Craig Moskowitz v. American Savings Bank

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CRAIG MOSKOWITZ, on behalf of No. 20-15024
himself and all others similarly
situated, D.C. No.
Plaintiff-Appellant, 1:17-cv-00299-
HG-RT
v.

AMERICAN SAVINGS BANK, F.S.B., OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, District Judge, Presiding

Submitted February 11, 2021 *
San Francisco, California

Filed June 10, 2022

Before: Kim McLane Wardlaw and Carlos T. Bea, Circuit
Judges, and James David Cain, Jr., ** District Judge.

Opinion by Judge Bea;
Partial Concurrence and Partial Dissent by Judge Wardlaw

*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable James David Cain, Jr., United States District Judge
for the Western District of Louisiana, sitting by designation.
2 MOSKOWITZ V. AMERICAN SAVINGS BANK

SUMMARY ***

Telephone Consumer Protection Act

In an action brought under the Telephone Consumer
Protection Act by Craig Moskowitz, the panel affirmed the
district court’s summary judgment in favor of defendant
American Savings Bank, F.S.B.; affirmed the district court’s
award of costs under Federal Rule of Civil Procedure 41(d);
and reversed the district court’s award of attorney’s fees as
“costs” under Rule 41(d) as a matter of right.

Moskowitz alleged that ASB sent text messages to his
mobile phone without the consent required by the TCPA.
Affirming the district court’s summary judgment, the panel
held that under Van Patten v. Vertical Fitness Grp., LLC,
847 F.3d 1037 (9th Cir. 2017), messages sent by
Moskowitz’s phone to ASB’s “short code” number provided
the required prior express consent for ASB’s responsive
messages.

The district court granted ASB’s motion for an award of
costs under Rule 41(d) for costs, including attorney’s fees,
that ASB incurred in defending identical litigation
commenced and later voluntarily dismissed by Moskowitz
in the District of Connecticut. Joining other circuits, and
reversing in part, the panel held that Rule 41(d) “costs” do
not include attorney’s fees as a matter of right. Accordingly,
the district court abused its discretion in including attorney’s
fees in its award of costs under Rule 41(d). The panel
explained that it did not decide if bad faith is sufficient to
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 MOSKOWITZ V. AMERICAN SAVINGS BANK 3

allow a party to recover attorney’s fees as “costs” under Rule
41(b), as bad faith was not alleged, much less proven, by
ASB in the district court. The panel did not address whether
attorney’s fees are available under Rule 41(b) if the
underlying statute so provides because, here, it was
undisputed that the TCPA does not provide for the award of
attorney’s fees to the prevailing party.

Concurring in part, Judge Wardlaw concurred in Parts I,
II, and III.A of the majority opinion, addressing the factual
background, the procedural background, and the district
court’s grant of summary judgment. Dissenting in part,
Judge Wardlaw wrote that she would vacate, rather than
reverse, the district court’s award of attorney’s fees with
instructions to first determine whether Moskowitz acted in
bad faith before deciding to award fees. Judge Wardlaw
wrote that in light of the overwhelming weight of authority,
from Rule 41(d)’s text to its history to the Ninth Circuit’s
precedent, the court should join the Second, Third, Fourth,
Fifth, and Seventh Circuits in concluding that Rule 41(d)
provides for an award of attorney’s fees as part of an award
of costs where the underlying statute that is the basis of the
original action would do so or in cases where the court finds
that a plaintiff acted in bad faith, vexatiously, wantonly, or
for oppressive reasons. Under this view, the district court
should have determined whether Moskowitz acted in bad
faith before awarding attorney’s fees as part of “costs.”

COUNSEL

Aytan Y. Bellin, White Plains, New York, for Plaintiff-
Appellant.
4 MOSKOWITZ V. AMERICAN SAVINGS BANK

Steven D. Allison, Samrah R. Mahmoud, Sheila Z. Chen,
and Stephanie V. Phan, Troutman Sanders LLP, Irvine,
California, for Defendant-Appellee.

OPINION

BEA, Circuit Judge:

Craig Moskowitz filed a class action against American
Savings Bank, F.S.B. (“ASB”), in which he claimed ASB
sent text messages to his mobile phone without the consent
required by the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227. The district court in Hawaii
granted summary judgment in favor of ASB. The district
court also granted ASB’s motion for an award of “costs”
under Federal Rule of Civil Procedure 41(d) (“Rule 41(d)”),
for costs which ASB incurred in defending the identical
litigation commenced by Moskowitz in the District of
Connecticut, in which Moskowitz entered a voluntary
dismissal, following which the Connecticut district court
dismissed the case, “without costs to any party.” Finally, the
Hawaii district court decided “costs” under Rule 41(d)
included the attorney’s fees incurred by ASB in defending
the Connecticut litigation and therefore included such
attorney’s fees in the award of “costs.” Moskowitz appeals.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We
affirm the district court’s grant of summary judgment. We
also affirm the district court’s award of costs, but we reverse
the district court’s award of attorney’s fees as “costs” under
Rule 41(d) as a matter of right.
 MOSKOWITZ V. AMERICAN SAVINGS BANK 5

I. FACTUAL BACKGROUND

ASB offers mobile text banking services to customers,
so that such customers can perform banking functions on
their mobile phones. ASB maintains a “short code” for use
for this service, 27244. A short code is a short (in this case,
five digit) telephone number a business can use to send and
receive text messages. ASB uses its short code to provide
mobile banking services via text messages to customers who
have enrolled their mobile phone numbers with ASB after
using a multistep enrollment process.

