Thermolife International, LLC; Muscle Beach Nutrition, LLC v. BPI Sports, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

THERMOLIFE INTERNATIONAL,
LLC; MUSCLE BEACH
NUTRITION, LLC,

Plaintiffs-Appellants,

v.

BPI SPORTS, LLC,

Defendant-Appellee.
No. 23-15903
D.C. No. 2:20-cv-
02091-SPL

OPINION

Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding

Argued and Submitted March 6, 2025
Las Vegas, Nevada

Filed August 18, 2026

Before: Johnnie B. Rawlinson, Eric D. Miller, & Roopali
H. Desai, Circuit Judges

Opinion by Judge Rawlinson;
Dissent by Judge Miller

2 THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC
SUMMARY
*

Lanham Act / Attorney’s Fees

The panel affirmed the district court’s award of
attorney’s fees under the Lanham Act and Federal Rule of
Civil Procedure 41(d) to BPI Sports, LLC, and remanded for
correction of a computational error in two false advertising
cases brought by ThermoLife International, LLC, and
Muscle Beach Nutrition, LLC.
The panel held that the district court did not abuse its
discretion in concluding that these cases were exceptional,
justifying an award of attorney’s fees to BPI under the
Lanham Act, 15 U.S.C. § 1117(a), because ThermoLife’s
persistence in litigating against BPI in light of repeated
dismissals of the same claims, for the same reasons, against
similar defendants illustrated a pattern of pursuing a
meritless litigation strategy.
The panel held that BPI could recover attorney’s fees as
“costs” under Rule 41(d) based on ThermoLife voluntarily
dismissing one action, the “2018 Litigation,” and then later
filing suit in Florida based on the same claims and against
the same defendant, the “2020 Litigation.” Acknowledging
a circuit split, and finding persuasive a concurring opinion
in Moskowitz v. Am. Sav. Bank, F.S.B., 37 F.4th 538 (9th Cir.
2022), the panel held that attorney’s fees may be recovered
as part of costs under Rule 41(d) if the statute underlying the
litigation provides for the award of attorney’s fees. Because
the Lanham Act provides for such an award, the panel

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC 3
affirmed the award of attorney’s fees to BPI as part of
“costs” under Rule 41(d).
The panel remanded to the district court for the limited
purpose of correcting a fee calculation. The panel concluded
that the district court did not otherwise abuse its discretion
in the amount of fees awarded to BPI.
Dissenting, Judge Miller wrote that the district court
awarded BPI not only its attorney’s fees in the 2020
Litigation but also the fees it incurred in the 2018 Litigation,
a separate case not before the court. Because no statute or
rule authorizes a district court hearing one case to award fees
for a different case, Judge Miller would vacate the district
court’s order and remand with instructions to limit the fee
award.

COUNSEL
Matthew J. Dowd (argued), Dowd Scheffel PLLC,
Washington, D.C., for Plaintiffs-Appellants.
Robert F. Parsley (argued) and Meredith C. Lee, Miller &
Martin PLLC, Chattanooga, Tennessee, for Defendant-
Appellee.

4 THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC
OPINION

RAWLINSON, Circuit Judge:

ThermoLife International, LLC (ThermoLife) and
Muscle Beach Nutrition, LLC (Muscle Beach) (collectively,
ThermoLife) appeal the district court’s award of $486,207 in
attorney’s fees to BPI Sports, LLC (BPI) in two separate
cases. Because the district court did not abuse its discretion
in concluding that this case was exceptional under the
Lanham Act, and because we conclude that BPI could
recover fees as “costs” under Rule 41(d) of the Federal Rules
of Civil Procedure, we affirm. We remand for the limited
purpose of correcting the computational error and modifying
the fee award from $486,207 to $454,339.
I. BACKGROUND
ThermoLife holds a number of patents for various amino
acid and nitrate compounds. ThermoLife licenses the use of
its patented compounds and sells nitrate-based ingredients to
distributors of dietary supplement products. Muscle Beach
is a licensee of ThermoLife’s patented nitrate technology
and sells products incorporating that technology.
ThermoLife alleged that BPI, a distributor in the sports
nutrition market, misbranded and falsely advertised certain
products that it sells in competition with ThermoLife for the
same customer base.
ThermoLife filed its initial action against BPI on
December 12, 2018 (the 2018 Litigation) in the United States
District Court for the District of Arizona, alleging false
advertising under the Lanham Act, common law unfair
competition, and civil conspiracy. The 2018 Litigation was
one of eight lawsuits filed by ThermoLife between

THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC 5
September 2018 and April 2019 against distributors of sports
and nutrition supplements in the District of Arizona.
1
Each
of these lawsuits alleged false advertising under the Lanham
Act, among other claims. BPI filed a motion to dismiss the
2018 Litigation, which the district court granted without
prejudice on November 19, 2019.
The dismissal of ThermoLife’s 2018 Litigation was one
of a series of dismissals of the actions filed in the District of
Arizona for failure to assert a competitive or commercial
injury in the context of claims for false marking, false
advertising, and unfair competition. See, e.g., NeoGenis

