CRAIG MOSKOWITZ V. AMERICAN SAVINGS BANK, No. 20-15024 (9th Cir. 2022)
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Plaintiff American Savings Bank, F.S.B (“ASB”) sent text messages to his mobile phone without the consent required by the Telephone Consumer Protection Act (“TCPA”). Affirming the district court’s summary judgment, the Ninth Circuit held that under Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017), messages sent by Plaintiff’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 Plaintiff in the District of Connecticut. Joining other circuits, and reversing in part, the court 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 court explained that it did not decide if bad faith is sufficient to 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 court 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.
Court Description: 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 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.”
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