ASB also receives text messages from mobile phone
numbers of customers who are not enrolled in its program.
These text messages might originate from ASB customers
who wish to enroll, or from non-customers interested in
ASB’s services, or they might be accidental or intentionally
mischievous misdials of the short code. ASB responds to
these text messages automatically with a single message
chosen from one of two standard responses. One response
tells the sender of the text message how to stop
communications from ASB, or how to contact ASB. 1 The
other response is sent if the sender has texted “STOP.” In

1
ASB’s first responsive text option was its Standard Non-Customer
Response Message:

ASB Hawaii Mobile
Reply STOP to cancel alerts. Call 800.272.2566 or go
to www.ASBhawaii.com. Msg freq depends on
account settings. Msg&data rates may apply.
6 MOSKOWITZ V. AMERICAN SAVINGS BANK

that case, ASB tells the sender he is not subscribed to ASB,
and that he will not receive alerts. 2

Moskowitz was not a customer of ASB during the
relevant period, May through July 2016. During that time,
however, Moskowitz’s mobile phone sent 11 text messages
to ASB’s short code number. Ten of the text messages were
unrelated to ASB or its services, and ASB replied with the
first responsive text option. The remaining text message
from Moskowitz to ASB consisted of the word “STOP” to
which ASB replied with the second responsive text option.
These reply texts were the only text messages ASB sent to
Moskowitz’s mobile phone.

II. PROCEDURAL BACKGROUND

After he received these reply text messages, Moskowitz,
a Connecticut resident, filed a TCPA federal class action suit
in the District of Connecticut. Moskowitz claimed ASB’s
reply texts put the company afoul of a section of the TCPA
which prohibits calling a mobile phone by use of automatic
call generating capabilities absent the call recipient’s prior
express consent. ASB moved to dismiss the suit for lack of
personal jurisdiction over it by the Connecticut district court.
ASB argued that it is a Hawaii company without minimum
contacts in Connecticut, and that Moskowitz’s cell phone
had an area code, 914, which applied to the New York
geographic area, not Connecticut, such that ASB’s text
responses had gone to New York, not Connecticut; thus,

2
ASB’s second responsive text option was its Standard Unsubscribe
Response Message:

ASB Hawaii Mobile.
You are not subscribed and will not receive alerts.
To subscribe, call 800.272.2566 or go to
www.ASBHawaii.com. Reply HELP for help.
 MOSKOWITZ V. AMERICAN SAVINGS BANK 7

ASB had not availed itself of Connecticut; hence, the district
court did not have jurisdiction over ASB.

Moskowitz did not respond to ASB’s motion to dismiss
by answer or other responsive pleading. Rather, he filed a
notice of voluntary dismissal under Federal Rule of Civil
Procedure 41(a) in the Connecticut district court. ASB did
not respond to Moskowitz’s motion for voluntary dismissal,
and ASB did not request the Connecticut district court award
it attorney’s fees per Federal Rule of Civil Procedure Rule
41(a) as a term of granting Moskowitz’s motion. The
Connecticut district court then dismissed the case, in an
order which did not award costs to either party. Moskowitz
v. Am. Sav. Bank, F.S.B., Civil No. 3:17-00307 AWT
(D. Conn. May 19, 2017), ECF 24 (“The case is
DISMISSED without prejudice and without costs to any
party.”).

Moskowitz then filed a suit in the District of Hawaii with
the same claims, against the same parties, and based on
almost identical factual allegations. 3 ASB filed a motion for
summary judgment, and it moved for costs under Rule 41(d)
to recoup the costs it had incurred defending the earlier suit
in Connecticut.

The district court in Hawaii granted ASB’s motion for
summary judgment, concluding that each text message from
Moskowitz’s mobile phone constituted prior express consent

3
The district court in Hawaii noted that the case before it was “one
of at least fifteen different class action based lawsuits that [Moskowitz]
has filed alleging violations of the Telephone Consumer Protection Act,
and one of the ‘somewhere between ten and a hundred’ lawsuits in which
he has been a plaintiff.” Moskowitz v. Am. Sav. Bank, F.S.B., No. CV
17-00299 HG-RT, 2020 WL 61576, at *1 (D. Haw. Jan. 6, 2020)
(collecting cases).
8 MOSKOWITZ V. AMERICAN SAVINGS BANK

for each of ASB’s reply texts to his mobile phone. The
district court also granted ASB’s motion for costs under
Federal Rule of Civil Procedure Rule 41(d) after finding that
the two complaints were almost identical, and that the
Connecticut litigation had not advanced the Hawaii case.
Citing decisions by other district courts in our circuit, the
district court awarded attorney’s fees to ASB, holding that
an award of costs under Rule 41(d) included attorney’s fees,
and that Rule 41(d) did not require a showing of “subjective
bad faith, vexatiousness, or forum shopping” to award
attorney’s fees as “costs.”

III. DISCUSSION

Moskowitz appeals both the district court’s grant of
summary judgment in favor of ASB on his TCPA claim, and
its inclusion of attorney’s fees as part of its Rule 41(d) award
of costs to ASB.

A. Grant of Summary Judgment

This court reviews a district court’s grant of summary
judgment de novo. Van Patten v. Vertical Fitness Grp., LLC,
847 F.3d 1037, 1041 (9th Cir. 2017).

Moskowitz argues the district court erred in granting
summary judgment for ASB because ASB did not have the
consent required under the TCPA to send the responsive text
messages to Moskowitz. We have already determined that
the type of message Moskowitz sent ASB provided the
express consent required for each of ASB’s responsive text
messages. See Van Patten, 847 F.3d at 1043–45. “Express
consent is not an element of a plaintiff’s prima facie case but
is an affirmative defense[,]” and it is a “complete defense”
to a TCPA claim. Id. at 1044.
 MOSKOWITZ V. AMERICAN SAVINGS BANK 9

The TCPA prohibits making calls to any cellular number
by using a system that dials telephone calls automatically or
by using an “artificial or prerecorded voice’” unless the
caller received “prior express consent” from the recipient.
47 U.S.C. § 227(b). 4 The TCPA does not define prior
express consent. In Van Patten, we adopted the FCC’s
interpretation of the text: that a person who knowingly
releases his number consents to be called at that number, and
that consent is “effective” where the responsive messages
relate to the same subject or type of transaction as the
messages that led to the response. 847 F.3d at 1044–45; In

4
47 U.S.C. § 227

(b) Restrictions on use of automated telephone
equipment

(1) Prohibitions

It shall be unlawful for any person within the
United States, or any person outside the
United States if the recipient is within the
United States—

(A) to make any call (other than a call made
for emergency purposes or made with the
prior express consent of the called party)
using any automatic telephone dialing system
or an artificial or prerecorded voice—

...

