Craig Moskowitz v. American Savings Bank

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