            Case: 18-10312   Date Filed: 07/08/2019    Page: 1 of 21


                                                                       [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 18-10312
                        ________________________

                    D.C. Docket No. 1:15-cv-23616-DPG


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

versus

$70,670.00 IN U.S. CURRENCY, et al.,

                                                 Defendants,

KURVAS SECRET BY W,
WILSON COLORADO,
MILADIS SALGADO,

                                                 Interested Parties-Appellants.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                                (July 8, 2019)

Before WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:
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      This appeal requires us to decide whether the district court abused its

discretion when it permitted the government to dismiss its complaint for forfeiture

without prejudice and whether the dismissal entitled the claimants to attorney’s

fees under the Civil Asset Forfeiture Reform Act, see 28 U.S.C. § 2465(b)(1). The

government filed a complaint for forfeiture against certain funds as the proceeds of

criminal activity. Wilson Colorado and his business Kurvas Secret by W claimed

most of the funds, and Miladis Salgado claimed the remainder. During the

litigation, AnnChery Fajas USA, the victim of the alleged criminal activity,

obtained a state judgment against Colorado and Kurvas Secret. To satisfy the

judgment, the state court transferred the judgment debtors’ interests in the funds to

AnnChery. The government then moved to dismiss its complaint voluntarily

without prejudice on the ground that the state-court judgment made the outcome of

the forfeiture action irrelevant. The district court granted the motion, denied the

claimants’ motion to dismiss the action with prejudice, and denied the claimants’

motion for an award of attorney’s fees. Because the district court did not abuse its

discretion in dismissing the action without prejudice and the claimants did not

“substantially prevail[],” id., we affirm.

                                 I. BACKGROUND

      AnnChery Fajas USA, Inc., a company based in Colombia and Florida,

manufactures and sells fajas, a genre of garments that includes corsets, girdles, and



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waist cinchers. In response to growing demand—apparently a result of unofficial

endorsements by celebrities such as Kim Kardashian—AnnChery instituted a

policy limiting the number of fajas a retailer could purchase to 1,500 per week.

      In late 2014, Wilson Colorado moved from Spain to Miami, where he

resided with his ex-wife, Miladis Salgado. At the suggestion of Tatiana Narvaez-

Caicedo, the general manager of AnnChery in Florida, Colorado decided to enter

the faja retail business. He established Kurvas Secret by W, Inc., a Florida

corporation, for that purpose.

      In April 2015, AnnChery determined that Narvaez-Caicedo was helping

Colorado and Kurvas Secret circumvent its quota system and receive AnnChery

merchandise without paying for it. AnnChery fired Narvaez-Caicedo; sent

Colorado a demand letter alleging that he had stolen its merchandise; and filed a

complaint in Florida court against Narvaez-Caicedo, Colorado, Kurvas Secret, and

two other defendants alleging that they had conspired to steal from and defraud the

company.

      After receiving the demand letter, Colorado liquidated his Wells Fargo and

Chase bank accounts and secured the funds at his home. These withdrawals

consisted of a Wells Fargo cashier’s check for $101,629.59 and a Chase cashier’s

check for $30,000, both made payable to Colorado. Colorado purchased these

checks using proceeds from the sale of AnnChery fajas.



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      Meanwhile, the Drug Enforcement Administration received a tip asserting

that Colorado was a cocaine distributor and money launderer and that he used

several south Florida residences to store currency and narcotics. The tipster said

that Narvaez-Caicedo lived in one of the “stash houses” and provided her address

and an accurate description of her car, including the license-plate number. Law-

enforcement officers searched Narvaez-Caicedo’s home and found no currency or

contraband. But she provided them with the address of the residence where

Colorado was living with Salgado.

      The officers searched Salgado’s home. There, they discovered and seized

potential drug paraphernalia and—more importantly for this appeal—both

cashier’s checks and $15,070 in cash in Salgado’s master bedroom closet. They

found and seized $55,600 more in cash beneath a nightstand in Colorado and

Salgado’s daughter’s bedroom.