(iii) to any telephone number assigned to a
paging service, cellular telephone service,
specialized mobile radio service, or other
radio common carrier service, or any service
for which the called party is charged for the
call, . . .
10 MOSKOWITZ V. AMERICAN SAVINGS BANK

re Rules & Regulations Implementing the Telephone
Consumer Protection Act of 1991, 7 F.C.C. Rcd. 8752, 8769
(Oct. 16, 1992).

Moskowitz argues that we have, and the Van Patten
court had, discretion to refuse to employ the FCC’s order
interpreting “prior express consent.” But Van Patten is a
published opinion and binding precedent. See Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)
(holding a published opinion may be overruled by a three-
judge panel only when it is clearly irreconcilable with an
intervening higher authority). Further, Van Patten’s
reasoning—that providing a telephone number to a business
as part of telephone communication to that business
constitutes express consent to a responsive contact from that
business within the scope of that communication—is even
more directly applicable to the facts of this case than were
the facts of Van Patten. 847 F.3d at 1046 (explaining that
“the transactional context matters in determining the scope
of a consumer’s consent to contact”).

In that case, Van Patten’s former gym contacted him
offering to reactivate his membership after he had cancelled
the membership, but he had not revoked his prior express
consent for the gym to contact him about his membership.
Id. at 1046–47. In this case, unlike Van Patten, it was
Moskowitz who initiated contact with ASB, and ASB that
automatically replied to each contact with a single
responsive text message to confirm receipt and provide
information that the short code was ASB’s and how to stop
or continue communication. By sending text messages to
ASB’s short code, Moskowitz expressly consented to
receive reply text messages. Each informative and
confirmatory reply text message from ASB falls within the
scope of Moskowitz’s text message initiating contact, and
 MOSKOWITZ V. AMERICAN SAVINGS BANK 11

therefore, “the scope of [Moskowitz’s] consent to contact.”
Id. at 1046.

Thus, the district court did not err in applying Van Patten
and finding for ASB, and we affirm the grant of summary
judgment for ASB.

B. “Costs” under Rule 41(d)

1. Standard of Review

Moskowitz argues the district court abused its discretion
by including attorney’s fees in its award of “costs” to ASB
under Rule 41(d). “Awards of attorney’s fees are generally
reviewed for an abuse of discretion.” Thomas v. City of
Tacoma, 410 F.3d 644, 647 (9th Cir. 2005). However,
whether the term “costs” includes attorney’s fees is a
question of law that the court reviews de novo. Azizian v.
Federated Dep’t Stores, Inc., 499 F.3d 950, 955 (9th Cir.
2007).

2. Background

Rule 41(d) allows a court to award “costs” incurred in
litigation to a party if the plaintiff dismissed that litigation
and then filed another suit based on the same claims, against
the same defendant. 5 The Ninth Circuit has not previously
decided whether attorney’s fees are available under Rule
41(d) as part of “costs,” and other circuits have decided cases

5
“If a plaintiff who previously dismissed an action in any court files
an action based on or including the same claim against the same
defendant, the court: (1) may order the plaintiff to pay all or part of the
costs of that previous action; and (2) may stay the proceedings until the
plaintiff has complied.” Fed. R. Civ. P. 41(d).
12 MOSKOWITZ V. AMERICAN SAVINGS BANK

in which attorney’s fees were sought as part of Rule 41(d)
“costs” in four ways. 6

(i) Attorney’s fees are never available under Rule 41(d)

The Sixth Circuit has held that costs under Rule 41(d) do
not include attorney’s fees because the rule does not
explicitly provide for them. “Where Congress has intended
to provide for an award of attorney fees, it has usually stated
as much and not left the courts guessing.” Rogers v. Wal-
Mart Stores, Inc., 230 F. 3d 868, 874 (6th Cir. 2000), cert.
denied, 532 U.S. 953 (2001). Of course, this unremarkable
decision is based on the clear text of the rule, which provides
that the court may award “costs,” and mentions no other
object which the court can award. “Costs” is a term which
has a long-standing definition: the items which are listed in
28 U.S.C. §§ 1920, 1923. 7 See COST, Black’s Law

6
The First Circuit, Eleventh Circuit, Federal Circuit, and D.C.
Circuit have not yet decided this issue. The Eleventh Circuit recently
noted that it had not decided whether “costs” under Rule 41(d) includes
attorney’s fees, and it declined to decide the issue because the court
decided costs could not be awarded at all in the case before it. Sargeant
v. Hall, 951 F.3d 1280, 1282 n.1 (11th Cir. 2020).
7
28 U.S.C. § 1920 provides:

A judge or clerk of any court of the United States may
tax as costs the following:

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded
transcripts necessarily obtained for use in the
case;
 MOSKOWITZ V. AMERICAN SAVINGS BANK 13

(3) Fees and disbursements for printing and
witnesses;

(4) Fees for exemplification and the costs of
making copies of any materials where the copies
are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts,
compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation
services under section 1828 of this title.

A bill of costs shall be filed in the case and, upon
allowance, included in the judgment or decree.

28 U.S.C. § 1923 provides:

(a) Attorney’s and proctor’s docket fees in courts of
the United States may be taxed as costs as follows:

$20 on trial or final hearing (including a default
judgment whether entered by the court or by the
clerk) in civil, criminal, or admiralty cases, except
that in cases of admiralty and maritime
jurisdiction where the libellant recovers less than
$50 the proctor’s docket fee shall be $10;

$20 in admiralty appeals involving not over
$1,000;

$50 in admiralty appeals involving not over
$5,000;

$100 in admiralty appeals involving more than
$5,000;
14 MOSKOWITZ V. AMERICAN SAVINGS BANK

Dictionary (11th ed. 2019) (defining “costs” as “[t]he
charges or fees taxed by the court, such as filing fees, jury
fees, courthouse fees, and reporter fees.”). “Against this
background, this Court understandably declared in 1967 that
with the exception of the small amounts allowed by § 1923,
the rule ‘has long been that attorney’s fees are not ordinarily
recoverable [as costs] . . . .’” Alyeska Pipeline Serv. Co. v.
Wilderness Soc’y, 421 U.S. 240, 257 (1975) (citing recent
cases in accord and quoting Fleischmann Distilling Corp. v.
Maier Brewing Co., 386 U.S. 714, 717 (1967)).

