain a tactical advantage and using the court's resources once again and continuing to cause the defendant to incur cost and attorney's fees. Under 15, a plaintiff has an absolute right to amend without leave of court, right? Correct. The plaintiff didn't do that here, right? Correct. So even in the face of a motion to dismiss under rule 15, a plaintiff could walk into the hearing on the motion to dismiss and file an amended complaint, right? That is correct

. Court has nothing to do with it, right? Has nothing to do with the dismissal, your honor. And that's exactly where Rule 41D comes into play. Rule 41D by its plain language says that where a plaintiff has dismissed voluntarily and then decides to refile a second complaint against the same defendant under the same cause of action, that the court may then condition the refiling. So Rule 41D in this order, speaking specifically to your point, Rule 41D serves a logical and necessary gap-filling function. A plaintiff should not be able to take that voluntary dismissal and not be held accountable for what occurs in dismissing the first action and then refiling it. Thus, so because the court has a discretion to condition the dismissal under Rule 41A2 upon payment of attorney's fees, the court should have an equal level of discretion in conditioning the refiling. Why? Well, this is specifically. Because they won and there's a two. That is correct. Why should we import a two and a one when it comes to attorney's fees in light of the strong tradition of under the American rule? Well, your honor, that goes to the purpose of the rule itself. And that is to detire vexatious litigation to prevent form shopping and to prevent a party from taking an adverse ruling in order to gain a tactical advantage. Now, did the district court deny the refiling then? No, the second filed complaint, is that what you're asking about? No. They said that you are allowed to go forward with your second action as long as you pay the cost and attorney's fees that were incurred in defending the first action. Well, but the second action had already been filed before the district court imposed this order. That is correct. Because the fendants moved for the cost and attorney's fees. So it was almost kind of punitive. Well, there is the deterrence factor that comes into play under the 21. Or what's the third here? If the rule says you can dismiss freely, pre-answer, what is there to deter? Your honor, it's this idea of you are allowed, they are allowed to take that second bite of the apple, but that wasn't a license to vex and a license to use the court structure in a second way. In order. Or to find these a vexatiousness here. Your honor, we can look specifically to pages 87 of the appendix. Their judge, Ridinger, explained that the end result of such conduct is repeated litigation of the same claim against the same defendant. That is vexatious litigation, end quote. He was specifically referring to plaintiffs attempt to avoid an adverse ruling in the first action and refile a complaint in order to gain a tactical advantage. And that conduct of refiling to gain a tactical advantage and using the court's resources once again and continuing to cause the defendant to incur cost and attorney's fees. Under 15, a plaintiff has an absolute right to amend without leave of court, right? Correct. The plaintiff didn't do that here, right? Correct. So even in the face of a motion to dismiss under rule 15, a plaintiff could walk into the hearing on the motion to dismiss and file an amended complaint, right? That is correct. Instead of doing that here, the plaintiff took a 41A dismissal. Would you have us treat those two scenarios differently? Your Honor. You wouldn't say that a 15A amended complaint on the day of the hearing was sanctionable, would you? No, Your Honor. But we do have to. Most district judges would simply say, okay, we're going to treat the motion to dismiss, filed as to the original complaint as if it had been filed to the second, to the amended complaint. In other words, you just treat the motion as going to the second. I don't understand what's going on here, frankly. Your Honor, under rule 41D, there's something to suggest that there is something per se abusive in taking a voluntary dismissal and then refiling a certain action. Why is it not per se abusive, as you agree with me, under rule 15, you could walk into the hearing with your amended complaint? That would be under that first action and that would be a continuation of the first action in the sense that it would not be a second taxation upon the court's resources as well as the defendant's resource. What's the taxation on the court makes more money when you file a new action? The plaintiff has to actually pay an additional filing fee. I'm really at a loss to understand. It looks to me like maybe this thing is just a condition on the refiling. That is correct, Your Honor. All right, maybe a criminal or a doctor and nothing to do with it. Maybe we have to review whether the court of use is discretion and imposing