      The government filed a complaint in rem against the $70,670 seized in cash,

the value of the Wells Fargo cashier’s check, and the value of the Chase cashier’s

check, stating three claims for forfeiture. First, the complaint alleged that the funds

were the proceeds of drug crimes, see 21 U.S.C. §§ 841(a), 846, 881(a)(6). Second,

it alleged that the funds were derivative proceeds either of drug trafficking or of

the interstate transportation of stolen property, see 18 U.S.C. §§ 981(a)(1)(C),

2314; 21 U.S.C. §§ 841(a)(1), 846. Third, it alleged that the funds were property



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involved in or traceable to knowing monetary transactions or attempted

transactions involving the proceeds of criminal activity, see 18 U.S.C. §§

981(a)(1)(A), 1956(a)(1), 1957.

      Colorado, Salgado, and Kurvas Secret filed claims to the funds. Colorado

and Kurvas Secret claimed ownership of the cashier’s checks and the $55,600

seized from the nightstand, as well as a possessory interest in the $15,070 seized

from Salgado’s bedroom closet. Salgado claimed ownership of the cash seized

from her closet and a possessory interest in the rest of the funds.

      While this action was being litigated in the district court, the state court

entered a default judgment in favor of AnnChery’s second amended complaint

based on what the state court found was Colorado and Kurvas Secret’s “willful and

deliberate failure to comply with [its] Orders on discovery.” And the state court

entered a permanent injunction against Colorado and Kurvas Secret that required

them to “preserve and segregate any funds in their financial and bank accounts or

elsewhere that constitute[d] proceeds from the sale of AnnChery products and

merchandise.”

      Under Florida law, the default judgment against Colorado and Kurvas Secret

conclusively established “all factual allegations in [AnnChery’s] Second Amended

Complaint.” See N. Am. Accident Ins. Co. v. Moreland, 53 So. 635, 637 (Fla. 1910)

(“A judgment by default . . . operates as an admission by the defendants of the



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truth of the definite and certain allegations and the fair inferences and conclusions

of fact to be drawn from [them].”); Ellish v. Richard, 622 So. 2d 1154, 1155 (Fla.

Dist. Ct. App. 1993) (“[A] party against whom a default judgment is entered

admits all well-pleaded facts as true.”). AnnChery had alleged that any and all

funds in Colorado’s bank accounts or to which he had access were derived from

the sale of stolen fajas. So, after entry of the state judgment and injunction,

Colorado and Kurvas Secret could no longer dispute in that proceeding that any of

the defendant properties they owned were subject to the preservation-and-

segregation order in the permanent injunction.

      The government moved for summary judgment in favor of two of its

forfeiture claims and, in the alternative, for leave to dismiss the complaint without

prejudice, see Fed. R. Civ. P. 41(a)(2), because the state judgment and permanent

injunction “effectively render[ed] the outcome of th[e] [civil forfeiture] case

moot.” The government explained that, regardless of the outcome of its in rem

action, the funds would be transferred to AnnChery:

      In the unlikely event that Claimants prevail on any of their claims, the
      Defendants In Rem would be subject to the Miami-Dade Circuit Court’s
      permanent injunction, resulting in such funds being awarded to
      AnnChery, and not Claimants. If the United States were to prevail, the
      United States would return, in accordance with the Department of
      Justice victims’ policy, any forfeited funds required to make AnnChery,
      the victim, whole. Consequently, in an effort to avoid unnecessary
      litigation, the United States seeks, in the alternative, leave to permit the
      United States to voluntarily dismiss this matter so that ownership of the
      Defendants In Rem can be resolved by the Miami-Dade Circuit Court.

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      In their joint response to the government’s motion for summary judgment or

voluntary dismissal, the claimants protested that a voluntary dismissal without

prejudice would be “contrary to law and a manifest injustice,” but they failed to

explain how they would be prejudiced by such a dismissal. The state court later

entered judgment in favor of AnnChery against Colorado and Kurvas Secret in the

amount of $318,019.70 plus costs, and the government filed the state judgment in

the district court as a supplement to its motion for summary judgment or voluntary

dismissal.