$5 on discontinuance of a civil action;

$5 on motion for judgment and other proceedings
on recognizances;

$2.50 for each deposition admitted in evidence.

(b) The docket fees of United States attorneys and
United States trustees shall be paid to the clerk of court
and by him paid into the Treasury.

(c) In admiralty appeals the court may allow as costs
for printing the briefs of the successful party not more
than:

$25 where the amount involved is not over
$1,000;

$50 where the amount involved is not over
$5,000;

$75 where the amount involved is over $5,000.
 MOSKOWITZ V. AMERICAN SAVINGS BANK 15

(ii) Attorney’s fees are generally available under
Rule 41(d)

In Evans v. Safeway Stores, Inc., 623 F.2d 121 (8th Cir.
1980) (per curiam), the Eighth Circuit allowed a $200
attorney fee without explanation as to its reasoning, but
noted that it was “satisfied the district court did not abuse its
discretion in awarding defendant-appellee $200 attorney
fees,” implying that attorney’s fees are not available under
Rule 41(d) as a matter of right, but only when such awards
are within the district court’s discretion. Id. at 122.
However, it is unclear by what standard the Eighth Circuit
relied upon in evaluating whether the district court had
abused its discretion, and accordingly, we do not find this
decision to be of any persuasive value.

(iii) Attorney’s fees are available under Rule 41(d) if the
underlying statute so provides

The Third Circuit, Fourth Circuit, Fifth Circuit, and
Seventh Circuit have each held that courts may award
attorney’s fees as costs under Rule 41(d) if the substantive
statute underlying the claim provides for attorney’s fees. See
Garza v. Citigroup Inc., 881 F.3d 277, 279 (3rd Cir. 2018);
Andrews v. Am.’s Living Ctrs., LLC, 827 F.3d 306, 311 (4th
Cir. 2016); Portillo v. Cunningham, 872 F.3d 728, 739 (5th
Cir. 2017); Esposito v. Piatrowski, 223 F.3d 497, 501 (7th
Cir. 2000). Each of these cases relied on Marek v. Chesny,
473 U.S. 1 (1985) to reach this holding:

In Marek, the Supreme Court addressed
whether attorneys’ fees are awardable under
Federal Rule of Civil Procedure 68, which
allows for the imposition of “costs” when a
plaintiff rejects a settlement offer that turns
out to be greater than the ultimate judgment
16 MOSKOWITZ V. AMERICAN SAVINGS BANK

at trial. As with Rule 41(d), the drafters of
Rule 68 neither defined the term “costs” nor
explained its intended meaning, and made no
reference to attorneys’ fees. After examining
the plain text of Rule 68, the Court concluded
legal fees may be awarded under Rule 68, but
only where expressly authorized by some
applicable statute or other authority. This
holding recognized the continued vitality of
the American Rule and reaffirmed that there
must be statutory authority or other authority
to award attorneys’ fees.

Garza, 881 F.3d at 282–83 (cleaned up); but see Horowitz v.
148 S. Emerson Assocs. LLC, 888 F.3d 13, 26 n.6 (2nd Cir.
2018).

(iv) Attorney’s fees are available under Rule 41(d) if bad
faith is proven

The Second Circuit, Fourth Circuit, and Tenth Circuit
have each held that courts have the discretion to award
attorney’s fees pursuant to Rule 41(d) whenever there is
proof of bad faith, vexatiousness, wanton actions, or forum
shopping in the filing of the original action. 8 See Horowitz
v. 148 S. Emerson Assocs. LLC, 888 F.3d 13, 25–26 (2nd
Cir. 2018); Andrews, 827 F.3d at 311 (4th Cir. 2016);

8
For convenience, unless otherwise noted, all uses of “bad faith” in
this opinion mean “bad faith, vexatiousness, wanton actions, or forum
shopping.”
 MOSKOWITZ V. AMERICAN SAVINGS BANK 17

Meredith v. Stovall, 2000 WL 807355, at *1 (10th Cir. June
23, 2000) (unpublished). 9

In Horowitz, a Lanham Act case, the Second Circuit
determined that the “scheme” of 41(d), “deterren[ce] to
forum shopping and vexatious litigation,” would be
“substantially undermined” if attorney’s fees were not
recoverable under Rule 41(d) in cases of bad faith, as actions
quickly filed and dismissed likely would not incur “expenses
routinely recoverable as costs.” Horowitz, 888 F.3d at 25–
26 (cleaned up). The court determined the plaintiff had
engaged in both forum shopping and vexatious litigation
when it filed a case in a Georgia state court and then
dismissed the case “immediately after” the state court “stated
its belief that the action was meritless and that its filing likely
contravened an order of another court, which was itself
addressing substantially related claims.” Id. at 23. The
plaintiff then filed another similar suit in federal court in
New York. In awarding attorney’s fees under Rule 41(d),
the Second Circuit concluded that “[t]his is the precise type
of litigation tactic that Rule 41(d) is meant to deter.” Id.
Likewise, in the unpublished decision of Meredith, the Tenth
Circuit held that “[t]he purpose of [Rule 41(d)] is to prevent
the maintenance of vexatious law suits and to secure, where
such suits are shown to have been brought repetitively,
payment of costs for prior instances of such vexatious
conduct,” and held that the district court did not abuse its
discretion in awarding attorney’s fees as costs under Rule

9
Regarding bad faith, the Third Circuit has distinguished between
an award of attorney’s fees under Rule 41(d) as “costs” and a federal
court’s inherent power to award attorney’s fees under the bad faith
exception to the American Rule, Garza, 881 F.3d at 284–85 (3rd Cir.
2018), an approach consistent with the Fifth Circuit. Portillo, 872 F.3d
at 740 n.29 (5th Cir. 2017).
18 MOSKOWITZ V. AMERICAN SAVINGS BANK

41(d). Meredith, 2000 WL 807355, at *1 (cleaned up). And
in Andrews, the Fourth Circuit awarded attorney’s fees under
Rule 41(d) by relying upon the general “inherent powers” of
a federal court to award attorney’s fees when the losing party
has been found to have acted in bad faith. Andrews, 827 F.3d
at 311–12 (citing Alyeska, 421 U.S. at 257–60); but see
Garza, 881 F.3d at 284–85 (3rd Cir. 2018); Portillo,
872 F.3d at 740 n.29 (5th Cir. 2017).

