No UNITED STATES SUPREME COURT ALICE IVERS, Petitioner, WESTERLY PHARMACEUTICAL, INC., Respondent

Transcription

1 No UNITED STATES SUPREME COURT ALICE IVERS, Petitioner, v. WESTERLY PHARMACEUTICAL, INC., Respondent On Writ of Certiorari to the United States Court of Appeals for the Twelfth Circuit BRIEF OF PETITIONER Team 2621 Counsel for Petitioner

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3 STATEMENT OF ISSUES I. Whether PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) and Mutual Pharmaceutical v. Bartlett, 133 S. Ct (2013) are on-point precedent sufficient to preempt Ms. Ivers s claims? II. Whether Federal Rule of Civil Procedure 41(d) s term costs can be held to include awardable attorney s fees? ii

4 TABLE OF CONTENTS STATEMENT OF ISSUES ii TABLE OF CONTENTS...iii TABLE OF AUTHORITIES.iv STATEMENT OF THE CASE..1 SUMMARY OF THE ARGUMENT 3 ARGUMENT...5 I. AS APPLIED TO THE FACTS OF THIS CASE, THERE IS NO CONFLICT PREEMPTION BETWEEN THE ADCA AND ILLINOZA S PRODUCTS LIABILITY ACT. THE CASE SHOULD THEREFORE BE REMANDED FOR FURTHER PROCEEDINGS 5 II. THE DISTRICT COURT ERRED WHEN THEY FOUND FEDERAL RULE OF CIVIL PROCEDURE RULE 41(D) S TERM COSTS TO INCLUDE ATTORNEY S FEES BECAUSE THE LACK OF EXPLICIT CONGRESSIONAL AUTHORIZATION, THE LACK OF FORUM SHOPPING, AND THE LACK OF WASTED WORK PRODUCT TEND TOWARDS A FINDING THAT ATTORNEY S FEES ARE NOT SUBSUMED UNDER COSTS No explicit Congressional authorization for receipt of attorney s fees in FRCP 41(d) exists, and the underlying Western District of East Texas statute only contemplates an award of attorney s fees to the plaintiff in the event she prevails in the case, so attorney s fees cannot be awarded as part of costs Even a broad discretionary consideration of whether to apply attorney s fees as part of costs under FRCP 41(d) will fail as Ms. Ivers did not engage in forum-shopping and none of the work from the previous action constitutes waste...16 CONCLUSION.21 iii

5 TABLE OF AUTHORITIES Citations to Unofficial Opinions in the Present Case Ivers v. Westerly Pharm., Inc., No (D. Illz. 2015)..2 Ivers v. Westerly Pharm., Inc., No (12th Cir. Feb. 2, 2017).. 10 Cases Alyeska Pipeline Service. Co. v. Wilderness Society, 421 U.S. 240 (1975)..12, 13, 14 Anders v. FPA Corp., 164 F.R.D. 383 (D.N.J. 1995)...15, 16 Belkow v. Celotex Corp., 722 F. Supp (N.D. Ill 1989)..18, 20 Caldwell v. Wells Fargo Bank, N.A., No. 13-CV LHK, 2014 WL (N.D. Cal. 2014) Cauley v. Wilson, 754 F.2d 769 (7th Cir. 1985)...19, 21 Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582 (2011)...8 Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (2000)....8 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963).6, 9 Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000). 10 Hall v. Cole, 412 U.S. 1 (1973) Hines v. Davidowitz, 312 U.S. 52 (1941)....6 Marek v. Chesny, 473 U.S. 1 (1985)..13, 14, 15, 16 Mount Olivet Cemetery Ass n v. Salt Lake City, 164 F.3d 480 (10th Cir. 1998) 8 Mut. Pharm. Co. v. Bartlett, 133 S. Ct (2013) 9 N.Y. Pet Welfare Ass n, Inc. v. City of New York, 850 F.3d 79 (2d Cir. 2017) 6, 7 Pac. Gas and Elec. Co. v. State Energy Res. Conservation & Dev. Comm n, 461 U.S. 190 (1983).6, 9 iv

6 Phoenix Canada Oil Co. v. Texaco, Inc., 78 F.R.D. 445 (1978)..13 PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011)...7, 9 Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868 (6th Cir. 2000)..13, 17, 19 Runyon v. McCrary, 427 U.S. 160 (1975) 13 Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984)...6 Starr v. Hill, No STA, 2010 WL (W.D. Tenn. Jun. 16, 2010)....14, 17, 18, 20 In re Tribune Co. Fraudulent Conveyance Litig., 818 F.3d 98 (2d Cir. 2016)...7 Universal Contracting, LLC v. Utah Dep t of Commerce, 69 F. Supp. 3d 1225 (D. Utah. 2014)...8 Wahl v. City of Wichita, 701 F. Supp (D. Kan. 1988). 12 Statutes East Texas Code Annotated (a) ).14, 16 Illinoza Prods. Liab. Act (1) U.S.C. 355(j)(2)(A)(v).5, 7 42 U.S.C Federal Rules of Civil Procedure 41(a)...12, 18 41(d).passim Constitutional Provisions U.S. Const., art. VI, cl. 2 6 v