a condition on the refiling. Well, again, it would be whether the attorneys fees were involved and that goes to the second requirement under the co-instandard. If we jump back to jurisdiction, that would be that there is not an order itself here that is completely separable from the merits of the defendant's resource. But is repeated litigation vexations? In some cases, it has been held to be vexations and it is very case specific. And what we have here is that the plaintiff took the voluntary dismissal to the point of point. But is repeated litigation always vexations? I hate to say and always, Your Honor. The district judge said. Yes, it's the repetitive litigation. The district judge said. Repeated litigation to the same claim against the same defendant as vexation's litigation. But in the context of refiling or mending, you wouldn't necessarily say it's vexation, would you? Your Honor, vexationist can be looked at as an umbrella term. If you're the best of honor, maybe particularizing the claim. Is that what they did here? Could you repeat your question, Your Honor? Try to recast the claim and give more particulars to satisfy Twomblig or somebody? That was part of it, but there was also, if we look to pages 127 of the appendix and 128, their magistrate judge Howell indicated that he would be inclined to do an M&R to judge writing her, telling him to dismiss the original complaint. The inclination was based on grave concerns of the sufficiency of the complaint, namely whether plaintiff was an exempt employee under the FLSA provisions. Plaintiff then decided to dismiss her action and refile it immediately

. Instead of doing that here, the plaintiff took a 41A dismissal. Would you have us treat those two scenarios differently? Your Honor. You wouldn't say that a 15A amended complaint on the day of the hearing was sanctionable, would you? No, Your Honor. But we do have to. Most district judges would simply say, okay, we're going to treat the motion to dismiss, filed as to the original complaint as if it had been filed to the second, to the amended complaint. In other words, you just treat the motion as going to the second. I don't understand what's going on here, frankly. Your Honor, under rule 41D, there's something to suggest that there is something per se abusive in taking a voluntary dismissal and then refiling a certain action. Why is it not per se abusive, as you agree with me, under rule 15, you could walk into the hearing with your amended complaint? That would be under that first action and that would be a continuation of the first action in the sense that it would not be a second taxation upon the court's resources as well as the defendant's resource. What's the taxation on the court makes more money when you file a new action? The plaintiff has to actually pay an additional filing fee. I'm really at a loss to understand. It looks to me like maybe this thing is just a condition on the refiling. That is correct, Your Honor. All right, maybe a criminal or a doctor and nothing to do with it. Maybe we have to review whether the court of use is discretion and imposing a condition on the refiling. Well, again, it would be whether the attorneys fees were involved and that goes to the second requirement under the co-instandard. If we jump back to jurisdiction, that would be that there is not an order itself here that is completely separable from the merits of the defendant's resource. But is repeated litigation vexations? In some cases, it has been held to be vexations and it is very case specific. And what we have here is that the plaintiff took the voluntary dismissal to the point of point. But is repeated litigation always vexations? I hate to say and always, Your Honor. The district judge said. Yes, it's the repetitive litigation. The district judge said. Repeated litigation to the same claim against the same defendant as vexation's litigation. But in the context of refiling or mending, you wouldn't necessarily say it's vexation, would you? Your Honor, vexationist can be looked at as an umbrella term. If you're the best of honor, maybe particularizing the claim. Is that what they did here? Could you repeat your question, Your Honor? Try to recast the claim and give more particulars to satisfy Twomblig or somebody? That was part of it, but there was also, if we look to pages 127 of the appendix and 128, their magistrate judge Howell indicated that he would be inclined to do an M&R to judge writing her, telling him to dismiss the original complaint. The inclination was based on grave concerns of the sufficiency of the complaint, namely whether plaintiff was an exempt employee under the FLSA provisions. Plaintiff then decided to dismiss her action and refile it immediately. We're paid to you on. This is pages 127 to 128 of the appendix filed by a Pell. Okay. So you can see, I believe it's on page 128. The magistrate judge Howell said, I don't know whether or not allowing the amendment is going to solve any problems that plaintiff has got because what Mrs. Dhar Parsons pointed out, she