PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 15-1658


STELLA ANDREWS, individually      and   on   behalf   of   similarly
situated persons,

                  Plaintiff - Appellant,

           v.

AMERICA’S LIVING CENTERS, LLC, a for profit limited
liability corporation, organized under the laws of the State
of North Carolina, doing business as; CAROLINA LIVING
CENTER; CAROLINA LIVING CENTER #1; ZION HILL LIVING CENTER;
GOLDEN HARVEST LIVING CENTER #1; GOLDEN HARVEST LIVING
CENTER #2; UNION MILLS LIVING CENTER #1; UNION MILLS LIVING
CENTER #2; UNION MILLS LIVING CENTER #3; FOUR SEASONS FAMILY
CARE HOME; TRANSYLVANIA LIVING CENTER; KENNETH HODGES,
individually & as mbr/mgr of America’s Living Ctrs LLC, &
owner &/or mgr of Carolina Living Ctrs; Carolina Living Ctr
1; Golden Harvest Living Ctrs 1 & 2; Union Mills Living Ctrs
1, 2 & 3; Four Seasons Family Care Home; & Transylvania
Living Ctr,

                  Defendants - Appellees.

-------------------------------------

JOHN J. KORZEN,

                  Amicus Supporting Appellees.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cv-00257-MR-DLH)


Argued:   May 10, 2016                         Decided:    June 28, 2016
Before TRAXLER, Chief Judge, GREGORY, Circuit Judge, and Joseph
F. ANDERSON, Jr., Senior United States District Judge for the
District of South Carolina, sitting by designation.


Vacated, reversed, and remanded for proceedings consistent with
this published opinion.    Judge Gregory wrote the opinion, in
which Chief Judge Traxler and Senior Judge Anderson joined.


ARGUED: Joseph H. Cassell, ERON LAW, P.A., Wichita, Kansas, for
Appellant.   Ashley S. Escoe, Rolf Garcia-Gallont, WAKE FOREST
UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for
Court-Assigned Amicus Counsel. ON BRIEF: John J. Korzen, Court-
Assigned Amicus Counsel, WAKE FOREST UNIVERSITY SCHOOL OF LAW,
Winston-Salem, North Carolina.




                               2
GREGORY, Circuit Judge:

       Stella Andrews appeals the district court’s dismissal of

her action in light of her failure to pay attorneys’ fees from a

prior action under Federal Rule of Civil Procedure 41(d).                               While

we conclude that Rule 41(d) may permit the award of attorneys’

fees under certain circumstances, those circumstances are not

present here.        We thus vacate, reverse, and remand.



                                                  I.

       Andrews first filed suit against Defendants 1 under the Fair

Labor Standards Act (“FLSA”) on June 4, 2010.                            On July 29, 2010,

Defendants        moved        to       dismiss    under       Federal    Rule     of   Civil

Procedure 12(b)(6), to which Andrews responded on September 15,

2010.       In the response, Andrews stated that she was “prepared as

the Court may direct and allow to submit an Amended Complaint

setting forth her allegations in more detail.”                            J.A. 206.     In a

subsequent order setting a hearing, the magistrate judge noted

that       this   was        not    a    proper        request,   as     the    local   rules

prohibited making a motion within a response to another motion

and Andrews had missed the twenty-one-day deadline provided in

Federal       Rule      of     Civil      Procedure        15(a)(1)      for    unilaterally

amending the complaint after a motion to dismiss.                                 On October

       1    The   Court       appointed      Amicus       to   represent       Defendants   on
appeal.


                                                  3
19, 2010, the day before the hearing on the motion to dismiss,

Andrews    filed       a   motion    for     leave     to   amend   with   a   proposed

amended complaint.

        The magistrate judge heard argument on both motions and

provided the three following options for the parties:                               1) he

could    rule     on   the    motion    to    dismiss,      recommending       that   the

district court dismiss the case; 2) he could rule on the motion

for leave to amend; 3) or Andrews “c[ould] just stand up and

say, I want to take a dismissal . . . plaintiff can be free to

file another complaint.”             