7 U.S. Const., art. VI, cl. 2 providing that: CONSTITUTIONAL PROVISIONS This Constitution, and the Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. STATUTORY PROVISIONS East Texas Code Annotated (a), providing: (a) In actions for personal injury, where plaintiff s claim for damages exceeds twenty-five thousand dollars ($25,000) and includes a written demand for fees, there shall be taxed and allowed to the plaintiff, as part of the costs of the action, a reasonable amount to be fixed by the court as attorney s fees. Illinoza Products Liability Act (1), providing that: [Relief may be provided] upon showing that a manufacturer s product was unreasonably dangerous due to (a) manufacturing defect (b) defective design (c) inadequate instructions or warnings, or (d) failure to conform to an express warranty. 21 U.S.C. 355(j)(2)(A)(v), providing: (j) Abbreviated new drug applications. (2) (A) An abbreviated application for a new drug shall contain (v) information to show that the labeling proposed for the new drug is the same as the labeling approved for the listed drug referred to in clause (i) except for changed required because of difference approved under a petition filed under subparagraph (C) or because the new drug and the listed drug are produced or distributed by different manufacturers; vi

8 FEDERAL RULES OF CIVIL PROCEDURE 41(a) provides: (a). Voluntary Dismissal. (1) By the Plaintiff. (A) Without a Court Order. Subject to Rules (23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared. (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits. (2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice. 41(d) provides: Costs of a Previously Dismissed Action. 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 of part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied. vii

9 STATEMENT OF THE CASE Alice Ivers ( Ms. Ivers ), a resident of Illinoza, was diagnosed with Parkinson s disease in 2011, and, under doctor s orders, began taking a generic form of the prescription drug ropidope hydrochloride ( ropidope ) in March of that same year (R. at 1.) Ropidope was originally patented by the company GlaxoCline, LLC in (R. at 2.) When that patent expired, another pharmaceutical company, Westerly Pharmaceuticals, Inc. ( Respondent ) submitted an Abbreviated New Drug Application ( ANDA ) to the Food & Drug Administration ( FDA ), seeking to sell a generic equivalent of ropidope. (R. at 2.) That ANDA was granted by the FDA in 2009, conditional upon, among other things, mirroring the labeling of GlaxoCline s name-brand reference-listed drug ( RLD ), called Equip. (R. at 2.) The form of ropidope Petitioner took was manufactured by Respondent. (R. at 1.) GlaxoCline applied for a Supplemental New Drug Application (snda) in January 2011, seeking approval from the FDA to change the label on the brandname ropidope product. (R. at 2.) The proposed label change included a new warning regarding Impulse Control/Compulsive Behaviors that could manifest in individuals taking the drug. (R. at 2.) The change was eventually approved by the FDA, and GlaxoCline made the necessary changes to their labels beginning in June (R. at 2.) In July 2011, Ms. Ivers still taking generic ropidope as per doctor s orders started behaving abnormally. (R. at 3.) She developed both gambling habits and compulsive spending habits. (R. at 3.) To feed these new compulsions, she drained 1

10 the majority of the retirement savings belonging to her and her husband. (R. at 3.) She used the retirements funds to play online poker games. (R. at 3.) Ms. Ivers won a fair amount of money playing poker, but unfortunately was compelled to splurge it all on antique auctions and charitable gifts. (R. at 3.) In under two years, Ms. Ivers bled the joint retirement savings account entirely empty. (R. at 3.) When Ms. Ivers s husband discovered what she had done, he filed for divorce after thirty-five years of marriage. (R. at 3 n.1.) In January 2012, Respondent decided to send the FDA a Changes Being Effected (CBE) notification, explaining that it would be updating its generic ropidope label to match the one GlaxoCline had rolled out six months prior. (R. at 2-3.) Respondent did not actually update their labels to warn consumers of the increased Impulse Control/Compulsive Behaviors dangers until February of 2012, more than twelve months after GlaxoCline had identified the problem. (R. at 3.) Ms. Ivers filed this Complaint in 2015 against Respondent, alleging that under Illinoza products liability law that Respondent s ropidope labels were defectively designed, and, as such, contained insufficient warnings of the possible side effects of the drug. (R. at 3.) She further alleges that the failure to include the appropriate Impulse Control/Compulsive Behaviors danger on the label proximately caused her compulsive spending and gambling, and caused the devastating twin losses of her thirty-five-year marriage and entire retirement savings. (R. at 3.) She had previously filed a Complaint under the same case theory and on the same facts in 2013, but voluntarily dismissed the action pursuant to 2