3. Discussion

We hold that Rule 41(d) “costs” do not include
attorney’s fees as a matter of right, and thus reverse the
district court’s award of attorney’s fees in favor of ASB as a
matter of right under Rule 41(d). In so holding, we join
every published circuit court opinion that has meaningfully
considered this issue. 10 As made clear in the foregoing

10
Horowitz, 888 F.3d at 25 (2nd Cir. 2018) (“We thus have no
difficulty in concluding that Rule 41(d) evinces an unmistakable intent
for a district court to be free, in its discretion, to award attorneys’ fees as
part of costs. Rule 41(d)’s purpose is clear and undisputed: to serve as a
deterrent to forum shopping and vexatious litigation.” (cleaned up));
Garza, 881 F.3d at 283–84 (3rd Cir. 2018) (“We therefore adopt the
Underlying Substantive Statute Interpretation of Rule 41(d) and hold that
‘costs’ in Rule 41(d) includes attorneys’ fees only where the underlying
statute defines ‘costs’ to include attorneys’ fees.” (cleaned up));
Andrews, 827 F.3d at 311 (4th Cir. 2016) (“Rule 41(d) does not provide
for an award of attorneys’ fees as a matter of right; instead, a district
court may award attorneys’ fees under this rule only where the
underlying statute provides for attorneys’ fees. A court may also, within
its discretion, award attorneys’ fees where it makes a specific finding
that the plaintiff has acted in bad faith, vexatiously, wantonly, or for
oppressive reasons, a well-established exception to the American Rule.”
(cleaned up)); Portillo, 872 F.3d at 739 (5th Cir. 2017) (“We see no
reason to treat Rule 41(d) differently: Fee awards are permitted under
Rule 41(d) only if the underlying statute defines ‘costs’ to include
fees.”); Rogers, 230 F. 3d at 874 (6th Cir. 2000) (“We now hold that
 MOSKOWITZ V. AMERICAN SAVINGS BANK 19

discussion, “costs” is a term which has a long-standing
definition that does not inherently include attorney’s fees.
Nothing in the text of Rule 41(d) compels a contrary reading
of this well-understood term.

We do not here decide one way or the other if attorney’s
fees are available under Rule 41(d) if the underlying statute
so provides. This is because it is undisputed that the TCPA
does not provide for the award of attorney’s fees to the
prevailing party. Moreover, we do not here decide if bad
faith is sufficient to allow a party to recover attorney’s fees
as “costs” under Rule 41(d), as bad faith has not been
alleged, much less proven, by ASB in the district court
below. Accordingly, we decide no more than is necessary to
resolve the facts of this case. 11

IV. CONCLUSION

We hold that the district court correctly granted summary
judgment in favor of ASB, but it abused its discretion in
including attorney’s fees in its award of costs under Rule
41(d).

AFFIRMED IN PART AND REVERSED IN PART.

attorney fees are not available under Rule 41(d).”); Esposito, 223 F.3d at
501 (7th Cir. 2000) (“Consequently, consistent with Marek, we hold that
a party may recover reasonable attorneys’ fees as part of its ‘costs’ under
Rule 41(d) only where the underlying statute defines costs to include
attorneys’ fees.”).
11
“[I]f it is not necessary to decide more, it is necessary not to decide
more.” N. Cnty. Commc’ns Corp. of Ariz. v. Qwest Corp., 824 F.3d 830,
838 n.2 (9th Cir. 2016) (quoting PDK Labs. Inc. v. DEA, 362 F.3d 786,
799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in
the judgment)).
20 MOSKOWITZ V. AMERICAN SAVINGS BANK

WARDLAW, Circuit Judge, concurring in part, dissenting
in part:

I concur in Parts I, II, and III.A of the majority opinion,
but I would vacate, rather than reverse, the district court’s
award of attorney’s fees with instructions to first determine
whether Moskowitz acted in bad faith before deciding to
award fees. 1 I write separately to explain why, in my view,
our court should join the Second, Third, Fourth, Fifth, and
Seventh Circuits in concluding that Federal Rule of Civil
Procedure 41(d) provides for an award of attorney’s fees as
part of an award of costs “where the underlying statute” that
is the basis of the original action would do so or in cases
where the court finds that a plaintiff acted “in bad faith,
vexatiously, wantonly, or for oppressive reasons.” Andrews
v. Am.’s Living Ctrs., LLC, 827 F.3d 306, 311 (4th Cir. 2016)
(quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,
421 U.S. 240, 258–59 (1975)); see also Garza v. Citigroup
Inc., 881 F.3d 277, 279, 284 (3d Cir. 2018); Esposito v.

