Antitrust Law Daily Wrap Up, PRIVACY—D. Colo.: Dish Network not entitled to attorney fees, costs over previously dismissed suit involving same claims, (Oct 17, 2013)

By Peter Reap, J.D., LL.M.

Dish Network LLC was not entitled to a stay of proceedings in a suit brought by Jaquita Lyons alleging violations of the Telephone Consumer Protection Act of 1991 (“TCPA”), or to an award of its reasonable attorney fees and costs incurred in defending a similar suit that Lyons previously dismissed that included the same claims, the federal district court in Denver has decided (Lyons v. Dish Network LLC, October 15, 2013, Tafoya, K.).

Rule 41(d). Dish asserted that an award of attorney fees and costs was reasonable under Federal Rule of Civil Procedure 41(d) because Lyons previously dismissed an action in another federal court that included the same claims. According to Dish, in that prior action—which was originally filed in Florida state court and apparently was then removed by Dish to the United States District Court for the Middle District of Florida (hereinafter the “Florida Action”)—Lyons alleged that Dish violated Lyons’ rights under the TCPA on 264 distinct occasions. Lyons’ complaint in the Florida Action apparently also included claims for violations of Florida’s Consumer Collection Practices Act.

Dish maintained that, after the parties “engaged in full written discovery” and “on the eve of being deposed (and after Dish’s counsel had spent considerable time preparing for the deposition),” Lyons moved the court to dismiss her case. The Florida district court granted Lyons’ motion to dismiss.

Here, Lyons asserted two claims for violations of the TCPA on behalf of herself and a class of others similarly situated. Dish contended that Lyons’ claims under the TCPA in this action were based upon the same telephone calls that gave rise to her claims in the Florida Action.

Rule 41(d) provided: “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.”

To obtain an award of fees and costs under Rule 41(d), the moving party need only establish that: (1) a plaintiff’s previous action was dismissed; (2) a second action was commenced that is based upon or includes the same claim against the same defendant; and (3) there are costs and attorney fees incurred by the defendant in the prior action that will not be useful in the newly-filed action, the court noted.

The court exercised its discretion and declined to assess costs against Lyons. As a threshold matter, although Dish did not submit any authority to that effect, the court assumed, without deciding, that Lyons’ current class action claims for violations of the TCPA were “based upon” the TCPA claims she brought solely on her own behalf in the Florida Action.

Nevertheless, Lyons demonstrated that this suit and the prior suit were not filed vexatiously, the court determined. Lyons asserted that she dismissed the Florida Action and re-filed suit in Denver because, during the Florida Action, she came to believe that the Dish policies and practices giving rise to her individual claims were systematic, and that therefore the same practices also could have affected other consumers. Lyons therefore dismissed the Florida Action in order to investigate the possibility of re-filing her claims as part of a class action.

Further, Lyons’ decision to file her action in this court was not tantamount to forum shopping. Because Dish is headquartered in Colorado, the Denver court constituted a proper and convenient venue choice for her action.

Notably, Dish sought only its costs relating to defending the Consumer Collection Practices Act claims. However, it was reasonable for Lyons to abandon those claims. Because Lyons’s complaint sought relief on behalf of class members nationwide, asserting claims under state law could undercut the likelihood of obtaining class certification, the court observed.

Accordingly, Dish’s motion for costs and to stay the proceedings was denied.

The case is Civil Action No. 13-cv-00192-RM-KMT.

Attorneys: J. Andrew Meyer (Morgan & Morgan, P.A.) for Jaquita Lyons. Eric Larson Zalud (Benesch, Friedlander, Coplan & Aronoff LLP) for Dish Network LLC.

Companies: Dish Network LLC

Cases: Privacy ColoradoNews