11 Federal Rule of Civil Procedure ( FRCP ) 41(a) prior to the Respondent filing an Answer. (R. at 5.) In the instant case, Respondents filed an Answer, a Motion for Judgment on the Pleadings, and a Motion for an Award of Costs. (R. at 3.) The District Court of Illinoza granted the Motion for Judgment on the Pleadings; the Motion for an Award of Costs was granted in part and denied in part with respect to the attorney s fees. (R. at 8.) The 12th Circuit affirmed the District Court s grant of Motion for Judgment on the Pleadings, and granted the Motion for an Award of costs entirely. (R. at 18.) Ms. Ivers now appeals to the Supreme Court. (R. at 23.) SUMMARY OF THE ARGUMENT The Twelfth Circuit s dismissal of the Complaint and award of costs and attorney s fees to Respondent should be reversed because Ms. Ivers s claim is not preempted on the merits, there is no explicit congressional authorization for an award of attorney s fees, and there is no policy-based standing for awarding attorney s fees. Ms. Ivers s claim is not preempted by conflict preemption as Respondent was not in compliance with federal law at the time of the injury. Where an award of attorney s fees is sought under FRCP 41(d), there must be either explicit congressional authorization in the underlying statute or a compelling policybased reason to award attorney s fees, neither of which are present here. Conflict preemption requires an impossibility to comply with both federal and state law. Ms. Ivers s claim of state tort liability under the Illinoza Products Liability statute is not preempted by the Food, Drug, & Cosmetic Act (FDCA) as Respondent was not in compliance with the FDCA s generic drug labeling 3

12 requirements at the time the injury took place. Failing to comply with the FDCA s generic drug labeling requirements precludes any discussion of conflict preemption as there is inherently no conflict between non-compliance with a federal statute and attempting to hold a party liable for violation of a state statute. The case should be remanded to the lower court to determine whether the six-month lapse on the part of the respondent to update the generic drug labeling was reasonable. Supreme Court precedent handling whether attorney s fees should be granted without explicit Congressional authorization looks to the underlying federal statute for evidence of Congressional intent to provide for attorney s fees. In the case at bar, the underlying statute provides for attorney s fees where the plaintiff prevails in her case. Precedent exists to find the naming of one party alone in conjunction with a grant of attorney s fees controlling, and, as such, Respondent should be precluded from receiving attorney s fees, because it is not the plaintiff in the action. The district courts have failed to consistently follow Supreme Court precedent and split on the issue, either employing a strict textualist interpretation of FRCP 41(d) or using policy-based reasoning to decide whether attorney s fees are appropriately given. A textualist interpretation of FRCP 41(d) prevents the award of attorney s fees at all times because they are not expressly named in the Rule. Finally, even a policy-based consideration of the case at bar will thwart Respondent s receipt of attorney s fees, because Ms. Ivers did not engage in forbidden forum-shopping or cause undue waste to the Respondent in the voluntary dismissal of the Western District of East Texas action. 4

13 Based on the foregoing facts, the Twelfth Circuit erred when it dismissed the Complaint of Ms. Ivers and when it awarded attorney s fees as part of costs under FRCP 41(d). Therefore, the Twelfth Circuit s judgment should be reversed in its entirety. ARGUMENT I. AS APPLIED TO THE FACTS OF THIS CASE, THERE IS NO CONFLICT PREEMPTION BETWEEN THE ADCA AND ILLINOZA S PRODUCTS LIABILITY ACT. THE CASE SHOULD THEREFORE BE REMANDED FOR FURTHER PROCEEDINGS. Federal law does not preempt Ms. Ivers s state tort claim. At issue in this case is whether Respondent should be held liable for failure to update the labeling of ropidope. Illinoza products liability law provides relief upon showing that a manufacturer s product was unreasonably dangerous due to (b) defective design, [or] (c) inadequate instructions or warnings Illz. Prod. Liability Act (1). Federal regulations require that the labeling of generic drugs be the same as those for the reference-listed drug ( RLD ). See 21 U.S.C. 355(j)(2)(A)(v). The facts of the case at bar show that the manufacturer of the RLD upon which ropidope is based, GlaxoCline, had updated the warning labeling of the RLD some six months prior to Respondent s application to update its label. Federal preemption of state law would have prohibited Respondent from unilaterally updating its labeling prior to GlaxoCline; however, at the time the injury to Ms. Ivers occurred, Respondent s labeling was not the same as that of the RLD, and was therefore out of alignment with federal regulation. It is a logical fallacy to say that a conflict of compliance 5