        Andrews decided to voluntarily withdraw her complaint under

Federal Rule of Civil Procedure 41(a)(1).                       On November 3, 2010,

Andrews dismissed her first action and filed a second complaint,

which she served on Defendants in February 2011.                           Defendants

then moved to stay the second action and for costs under Rule

41(d).         Defendants sought $25,437.75 for attorneys’ fees and

other expenses that had been incurred in defending the first

action.        The magistrate ordered that Defendants be awarded those

fees that related to the motion to dismiss, and the district

court affirmed, finding that an award of attorneys’ fees was

proper under Rule 41(d) and that Andrews’s conduct amounted to

vexatious litigation, for which fees could be recovered.

        This    case    has   been     before     us    twice    before:       in   2013,

Andrews appealed before an amount had been determined, and we

                                              4
dismissed the appeal as interlocutory and unappealable.                      Andrews

v. Am.’s Living Centers, LLC, 503 F. App’x 199, 201 (4th Cir.

2013).      On    remand,    the   district      court   awarded     $13,403.75   in

attorneys’       fees   to    Defendants       and   stayed    the    case   pending

payment.     In 2015, Andrews appealed without paying the costs and

before    the    case   was    dismissed       for   nonpayment.        After   oral

argument, we granted Andrews’s motion for voluntary dismissal

and dismissed the case.            Andrews v. Am.’s Living Centers, LLC,

13-1695 (4th Cir. Mar. 24, 2015).               On remand, the district court

dismissed    the    second     action   for     failure   to    pay    the   awarded

attorneys’ fees.        Andrews timely appealed.



                                        II.

     We first consider whether and under what circumstances Rule

41(d) permits an award of attorneys’ fees as a component of

“costs,” an open question in this Circuit.                    The proper scope of

a rule of procedure is a question of law subject to de novo

review.     Marex Titanic, Inc. v. Wrecked & Abandoned Vessel, 

, 545 (4th Cir. 1993).

     Federal Rule of Civil Procedure 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


                                           5
            (2) may stay the proceedings until the plaintiff
            has complied.

Fed. R. Civ. P. 41(d).

     As is apparent from the text, Rule 41 does not explicitly

permit attorneys fees.         Nevertheless, courts have noted that the

purpose of Rule 41(d) is “to serve as a deterrent to forum

shopping and vexatious litigation.”            Simeone v. First Bank Nat’l

Ass’n, 

, 108 (8th Cir. 1992); see also Esposito v.

Piatrowski, 

, 501 (7th Cir. 2000) (citing 

); Wright & Miller, 9 Fed. Prac. & Proc. Civ.

§ 2375 (3d ed.) (citing cases).            This includes attempts to “gain

any tactical advantage by dismissing and refiling th[e] suit.”

Rogers v. Wal-Mart Stores, Inc., 

, 874 (6th Cir.

2000) (citation omitted) (alteration in original).                     With this

purpose in mind, some courts have determined that Rule 41(d)

permits    an   award     of   attorneys’    fees.       As    one    court     has

explained, “Surely, Congress intended that that provision of the

federal    rules   have   some   ‘teeth.’”      Behrle   v.    Olshansky,       

, 374 (W.D. Ark. 1991).

     Several of our sister circuits have considered the question

now before us, producing an apparent split of authority.                        The

Eighth    and   Tenth   Circuits,    for   example,    have    both    upheld    an

award of attorneys’ fees under Rule 41(d), albeit without much

explanation.       Meredith    v.   Stovall,   

   (10th   Cir.


                                       6
2000) (unpublished); Evans v. Safeway Stores, Inc., 

, 122 (8th Cir. 1980); see also Robinson v. Bank of Am.,

N.A.,    553   F.   App’x   648,    651       (8th    Cir.    2014)     (unpublished)

(relying on Evans).