      The district court granted the government’s motion in part, “find[ing] good

cause to permit the United States to voluntarily dismiss this action without

prejudice based on the parallel state action” and “order[ing] that th[e] action [be]

closed administratively.” The government filed a proposed final order of dismissal

and, with it, an order in which the state court had assigned and transferred to

AnnChery, in satisfaction of its judgment, “[a]ny and all rights, title, claims, or

interests of any kind of [Colorado and Kurvas Secret] in the seized cash and

cashier’s checks at issue in the Forfeiture Action.”

      The claimants filed a notice of objection to the order dismissing the action

without prejudice and moved that the district court “dismiss th[e] forfeiture action

with prejudice so that [the claimants’ attorney could] pursue attorney[’]s fees

pursuant to the Civil Asset Forfeiture Reform Act and 28 USC § 2465.” The



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claimants argued that they would “suffer legal prejudice in the form of a denial of

attorney fees . . . if this action [were] dismissed without prejudice, rather than with

prejudice.” See McCants v. Ford Motor Co., 781 F.2d 855, 857 (11th Cir. 1986)

(explaining that a district court should deny a motion for voluntary dismissal

without prejudice when to grant it would cause “plain legal prejudice” to the

defendant). And they suggested that they were eligible for an award of attorney’s

fees even if the dismissal remained without prejudice.

       The next day, the district court entered an order of dismissal. The order

stated that “the Miami-Dade Circuit Court has entered decisions in a parallel state

action . . . which effectively render the outcome of this action moot.” It also

provided, “Should the United States re-file this action, the Court will award costs

to the Claimants pursuant to Rule 41(d) of the Federal Rules of Civil Procedure.”

See Fed. R. Civ. P. 41(d)–(d)(1) (“If a plaintiff who previously dismissed an action

. . . 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 . . . .”).

       The claimants moved to alter or amend the order to dismiss the action with

prejudice. They argued that the duration of the action, the amount of resources

expended, alleged dilatory tactics by the government, and the pendency of

dispositive motions all counseled in favor of a dismissal with prejudice. They



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construed the government’s assertion that the action was “effectively” moot as an

admission of jurisdictional mootness, and they argued that this admission too

supported a dismissal with prejudice. And they repeated their argument that they

were entitled to attorney’s fees in any event but insisted that, if the label on the

dismissal mattered, the district court should consider their loss of a right to

attorney’s fees sufficient legal prejudice to require a dismissal with prejudice.

Concurrently, the claimants moved for attorney’s fees, costs, and interest under the

Civil Asset Forfeiture Reform Act, see 28 U.S.C. § 2465(b)(1).

      Before the district court ruled on the claimants’ motions, Salgado,

AnnChery, and the claimants’ attorney executed and filed a “Stipulation for

Settlement in Forfeiture Action,” in which the signatories “stipulate[d] to the entry

of an Order in the Forfeiture Action” distributing $10,387.92 of the defendant

funds to Salgado, $128,920.61 to AnnChery, and $62.991.06 to the claimants’

attorney to hold in escrow pending the resolution of the motion for attorney’s fees.

The district court ordered the release of the funds and directed the parties to

distribute them in accordance with the stipulation.

      The district court denied the claimants’ motion to alter or amend the order of

dismissal and their motion for attorney’s fees. The district court reasoned that the

length of the litigation and that it had progressed to the summary-judgment stage

did not require that the voluntary dismissal be with prejudice because “[n]othing



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suggest[ed] . . . that the government acted in bad faith or that the government did

not believe it had a meritorious case for forfeiture.” And it stated that it had made

the government responsible for the claimants’ costs if the government refiled the

action.