14 between state and federal law exists where there is failure to comply with both the federal and state law. There is therefore no conflict preemption of Ms. Ivers s state tort claim, and the case should be remanded for further proceedings. The Supremacy Clause states: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. Const., art. VI, cl. 2. This clause created the concept of preemption, wherein federal law overrides state law in a given area due to federal supremacy stemming from the Supremacy Clause. Federal preemption of state law can be found in any of three areas: express preemption, field preemption, and conflict preemption. See Pac. Gas and Elec. Co. v. State Energy Res. Conservation & Dev. Comm n, 461 U.S. 190 (1983). At issue in this case is conflict preemption. Where Congress has not entirely displaced state regulation over the matter in question, conflict preemption exists to the extent that state law actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress[.] Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 249 (1984) (citing Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, (1963); Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). Any preemption analysis must begin with an assessment of Congressional purpose, as preemption is ultimately a question of statutory construction [and] is always a matter of intent, even where that intent must be inferred. New York Pet Welfare Ass n, Inc. v. City 6

15 of New York, 850 F.3d 79 (2d Cir. 2017) (citing In re Tribune Co. Fraudulent Conveyance Litig., 818 F.3d 98, 110 (2d Cir. 2016)). In the absence of express preemptive statutory language and in the case of conflict preemption, an analysis of Congressional intent must take place in conjunction with merely exploring the actual conflict of laws in order to assess whether federal law preempts state law. As previously stated, conflict preemption occurs where it is impossible to comply with both state and federal law. In PLIVA, Inc. v. Mensing, the petitioner sought to hold a generic drug manufacturer liable under a state products liability statute for failing to update its warning labels after initial FDA approval. 564 U.S. 604 (2011). The Drug Price Competition and Patent Term Restoration Act (Hatch- Waxman Amendments) requires that a generic application must show that the [safety and efficacy] labeling proposed is the same as the labeling approved for the [brand-name] drug. Id. at (citing 21 U.S.C. 355(j)(2)(A)(v)). This requirement continues to apply to the generic drug after FDA approval and prohibits further changes to the generic drug s labeling absent a change to the brand-name drug s labeling upon which the generic is modeled. Id. It is because of this express prohibition, or direct conflict between state and federal law, that the Supreme Court found the petitioner s argument in PLIVA to be unpersuasive. Id. State tort law places a duty directly on all drug manufacturers to adequately and safely label their products [whereas f]ederal drug regulations [prevent] the [generic m]anufacturers from independently changing their generic drugs safety labels. Id. at 617. Therefore, [i]t was not lawful under federal law for the [generic 7

16 m]anufacturers to do what state law required of them. Id. at 618. The literal impossibility of the generic drug manufacturer s compliance with both state and federal law created an unamenable conflict, which warranted the Supreme Court s determination of preemption. Conflict preemption also exists when a state law is an impediment to carrying out the purpose of a federal law. A court conducting a conflict preemption analysis exercises its judgment to determine what constitutes an unconstitutional impediment to federal law, and that judgment is informed by examining the federal statute as a whole and identifying its purpose and intended effects. Universal Contracting, LLC v. Utah Dep t of Commerce, 69 F. Supp. 3d 1225, 1233 (D. Utah. 2014) (citing Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373 (2000)). However, the inquiry into whether a state law conflicts with a federal law requires a high threshold and the impediment to the purpose of the federal law must be material. Id. at (citing Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582 (2011); Mount Olivet Cemetery Ass n v. Salt Lake City, 164 F.3d 480, 489 (10th Cir. 1998)). In Universal Contracting, the plaintiff questioned whether a Utah state law forbidding employers like the plaintiff from being owned by undocumented, illegal immigrants was preempted by the federal Immigration Reform and Control Act of 1986 ( IRCA ). Id. The district court found that there was no preemption, and specifically no conflict preemption based on an impediment to the federal law s purpose, because the Utah law regulated a different sphere than IRCA. Id. at 1245 (emphasis added). The Utah law was tailored to penalize companies whose owners 8