       Meanwhile, based on the language of the rule itself, the

Sixth Circuit has held that attorneys’ fees are not included in

costs.     

.                  The Rogers court reasoned,

“Where Congress has intended to provide for an award of attorney

fees, it has usually stated as much and not left the courts

guessing.      Further, the law generally recognizes a difference

between the terms ‘costs’ and ‘attorney fees’ and we have no

desire to conflate the two terms.”                   

recognized

that    attorneys’   fees   may    be     permissible         where   the   structure

“evinces an intent to provide” them, 

(quoting Key

Tronic Corp. v. United States, 

, 815 (1994)), but

was unpersuaded that the structure mandated costs to include

attorneys’ fees in this context, where other provisions in the

Federal    Rules    explicitly     provided      for       attorneys’    fees.    

       Between these two goalposts, the Seventh Circuit has held

that    attorneys’   fees   are    not     generally         awardable    under   Rule

41(d) “unless the substantive statute which formed the basis of

the original suit allows for the recovery of such fees as costs

(or unless such fees are specifically ordered by the court).”

                                          7


.                          In so holding, the court first

determined that nothing in the text of the rule indicated that

Congress intended to “alter” the “American Rule,” under which

attorneys’         fees       are    not     generally          recoverable.           

(citing Key 

; Alyseka Pipeline Serv. Co.

v. Wilderness Soc’y, 

, 247 (1975)).

       The Esposito court then considered Marek v. Chesny, 

   (1985),         where     the    Supreme        Court       held   that    the     costs

provided         for    in    Federal        Rule    of     Civil       Procedure      68    did   not

include      attorneys’          fees.        

   41(d),      Rule     68(d)

allows for an award of costs but does not define the term.                                         See

Fed. R. Civ. P. 68(d).                       Determining that the authors of the

Federal      Rules       were       familiar        with    the     American      Rule       and   its

exceptions,            the    Marek    Court        held     that       “the    most    reasonable

inference is that the term ‘costs’ in Rule 68 was intended to

refer       to    all        costs    properly          awardable         under   the        relevant

substantive statute or other 

.        “Thus,

absent      congressional            expressions           to     the    contrary,      where      the

underlying statute defines ‘costs’ to include attorney’s fees,

we are satisfied such fees are to be included as costs for

purposes of Rule 68.”                  

plaintiff had sued under 42

U.S.C. § 1983, and a prevailing party in a § 1983 action may be

awarded      attorneys’             fees   “as      part     of     the    costs,”      42     U.S.C.

§ 1988(b), “such fees are subject to the cost-shifting provision

                                                    8
of     Rule   68.     This   ‘plain     meaning’    interpretation    of     the

interplay between Rule 68 and § 1988 is the only construction

that gives meaning to each word in both Rule 68 and § 1988.”

.

       Applying this reasoning to Rule 41(d), the Esposito court

held 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’ 

.       “Thus,   attorneys’   fees   are   not   a   recoverable   cost   of

litigation under Rule 41(d) unless the substantive statute which

formed the basis of the original suit allows for the recovery of

such fees as costs . . . .”           

Esposito had brought suit

under § 1983, the defendants would have to show that the first

       2
       At least one district court has called this reasoning into
question in light of the 1993 revisions to Federal Rule of Civil
Procedure 54(d).   See Cadle Co. v. Beury, 

, 698
(S.D. Ga. 2007).       The amendment divided 54(d) into two
subsections entitled “Costs Other than Attorneys’ Fees” and
“Attorneys’ Fees.”   “This subdividing clarifies that attorney’s
fees are considered by the Rule drafters to be a part of
‘costs.’”   

the distinction between costs
and attorney’s fees under the common law or ‘American Rule,’
Rule 54(d) now defines costs to include attorney’s fees, and it
controls for purposes of interpreting the word ‘costs’ in a
fellow Federal Rule.” 

that this amendment
to 54(d) applies to the definition of costs under Rule 41(d).
We disagree.    See TM, LLC v. Anderson, No. 2:11-CV-00071-FL,

, at *10 (E.D.N.C. Sept. 27, 2012) (“[T]his court
is not persuaded by such reasoning where neither Rule 68, at
issue in Marek, nor Rule 41(d) has been amended in the same
manner as Rule 54(d) and there is no indication that the
drafters intended a broader application of the amendment beyond
Rule 54(d) itself.”).