      The district court also rejected the claimants’ argument that the dismissal

prejudiced them because it barred their statutory right to attorney’s fees. The

district court deemed the argument forfeited because the claimants had not raised it

in their response to the government’s motion for voluntary dismissal. The district

court also stated that it was an open question “whether loss of an argument for

attorney’s fees . . . constitutes legal prejudice that should preclude voluntary

dismissal without prejudice,” but it concluded “that the facts of this case [did not]

warrant that determination” because the government had not acted in “bad faith”

but, instead, had chosen to forgo “trial on what it believed to be a meritorious

forfeiture complaint in light of the alleged victim’s state court judgment.” And the

district court denied the motion for attorney’s fees on the ground that a dismissal

without prejudice does not alter the legal relationship of the parties, so the

claimants had not “substantially prevail[ed],” 28 U.S.C. § 2465(b)(1).

                           II. STANDARD OF REVIEW

      “Dismissal on motion of the plaintiff pursuant to Rule 41(a)(2) is within the

sound discretion of the district court, and its order may be reviewed only for an



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abuse of discretion.” McCants, 781 F.2d at 857. We also “review the denial of a

motion for attorneys’ fees and costs for abuse of discretion.” Friends of the

Everglades v. S. Fla. Water Mgmt. Dist., 678 F.3d 1199, 1201 (11th Cir. 2012).

Under the abuse-of-discretion standard, “[a] district court’s underlying legal

conclusions are reviewed de novo and its factual findings for clear error.” Bradley

v. King, 556 F.3d 1225, 1229 (11th Cir. 2009). A district court abuses its discretion

when it applies an incorrect legal standard, relies on clearly erroneous factual

findings, or commits a clear error of judgment. See id.; Klay v. United

Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004).

                                 III. DISCUSSION

      We divide our discussion in two parts. First, we explain that the district court

did not abuse its discretion when it granted the government’s motion to dismiss the

action without prejudice. Second, we explain that the district court did not abuse its

discretion when it denied the claimants’ motion for attorney’s fees.

      A. The District Court Did Not Abuse Its Discretion when It Allowed the
              Government to Dismiss Its Complaint Without Prejudice.

      The claimants argue that the district court abused its discretion when it

permitted the government to dismiss its complaint voluntarily without prejudice

instead of with prejudice. After an opposing party has served an answer or a

motion for summary judgment, “an action may be dismissed at the plaintiff’s

request only by court order, on terms that the court considers proper.” Fed. R. Civ.


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P. 41(a)(2). In considering such a request, “the district court must exercise its

broad equitable discretion under Rule 41(a)(2) to weigh the relevant equities and

do justice between the parties in each case, imposing such costs and attaching such

conditions to the dismissal as are deemed appropriate.” McCants, 781 F.2d at 857.

       We have explained that “in most cases a dismissal should be granted unless

the defendant will suffer clear legal prejudice, other than the mere prospect of a

subsequent lawsuit, as a result.” Id. at 856–57 (emphasis omitted). “The crucial

question to be determined is, Would the defendant lose any substantial right by the

dismissal.” Pontenberg v. Boston Sci. Corp., 252 F.3d 1253, 1255 (11th Cir. 2001)

(quoting Durham v. Fla. E. Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967)). We

have made clear that “the sanction of dismissal [with prejudice] is the most severe

sanction that a court may apply, and its use must be tempered by a careful exercise

of judicial discretion.” Durham, 385 F.2d at 368 (alteration adopted) (emphasis

omitted) (quoting Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967)). In

Durham, we explained that “[t]he decided cases . . . have generally permitted it

only in the face of a clear record of delay or contumacious conduct by the

plaintiff.” Id.

       The district court did not abuse its broad discretion when it granted the

government’s motion for a voluntary dismissal without prejudice. Although the

claimants opposed the motion in the district court as “contrary to law and a



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manifest injustice,” they identified no “substantial right” that they “would . . . lose

. . . by the dismissal,” id. At most, their protest that the district court should not

“allow the government to abuse the federal forfeiture laws . . . and walk away as if

nothing had happened” might liberally be construed as an argument that the

litigation had continued too long for the government to be allowed to back out of

it. But it is well settled that “delay alone, in the absence of bad faith, is insufficient

to justify a dismissal with prejudice, even where a fully briefed summary judgment

motion is pending,” Pontenberg, 252 F.3d at 1259, and indeed even on the eve of

trial, see Durham, 385 F.2d at 368–69. The district court found that nothing in the

government’s conduct evinced bad faith, and nothing in the record proves that the

district court clearly erred in so finding.