17 are undocumented, illegal immigrants whereas IRCA penalizes employers who hire unauthorized aliens. Id. This clear distinction contributed to the district court s finding of no conflict preemption based on an impediment to federal law. In order for a state law to conflict with a federal law s purpose, the two laws must occupy the same sphere, or be applicable to the same scenarios as one another. In the case at bar, a determination of conflict preemption is inappropriate as there is compliance with neither the state nor the federal law. Conflict preemption arises where a state law can be preempted to the extent that it actually conflicts with federal law when compliance with both federal and state regulations is a physical impossibility. Pacific Gas, 461 U.S. at 204. (emphasis added) (citing Florida Lime, 373 U.S. at (1963)). Of particular relevance in any determination of conflict preemption is an impossibility of dual compliance; on the facts of the case at bar, there is no such impossibility present, as neither state nor federal law is being complied with. Respondent is in clear violation of the Illinoza Products Liability statute, as its warnings failed to inform users of ropidope of the possibility of compulsive behaviors and impaired impulse control. It is conceded that if GlaxoCline, the manufacturer of the RLD upon which ropidope is based, had also failed to inform patients of these possible side effects, then Respondent would have been in compliance with 355, similarly to the case in both PLIVA and Mutual Pharmaceutical Company v. Bartlett where it was determined that it was impossible to comply with both state and federal law. PLIVA, 564 U.S. at 604; Mut. Pharm. Co. v. Bartlett, 133 S. Ct (2013). The case at bar is undoubtedly 9

18 distinguishable from both of those cases, as the case at bar presents the issue of a generic drug manufacturer failing to comply with the federal labeling requirement of 355. If a conflict were to exist, adherence to the federal statute would trump the state statute. However, conflict preemption is not present in this case, as there was no impossibility of dual compliance present. Respondent was not in compliance with federal law when it was in violation of the state products liability statute, so holding them liable for violation of the Illinoza state statute does not conflict with compliance with the Food, Drug, & Cosmetic Act ( FDCA ). Therefore, this case should be remanded for further proceedings. Further, the Illinoza products liability law is not a clear obstruction to carrying out the purpose behind the FDCA. Where a petitioners' argument would permit common-law actions that actually conflict with federal regulations, success of the argument would destroy the very ability to achieve the [federal] law's congressionally mandated objectives that the Constitution, through the operation of ordinary pre-emption principles, seeks to protect. Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 872 (2000). As stated in Justice Motley s dissent to the Court of Appeals decision: Encouragement of generic drug manufacturers is not Hatch- Waxman s sole purpose[; t]he statute balances the need for speed and costeffectiveness in approving generic drugs with the paramount concern for patient safety that underlies the entirety of the FDCA. Ivers v. Westerly Pharm., Inc., No (12th Cir. Feb. 2, 2017) (Motley, J., dissenting). The purpose of any state products liability statute is similarly to protect the health and safety of its citizens. 10

19 To say that these two statutes are in direct conflict, or an obstacle to carrying out one or the other, is incorrect, as they both seek to further the same underlying purpose: consumer safety. The Illinoza statute can be said to further the purpose of the FDCA, not conflict with it. There is no conflict preemption of Ms. Ivers s state tort claim, and the case should be remanded for further proceedings. Conflict preemption necessitates a conflict of compliance between a state law and federal law, where adherence to the federal law trumps that of adherence to the state law. In the case at bar, Respondent was not in compliance with a federal law at the time of the injury, which regardless of its compliance with a potentially opposing state law precludes any discussion of a conflict of compliance. The issue in this case is whether Respondent failed to uphold its duty to inform patients of possible side effects of ropidope, thereby violating Illinoza s products liability statute. Respondent s labeling for ropidope was inconsistent with the RLD, and while they did eventually apply to update its labeling, this occurred six months after GlaxoCline updated Equip s labeling. Whether it was a reasonable amount of time that lapsed between GlaxoCline s actions and Westerly s eventual application is a question of fact, and further necessitates remanding this case for further proceedings. To uphold the dismissal of this case from the lower court would be for the Supreme Court to create an overly burdensome conception of preemption wherein failure to comply with a federal law conflicting with a state law would still preempt any discussion of recourse for an injured party. It is our view that this is 11