may be the person described in there as being exempt. So basically the plaintiff here was faced with a motion to dismiss that was likely going to go forward. And even if the motion to dismiss weren't to go forward, there were grave concerns with the sufficiency of the amended complaint as well. That being that it may be futile and then the motion to amend would not have been granted under the FOMEN factors anyway. And when faced with this risk of an adverse ruling, the plaintiff decided instead of taking that adverse ruling to simply dismiss her case, which she had the right to do so. But in order to have that free bite, that free second bite of the apple, the court has wide discretion under Rule 41D to impose payment of cost and attorney's fees that were incurred. Those rules says cost. It does your honor. And you added attorney's fees and the court added attorney's fees, but the rule does says cost. Go ahead. The rule does, if you would like me to specifically address. No, the rule says cost. The rule does say cost your honor. But if you would like an analogous example, this court has interpreted the federal rule of a pellet procedure, Rule 38, where the term only cost is used there as also being able to include attorney's fees. So even though the word cost is the only word that's used here, that umbrella term of cost may include attorney's fees in interpretation. For these reasons, attorney's fees are proper under Rule 41D and the district court properly exercised its discretion and assessing the total amount to pay. What's the case with that rule 38? You've got a case on that. I do your honor. That would be the branch case in 1992 and the Bertini case in 1994. What's the site? I don't have the full site, your honor, but I'm happy to file that afterwards, Amy. What does that pellet rule cover? 38. Rules 38? No, not cost on appeal. You never get attorney's fees. It's cost on appeal

. We're paid to you on. This is pages 127 to 128 of the appendix filed by a Pell. Okay. So you can see, I believe it's on page 128. The magistrate judge Howell said, I don't know whether or not allowing the amendment is going to solve any problems that plaintiff has got because what Mrs. Dhar Parsons pointed out, she may be the person described in there as being exempt. So basically the plaintiff here was faced with a motion to dismiss that was likely going to go forward. And even if the motion to dismiss weren't to go forward, there were grave concerns with the sufficiency of the amended complaint as well. That being that it may be futile and then the motion to amend would not have been granted under the FOMEN factors anyway. And when faced with this risk of an adverse ruling, the plaintiff decided instead of taking that adverse ruling to simply dismiss her case, which she had the right to do so. But in order to have that free bite, that free second bite of the apple, the court has wide discretion under Rule 41D to impose payment of cost and attorney's fees that were incurred. Those rules says cost. It does your honor. And you added attorney's fees and the court added attorney's fees, but the rule does says cost. Go ahead. The rule does, if you would like me to specifically address. No, the rule says cost. The rule does say cost your honor. But if you would like an analogous example, this court has interpreted the federal rule of a pellet procedure, Rule 38, where the term only cost is used there as also being able to include attorney's fees. So even though the word cost is the only word that's used here, that umbrella term of cost may include attorney's fees in interpretation. For these reasons, attorney's fees are proper under Rule 41D and the district court properly exercised its discretion and assessing the total amount to pay. What's the case with that rule 38? You've got a case on that. I do your honor. That would be the branch case in 1992 and the Bertini case in 1994. What's the site? I don't have the full site, your honor, but I'm happy to file that afterwards, Amy. What does that pellet rule cover? 38. Rules 38? No, not cost on appeal. You never get attorney's fees. It's cost on appeal. No, you're honor. It says if a court of appeals determines that an appeal is frivolous, it may- No, frivolous, see, we keep going back to what's frivolous in vexatious, but filing an amended complaint is vexatious. You're honor not filing an amended complaint. It is the act- That's functionally what we have here. It is, but there is something to say under Rule 41D by its plain terms. By Congress even providing that subsection, it's- No, you agree that this is not frivolous. No, your honor, this is not frivolous, but it is vexatious because- You think vexatious the difference. Vexatious is an umbrella term, and it encompasses the particular facts of this case. Would an amended complaint have been vexatious? Not an amended complaint. But a second filing, the dismiss the person and file a second when is vexatious. Now that's in the same circumstance. I've been not done making sense. Your honor, of the district