$162k or 1,200 Bucks?: Court Finds TCPA Plaintiff Only Owes a Fraction of Defense Costs Following Dismissal of Claim

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So little used rule out there– if a Plaintiff dismisses a claim and then re-files it a Defendant can seek costs associated with the original case. But that’s not all it is cracked up to be–as Accuquote just found out.

In strict Bryant v. Byron Udell, Case No. 8:23-cv-2171-TPB-SPF (M.D. Fl. Dec. 19, 2023) the Defendant sought to recover $162,840.49 in costs and attorney’s fees that AccuQuote allegedly incurred defending a substantially similar or identical lawsuit in the Eastern District of Virginia.

The earlier lawsuit had been dismissed and re-filed. So Defendant took advantage of Rule 41(d) that provides: If a plaintiff who previously dismissed an action subsequently files a new action based on 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.”

One problem though.

The rule allows for a recovery of COSTS not ATTORNEYS FEES.

And yes, these are two different things.

Under the so-called “american rule” attorney’s fees are treated as “expenses” but not “costs” of litigation. Instead costs include things like expert fees and mailing and copying, etc.

The Court agreed with defendant that it should get its costs, but not its expenses.

So Defendant recovered about $1,200.00 for service, mailing and expert fees.

Yippee…

That’s less than it cost to bring the motion I am sure.

Still I like the aggressiveness. So nice try Accuquote.

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Published by Eric "Czar" Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

2 Comments

  1. If there is a Rule 37 violation, then the defendant can ask for attorney fees. Cases are rarely tried on merit or legal theory. Cases are tried on technicalities. This is what the big firms try to do. They make unreasonable requests for production to cause a discovery violation, late disclosure, withholding of evidence, and then file for termination. If they have confused the judge, he might dismiss the case. If he does, they file a Rule 37 request for attorney fees.

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