Alma W. Evans, Appellant, v. Safeway Stores, Incorporated, Appellee.*no. 80-1271, 623 F.2d 121 (8th Cir. 1980)

The sole issue on this appeal is whether the district court abused its discretion in awarding $200 attorney fees to defendant-appellee pursuant to Fed. R. Civ. P. 41(a) (2) and (d) when plaintiff-appellant filed a voluntary dismissal without prejudice of her tort action. We affirm.

On September 26, 1977, plaintiff filed a complaint in tort for injuries sustained upon defendant's premises. Approximately sixteen months later she filed a motion for continuance of the trial date of 120 days or in the alternative for a voluntary dismissal. The court ordered the complaint dismissed without prejudice.

On April 6, 1979, plaintiff re-filed her complaint. Thereafter defendant filed a motion for attorney fees and for costs incurred in preparation for the trial on the first complaint. After considering the motion and affidavit in support thereof and plaintiff's opposition thereto, the district court awarded defendant-appellee $200 as an allowance for preparation in the initial cause.

We are satisfied the district court did not abuse its discretion in awarding defendant-appellee $200 attorney fees. See Fed. R. Civ. P. 41(d); Johnston v. Cartwright, 355 F.2d 32, 40 (8th Cir. 1966).

Affirmed.