courts to have considered where if you- We have done a cursory search of this in any district court that has found where the plaintiff has taken an adverse ruling or has taken a dismissal in order to avoid an adverse ruling and then refiled a second act- The adverse ruling here to be what? The Nile of the Motion to a Man? It would have been granting the motion to dismiss and then if that motion to dismiss for some reason had not gone forward, it would have been denial of the motion to amend because it would have been futile. So simply- But they didn't have to follow motion for leave to amend, right? No, here. You've had to amend once as of right. But the plaintiff in this case had missed that timeline, had missed that opportunity to file- At the penalty- The answer file? There had not been an answer file, but- What's the deadline? 21. Correct, correct. And the plaintiff had missed that- What about the big rule? They had missed the time to amend as of right. So that- Under the local rule, not under the big rule. The big rule, they had- The big rule doesn't have it. They had to- The only time limit is pre-answer, right? Correct, but the motion to dismiss- But you can't have a local rule that can be consistent with the- With the civil rules or civil procedure? Your Honor, I- I don't have a particular page of the appendix to point two, but the plaintiff did admit in- Both of us have to be consistent. Correct, Your Honor. And so here we- Looking at the cases where there has been a plaintiff who has taken a dismissal to avoid an adverse ruling and simply refiled, that has constituted vexatious litigation. And this court in the Thomas B. Fulton case in 2008- If the- If the district court here was wrong in characterizing what happened here as vexatious, would your position be different? Your Honor, it may have to be if you- If you find that this was not vexatious, then under- No, if- If it was wrong, so you assume that- Okay. I assume it's not vexatious. You- You say you have- You'd have to take a different position. Yes, Your Honor. In which case, what would happen to the Attorney's Field War? Your Honor, because the award that was- The actual amount of the award was mostly attorney's fees, then plaintiff would- Would probably not have anything to pay in this case

. No, you're honor. It says if a court of appeals determines that an appeal is frivolous, it may- No, frivolous, see, we keep going back to what's frivolous in vexatious, but filing an amended complaint is vexatious. You're honor not filing an amended complaint. It is the act- That's functionally what we have here. It is, but there is something to say under Rule 41D by its plain terms. By Congress even providing that subsection, it's- No, you agree that this is not frivolous. No, your honor, this is not frivolous, but it is vexatious because- You think vexatious the difference. Vexatious is an umbrella term, and it encompasses the particular facts of this case. Would an amended complaint have been vexatious? Not an amended complaint. But a second filing, the dismiss the person and file a second when is vexatious. Now that's in the same circumstance. I've been not done making sense. Your honor, of the district courts to have considered where if you- We have done a cursory search of this in any district court that has found where the plaintiff has taken an adverse ruling or has taken a dismissal in order to avoid an adverse ruling and then refiled a second act- The adverse ruling here to be what? The Nile of the Motion to a Man? It would have been granting the motion to dismiss and then if that motion to dismiss for some reason had not gone forward, it would have been denial of the motion to amend because it would have been futile. So simply- But they didn't have to follow motion for leave to amend, right? No, here. You've had to amend once as of right. But the plaintiff in this case had missed that timeline, had missed that opportunity to file- At the penalty- The answer file? There had not been an answer file, but- What's the deadline? 21. Correct, correct. And the plaintiff had missed that- What about the big rule? They had missed the time to amend as of right. So that- Under the local rule, not under the big rule. The big rule, they had- The big rule doesn't have it. They had to- The only time limit is pre-answer, right? Correct, but the motion to dismiss- But you can't have a local rule that can be consistent with the- With the civil rules or civil procedure? Your Honor, I- I don't have a particular page of the appendix to point two, but the plaintiff did admit in- Both of us have to be consistent. Correct, Your Honor. And so here we- Looking at the cases where there has been a plaintiff who has taken a dismissal to avoid an adverse ruling and simply refiled, that has constituted vexatious litigation. And this court in the Thomas B. Fulton case in 2008- If the- If the district court here was wrong in characterizing what happened here as vexatious, would your position be different? Your Honor, it may have to be if you- If you find that