20 an inappropriate jurisprudence, and we urge the Supreme Court to remand the case for further proceedings so that it may be decided on its merits, not on a misapplied doctrine. II. THE DISTRICT COURT ERRED WHEN THEY FOUND FEDERAL RULE OF CIVIL PROCEDURE RULE 41(D) S TERM COSTS TO INCLUDE ATTORNEY S FEES BECAUSE THE LACK OF EXPLICIT CONGRESSIONAL AUTHORIZATION, THE LACK OF FORUM SHOPPING, AND THE LACK OF WASTED WORK PRODUCT TEND TOWARDS A FINDING THAT ATTORNEY S FEES ARE NOT SUBSUMED UNDER COSTS. FRCP 41(d)(1) 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 of part of the costs of that previous action. At issue in this case is whether costs can be construed to include attorney s fees within the language of the Rule. FRCP 41(d) confers broad discretion among federal courts [and] is permissive in nature, suggesting that federal courts have extensive authority to award costs they find appropriate following a voluntary dismissal under FRCP 41(a)(1). Wahl v. City of Wichita, 701 F. Supp. 1530, 1533 (D. Kan. 1988). However, the Supreme Court has recognized a traditional American rule which ordinarily disfavors the allowance of attorney s fees in the absence of statutory or contractual authorization. Hall v. Cole, 412 U.S. 1, 4 (1973). The Supreme Court has recognized the allowance or denial of attorney s fees to be the legislature s province outside of the general American rule. Alyeska Pipeline Service. Co. v. Wilderness Society, 421 U.S. 240 (1975). Determining whether attorney s fees are part of costs under FRCP 41(d) thus constitutes a 12

21 matter of statutory interpretation. A court generally must find that FRCP 41(d) demonstrates explicit congressional authorization before setting aside the American rule. Runyon v. McCrary, 427 U.S. 160, 185 (1975). The Supreme Court has further held that Congressional authorization can be found where the underlying statute on which the action is predicated allows for collection of attorney s fees. Marek v. Chesny, 473 U.S. 1, 9 (1985). District courts have not strictly followed Supreme Court precedent in Marek and Alyeska, seeming instead to continue the use of their broad discretion in determining whether attorney s fees are suitably awarded as part of costs. Where courts decline to follow Marek and Alyeska, they typically balance rigid textualist interpretations of FRCP 41(d) against competing policy concerns. Those courts adopting rigid textualist readings of FRCP 41(d) decline to entertain any factual considerations of the cases at hand but rather dismiss the related motions on the theory that FRCP 41(d) fails to mention attorney s fees and to hold otherwise would be to impermissibly re-draft the rule. Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868 (2000); see also Caldwell v. Wells Fargo Bank, N.A., 2014 WL (N.D. Cal. 2014). Conversely, courts focusing on policy maintain that FRCP 41(d) is designed to prevent vexatious suits and secure payment of costs. Phoenix Canada Oil Co. v. Texaco, Inc., 78 F.R.D. 445, 448 (1978). The rule additionally seeks to prevent plaintiffs from forum-shopping, especially by plaintiffs who have suffered setbacks in one court and dismiss to try their luck somewhere else. Starr v. Hill, No STA, 2010 WL (W.D. Tenn. Jun. 16, 2010). 13

22 1. No explicit Congressional authorization for receipt of attorney s fees in FRCP 41(d) exists, and the underlying Western District of East Texas statute only contemplates an award of attorney s fees to the plaintiff in the event she prevails in the case, so attorney s fees cannot be awarded as part of costs. The Twelfth Circuit erred in awarding Respondent attorney s fees because there was no express Congressional authorization on which to predicate such an award in either the text of FRCP 41(d) or the text of the underlying statute, East Texas Code Annotated (a). An appropriate finding of Congressional authorization to grant attorney s fees can be drawn from express statutory language or from the underlying statute on which the suit is predicated. Marek v. Chesny, 473 U.S. 1, 9 (1985). In Alyeska, the Supreme Court considered whether an environmentalist group could recover attorney s fees following a lawsuit designed to prevent permits from issuing to build a pipeline. 421 U.S. at 241. The group argued that they were performing the services of a private attorney general in vindicat[ing] important statutory rights of all citizens and, as such, were entitled to fees. Id. at 241, 245. The Court concluded that, although Congress in places relies on private litigation to create public policy, there was no congressional determination that such private-attorneygeneral actors should be entitled to fees. Id. at 263. Given that holding, the Court declined to extend judicial authority to grant attorney s fees, suggesting that to do so would be to disturb the traditional American rule. Id. In Marek v. Chesny, the Court considered the definition of costs as contained in FRCP U.S. at 1. The Court acknowledged the lengthy approval process inherent in creation of the Federal Rules of Civil Procedure and termed it unlikely that the drafters had 14

