In Walker v. Walden, No. 09-11576 (11th Cir. Nov. 18, 2009), appellants filed a motion in bankruptcy court to recover costs and fees more than 18 months after the court entered judgment for the appellants. The bankruptcy court denied the motion because it was untimely, and the appellants sought relief in the Eleventh Circuit. The appellee moved for costs under Fed. R. App. 38, arguing that the appeal was frivolous. Pursuant to Fed. R. App. 42(b), the appellants then moved to dismiss their appeal voluntarily.
Before dismissing the appeal, the Eleventh Circuit sanctioned the appellants. The Court explained that it does not want to discourage voluntary dismissals, but sometimes sanctions are appropriate when an appellant moves to dismiss after the appellee moves for sanctions. “We cannot condone the use of Rule 42(b) as a tool to avoid the adjudication of a pending Rule 38 motion . . . Appellants in this case have had the benefit of two rulings in the bankruptcy and district courts that have correctly rejected their position. They have persisted to this court for a third attempt.”