this was not vexatious, then under- No, if- If it was wrong, so you assume that- Okay. I assume it's not vexatious. You- You say you have- You'd have to take a different position. Yes, Your Honor. In which case, what would happen to the Attorney's Field War? Your Honor, because the award that was- The actual amount of the award was mostly attorney's fees, then plaintiff would- Would probably not have anything to pay in this case. And after vacated attorney's field ward or the calls award and vacate to stay, and let them proceed, if it's not vexatious. Yes, Your Honor. Your Honor, I see you have a run out of time. If- Jurisdiction. If there's jurisdiction. If I- If I can- If the collateral order rule, some way is distinguishable. Right. And Your Honor, if I could end on just one brief thematic note, that is that if the plaintiff is allowed to take that voluntary- If the district court declines to permit the filing of a- Under Rule 41, what? The brief filing. Could you repeat the question? If the district court declines to authorize a refiling under Rule 41, blank. Right. Is that in the field order? Well, it- I think it would be a dismissal with-with prejudice. If- Because in that case, the amendment would have been futile. In the case- The case would- For example, under the foam- In which case- In which case it would be appealable? Absolutely, Your Honor. And if I can end on one brief thematic note, that is, if the plaintiff takes that voluntary dismissal and is allowed to pretend as if that first action didn't happen, then the defendant should be allowed to be made whole again and likewise pretend as if that first action did not happen. For these reasons, Amicus respectfully requested this court affirm the district court below. Thank you. You want to start a farm under dismissal? We'll dismiss it under the collateral- You want to dismiss? Yes, Your Honor. Thank you. Thank you very much. Mr. Cousel, do you want to amend anything you said earlier? No, but I want to clarify one thing, Your Honor. I live in the- Not to be offensive, but I live in the real world. I've been practicing law for 40 years. Dismissals, voluntary dismissals, and refiling happen hundreds of times across this country. And I've done it many times. I've been in cases where there's been three and four amendments filed. But I want to make two points in-in rebuttal. First of all, the only adverse ruling we were facing was dismissal under Twombley. That could not have been with prejudice

. And after vacated attorney's field ward or the calls award and vacate to stay, and let them proceed, if it's not vexatious. Yes, Your Honor. Your Honor, I see you have a run out of time. If- Jurisdiction. If there's jurisdiction. If I- If I can- If the collateral order rule, some way is distinguishable. Right. And Your Honor, if I could end on just one brief thematic note, that is that if the plaintiff is allowed to take that voluntary- If the district court declines to permit the filing of a- Under Rule 41, what? The brief filing. Could you repeat the question? If the district court declines to authorize a refiling under Rule 41, blank. Right. Is that in the field order? Well, it- I think it would be a dismissal with-with prejudice. If- Because in that case, the amendment would have been futile. In the case- The case would- For example, under the foam- In which case- In which case it would be appealable? Absolutely, Your Honor. And if I can end on one brief thematic note, that is, if the plaintiff takes that voluntary dismissal and is allowed to pretend as if that first action didn't happen, then the defendant should be allowed to be made whole again and likewise pretend as if that first action did not happen. For these reasons, Amicus respectfully requested this court affirm the district court below. Thank you. You want to start a farm under dismissal? We'll dismiss it under the collateral- You want to dismiss? Yes, Your Honor. Thank you. Thank you very much. Mr. Cousel, do you want to amend anything you said earlier? No, but I want to clarify one thing, Your Honor. I live in the- Not to be offensive, but I live in the real world. I've been practicing law for 40 years. Dismissals, voluntary dismissals, and refiling happen hundreds of times across this country. And I've done it many times. I've been in cases where there's been three and four amendments filed. But I want to make two points in-in rebuttal. First of all, the only adverse ruling we were facing was dismissal under Twombley. That could not have been with prejudice. It was without prejudice. Had Mr. Smith, Mr. Hunter, said, yeah, go ahead and enter your order judge do what you want to do. And he dismissed it. We would have been refiled. There was absolutely nothing difference between getting an adverse ruling that you fail in a Twombley. You say when you say refiling, you mean filing a minted complaint? No. You mean filing a second action? Well, I meant filing a minted complaint or filing a second. Action, they would have been the same. We would have done the same thing. In