23 committed any oversights, such as intending to award attorney s fees but only providing for costs. Id. at 8 9. The Marek Court further considered those statutes creating a right of action that entitle the plaintiff to attorney s fees if he prevails on his claim. Id. The Court then determined that the plain meaning of costs as in FRCP 68 could include attorney s fees in those instances where the underlying statute contemplated an award of attorney s fees. Id. at 9. This construction of the FRCP s costs term allows courts to give effect to the plain meaning of both underlying statutes and the Federal Rules of Civil Procedure. In Marek, the plaintiff had brought suit under 19 U.S.C. 1983, which post-amendment provides that the successful party in a 1983 suit is entitled to recover attorney s fees as part of costs. Id. Because the underlying statute expressly showed Congressional intent to award attorney s fees, they could be granted through FRCP 68. Id; see also Anders v. FPA Corp., 164 F.R.D. 383 (D.N.J. 1995) (defendants prevailing in action moved for attorney s fees as costs under FRCP 41(d); court applied Marek analysis and determined that, because the underlying state statute only shifted attorney s fees in the event of a successful claimant, the defendants were unable to recover attorney s fees under FRCP 41(d)). In the case at bar, the express statutory provision the FRCP, as authorized by Congress is silent on the issue of attorney s fees, so a finding of Congressional authorization would need to come from the predicate statute. As above, FRCP 41(d) only mentions costs, barring any argument that express Congressional authorization exists in the Federal Rule itself. As in Marek, we must consider the 15

24 underlying statute giving rise to Ms. Ivers s claims to determine whether Congressional authorization exists. Respondent s Motion for Award of Costs was filed with respect to Ms. Ivers s voluntarily-dismissed Western District of East Texas action, so the Texas products liability statute must be examined. It reads: (a) In actions for personal injury, where plaintiff s claim for damages exceeds twenty-five thousand dollars ($25,000) and includes a written demand for fees, there shall be taxed and allowed to the plaintiff, as part of the costs of the action, a reasonable amount to be fixed by the court as attorney s fees. East Texas Code Annotated (a). As in Marek, the underlying statutory grant of attorney s fees can be accessed through the FRCP provision at issue here 41(d) to satisfy the plain meaning of both statutory provisions. A close reading of the statute reveals that our facts are extremely similar to those of Anders because the state statute specifies which party is eligible to receive an award of attorney s fees. In Anders, the court found the naming of only one party to be controlling, thus restricting the award of attorney s fees to claimants only and barring the defendants from recovery. Similarly, therefore, Respondent should be precluded from asserting a Marek theory of available attorney s fees, because they are not the plaintiffs in the action. 2. Even a broad discretionary consideration of whether to apply attorney s fees as part of costs under FRCP 41(d) will fail as Ms. Ivers did not engage in forum-shopping and none of the work from the previous action constitutes waste. The Twelfth Circuit erred in awarding Respondent attorney s fees because Ms. Ivers s voluntary dismissal and re-filing of her claim did not constitute forumshopping following an unfavorable ruling in the prior proceeding, and because 16

25 Respondent will be able to re-use all work product produced in anticipation of the Western District of East Texas action. A main policy goal driving application of FRCP 41(d) is to prevent forumshopping by plaintiffs who dismiss their suits to gain a strategic advantage over their adversary, particularly after unfavorable rulings have been administered in the prior proceeding. Starr, 2010 WL at *10. In determining whether attorney s fees are appropriately awarded in addition to costs, a consideration of whether forum-shopping is ongoing can be determinative. In Rogers v. Wal-Mart Stores, Inc., plaintiff filed a negligence suit against Wal-Mart in Tennessee state court, which was promptly removed by defendant. 230 F.3d 868, 868 (6th Cir. 2000). Almost a year later, plaintiff voluntarily dismissed her claim under FRCP 41(a), then re-filed in state court four months later. Id. The defendant requested attorney s fees and costs expended in the previous defensive action. Id. In considering the case, the Sixth Circuit noted that plaintiff had not moved to dismiss the complaint until after the time window allotted for naming expert witnesses had closed. Id. at 874. The court identified this as some attempt to wipe the slate clean such that plaintiff would be strategically advantaged by a voluntary dismissal and subsequent refiling in state court. Id. This tactical maneuver constitutes forumshopping of the type FRCP 41(d) seeks to prevent. Id. In like manner, in Starr, the plaintiff voluntarily dismissed her state court action following a grant of summary judgment to one of the named defendants, then re-filed the same suit in federal court. Starr, 2010 WL at *11. Defendant asserted that plaintiff was forum- 17