1
In its briefing before the district court, ASB argued that bad faith
is not required in assessing the merits of an award of costs under Rule
41(d), but it did not address whether bad faith is a factor in assessing the
inclusion of attorney’s fees as costs. Mem. of Law in Support of Mot.
for Rule 41(D) Costs and Stay of Proceedings at 6–7, 9–11, Moskowitz
v. Am. Sav. Bank, F.S.B., No. 1:17-CV-00299-HG-RT, (D. Haw. July 19,
2017), ECF No. 15-1. To the extent this constitutes waiver, “we may
exercise discretion to consider a waived issue in certain cases, one such
case being when the issue presented is a pure question of law,” as is the
case here. Wong v. Flynn-Kerper, 999 F.3d 1205, 1214 n.11 (9th Cir.
2021) (quoting Self-Realization Fellowship Church v. Ananda Church of
Self-Realization, 59 F.3d 902, 912 (9th Cir. 1995)). And let us remember
that ASB was awarded attorneys’ fees by the district court without
having the additional burden of demonstrating bad faith—it was arguing
for and won on an easier, albeit legally erroneous, path. We should
correct this erroneous view of the law that resulted from a party’s
litigation tactics.
 MOSKOWITZ V. AMERICAN SAVINGS BANK 21

Piatrowski, 223 F.3d 497, 501–02 (7th Cir. 2000); Horowitz
v. 148 S. Emerson Assocs. LLC, 888 F.3d 13, 25–26 (2d Cir.
2018); Portillo v. Cunningham, 872 F.3d 728, 738–39 (5th
Cir. 2017) (concluding attorney’s fees are available under
Rule 41(d) where the underlying statute allows, but
reserving the question whether they are available due to bad
faith). 2 Under this view, the district court should have
determined whether Moskowitz acted in bad faith before
awarding attorney’s fees as part of “costs.”

As the majority opinion states, the “‘basic point of
reference’ when considering the award of attorney’s fees is
the bedrock principle known as the ‘American Rule’: Each
litigant pays his own attorney’s fees, win or lose, unless a
statute or contract provides otherwise.” Peter v. Nantkwest,
Inc., 140 S. Ct. 365, 370 (2019) (quoting Hardt v. Reliance
Standard Life Ins. Co., 560 U.S. 242, 252–53 (2010)
(internal quotation marks omitted)); see also Alyeska
Pipeline, 421 U.S. at 257 (referring to the presumption
against shifting attorney’s fees as a “general” rule). “To
determine whether Congress intended to depart from the
American Rule presumption, the Court first ‘look[s] to the
language of the section’ at issue.” Peter, 140 S. Ct. at 372
(quoting Hardt, 560 U.S. at 254). “While ‘[t]he absence of
[a] specific reference to attorney’s fees is not dispositive,’
Congress must provide a sufficiently ‘specific and explicit’
indication of its intent to overcome the American Rule’s
presumption against fee shifting.” Id. (quoting Key Tronic
Corp. United States, 511 U.S. 809, 815 (1994), then Alyeska
Pipeline, 421 U.S. at 260). A review of the text and history

2
In an unpublished disposition, the Tenth Circuit has also affirmed
a district court’s imposition of attorney’s fees under Rule 41(d) due to a
party’s “vexatious conduct.” See Meredith v. Stovall, 216 F.3d 1087, *1
(10th Cir. 2000) (unpublished table decision).
22 MOSKOWITZ V. AMERICAN SAVINGS BANK

of Rule 41(d) evinces a sufficiently “specific and explicit”
intent by Congress to provide courts with the discretion to
depart from the American Rule and include attorney’s fees
as a part of an award of “costs” under Rule 41(d).

The operative version of Rule 41(d) provides:

If a plaintiff who previously dismissed an
action in any court files an action based on or
including the same claim against the same
defendant, the court:

(1) may order the plaintiff to pay all or
part of the costs of that previous action;
and

(2) may stay the proceedings until the
plaintiff has complied.

This version of Rule 41(d) has been in effect since its
amendment in 2007. Rule 41(d) has never defined “costs,”
and it must be conceded that at least this version of the Rule
does not clearly demonstrate a departure from the American
Rule, particularly in light of the ordinary definition of
“costs.” See Costs, Black’s Law Dictionary (11th ed. 2019)
(“The expenses of litigation, prosecution, or other legal
transaction, esp. those allowed in favor of one party against
the other.”); Peter, 140 S. Ct. at 372 (“The complete phrase
‘expenses of the proceeding’ is similar to the Latin expensæ
litis, or ‘expenses of the litigation.’ This term has long
referred to a class of expenses commonly recovered in
litigation to which attorney’s fees did not traditionally
belong.”). But the Supreme Court has instructed us that our
inquiry does not end there. In Marek v. Chesny, 473 U.S. 1
(1985), the Court addressed whether attorney’s fees were
 MOSKOWITZ V. AMERICAN SAVINGS BANK 23

available as a component of “costs” under Rule 68 (“Offer
of Judgment”). 3 Even though Rule 68 similarly does not
define costs, the Court noted that the drafters of Rule 68
“were fully aware of the[] exceptions to the American Rule”
that allowed courts to award attorney’s fees as part of “costs”
in some cases. Id. at 8. Noting that the Advisory Committee
Note to Rule 54(d) (“Costs; Attorney’s Fees”) “contains an
extensive list of the federal statutes which allowed for costs
in particular cases; of the 35 ‘statutes as to costs’ set forth in
the final paragraph of the Note,” the Court stated “no fewer
than 11 allowed for attorney’s fees as part of costs.” Id. 4
Thus, “[a]gainst this background of varying definitions of
‘costs,’” the Court concluded that it was “very unlikely that
this omission was mere oversight” and Congress “intended
to refer to all costs properly awardable under the relevant
substantive statute or other authority.” Id. at 8–9.

As with Rule 68, addressed in Marek, Congress did not
define “costs” in Rule 41(d). However, Congress evinced
the requisite intent in the version of Rule 41(d) prior to its

3
Notably, in Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 874
(6th Cir. 2000), in which the Sixth Circuit became the only circuit court
to conclude that attorney’s fees are never available under Rule 41(d), the
court did not even mention Marek.
4
When Marek was decided, Federal Rule of Civil Procedure 54(b)
“did not differentiate between attorney’s fees and other costs,” and only
when Rule 54(b) was amended in 1993 did it include “two subsections,
one devoted to ‘Costs Other than Attorney’s Fees,’ [Rule 54(d)(1)] and
the other devoted to “Attorney’s Fees, [Rule 54(d)(2)].” Adsani v.
Miller, 139 F.3d 67, 74 n.8 (2d Cir. 1998). The Advisory Committee
Notes accompanying the amendment specified that the new subsection
“relates to attorney’s fees, whether or not denominated as ‘costs.’” Id.
(cleaned up). Thus, the drafters of the Rules “clearly considered
attorney’s fees to be in some instances part of costs, both before and after
the 1993 Amendments to Rule 54.” Id.
24 MOSKOWITZ V. AMERICAN SAVINGS BANK