1
(1) ThermoLife Int’l, L.L.C. v. NeoGenis Labs, Inc., No. 2:18-CV-
2980-HRH, 2019 WL 1438293 (D. Ariz. Apr. 1, 2019) (filed September
20, 2018).
(2) ThermoLife Int’l LLC v. Am. Fitness Wholesalers LLC, No. CV-18-
04189-PHX-JAT, 2019 WL 3840988 (D. Ariz. Aug. 15, 2019) (filed
November 21, 2018).
(3) ThermoLife Int’l LLC v. NetNutri.com LLC, No. CV-18-04248-PHX-
JJT, 2019 WL 3220547 (D. Ariz. July 17, 2019), aff’d, 813 F. App’x 316
(9th Cir. 2020) (filed November 28, 2018).
(4) ThermoLife Int’l LLC v. BPI Sports LLC, No. CV-18-04663-PHX-
SPL, 2019 WL 6135140 (D. Ariz. Nov. 19, 2019) (filed December 12,
2018).
(5) ThermoLife Int’l LLC v. Compound Sols. Inc., No. CV-19-01473-
PHX-SMM, 2019 WL 5448804 (D. Ariz. July 30, 2019) (filed March 4,
2019), aff’d in part, rev’d in part and remanded, 848 F. App’x 706 (9th
Cir. 2021).
(6) ThermoLife Int’l LLC v. Sparta Nutrition LLC, No. CV-19-01715-
PHX-SMB, 2020 WL 248164 (D. Ariz. Jan. 16, 2020) (filed March 13,
2019).
(7) ThermoLife Int’l LLC v. Aesthetic Distrib., LLC, No. CV-19-02048-
PHX-DJH, 2020 WL 12581996 (D. Ariz. Jan. 7, 2020) (filed March 27,
2019).
(8) ThermoLife Int’l LLC v. MusclePharm Corp., No. CV-19-02440-
PHX-SMB, 2020 WL 4016191 (D. Ariz. July 16, 2020) (filed April 16,
2019).

6 THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC
Labs, 2019 WL 1438293, at *7; Compound Solutions, 2019
WL 5448804, at *4–5; Am. Fitness Wholesalers, 2019 WL
3840988, at *7- 9. Nonetheless, on December 19, 2019,
ThermoLife filed an amended complaint in the 2018
Litigation.
As ThermoLife was litigating its various cases in
Arizona, BPI commenced a separate action against
ThermoLife in the Southern District of Florida on February
26, 2019 (the 2019 Litigation). In May 2019, ThermoLife
filed an alternative motion to transfer the 2019 Litigation to
the District of Arizona. The Florida district court denied
ThermoLife’s motion to transfer the 2019 Litigation,
because the cases presented different legal and factual
issues.
In January 2020, three more of ThermoLife’s cases in the
District of Arizona—all alleging nearly identical claims
against sports supplement distributors—were dismissed
within ten days of each other. See Aesthetic Distrib., 2020
WL 12581996, at *4–6 (dismissal with leave to amend); Am.
Fitness Wholesalers, 2020 WL 122874, at *3 (dismissal with
prejudice); Sparta Nutrition, 2020 WL 248164, at *7–11
(dismissal with leave to amend). Again, each case was
dismissed for the same reason: failure to allege direct
competition or commercial injury.
Four days before ThermoLife’s deadline to respond to
BPI’s second motion to dismiss the 2018 Litigation,
ThermoLife requested that BPI consent to transfer the 2018
Litigation to the Southern District of Florida. After BPI
rejected this request, ThermoLife voluntarily dismissed the
2018 Litigation the following day.
On July 8, 2020, ThermoLife filed a complaint against
BPI in the Southern District of Florida (the 2020 Litigation).

THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC 7
ThermoLife alleged nearly identical claims as those in the
2018 Litigation, including false advertising under the
Lanham Act and common law unfair competition. BPI filed
a motion to transfer the 2020 Litigation from Florida to
Arizona, and the motion was granted. Once the 2020
Litigation was transferred from the Southern District of
Florida to the District of Arizona, BPI filed a motion to
dismiss the complaint. The district court granted BPI’s
motion to dismiss the 2020 Litigation with prejudice, and
ThermoLife appealed to this court. A prior panel disagreed
with the district court’s determination on Article III
standing, but affirmed the district court’s dismissal on the
merits, because ThermoLife failed to establish direct
competition with BPI, and because ThermoLife failed to
allege a competitive or commercial injury. See ThermoLife
Int’l, LLC v. BPI Sports, LLC, No. 21-15339, 2022 WL
612669, at *1-3 (9th Cir. Mar. 2, 2022).
After the appeal, BPI filed a motion for attorney’s fees
and costs incurred in both the 2018 Litigation and the 2020
Litigation. The district court first entered an order awarding
attorney’s fees to BPI for both the 2018 Litigation and the
2020 Litigation (Fee Award), and subsequently entered an
order calculating the amount of fees awarded (Fee
Calculation).
In its Fee Award, the district court held that BPI was
entitled to attorney’s fees and costs under the Lanham Act.
The district court explained that this case was “exceptional”
under the Lanham Act because ThermoLife engaged in
“strategic maneuvering . . . that strongly suggests forum
shopping,” and repeatedly and knowingly asserted meritless
claims against BPI. The district court reasoned that an award
of fees and costs to BPI would deter ThermoLife from