other words, by withdrawing, as it magistrates suggested, but even he had not suggested it, we just, we refiled what we would have filed anyway had. We lost the motion to dismiss. So there was the motion to amend. I filed that. That was my idea to show the court. I filed over 20 of these cases. I never faced this. I was showing the court how much evidence I had, which we put into the refiling, by the way. This has been a complaint. It's what I had proposed, Your Honor, but the mastery himself at the hearing said, I'm not going to take that up. And he was speaking in there. But did you submit a proposed amended complaint at that time? Yes. And he said that he was going to roll this futile. No, he didn't. He says not before the court. All right. And the only before the court was the 12b6 motion. And even if we allow that to be entered by the court, we still would have done the same thing

. It was without prejudice. Had Mr. Smith, Mr. Hunter, said, yeah, go ahead and enter your order judge do what you want to do. And he dismissed it. We would have been refiled. There was absolutely nothing difference between getting an adverse ruling that you fail in a Twombley. You say when you say refiling, you mean filing a minted complaint? No. You mean filing a second action? Well, I meant filing a minted complaint or filing a second. Action, they would have been the same. We would have done the same thing. In other words, by withdrawing, as it magistrates suggested, but even he had not suggested it, we just, we refiled what we would have filed anyway had. We lost the motion to dismiss. So there was the motion to amend. I filed that. That was my idea to show the court. I filed over 20 of these cases. I never faced this. I was showing the court how much evidence I had, which we put into the refiling, by the way. This has been a complaint. It's what I had proposed, Your Honor, but the mastery himself at the hearing said, I'm not going to take that up. And he was speaking in there. But did you submit a proposed amended complaint at that time? Yes. And he said that he was going to roll this futile. No, he didn't. He says not before the court. All right. And the only before the court was the 12b6 motion. And even if we allow that to be entered by the court, we still would have done the same thing. Opposed, a minute complaint in the record? Yes. It didn't demonstrate forecast about the likely future of your amended complaint. Judges often opined like that. But what he did. What was he did, did he? Yeah. Tell the court what the man should say about it. Well, I think he pretty much said what was quoted by Amicus. They were raised in this issue whether or not she was exempt. He didn't think too much of it. The minute complaint. All right. I went there. I just have the record. That's what made the comment. That's correct. I mean, this comment was the negative comment about the future of a dead. It's unlikely that it would result to your issues that you had. But even if that's usually exempt and blowing. That's the answer to Judges King's question. Yes. So he apined on a rule of law. That's correct, because that would have been an exempt issue under the FLSA. But even if he had taken up the motion tonight, it still would not have been a- But if he made a legal ruling, he kept you out because of legal ruling, and you could have built that. Certainly. Or we, or it would not- Because you did not under exempt, or whatever it is. That's correct. And it would not have been without prejudice. It would have had to have been without prejudice any event. But I wanted to then lastly make this statement with regard to this issue of vexatiousness

. Opposed, a minute complaint in the record? Yes. It didn't demonstrate forecast about the likely future of your amended complaint. Judges often opined like that. But what he did. What was he did, did he? Yeah. Tell the court what the man should say about it. Well, I think he pretty much said what was quoted by Amicus. They were raised in this issue whether or not she was exempt. He didn't think too much of it. The minute complaint. All right. I went there. I just have the record. That's what made the comment. That's correct. I mean, this comment was the negative comment about the future of a dead. It's unlikely that it would result to your issues that you had. But even if that's usually exempt and blowing. That's the answer to Judges King's question. Yes. So he apined on a rule of law. That's correct, because that would have been an exempt issue under the FLSA. But even if he had taken up the motion tonight, it still would not have been a- But if he made a legal ruling, he kept you out because of legal ruling, and you could have built that. Certainly. Or we, or it would not- Because you did not under exempt, or whatever it is. That's correct. And it would not have been without prejudice. It would have had to have been without prejudice any event. But I wanted to then lastly make this statement with regard to this issue of vexatiousness. We filed, refiled with the same plaintiff. We