26 shopping by re-filing in federal court; plaintiff argues that she filed in federal court so that her claims could be heard without further delay. Id. at *10. The Starr court called plaintiff s argument disingenuous on the grounds that plaintiff waited almost a year before re-filing the case in federal court. Id. Instead, they adopted the defendant s suggestion that plaintiff was forum-shopping by voluntarily dismissing her suit as a result of the unfavorable rulings she had received in state court, leading to a finding for defendant. Id. at *12. The opportunity to fully re-use all materials produced in anticipation of litigation of the original action also weighs against an award of attorney s fees, as no waste has been produced. Belkow v. Celotex Corp., 722 F. Supp. 1547, 1553 (N.D. Ill. 1989). In Belkow, the plaintiff claimed he had been injured by consistent exposure to asbestos-containing products manufactured by the defendant, with whose products plaintiff worked closely. Id. at Defendants in the case filed a motion to dismiss three of plaintiff s eight counts in the original complaint; plaintiffs requested voluntary dismissal of counts IV, VI, and VII as a result, and the request was granted. Id. One of the defendants then requested that the court order plaintiffs to pay costs incurred as a condition to granting the voluntary dismissal under FRCP 41(a)(2). Id. The Belkow court declined to impose costs and attorney s fees based on the rationale that such awards are meant to compensate defendants for wasted money in preparing work product that is now without purpose. Id. at Because in the case only three of the eight counts were dismissed, with five preserved, the court determined that any work product already 18

27 completed was still useful and relevant to the remaining allegations. Id. The court further took note of the early procedural posture, opining that the expense incurred could not be too burdensome yet. Id. at Similarly, in Cauley v. Wilson, the defendant moved for receipt of attorney s fees when the plaintiff voluntarily dismissed the case from federal court and re-filed the same claims against the same defendants in state court. 754 F.2d 769, 771 (7th Cir. 1985). In Cauley, the Seventh Circuit determined that the fee award should only reimburse the defendant for expenses associated with creation of work product that will not be valuable in any later litigation. Id. at 772. In this case, some of the work done in preparation for the federal court action could be re-used, as the same claims were being levied against the same defendants. Id. The court indicated that work product that was still useful could not be reimbursed, and that any research or work not wasted should be deducted from the fees awarded to defendant. Id. at Ms. Ivers did not engage in forum shopping that granted her a tactical advantage or that allowed her to escape unfavorable judgments handed down in the prior proceeding when she chose to dismiss her case from the Western District of East Texas district court and refile in Illinoza state court. Our case is in direct contrast to the facts of Rogers, wherein the plaintiff had failed to timely disclose the names of her expert witnesses and happened to dismiss her case shortly thereafter. In Ms. Ivers s case, no such deadline had passed; the litigation had not matured to a stage at which she could have been in the position of dismissing her lawsuit because of a tactical error that had been made. Relatedly, Ms. Ivers s facts starkly differ 19

28 from those found in Starr, in that no motions had been granted or denied in her Western District of East Texas action. Unlike the plaintiff in Starr, no setbacks had occurred that led to Ms. Ivers refiling her suit elsewhere. Although the Record does not expressly indicate a given reason why Ms. Ivers chose to refile her suit, it is easy to believe she wanted to litigate closer to home at her advanced age and in the midst of personal crisis. Rather than forum-shopping to gain a tactical advantage, one can infer that Ms. Ivers chose to voluntarily dismiss and re-file her action in a place that would be more comfortable to her personally. Finally, in the instant case, Ms. Ivers s re-filed claim contemplates the same theory of liability under products liability law and involves the same defendants, suggesting that any work product produced in anticipation of the Western District of East Texas action would be wholly unwasted and applicable to the newly filed case. These facts can be compared to those of Belkow, in which the United States District Court for the Northern District of Illinois determined that preservation of five of eight original allegations against a defendant was sufficient overlap between cases such that attorney s fees premised on a theory of waste would not be forthcoming. Our facts are actually even stronger than those of Belkow in that Ms. Ivers has dismissed none of her original theories of liability. Everything Respondent would have used to defend the original cause of action should be immediately applicable in the instant case; thus, no waste has occurred such that it would be appropriate to award attorney s fees on a policy basis. Even under the slightly harsher analysis of Cauley, which anticipates paying fees to the extent that work 20

29 product is no longer applicable, an award of attorney s fees on a waste-basis would not lie; there would be no expenses due to inapplicable research, discovery, or preparation because the exact same claims have been asserted. Additionally, the early stage at which Ms. Ivers chose to dismiss her prior claim would have precluded Respondent having incurred too many costs, given that they had not yet filed an answer, much less conducted discovery. Because the entirety of work product created for the Western District of East Texas action is immediately applicable to the Illinoza action, there should be no award of attorney s fees to Respondent on a waste-basis. CONCLUSION For the foregoing reasons, we respectfully request that this Court reverse the decision of the Twelfth Circuit in dismissing Ms. Ivers s Complaint, and reverse the decision of the Twelfth Circuit in awarding costs and attorney s fees to Respondent. Respectfully Submitted, Team 2621, Counsel for Petitioners 21