United States District Court, D. South Carolina, Charleston Division
James W. McGlothlin, Plaintiff,
Kevin N. Hennelly, Defendant.
C. NORTON UNITED STATES DISTRICT JUDGE.
matter comes before the court on Kevin N. Hennelly's
(“Hennelly”) Motion to Stay Action and Award
Fees, ECF No. 6. For the reasons set forth below, the court
denies the motion.
matter arises from an action of alleged defamation and libel
brought by Florida citizen, James McGlothlin
(“McGlothlin”), against Hennelly. ECF No. 1.
McGlothlin is a founding member of The United Company, which
is the parent company of Scratch Golf, LLC. Hennelly
allegedly posted a link on Facebook to an article about a
corruption investigation involving then Virginia Governor Bob
McDonnell and monies Gov. McDonnell's wife received as a
consultant to The United Company. Hennelly made a second
allegedly defamatory comment on Facebook, stating that
McGlothlin was “up to [his] eyeballs in the recent
scandals in Virginia with the Governor and his wife.
McGlothlin gave the Governors [sic] wife a no show job at the
heart of the ethical and criminal activity.”
Id. at ¶ 14. Hennelly also allegedly posted
about Scratch Golf LLC's rezoning application in the
comment section of an Island Packet news article.
first sued Hennelly in the Middle District of Florida (the
“Florida Suit”). Hennelly responded by filing a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(2) and (3), based on lack of personal jurisdiction and
improper venue. McGlothlin opposed this motion, and the court
found that the Florida Long Arm Statute did not confer
jurisdiction over non-resident Hennelly. The court granted
the motion to dismiss but gave McGlothlin two weeks to amend
his complaint. McGlothlin chose to voluntarily dismiss the
Florida suit two weeks later.
filed suit in this district on January 30, 2018 based the
same facts. The complaint brings causes of action for
defamation and negligence/gross negligence/recklessness, and
requests injunctive relief. McGlothlin asks for actual and
punitive damages of an amount in excess of $75, 000.
McGlothlin also asks the court to enjoin Hennelly from making
or publishing any other false, defamatory, and/or libelous
statements as to McGlothlin, and to order him to remove all
information and statements he has already disseminated.
filed a Motion to Stay Action and Award Fees under Federal
Rule of Civil Procedure 41(d) on February 15, 2018. ECF No.
6. McGlothlin filed his reply in opposition on March 16,
2018, ECF No. 10, and Hennelly responded on March 23, 2018,
ECF No. 13. This matter has been fully briefed and is now
ripe for the court's review.
Federal Rule of Civil Procedure 41(d), “[i]f 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.” Fed.R.Civ.P. 41(d)(1)(2).
Rule of Civil Procedure 54(d) provides that “[u]nless a
federal statute, these rules, or a court order provides
otherwise, costs-other than attorney's fees- should be
allowed to the prevailing party.” Fed.R.Civ.P.
argues that the court should grant his motion to stay and
award fees because McGlothlin has acted in bad faith, as the
Florida suit was dismissed by the court on substantive
grounds and McGlothlin's legal counsel filed an identical
suit in Tennessee on behalf of McGlothlin's business
associate, Martin Kent (“Kent”). ECF No. 13.
Hennelly contends that McGlothlin and Kent's actions are
evidence of “vexatious intent, forum shopping, or their
efforts to oppress and simply outspend Hennelly.” ECF
Rule 41(d), a defendant may obtain attorney's fees from a
plaintiff “[i]f 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 Fourth
Circuit has established that, where a statute does not
provide for attorney's fees, “a district court may
award attorneys' fees when the opposing party has
“acted in bad faith, vexatiously, wantonly, or for
oppressive reasons.” Andrews v. America's
Living Ctrs., LLC, 827 F.3d 306 (4th Cir. 2016) at *311
(internal quotes omitted). In Andrews, the plaintiff
filed an action and was met by a motion to dismiss under
12(b)(6) for failure to state a claim. Because the plaintiff
had missed the deadline for amending her complaint, she moved
for a voluntary dismissal and withdrew her original complaint
before filing a second one in the same district. The district
court granted attorney's fees under Rule 41(d). The
Fourth Circuit reversed this decision, finding her behavior
did not amount to vexatious litigation.
McGlothlin originally filed suit in the Middle District of
Florida, and Hennelly moved to dismiss based on lack of
personal jurisdiction. McGlothlin refiled his claim in the
District of South Carolina, which does have personal
jurisdiction over Hennelly. This is not an attempt by
McGlothlin to avoid dismissal of his complaint based on its
merits by voluntarily dismissing and then refiling a
better-worded complaint. Rather, after being told by the
Florida court that he wrongly assessed the Florida
court's jurisdiction over Hennelly, McGlothlin simply
re-filed his case in the appropriate district. The actions in
Andrews were much more grievous, with Andrews
attempting to get a second bite at the apple. If the Fourth