                                        9
suit was “frivolous, unreasonable, or groundless,” as it is only

on     such    a    showing       that        prevailing        defendants          can      recover

attorneys’ fees in a § 1983 suit.                       

       court    briefly         noted      an    alternative         way    to

award attorneys’ fees as part of costs:                                 if “such fees [were]

specifically ordered by the court.”                           Id..       The Seventh Circuit

explained this alternative in a subsequent unpublished decision

the same year.            See Sanderson v. Spectrum Labs, Inc., 

,     

       (7th       Cir.      2000)      (unpublished          table

decision).          In Sanderson, in addition to the availability of

attorneys’ fees based on the underlying Lanham Act claim, the

court found attorneys’ fees appropriate “[e]ven when Rule 41(d)

does     not     authorize”           them,    as       a   district        court      may     award

attorneys’ fees when the opposing party has “acted in bad faith,

vexatiously,        wantonly,          or    for    oppressive          reasons.”          

, at *6 (second quote quoting F.D. Rich Co., Inc. v.

United    States         ex    rel.    Indus.       Lumber      Co.,     

,     129

(1974)).

       We find the Seventh Circuit’s reasoning persuasive and thus

adopt it here.                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

                                                   10
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.                      

; see Kreager v. Solomon & Flanagan, P.A., 

, 1543 (11th Cir. 1985) (applying Alyeska exception to

FLSA claim); Hensley v. Alcon Labs., Inc., 

, 543

(4th Cir. 2002) (“Also under its inherent powers, the district

court has authority to shift attorneys fees, but again only in

the extraordinary circumstances where bad faith or abuse can

form a basis for doing so.”).

     This rule strikes the right balance between upholding the

American Rule and furthering the goal of Rule 41(d) to deter

forum    shopping   and    vexatious     litigation      on    the    part   of   the

plaintiff.      Such a rule also minimizes any inconsistency with

Rule 41(a)(2), which courts have interpreted to allow attorneys’

fees despite the lack of an express reference.                  See Davis v. USX

Corp.,    

,   1276        (4th    Cir.    1987)    (implicitly

recognizing district court’s ability to impose attorneys’ fees

under Rule 41(a)(2) but only where plaintiff acted prejudicially

or in bad faith); see also, e.g., LeBlang Motors, Ltd. v. Subaru

of Am., Inc., 

, 686-87 (7th Cir. 1998); Painter v.

Golden Rule Ins. Co., 

, 440-41 (8th Cir. 1997).




                                         11
                                           III.

     We now turn to whether fees were properly awarded here and

conclude that they were not.                In general, “the decision whether

and in what amount to award attorney fees is one commit[t]ed to

the award court’s discretion, subject only to review for ‘abuse’

of that discretion.”               United Food & Commercial Workers, Local

400 v. Marval Poultry Co., 

, 350-51 (4th Cir. 1989).

We have noted, however, that “the decision to award attorneys’

fees is often an ‘amalgam—an exercise of discretion based upon

express    or      implicit    findings      of    fact    and    conclusions     of   law

about   the       availability      and    scope    of    discretion.’”       Hyatt    v.

Shalala,      

,    254    (4th    Cir.     1993)    (quoting     Marval

).      A    determination      of    bad   faith,

vexation, or forum shopping is “a finding of fact underlying the

district court’s discretionary decision to award fees,” and we

review that finding for clear error.                     