2007 amendment, and though the amendment removed some
of the discretionary language, Congress made abundantly
clear that the amendment was “stylistic only.” 5 Fed. R. Civ.
P. 41(d) advisory committee’s note to 2007 amendment.
The pre-amendment version explicitly stated that “the court
may make such order for the payment of costs of the action
previously dismissed as it may deem proper.” Fed. R. Civ.
P. 41(d) (1991) (amended 2007). The 2007 amendment
made that delegation of discretion implicit only by
eliminating “as it may deem proper” but retaining the
discretionary “may” language and making explicit that the
court may order “all or part of” the costs of the previously
dismissed action. After all, use of the word “may” alone
implies all the discretion required—“as it may deem proper”
is simply redundant as no court would award costs that it
thought were improper.

Since 2007, no court addressing whether attorney’s fees
are awardable under Rule 41(d) has raised the 2007
amendment as a basis for distinguishing earlier cases;
therefore, discussions of Rule 41(d) in its pre-2007 format
remain good law. For example, in Esposito, the Seventh
Circuit held that attorney’s fees were available as part of an
award of “costs” under the pre-2007 amendment Rule 41(d)
“where the underlying statute that is the basis of the original
action” would do so or for bad faith. 223 F.3d at 500 n.5,
501. In 2016, the Fourth Circuit adopted the Esposito

5
While the 2007 amendment may seem to have changed much of
Rule 41(d)’s language, the Advisory Committee Notes make
painstakingly clear that “[t]he language of Rule 41 has been amended as
part of the general restyling of the Civil Rules to make them more easily
understood and to make style and terminology consistent throughout the
rules. These changes are intended to be stylistic only.” Fed. R. Civ. P.
41(d) advisory committee’s note to 2007 amendment (emphasis added).
 MOSKOWITZ V. AMERICAN SAVINGS BANK 25

approach in Andrews, despite the amendment to Rule 41(d)
in the interim. Andrews, 827 F.3d at 310–11.

Taking the text of both versions of Rule 41(d) into
consideration, it is apparent that Congress intended to allow
awards of attorney’s fees under Rule 41(d) by providing
courts with sufficient discretion in awarding the costs of the
previously dismissed action. Indeed, Congress granted
courts discretion to award costs under Rule 41(d) “as [they]
may deem proper”—language that supports a court’s right to
award attorney’s fees if such an award was “proper” to
disincentivize the conduct of vexatious litigants. 6 Fed. R.
Civ. P. 41(d) (1991). Congress’s intentional inclusion of this
discretionary language sufficiently demonstrates the
“specific and explicit” intent to overcome the typical
American Rule. Peter, 140 S. Ct. at 372 (quoting Alyeska
Pipeline, 421 U.S. at 260).

A textual comparison of Rule 41(d) to Rule 54(d), which
provides for awards of costs to the prevailing party, is useful
to elucidate this point. “[T]here is probably no reason for
one to suppose that Congress intended that costs recoverable
by the winning party under the provisions of Rule 54(d)
would be exactly the same items of expense as are incurred
by a party because of the actions of a party in dismissing an
action and refiling it.” Behrle v. Olshansky, 139 F.R.D. 370,
373 (W.D. Ark. 1991). “Rule 54(d) doesn’t even require
intervention by the court in imposing costs,” and costs
imposed under Rule 54(d) “are to be almost automatically
calculated simply by reference to the provisions of 28 U.S.C.

6
As discussed, Congress intended the elimination of “as it may
deem proper” in Rule 41(d)’s 2007 amendment as purely a stylistic, non-
substantive change, and so the phrase remains of import in considering
the meaning of the rule.
26 MOSKOWITZ V. AMERICAN SAVINGS BANK

§ 1920,” with minimal discretion for the court. Id. at 374
(citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.
437, 442 (1987)). By contrast, Rule 41(d) has no such
restriction on the court’s discretion, instead permitting the
court to award costs “as it may deem proper.” Fed. R. Civ.
P. 41(d) (1991).

Indeed, the specific inclusion of the phrase “as it may
deem proper” has led some courts to conclude Rule 41(d)
allows for attorney’s fees, including the first district court to
address the question in our circuit. In Esquivel v. Arau,
913 F. Supp. 1382 (C.D. Cal. 1996), the district court
persuasively reasoned that the text of Rule 41(d) allows for
attorney’s fees as a component of an award of “costs.” Id.
at 1388–92. The court began by correctly acknowledging
“that the lack of a specific mention of ‘attorneys’ fees’ in
Rule 41(d) does not make such expenses nonrecoverable.”
Id. at 1390; see Peter, 140 S. Ct. at 372 (“[T]he absence of
[a] specific reference to attorney’s fees is not dispositive.”
(quoting Key Tronic, 511 U.S. at 815)). First, the court
pointed out how Rule 41(a)(2) 7 “mentions neither ‘costs’ nor

7
Rule 41(a)(2) provides:

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.

As with Rule 41(d), Rule 42(a)(2) was amended in 2007 in a fashion
that was to be considered “stylistic only,” and its reference to “terms”
 MOSKOWITZ V. AMERICAN SAVINGS BANK 27