8 THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC
pursuing similarly meritless unfair competition and false
advertising claims in the future.
In addition, the district court determined that
ThermoLife’s claims were frivolous, vexatious, and
unreasonable because ThermoLife had no reasonable or
legal basis to believe that its claims would succeed. The
district court noted that its dismissal of ThermoLife’s claims
was “merely the latest in a series of decisions in this
District—all occurring during the course of ThermoLife’s
litigation with BPI—dismissing unfair competition and false
advertising claims brought by ThermoLife against other
defendants for the exact same reason.” The district court
determined that “[t]here is a difference between a zealous
and passionate pursuit of claims that a party reasonably
believes have merit, and a vexatious and harassing pursuit of
claims that a party has repeatedly filed against the same
types of defendants only to see those claims repeatedly
dismissed for having the same deficiencies.”
The district court also held that BPI was entitled to fees
and costs under Rule 41(d), “given that ThermoLife
dismissed [the 2018 Litigation] and then filed [the 2020
Litigation in the Southern District of Florida] based on the
same claims [ and] against [BPI,] the same defendant.”
BPI sought $530,332.67 in attorney’s fees, and the
district court ultimately awarded $486,207 in attorney’s fees
to BPI. Appellants timely appealed both the district court’s
Fee Award Order and the Fee Calculation Order.
II. STANDARDS OF REVIEW
“A district court’s award of attorney fees is generally
subject to an abuse of discretion standard of review on
appeal. . . .” G.P.P., Inc. v. Guardian Prot. Prods., Inc., 126

THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC 9
F.4th 1367, 1374 (9th Cir. 2025) (citation omitted).
“However, whether the term ‘costs’ includes attorney’s fees
is a question of law that the court reviews de novo.”
Moskowitz v. Am. Sav. Bank, F.S.B., 37 F.4th 538, 542 (9th
Cir. 2022) (citation omitted). “The decision to award
attorneys’ fees under the Lanham Act is reviewed for abuse
of discretion.” Jason Scott Collection, Inc. v. Trendily
Furniture, LLC, 68 F.4th 1203, 1212 (9th Cir. 2023), cert.
denied, 144 S. Ct. 550 (2024) (citation omitted).
III. DISCUSSION
A. Attorney’s Fees Under the Lanham Act
Under the Lanham Act, the court may award reasonable
attorney’s fees to a prevailing party in “exceptional cases.”
15 U.S.C. § 1117(a).
A court determines if a case is exceptional by
considering the totality of the circumstances
and evaluating whether the case is one that
stands out from others with respect to the
substantive strength of the party’s litigating
position (considering both the governing law
and facts of the case) or the unreasonable
manner in which the case was litigated based
on a preponderance of the evidence.
Jason Scott Collection, 68 F.4th at 1223 (citation and
internal quotation marks omitted). To make this
determination, courts have identified “a nonexclusive list of
factors, including frivolousness, motivation, objective
unreasonableness (both in the factual and legal components
of the case) and the need in particular circumstances to
advance considerations of compensation and deterrence.”

10 THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC
SunEarth, Inc. v. Sun Earth Solar Power Co., 839 F.3d 1179,
1181 (9th Cir. 2016) (en banc) (per curiam) (citation and
internal quotation marks omitted). The “burden of proof for
fee entitlement [is] the preponderance of the evidence
standard.” Id. (citation omitted).
The district court did not abuse its discretion in
concluding that this was an exceptional case justifying an
award of attorney’s fees to BPI. See Jason Scott Collection,
68 F.4th at 1223. The context of ThermoLife’s decision to
voluntarily dismiss its claims against BPI in the 2018
Litigation and refile claims against BPI in Florida in the
2020 Litigation supports the district court’s conclusion that
ThermoLife engaged in “strategic maneuvering . . . that
strongly suggests forum shopping.” ThermoLife litigated
against BPI in Arizona for over a year. While the 2018
Litigation was pending in Arizona, BPI filed its own action
against ThermoLife in Florida. ThermoLife filed a motion
to transfer BPI’s Florida action to Arizona, its self-professed
“home forum.” BPI Sports, LLC v. ThermoLife Int’l LLC,
No. 19-60505-CIV-SMITH, 2020 WL 10180910, at *4
(S.D. Fla. Jan. 9, 2020).
In January 2020, ThermoLife experienced dismissal of
three of its nearly identical actions in Arizona against other
sports supplement manufacturers. Although BPI’s motion to
dismiss ThermoLife’s Second Amended Complaint in the
2018 Litigation was pending in January 2020, ThermoLife
did not wait for the district court to rule on that motion.
Instead, it voluntarily dismissed the 2018 Litigation in
February 2020. Approximately four months later,
ThermoLife refiled virtually identical claims against BPI in
the Southern District of Florida. This timing and sequence of
events support the district court’s conclusion that
ThermoLife engaged in litigation behavior “that strongly

THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC 11
suggests forum shopping.” See Mendocino Ry. v. Ainsworth,
113 F.4th 1181, 1190 (9th Cir. 2024) (noting that “any
indication that a party sought to manipulate the litigation or
behaved vexatiously to wind up in the forum of its choosing
supports a finding of forum shopping”) (citation and internal
quotation marks omitted).
As the district court found, ThermoLife persistently
litigated claims against BPI that it knew were meritless. See
SunEarth, 839 F.3d at 1180-81 (identifying “frivolousness”
and “objective unreasonableness” as factors to consider in
determining whether a case is “exceptional” under the
Lanham Act). The district court also noted the previous
dismissals of similar cases filed by ThermoLife in the
District of Arizona. Each of these cases was dismissed for
the exact same reasons: failure to allege facts supporting a
competitive or commercial injury for the purposes of false
advertising or unfair competition.
As the district court emphasized, the 2020 Litigation
against BPI was the third complaint it had filed against BPI,
yet ThermoLife nevertheless failed to allege sufficient facts
to demonstrate direct competition or injury. ThermoLife’s
persistence in litigating against BPI in light of the repeated
dismissals of its same claims, for the same reasons, against
similar defendants illustrated a pattern of pursuing a
meritless litigation strategy. Thus, the district court did not
abuse its discretion by concluding that this is an exceptional
case justifying an award of fees to BPI under the Lanham
Act. See id. at 1181; see also Highmark, Inc. v. Allcare
Health Mgmt. Sys. Inc., 572 U.S. 559, 563.
B. Attorney’s Fees Under Rule 41(d)
In addition to awarding BPI fees under the Lanham Act,
the district court also awarded BPI attorney’s fees under