(citing Mutual

Fed. Sav. & Loan Ass’n v. Richards & Assoc., Inc., 

,

93 (4th Cir. 1989)).               Under the clearly erroneous standard, a

district      court’s      determination      should      be     affirmed   unless     the

Court is “left with the definite and firm conviction that a

mistake has been committed.”                 Mallory v. Booth Refrig. Supply

Co., 

, 909 (4th Cir. 1989) (citation omitted).

     We first consider whether the underlying statute includes

attorneys’        fees.      Andrews      originally      brought    suit    under     the

                                            12
FLSA,   which   provides   that   when   a    plaintiff   prevails   a   court

“shall . . . allow a reasonable attorney’s fee to be paid by the

defendant.”     29 U.S.C. § 216(b).          But the statute is silent as

to attorneys’ fees in suits where the defendant prevails.                 See

award of attorneys’ fees on a statutory basis

would be improper.

      We next consider whether attorneys’ fees were warranted by

Andrews’s behavior.        Here, the magistrate did not specifically

label Andrews’s conduct vexatious.              Nonetheless, he found an

award was warranted because Andrews “voluntarily dismissed the

first action shortly after a hearing on a motion to dismiss in

order to avoid an adverse ruling.             Plaintiff then re-filed the

action the very same day.”        J.A. 61.     The magistrate judge found

these   actions   to   have   “delayed   the    resolution   of   this   case,

increased the costs of defending this action, and wasted the

judicial resources of the Court.”        

      After Andrews’s objection, the district court affirmed the

decision of the magistrate judge.        The district court found,

      From the record before this Court, it is clear that
      the Plaintiff dismissed the prior action in order to
      avoid negative rulings on the Defendants’ motion to
      dismiss as well as her motion to amend. Faced with a
      motion to dismiss, the Plaintiff attempted to amend,
      apparently to no avail.     Meanwhile, the Defendants
      continued  to   incur  legal   fees   while  Plaintiff
      attempted to “get it right.”    Although the Plaintiff
      may not have been acting in bad faith, the end result
      of such conduct is repeated litigation of the same


                                    13
     claim against the same defendant; that is, vexatious
     litigation.

(internal citation omitted).

     We have previously relied on the Black’s Law definition of

vexatious:       “By its plain language, vexatious means ‘without

reasonable or probable cause or excuse.’”                   In re 1997 Grand

Jury, 

, 436 (4th Cir. 2000) (quoting Black’s Law

Dictionary 1559 (7th ed. 1999)).           We agree with Andrews that her

conduct    was   not   so    egregious     as   to   rise   to    the   level    of

vexatious and find that the district court clearly erred in so

holding.

     At    the    hearing,     the   magistrate       judge      instructed     the

parties,

          Now the plaintiff has this option. The plaintiff
     right now, since an answer—all we’ve got is a motion
     to dismiss and a motion to amend. The plaintiff could
     take a dismissal right now.     The plaintiff has been
     the one that has incurred the costs so far in this,
     which is the filing fee and the service fee.        The
     plaintiff would then be free to file whatever
     complaint that the plaintiff might wish to seek, which
     might help solve all the problems of the plaintiff.

           . . .

          . . . Plaintiff can just stand up and say, I want
     to take a dismissal, that’s fine; and plaintiff can be
     free to file another complaint or I rule on the motion
     to amend.    Depending on the ruling in that, I can
     then—whether it’s futile or not, I can then—which you
     all don’t know no [sic] and I don’t know which way
     that will go.     You’d then go on to the motion to
     dismiss, which I can tell you right now I would do an
     M&R recommending dismissal.

J.A. 131-33.

                                      14
     We are unmoved by Defendants’ argument that the district

court found “that in no manner did the exchange which occurred

amount   to   an   ‘invitation’        for    the     Plaintiff      to   dismiss    the

action with impunity.”         