      Although the claimants argue that the government litigated in bad faith, their

contention makes little sense. They argue that the government unreasonably

delayed the litigation by failing to interplead the funds in the state action. But the

two actions were of entirely different kinds: AnnChery sued Colorado and Kurvas

Secret in personam for alleged civil torts under Florida law, and the government

sued the funds in rem as subject to forfeiture for alleged violations of federal law.

The success of AnnChery’s suit in personam would—and ultimately did—result in

Colorado and Kurvas Secret being personally liable to AnnChery with respect to

the obligations and in the amounts imposed by the state judgment. By contrast, the



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success of the federal suit in rem would have “determine[d] the Government’s title

to the property as against the whole world.” United States v. Certain Real & Pers.

Prop. Belonging to Hayes, 943 F.2d 1292, 1295 (11th Cir. 1991). AnnChery’s in

personam suit asserted no property interest in any of the funds because AnnChery

had none to assert. Its property interest in the funds came into being only after it

had secured a judgment of liability in personam against Colorado and Kurvas

Secret and only after the state court had transferred their in rem interests in the

funds to AnnChery in satisfaction of that personal judgment. Even then, the

respective claims to the funds remained unsettled, and the government could have

persevered in this forfeiture action to establish its “title . . . as against the whole

world,” id.

       The government made clear that even if it prevailed in this forfeiture action,

it intended to transfer the funds to AnnChery, so the district court reasonably

concluded that the state judgment made the action “effectively . . . moot.” The

claimants argue that this conclusion was a legal error because the action was not

“moot” in the jurisdictional sense of the word. But it is obvious from the record

that the government never argued, and the district court never ruled, that the state

judgment eliminated the in rem case or controversy. Instead, the district court

reached the commonsense conclusion that it no longer mattered whether the




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government or the claimants had superior title to the funds because, either way, the

money would end up with AnnChery.

      The claimants contend that the dismissal without prejudice deprived them of

their right to collect attorney’s fees upon “substantially prevail[ing],” 28 U.S.C.

§ 2465(b)(1), but the district court acted within its discretion to reject this

argument as untimely. The claimants made no reference to attorney’s fees in their

opposition to the government’s motion. They raised the issue for the first time only

after the district court had entered an order granting the motion for voluntary

dismissal without prejudice and administratively closing the case. District courts

have the discretion not to consider belated arguments, see, e.g., Young v. City of

Palm Bay, 358 F.3d 859, 863–64 (11th Cir. 2004), and the district court did not

abuse its discretion to do so in this case.

      Even if we overlook the untimeliness of the claimants’ argument, it does not

entitle them to a dismissal with prejudice. The parties dispute whether the right to

statutory attorney’s fees is a “substantial right” the deprivation of which by a

plaintiff’s voluntary dismissal without prejudice constitutes “legal prejudice.” We

agree with the district court that “the facts of this case” do not require a definitive

answer to this question. Even if we assume that a meritorious claimant’s loss of a

right to statutory attorney’s fees constitutes legal prejudice, it cannot constitute

clear legal prejudice unless it is in turn clear that the claimants would indeed



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“substantially prevail[],” 28 U.S.C. § 2465(b)(1), were the action litigated to

judgment. See United States v. $32,820.56, 106 F. Supp. 3d 990, 997 (N.D. Iowa

2015) (“Finding plain legal prejudice on th[is] basis would necessarily presume

that the party resisting voluntary dismissal would have prevailed on the merits if

the case continued to a conclusion.”), aff’d, 838 F.3d 930 (8th Cir. 2016). And in

this appeal, it is not clearly apparent from the record—nor have the claimants

bothered to argue on appeal—that they ultimately would have prevailed, so the

district court did not abuse its discretion in dismissing the complaint without

prejudice.