12 THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC
Rule 41(d). The district court concluded that Rule 41(d) is
applicable because ThermoLife voluntarily dismissed the
2018 Litigation and subsequently filed suit in Florida based
on the same claims and against the same defendant, which is
the “procedural scenario” contemplated by the rule.
When a plaintiff has voluntarily dismissed a case and
later files a case asserting the same claim against the same
defendant, a district court may order the plaintiff to pay the
“costs” of the voluntarily dismissed case. Fed. R. Civ. P.
41(d).
2
Neither the rule nor the Advisory Committee Notes
define “costs,” and a circuit split has emerged as to whether
attorney’s fees may be awarded as costs under Rule 41(d)(2).
In Moskowitz, we held that attorney’s fees may not be
awarded under Rule 41(d) as a matter of right. See 37 F.4th
at 545. However, we left open two questions: (1) whether
attorney’s fees are available as “costs” under Rule 41(d) if
the underlying statute provides for the award of attorney’s
fees, and (2) whether a showing of bad faith “is sufficient to
allow a party to recover attorney’s fees as ‘costs’ under Rule
41(d).” Id. at 546 (internal quotation marks omitted).
In her concurrence, Judge Wardlaw addressed both
questions, concluding that attorney’s fees are available as
“costs” under Rule 41(d) “where the underlying statute that
is the basis of the original action” provides for attorney’s
fees, or when a “court finds that a plaintiff acted in bad

2
Rule 41(d) provides in pertinent part:
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:
may order the plaintiff to pay all or part of the costs of
that previous action . . .

THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC 13
faith.” Id. at 546 (Wardlaw, J., concurring) (citations and
internal quotation marks omitted). Judge Wardlaw noted
that when considering an award of attorney’s fees, the
starting point is “the bedrock principle known as the
American Rule: [e]ach litigant pays his own attorney’s fees,
win or lose, unless a statute or contract provides otherwise.”
Id. at 547 (citations and internal quotation marks omitted).
“To determine whether Congress intended to depart from
the American Rule presumption, the Court first looks to the
language of the section at issue.” Id. (citation, alteration and
internal quotation marks omitted). Although “the absence of
a specific reference to attorney’s fees is not dispositive,
Congress must provide a sufficiently specific and explicit
indication of its intent to overcome the American Rule’s
presumption against fee shifting.” Id. (citation, alterations,
and internal quotation marks omitted).
Judge Wardlaw acknowledged that the text of Rule 41(d)
“does not clearly demonstrate a departure from the American
Rule.” Id. (citations omitted). However, Judge Wardlaw
noted that the “inquiry does not end” with the text of Rule
41(d) alone. Id. She referenced Marek v. Chesny, 473 U.S.
1 (1985). In that case, the United States Supreme Court
addressed whether attorney’s fees could be awarded as
“costs” under Rule 68 of the Federal Rules of Civil
Procedure, which similarly provides for an award of “costs”
without defining the term. Moskowitz, 37 F.4th at 547-48
(citing Marek, 473 U.S. at 8-9) .
The Supreme Court “noted that the drafters of Rule 68
were fully aware of the exceptions to the American Rule that
allowed courts to award attorney’s fees as part of ‘costs’ in
some cases.” Id. at 548 (quoting Marek, 473 U.S. at 8)
(citation and alteration omitted). It also looked beyond the

14 THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC
text of Rule 68 to the Advisory Committee Note to Rule
54(d), which “contains an extensive list of the federal
statutes which allowed for costs in particular cases,”
including “no fewer than 11 [that] allowed for attorney’s
fees as part of ‘costs.’” Id. at 8. The Supreme Court
concluded that “given the importance of ‘costs’ to [Rule 68],
it is very unlikely that this omission was mere oversight; on
the contrary, 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
authority.” Marek, 473 U.S. at 9.
Judge Wardlaw also compared the pre-2007 amendment
version of Rule 41(d) with the amended version. See
Moskowitz, 37 F.4th at 548. The pre-amendment version of
Rule 41(d) provided that “the court may make such order for
the payment of costs of the action previously dismissed as it
may deem proper.” Id. (quoting Fed. R. Civ. P. 41(d)
(1991)). The amended version eliminated the language “as
it may deem proper,” but retained “the discretionary ‘may’
language and [made] explicit that the court may order ‘all or
part of’ the costs of the previously dismissed action.” Id.
Judge Wardlaw reasoned that “Congress’s intentional
inclusion of this discretionary language sufficiently
demonstrates the specific and explicit intent to overcome the
typical American Rule.” Id. at 549 (citation and internal
quotation marks omitted).
Finally, Judge Wardlaw compared Rule 41(d) to Rule
41(a)(2).
3
She acknowledged that Rule 41(a)(2) does not

3
Rule 41(a)(2) provides in pertinent part:
“Except as provided in Rule 41(a)(1), an action may
be dismissed at the plaintiff’s request only by court

THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC 15
mention costs or attorney’s fees, but “speaks only of
‘conditions that a court may impose as it deems proper.’” Id.
at 549-50 (citations omitted). Nevertheless, we have
“consistently interpreted that provision to permit a federal
court to impose a requirement of payment of a defendants’
attorneys’ fees as a condition to voluntary dismissal.” Id.
(citations omitted). Judge Wardlaw observed that an
“illogical inconsistency” would exist if “a court has
discretion to condition Rule 41(a)(2) voluntary
dismissal . . . on payment of attorneys’ fees,” but lacks that
discretion for a “Rule 41(a)(1) dismissal in a previous case.”
Id. at 550 (citation omitted). She concluded that “[a]ny
interpretation of Rule 41(d) excluding attorney’s fees would
therefore be in plain tension, or even outright conflict, with
our longstanding precedent about the availability of
attorney’s fees under Rule 41(a)(2).” Id. And a “review of
the text and history of Rule 41(d) evinces a sufficiently
specific and explicit intent by Congress to provide courts
with the discretion to depart from the American Rule and
include attorney’s fees as a part of an award of costs under
Rule 41(d).” Id. at 547 (internal quotation marks omitted).
Our sister circuits have taken varying approaches to
analyzing this issue, and reached varying results.
In 1980, the Eighth Circuit addressed “whether the
district court abused its discretion in awarding . . . 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.” Evans v.
Safeway Stores, Inc., 623 F.2d 121 (8th Cir. 1980) (per
curiam). Without conducting any analysis, the Eighth

order, on terms that the court considers proper.” Fed.
R. Civ. P. 41(a)(2).

16 THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC
Circuit concluded that the district court did not abuse its
discretion in awarding attorneys’ fees under Rule 41(d). See
id. at 122.
Twenty years later, the Seventh Circuit addressed this
issue in Esposito v. Piatrowski, 223 F.3d 497 (7th Cir. 2000).
Esposito involved a “civil rights action brought pursuant to
42 U.S.C. § 1983.” Id. at 498. In his first action, the plaintiff
voluntarily dismissed one of the defendants. See id. When
the plaintiff filed a subsequent action against several
defendants, including the one dismissed from the previous
action, that defendant “moved pursuant to Rule 41(d) for
reimbursement of costs incurred in defending the first
complaint.” Id. The defendant’s bill of costs included
attorney’s fees, which were awarded by the court. See id. at
499.
As with Judge Wardlaw’s concurrence in Moskowitz, the
Seventh Circuit relied on the Supreme Court’s analysis in
Marek. The Seventh Circuit decision similarly noted that
“[l]ike Rule 68, Rule 41(d) refers to ‘costs,’ but fails to
define the term.” Id. at 501. The Seventh Circuit further
noted that “neither the rule nor the Advisory Committee
Notes address the question of whether attorneys’ fees may
be included in an award of costs.” Id. The Seventh Circuit
reasoned that “[b]ecause Rule 41(d) does not refer to costs
any differently than does 28 U.S.C. § 1920, which provides
the statutory specification of allowable costs, fees may be
included as costs only where the underlying statute so
provides.” Id. The Seventh Circuit then held that,
“consistent with Marek,” attorney’s fees may be awarded “as
part of . . . ‘costs’ under Rule 41(d) only where the
underlying statute defines costs to include attorneys’ fees.”
Id. Stated differently, “attorneys’ fees are not a recoverable
cost of litigation under Rule 41(d) unless the substantive

THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC 17
statute which formed the basis of the original suit allows for
the recovery of such fees as costs.”
4
Id.
In Andrews v. America’s Living Centers, LLC, 827 F.3d
306 (4th Cir. 2016), the Fourth Circuit adopted the reasoning
of the Seventh Circuit, holding that “a district court may
award attorneys’ fees under [Rule 41(d)] only where the
underlying statute provides for attorneys’ fees.” 827 F.3d
306, 311 (4th Cir. 2016). However, the Fourth Circuit went
further, concluding that attorneys’ fees may also be awarded
under Rule 41(d) in the discretion of the court when the court
“makes a specific finding that the plaintiff has acted in bad
faith, vexatiously, wantonly, or for oppressive reasons.”
5
Id.
at 311 (citations and internal quotation marks omitted).
In Portillo v. Cunningham, the Fifth Circuit stated that it
“adopt[ed] the position of the Seventh and Fourth Circuits.”
872 F.3d 728, 739 (5th Cir. 2017). The Fifth Circuit
reiterated its reasoning comparing Rule 41(d) to Rule 68.
See id. The Fifth Circuit agreed that “the most reasonable
inference is that the term ‘costs’ in Rule 68 was intended to
refer to all costs awardable under the relevant substantive
statute.” Id. (quoting Marek, 473 U.S. at 9). The Fifth
Circuit did not adopt the Fourth Circuit’s expansion of
attorney’s fees under Rule 41(d) based on bad faith or
vexatious conduct. See id. at 740 n.29.

4
In the same year, the Tenth Circuit in an unpublished disposition held,
without analysis, that “[u]nder the language of Rule 41(d), the decision
whether to impose costs and attorney’s fees is within the discretion of
the trial court.” Meredith v. Stovall, 216 F.3d 1087 at *1 (10th Cir.
2000).
5
In her Moskowitz concurrence, Judge Wardlaw agreed with this
broadening of the availability of attorney’s fees under Rule 41(d). See
37 F.4th at 551.