          Considering the definition

of vexatious, we would be hard-pressed to find that Andrews was

acting   “without    reason       or   cause”;        instead,      the   option    was

presented by the magistrate judge, and Andrews “dismissed the

first lawsuit and then refilled [sic] the current lawsuit after

adding and amending the factual allegations in an attempt to

strengthen     the   case     before         facing      the       federal   pleading

standard.”    Costin v. Ally Bank Corp., No. 7:13-CV-113-BO, 

, at *1 (E.D.N.C. Oct. 11, 2013) (denying motion for

costs); see also Wishneski v. Old Republic Ins. Co., No. 5:06-

CV-148-OC-10GRJ,     

,      at    *4    (M.D.    Fla.   Oct.   10,

2006) (finding no vexation where “no discovery had been taken in

the case previously filed and dismissed in the Southern District

of Florida,” no “substantial motion practice initiated by the

Plaintiff,”    and   the    case   was       dismissed      only    one   month    after

filing); CIVCO Med. Instruments Co v. Protek Med. Prods., 

, 564 (S.D. Iowa 2005) (declining to award fees where

previous action had been pending for two months in Minnesota,

and when faced with a motion to dismiss for lack of personal

jurisdiction, plaintiff “resolved the matter by conducting very



                                         15
brief      jurisdictional       discovery,           negotiating          a     voluntary

dismissal, and refiling the claim in Iowa”).

       Defendants       also    do      not     argue       that     Andrews        acted

particularly egregiously or in bad faith; instead, they contend,

as the magistrate judge and district court held, that Andrews’s

behavior had the result of increasing the costs of defending the

previous    action,     wasting      judicial     resources,        and       avoiding    an

adverse    ruling.        Again,     we    find      this    argument         unavailing.

First, that delay results from a given circumstance is different

from acting “vexatiously, wantonly, or for oppressive reasons.”

.         Moreover,      in    support       of     his

holding that costs were warranted, the magistrate judge cited

Andrews’s refiling her second action “the very same day.”                              J.A.

61.     This fact is insufficient evidence of vexation.                         Unlike in

Robinson, where the Eighth Circuit affirmed an award of fees,

Andrews’s     first     and    second     complaints         were    not       “virtually

identical,”       see   553    F.    App’x      at    652;     rather,         Defendants

acknowledged that the second complaint was “much more detailed

than both the Complaint in the first action and the proposed

Amended Complaint in the first action, with 135 paragraphs of

allegations,” Amicus Br. 4.            See also Kent v. Bank of Am., N.A.,

518 F. App’x 514, 517 (8th Cir. 2013) (affirming fee award based

on    vexatious    behavior    where      no   explanation         for    refiling       was

provided and “the only changes were ‘incidental’”); Sanderson,

                                          16


, at *6 (affirming fee award where allegations in

first complaint “were repeated almost verbatim in his second

complaint”).

      Given     Defendants’       admission      regarding         Andrews’s      second

complaint and the magistrate judge’s options at the hearing—

which at least included, if not encouraged, voluntary dismissal—

we cannot deem Andrews’s conduct vexatious.                          As the district

court did not find that Andrews acted in bad faith, wantonly, or

oppressively,        and   as    the    record   does       not    bear    out   such    a

finding, we also decline to affirm the award on any alternative

basis.



                                          IV.

      Based on the foregoing, we conclude attorneys’ fees are a

permissible award under Federal Rule of Civil Procedure 41(d)

under certain circumstances, but that those circumstances are

not   present    here:          the    FLSA   does    not    permit       an   award    of

attorneys’ fees for defendants and Andrews’s conduct was not

undertaken      in     bad      faith,    vexatiously,            wantonly,      or    for

oppressive reasons.          Because we find that Andrews’s conduct was

not vexatious, and thus that no award of attorneys’ fees was

proper, we do not address her argument that the fees imposed by

the district court were too high.                    Accordingly, we vacate the



                                          17
dismissal, reverse the order to pay attorneys’ fees, and remand

the case for further proceedings consistent with this opinion.



                                  VACATED, REVERSED, AND REMANDED
                     FOR PROCEEDINGS CONSISTENT WITH THIS OPINION




                               18