added more of the defendant's Hodges shell corporations and filed the same claim under the FLSA. And we have been accused of being vexatious. I do is vexatious to you. Bad faith conduct, form shopping. Judges, the district judge said it wasn't here, bad faith. He excluded bad faith. Well, there wasn't any. He had to. The vexatiousness is bad faith. I don't even admit it that. Right. I could have refiled this case in the Charlotte division with Betty Gosnell, the opt-in if I wanted to. If I wanted to place some games, but I might find myself right back up here if I had done that. We caucused on it. Councilor did not do that. We refiled, expanded our allegations to satisfy Twomly, to satisfy the enterprise exemption, and the fact that Betty Gosnell was not an exempt 24 hours a day. And there was no discovery. Of course. Oh, no, no discovery whatsoever. And so essentially, the courts below said, that you, you pledged yourself out of a cause of action twice. I guess that's the never-ending. That's what the court is saying. With no discovery on an issue as one that can be as complicated as who is exempt under the FLSA, which continues to be litigated all over this country every day, courts are all over the place because the statute is a mess. And the Department of Labor changes its mind every couple of years. In fact, the Supreme Court just last week said the DC circuit couldn't impose some kind of heightened notice and comment requirement on the Department of Labor to change its regulations. And so now we got a judge saying, well, I've looked at your complaint. I've looked at your amended complaint. Your proposed amendment complaint

. We filed, refiled with the same plaintiff. We added more of the defendant's Hodges shell corporations and filed the same claim under the FLSA. And we have been accused of being vexatious. I do is vexatious to you. Bad faith conduct, form shopping. Judges, the district judge said it wasn't here, bad faith. He excluded bad faith. Well, there wasn't any. He had to. The vexatiousness is bad faith. I don't even admit it that. Right. I could have refiled this case in the Charlotte division with Betty Gosnell, the opt-in if I wanted to. If I wanted to place some games, but I might find myself right back up here if I had done that. We caucused on it. Councilor did not do that. We refiled, expanded our allegations to satisfy Twomly, to satisfy the enterprise exemption, and the fact that Betty Gosnell was not an exempt 24 hours a day. And there was no discovery. Of course. Oh, no, no discovery whatsoever. And so essentially, the courts below said, that you, you pledged yourself out of a cause of action twice. I guess that's the never-ending. That's what the court is saying. With no discovery on an issue as one that can be as complicated as who is exempt under the FLSA, which continues to be litigated all over this country every day, courts are all over the place because the statute is a mess. And the Department of Labor changes its mind every couple of years. In fact, the Supreme Court just last week said the DC circuit couldn't impose some kind of heightened notice and comment requirement on the Department of Labor to change its regulations. And so now we got a judge saying, well, I've looked at your complaint. I've looked at your amended complaint. Your proposed amendment complaint. And I can tell this lady is exempt. And therefore, you get sanctions? Well, for pursuing your clients, it's just beyond me. I don't get it. But keep in mind that on the motion, he never really addressed he was speaking in dictum. But, well, it wasn't dictum. It was just the judge's musings because they weren't really whatsoever. I've never ruled by the judiciary judge or by the district judge. So even the whole question of whose exempt hasn't been answered in this case. That's correct. And you must be the worst lawyer ever to come out of Kansas. So your amended complaint should have been filed. And you should have gone forward. I believe so in the underlying action, not in the current action. You know, that's correct. I just want to close by saying what will happen down there? I don't know. The Court has thrown about some dismissals of final orders and mandamus. I'm more than happy to do that if it brings you back here to get a just ruling in this case. The question to you is just one. For the record, do you withdraw your appeal? That's the question. It's a simple question. Yes or no? That would record do you withdraw your appeal? Yes or no? That was the question? Yes or no? Then you can respond. You can respond. But I think that yes or no is very simple. Yes. OK. You withdraw the appeal? Yes. And if we grant that, that's the end of it. We're back in the court looking at mandamus dismissal. That was the same issue of the magistrate charges with

. You want to dismiss or not? Because I'm going to do that. So the magistrate told us. Thank you, Your Honours. Thank you, Mr. DeFell. We appreciate good to have you here. And again, Professor Corzund and your staff are going to be here. Thank you