18 THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC
The Third Circuit addressed this issue in Garza v.
Citigroup, 881 F.3d 277 (3d Cir. 2018). The Third Circuit
was persuaded by the reasoning “set forth by the Seventh
Circuit . . . in Esposito and followed by the Fourth Circuit . .
. in Andrews.” Id. at 282. Consistent with these rulings, the
Third Circuit held that “‘costs’ in Rule 41(d) includes
attorneys’ fees only where the underlying statute defines
‘costs’ to include attorneys’ fees.”’ Id. at 284 (quoting
Marek, 473 U.S. at 9). The Third Circuit did not follow that
portion of the Fourth Circuit decision that extended the
availability of attorney’s fees under Rule 41(d) based on a
finding of bad faith or vexatiousness. See id.
In Horowitz v. 148 S. Emerson Assocs. LLC, t he Second
Circuit “agree[d] with the outcomes arrived at by the Eighth
and Tenth Circuits: district courts may award attorneys’ fees
as part of costs under Rule 41(d).” 888 F.3d 13, 24 (2d Cir.
2018). The Second Circuit did not adopt the approach taken
by the Third, Fourth, Fifth and Seventh Circuits that
condition the award of attorneys’ fees as costs upon the
“statute serving as the basis for the original suit itself
allow[ing] for attorneys’ fees.” Id.
Finally, the Sixth Circuit in Rogers v. Wal-Mart Stores,
Inc., held that “attorney fees are not available under Rule
41(d).” 230 F.3d 868, 874 (6th Cir. 2000). The Sixth Circuit
explained that its “reason[ing] is simple—the rule does not
explicitly provide for them. Where Congress has intended
to provide for an award of attorney fees, it has usually stated
as much and not left the courts guessing.” Id. The Sixth
Circuit further noted that “the law generally recognizes a
difference between the terms ‘costs’ and ‘attorney fees’ and
we have no desire to conflate the two terms.” Id. Instead,
the Sixth Circuit “assume[d] that Congress was aware of the

THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC 19
distinction and was careful with its words when it approved
Rule 41(d).” Id.
So, to summarize: The Third, Fourth, Fifth and Seventh
Circuits have ruled that attorney’s fees are available as part
of costs under Rule 41(d) when the underlying statute on
which the litigation is based provides for the award of
attorney’s fees. See Garza, 881 F.3d at 284; Andrews, 827
F.3d at 311; Portillo, 872 F.3d at 739; and Esposito, 223 F.3d
at 498.
6
,
7

The Second, Eighth, and Tenth Circuit have ruled that
attorney’s fees are available as part of costs under Rule 41(d)
in the discretion of the court. See Horowitz, 888 F.3d at 24;
Evans, 623 F.2d at 122; and Meredith, 216 F.3d at *1.
The Sixth Circuit stands alone in holding that attorney’s
fees are not recoverable as costs under Rule 41(d). See
Rogers, 230 F.3d at 874.
We are persuaded by the analysis in Judge Wardlaw’s
Moskowitz concurrence, which was most consistent with the
analysis of Rule 41(d) reflected in the decisions from the
Fourth and Fifth Circuits. These decisions followed the
reasoning of Marek in concluding that attorneys’ fees may
be awarded as part of costs if the statute underlying the

6
Only the Fourth Circuit extended the availability of attorney’s fees
under Rule 41(d) if bad faith or vexatiousness conduct is established.
See Andrews, 827 F.3d at 311. In her Moskowitz concurrence, Judge
Wardlaw also espoused this extension. See 37 F.4th at 546.
7
The Third and Seventh Circuits largely follow the reasoning of Marek
and the Fourth and Fifth Circuits. However, they require that the
underlying statute specifically include attorney’s fees as costs. See
Garza, 881 F.3d at 284; Esposito, 223 F.3d at 501. We are persuaded
that the reasoning of the Fourth and Fifth Circuits more closely tracks
the Marek analysis.

20 THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC
litigation provides for the award of attorneys’ fees. As a
matter of first impression in this circuit, we now join our
sister circuits in holding that attorney’s fees may be
recovered as part of costs under Rule 41(d) if the statute
underlying the litigation provides for the award of attorneys’
fees.
8

Because it is not necessary to do so in this case, we
decline to address whether attorney’s fees may be available
if a “court finds that a plaintiff acted in bad faith,
vexatiously, wantonly, or for oppressive reasons.”
Moskowitz, 37 F.4th at 546 (citations and internal quotation
marks omitted).
The underlying statute in this case, the Lanham Act,
provides for the award of “reasonable attorney fees to the
prevailing party” in exceptional cases. 15 U.S.C. § 1117(a).
Therefore, under the reasoning of Marek, and the persuasive
authority from our sister circuits, we affirm the district
court’s award of attorneys’ fees to BPI as part of “costs”
under Rule 41(d).
C. Calculation of Fees
District courts have “broad discretion in calculating
attorneys’ fees.” Edmo v. Corizon, Inc., 97 F.4th 1165, 1168
(9th Cir. 2024) (citation omitted). We review fee awards for
an abuse of discretion and “affirm unless the district court

8
Our colleague in dissent would adhere strictly to the American rule.
See Dissenting Opinion, pp. 23-24. However, we agree with our
concurring colleague’s conclusion in Moskowitz that “the overwhelming
weight of authority from Rule 41(d)’s text to its history to our precedent,
suggests that attorney’s fees are available as part of an award of costs
under Rule 41(d) where the underlying original action provides for an
award of fees.” 37 F.4th at 551 (emphasis added). We are also
persuaded by our sister circuits’ interpretation of Rule 41(d).

THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC 21
applied the wrong legal standard or its findings were
illogical, implausible, or without support in the record.” Id.
(citation omitted). “[T]he district court must give some
concise but clear explanation of how it came up with the
amount.” Vargas v. Howell, 949 F.3d 1188, 1195 (9th Cir.
2020) (citation and internal quotation marks omitted)
(emphasis in the original).
The parties agree that the district court made a
computational error in its award of fees. The district court
reduced Venable’s fees by $31,868 but omitted that
reduction in its final calculation of the fee award. When that
reduction is included, the correct fee amount is $454,339.
Accordingly, we remand to the district court for the limited
purpose of correcting the fee calculation, and reducing the
fee award to $454,339. We conclude that the district court
did not otherwise abuse its discretion in the amount of fees
awarded to BPI. See G.P.P, 126 F.4th at 1374 (citation
omitted).
IV. CONCLUSION
We affirm the district court’s conclusion that this is an
exceptional case under the Lanham Act justifying an award
of attorney’s fees to BPI for the 2020 Litigation. We hold
that Rule 41(d) permits a district court to award attorney’s
fees as “costs” where, as here, the underlying statute
provides for an award of fees. Thus, because the Laham Act
provides for an award of attorney’s fees, we also affirm the
district court’s award of fees under Rule 41(d) for the 2018
Litigation. We remand for the limited purpose of correcting
the computational error and modifying the fee award from
$486,207 to $454,339.
AFFIRMED in part and REMANDED in part. Costs
awarded to BPI Sports.

22 THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC
MILLER, Circuit Judge, dissenting:

The district court awarded BPI not only its attorney’s
fees in this case but also the fees it incurred in a separate case
not before the court. Because no statute or rule authorizes a
district court hearing one case to award fees for a different
case, I would vacate the district court’s order.
In 2018, ThermoLife sued BPI in the District of Arizona
for false advertising under the Lanham Act, 15 U.S.C.
§ 1051 et seq. BPI successfully moved to dismiss, and
ThermoLife filed an amended complaint. While BPI’s
second motion to dismiss was pending, ThermoLife
voluntarily dismissed the case. Then, in 2020, Thermolife
filed a similar complaint in the Southern District of Florida.
BPI successfully moved to transfer that case to the District
of Arizona and later moved to dismiss it. The district court
in Arizona granted the motion to dismiss with prejudice.
ThermoLife appealed, and we affirmed because ThermoLife
did not “plead[] sufficient facts to satisfy the elements of a
cause of action under the Lanham Act.” ThermoLife Int’l,
LLC v. BPI Sports, LLC, No. 21-15339, 2022 WL 612669,
at *1 (9th Cir. Mar. 2, 2022). On remand, BPI moved for
attorney’s fees incurred in both the 2018 and the 2020 cases.
The district court granted BPI’s motion.
The district court based its order in part on the Lanham
Act, which provides that “[t]he court in exceptional cases
may award reasonable attorney fees to the prevailing party.”
15 U.S.C. § 1117(a). The district court found that
Thermolife engaged in the “vexatious and harassing pursuit
of claims that [it had] repeatedly filed against the same types
of defendants only to see those claims repeatedly dismissed
for having the same deficiencies.” Based on that finding, the
district court determined that this was an exceptional case

THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC 23
justifying an award of fees. We review that determination for
an abuse of discretion. See Jason Scott Collection, Inc. v.
Trendily Furniture, LLC, 68 F.4th 1203, 1212 (9th Cir.
2023). I agree that the district court did not abuse its
discretion in determining that the case before it was
exceptional.
But the Lanham Act permits an award of fees only for
the case before the court, not for other cases a party may have
brought. Recognizing that limitation, the district court held
that the Lanham Act “entitled [BPI] to an award of costs and
fees incurred in litigating this action”—that is, the 2020 case.
(emphasis added).
In awarding BPI fees for the 2018 case as well, the
district court invoked Federal Rule of Civil Procedure 41(d),
which provides that “[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 . . . may order the plaintiff to pay all or part of the costs
of that previous action.” (emphasis added). The district court
concluded that “costs” in Rule 41(d) includes attorney’s
fees. I disagree.
“In the United States, the prevailing litigant is ordinarily
not entitled to collect a reasonable attorneys’ fee from the
loser.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421
U.S. 240, 247 (1975). So well-established is that principle
that it has come to be known as the “American Rule.” Id.
Legislating with the American Rule in mind, Congress has
not “extended any roving authority to the Judiciary to allow
counsel fees as costs or otherwise whenever the courts might
deem them warranted.” Id. at 260. Thus, although various
statutes and rules allow for the award of “costs,” the
Supreme Court explained in Marek v. Chesny that at the time

24 THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC
the Federal Rules of Civil Procedure were adopted, “‘costs’
generally had not included attorney’s fees.” 473 U.S. 1, 8
(1985). For that reason, we have held that “costs” in Rule
41(d) does not include attorney’s fees as a matter of right.
Moskowitz v. American Sav. Bank, F.S.B., 37 F.4th 538, 545
(9th Cir. 2022).
Today, the court holds “that attorney’s fees may be
awarded as part of costs under Rule 41(d) if the statute
underlying the litigation provides for the award of attorney’s
fees.” But the Supreme Court’s decision in Marek counsels
otherwise. There, the Supreme Court addressed “whether the
term ‘costs’ in [Federal Rule of Civil Procedure] 68 includes
attorney’s fees awardable under 42 U.S.C. § 1988.” 473 U.S.
at 7. After articulating the American Rule and surveying the
various statutory exceptions to that rule, the Court explained
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 authority.” Id.
at 9. Thus, “where the underlying statute defines ‘costs’ to
include attorney’s fees, . . . such fees are to be included as
costs for purposes of Rule 68.” Id. Because section 1988
expressly defines “costs” to include attorney’s fees, the
Court held that the latter are recoverable as part of the
“costs” allowed by Rule 68. Id.
The Lanham Act, unlike section 1988, does not define
“costs” to include attorney’s fees. See 15 U.S.C. § 1117.
Instead, it provides an entitlement to costs (“the plaintiff
shall be entitled . . . to recover . . . the costs of the action”)
and, separately, permits the award of fees (“[t]he court in
exceptional cases may award reasonable attorney fees to the
prevailing party”). Id. § 1117(a). It follows that there is no
textual basis to interpret “costs” in Rule 41(d) as
incorporating fees in this context.

THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC 25
This understanding of Rule 41(d) is the same as that
adopted by the Third and Seventh Circuits. See Garza v.
Citigroup Inc., 881 F.3d 277, 279 (3d Cir. 2018); Esposito v.
Piatrowski, 223 F.3d 497, 501 (7th Cir. 2000). It is also the
same as that of the Fifth Circuit, despite the contrary
assertion of the court today. See Portillo v. Cunningham, 872
F.3d 728, 739 (5th Cir. 2017) (“Fee awards are permitted
under Rule 41(d) only if the underlying statute defines
‘costs’ to include fees.”). And, at least in this case, it is
consistent with that of the Sixth Circuit, which has adopted
a more restrictive position prohibiting any fee awards under
Rule 41(d). See Rogers v. Wal-Mart Stores, Inc., 230 F.3d
868, 874 (6th Cir. 2000).
Writing separately in Moskowitz, Judge Wardlaw argued
that holding that costs do not include fees (unless the
underlying statute defines costs to include fees) would create
an incongruity in Rule 41. 37 F.4th at 550 (Wardlaw, J.,
concurring in part and dissenting in part) (citing Esquivel v.
Arau, 913 F. Supp. 1382, 1390 (C.D. Cal. 1996)). That is
because Rule 41(a)(2) permits a district court to condition a
voluntary dismissal “on terms that the court considers
proper,” and we have held that one of those permissible
terms is the payment of attorney’s fees to the defendant. See
Kamal v. Eden Creamery, LLC, 88 F.4th 1268, 1286 (9th
Cir. 2023). It would make no sense, the argument goes, for
the district court to be able to condition dismissal on the
payment of attorney’s fees, but not to actually award those
attorney’s fees under Rule 41(d). The problem with that
argument is that Rule 41(a)(2) and Rule 41(d) refer to two
different cases—and thus two different sets of fees and costs.
The former refers to the attorney’s fees generated in the
action presently being dismissed. Fed. R. Civ. P. 41(a)(2).
The latter refers to costs generated in a previous lawsuit

26 THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC
“based on or including the same claim against the same
defendant” that was previously dismissed. Fed. R. Civ. P.
41(d). No “illogical inconsistency,” see Moskowitz, 37 F.4th
at 550 (Wardlaw, J., concurring in part and dissenting in
part), is created by permitting the district court to require a
dismissing plaintiff to pay attorney’s fees in the present case
but prohibiting the district court from requiring the plaintiff
to pay attorney’s fees in a different case.
Emphasizing that Rule 41(d) originally gave courts
discretion to award costs “as [they] may deem proper,”
Judge Wardlaw reasoned that this discretion-conferring
language “supports a court’s right to award attorney’s fees if
such an award was ‘proper’ to disincentivize the conduct of
vexatious litigants.” Moskowitz, 37 F.4th at 549 (Wardlaw,
J., concurring in part and dissenting in part). See Fed. R. Civ.
P. 41(d) (2006). That phrase no longer exists in the current
rule. See Fed. R. Civ. P. 41(d) advisory committee’s note to
2007 amendment. More importantly, the argument begs the
question: The rule gave courts the discretion to award costs
that they “may deem proper.” It does not follow that “costs”
should be read to include fees.
Nor is it true that “Rule 41(d) would be rendered
toothless if attorney’s fees were excluded in all cases,” and
that only an expansive reading of the rule is consistent with
the congressional policy of deterring vexatious litigation.
Moskowitz, 37 F.4th at 551 (Wardlaw, J., concurring in part
and dissenting in part). Rule 41(d) does appear to be aimed
at deterring vexatious litigation, but “no legislation pursues
its purposes at all costs,” so “it frustrates rather than
effectuates legislative intent simplistically to assume that
whatever furthers the statute’s primary objective must be the
law.” Rodriguez v. United States, 480 U.S. 522, 525–26
(1987) (per curiam). It is perfectly reasonable to think that

THERMOLIFE INTERNATIONAL, LLC V.BPI SPORTS, LLC 27
permitting a district court to award (1) costs in the present
case, (2) fees in the present case, and (3) costs in the
previous case would be sufficient to deter vexatious
litigation without also awarding fees in the previous case.
The court today does not reach BPI’s alternative
argument that “costs” should be read to include attorney’s
fees whenever there is a finding of bad faith or vexatious
litigation, but that argument also lacks merit. It is true that
federal courts have inherent authority to award attorney’s
fees when a party engages in bad faith or vexatious litigation.
See Alyeska Pipeline Serv. Co., 421 U.S. at 258–59. But, as
BPI concedes, that inherent authority extends only to the
case presently before the court, not to other cases before
other courts. BPI says that recognizing an extension of this
inherent authority to a prior case is permissible because “the
present case and the prior case are effectively the same case.”
That is not true. The two cases may be related—indeed, so
related that Congress thought it was appropriate to permit the
district court overseeing the later case to require payment of
costs generated in the first case. But they are in no sense the
same case. If they were, Rule 41(d) would not be necessary
because the court’s inherent authority would do all the work.
The district court’s award of fees did not distinguish
between the fees attributable to the 2018 case and those
attributable to the 2020 case. Because only the latter were
properly awarded, I would vacate the district court’s order
and remand with instructions that it limit the fee award.