‘attorneys’ fees,’ and speaks only of ‘conditions’ that a court
may impose as it deems proper,” but our court has
nonetheless “consistently interpreted that provision to
permit a federal court to impose a requirement of payment
of a defendant’s attorneys’ fees as a condition to voluntary
dismissal.” Esquivel, 913 F. Supp. at 1390 (collecting
cases); see also Stevedoring Servs. of Am. v. Armilla Int’l.,
889 F.2d 919, 921 (9th Cir. 1989) (observing that “costs and
attorney fees are often imposed upon a plaintiff who is
granted a voluntary dismissal under Fed. R. Civ. P.
41(a)(2)”). As the Esquivel district court reasoned, “[i]t
seems consistent with the overall purpose of Rule 41,
therefore, to understand the term ‘costs’ in Rule 41(d) as a
means to designate recovery of litigation-related
expenditures as the only ‘condition’ that a district court has
the discretion to impose in situations where Rule 41(d)
applies, rather than as a limit on the nature of expenses
recoverable.” Esquivel, 913 F. Supp. at 1390. Any other
interpretation would create an illogical inconsistency where
“a court has discretion to condition Rule 41(a)(2) voluntary
dismissal without prejudice on payment of attorneys’ fees,
but that a court does not have discretion to exact the same
payment from a plaintiff who has noticed a Rule 41(a)(1)
dismissal in a previous case.” Id. at 1391. Given that, “[i]n
either situation, the plaintiff has required the defendant to
incur expenses that may be substantial[,] [i]t would be
anomalous to require the plaintiff to internalize the full costs
of its conduct in one context but not the other.” Id. Any
interpretation of Rule 41(d) excluding attorney’s fees would
therefore be in plain tension, or even outright conflict, with

here does not make cases referencing “conditions” in the rule
distinguishable.
28 MOSKOWITZ V. AMERICAN SAVINGS BANK

our longstanding precedent about the availability of
attorney’s fees under Rule 41(a)(2).

It is true that courts rarely address the theoretical
justification for awards of attorney’s fees under any
provision of Rule 41 in light of the presumption of the
American Rule. However, this may be because Rule 41(d)
and Rule 41(a)(2) are implicit codifications of the “bad
faith” exception to the American Rule as articulated in
Alyeska Pipeline. See Esquivel, 913 F. Supp. at 1390–91
(citing Rochelle Dreyfuss, Promoting the Vindication of
Civil Rights Through the Attorney’s Fees Award Act,
80 Colum. L. Rev. 346, 349 n. 22 (1980)). “Under this
conception, Rule 41(d)’s requirement for payment of ‘costs’
by a plaintiff who dismisses an action and then brings the
same action again evinces a legislative presumption that
such conduct is abusive per se.” Id. at 1391. Such an
interpretation makes intuitive sense in light of Rule 41(d)’s
“clear and undisputed” purpose: “to serve as a deterrent to
forum shopping and vexatious litigation.” Horowitz,
888 F.3d at 25 (quoting Andrews, 827 F.3d at 309).

Indeed, “the purposes of both Rule 41(d) and the ‘bad
faith’ exception to the American Rule are the same, i.e., to
compensate a party who has incurred unnecessary
expenditures because of an opponent’s vexatious conduct
during the course of litigation.” Esquivel, 913 F. Supp. at
1391 (citing Jane P. Mallor, Punitive Attorneys’ Fees for
Abuses of the Judicial System, 61 N.C. L. Rev. 613, 644
(1983)). Such a conception also comports with the history
of Rule 41, as the Supreme Court noted in the context of Rule
41(a)(1). See Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 397 (1990) (“Rule 41(a)(1) was intended to eliminate
‘the annoying of a defendant by being summoned into court
in successive actions and then, if no settlement is arrived at,
 MOSKOWITZ V. AMERICAN SAVINGS BANK 29

requiring him to permit the action to be dismissed and
another one commenced at leisure’” (quoting 2 American
Bar Association, Proceedings of the Institute on Federal
Rules, Cleveland, Ohio, 350 (1938)). Thus, not only does
the text of Rule 41(d) suggest a grant of discretion to award
attorney’s fees as a court may deem proper to deter vexatious
litigants, interpreting it in this manner also fits it neatly
within one of the two primary exceptions to the American
Rule recognized by the Supreme Court. Given this
background, it is unsurprising that the overwhelming
majority of district and circuit courts have concluded that
attorney’s fees are available under Rule 41(d), at least in
some circumstances.

Even setting the text and history aside, Rule 41(d) would
be rendered toothless if attorney’s fees were excluded in all
cases. The costs associated with defending a lawsuit are
overwhelmingly due to attorney’s fees, not court fees. For
example, here the district court awarded $1,196.23 in non-
fee costs, a drop in the bucket compared to the $17,848.20
in attorney’s fees also awarded. In Horowitz, the Second
Circuit noted how “[a]part from attorneys’ fees, the only
costs paid” by the defendants in the previously withdrawn
action “were a $15.00 charge for delivery of documents and
a $60.48 charge for a transcript fee from a court reporter.”
Horowitz, 888 F.3d at 26. One award actually deters
litigants from abusing the system, the other is barely a slap
on the wrist. Interpreting Rule 41(d) in a manner that
untethers it from its undisputed purpose would lead to absurd
results in its application, and “statutory interpretations which
would produce absurd results are to be avoided.” Ma v.
Ashcroft, 361 F.3d 553, 558 (9th Cir. 2004) (citing United
States v. Wilson, 503 U.S. 329, 334 (1992)). For that reason,
the Second Circuit correctly concluded that “the entire Rule
41(d) scheme would be substantially undermined were the
30 MOSKOWITZ V. AMERICAN SAVINGS BANK

awarding of attorneys’ fees to be precluded.” Horowitz,
888 F.3d at 25. However, an interpretation that permits
awards of attorney’s fees in all cases likely stretches the
meaning of “costs” in Rule 41(d) too far in light of the
Supreme Court’s holding in Peter, 140 S. Ct. at 370.

Nevertheless, the overwhelming weight of authority,
from Rule 41(d)’s text to its history to our precedent,
suggests that attorney’s fees are available as part of an award
of costs under Rule 41(d) where the underlying statute of the
original action provides for an award of fees or where the
court finds that a plaintiff acted “in bad faith, vexatiously,
wantonly, or for oppressive reasons.” Andrews, 827 F.3d at
311 (quoting Alyeska Pipeline, 421 U.S. at 258–59). Under
this view, the district court should have determined whether
Moskowitz acted in bad faith. If so, an award of attorney’s
fees incurred by American Savings Bank in defending the
prior action may be proper.

Therefore, the district court should have determined
whether Moskowitz acted in bad faith before it awarded
attorney’s fees to the bank, and we must vacate the award.
For this reason, I dissent from the majority’s outright
reversal.