      The claimants also contend that, because the government had no intention of

refiling the complaint, “there is no reason why the action should not have been

dismissed with prejudice,” but this argument misses the mark. Dismissal without

prejudice is the general rule, not the other way around. See Fed. R. Civ. P. 41(a)(2)

(“Unless the order states otherwise, a dismissal under this paragraph (2) is without

prejudice.”). And we have explained that a district court should depart from the

general rule only when failing to do so would work “clear legal prejudice” to the

opposing party. McCants, 781 F.2d at 856–57.

      The claimants’ one remaining argument is that the state judgment and levy

provided no basis for the dismissal of the federal action with respect to Salgado’s

claim of ownership in the $15,070 found in her closet because Salgado was not a



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party to the state action and the state judgment affected none of her rights to the

funds. But the claimants did not raise this argument in their one timely response to

the government’s motion for voluntary dismissal. Their untimely motion for

dismissal with prejudice, filed after the government’s motion had been granted,

“raised” it only in an oblique fashion. And the claimants did not raise this

argument at all in their motion to alter or amend the order of dismissal. The district

court did not abuse its discretion by ignoring an argument that was not squarely

presented to it.

      In any event, Salgado has not established that she suffered clear legal

prejudice by the government’s voluntary dismissal. She belabors the argument that

the state judgment did not “moot” her claims in the jurisdictional sense of the

word, but we have explained that this argument is beside the point. And she has

established no more than the other claimants that she would have prevailed if the

action had been fully litigated, so she was not clearly prejudiced by the loss of her

potential claim for attorney’s fees. The district court did not abuse its discretion

when it granted the government’s motion to dismiss this action without prejudice.

               B. The Claimants Are Not Entitled to Attorney’s Fees.

      The claimants argue that they are entitled to attorney’s fees on three

grounds. First, assuming that the district court should have dismissed the action

with prejudice, they contend that they would be entitled to statutory attorney’s fees



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because they would have “substantially prevail[ed],” 28 U.S.C. § 2465(b)(1).

Second, they contend that they have substantially prevailed even under the existing

order of dismissal without prejudice because the government did not prevail on any

of its claims for forfeiture. Third, the claimants argue that the district court should

have made the government responsible for their attorney’s fees and costs as a

condition of voluntary dismissal under Rule 41(a)(2).

      The claimants’ first argument fails because, as we have explained, the

district court did not abuse its discretion by permitting the government to dismiss

its complaint without prejudice, and their second and third arguments fare no

better. We consider the latter arguments in turn.

      The claimants have not substantially prevailed because a dismissal without

prejudice places no “judicial imprimatur” on “the legal relationship of the parties,”

which is “the touchstone of the prevailing party inquiry.” CRST Van Expedited,

Inc. v. Equal Emp’t Opportunity Comm’n, 136 S. Ct. 1642, 1646 (2016) (citations

and internal quotation marks omitted); see also Loggerhead Turtle v. Cty. Council

of Volusia Cty., 307 F.3d 1318, 1322 n.4 (11th Cir. 2002) (explaining that we

interpret “substantially prevailed” fee-shifting statutes consistently with

“prevailing party” fee-shifting statutes). A voluntary dismissal without prejudice

“renders the proceedings a nullity and leaves the parties as if the action had never

been brought.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir.



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1999) (alterations adopted) (quoting Williams v. Clarke, 82 F.3d 270, 273 (8th Cir.

1996)). As the government points out, the order of dismissal poses “no legal bar

precluding the government from refiling the same forfeiture action in the future.”

True, the government admits that, “as a practical matter, it might be difficult for

the government to pursue a subsequent civil forfeiture action against the defendant

properties . . . because they may be difficult to bring back within the district court’s

in rem jurisdiction.” But this practical difficulty is irrelevant. What matters is that

the claimants have not obtained a “final judgment reject[ing] the [government’s]

claim” to the defendant funds. CRST Van Expedited, 136 S. Ct. at 1651; cf.

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532

U.S. 598, 605 (2001) (holding that “[a] defendant’s voluntary change in

conduct”—the mirror image of a plaintiff’s voluntary decision to withdraw a

claim—“lacks the necessary judicial imprimatur” to qualify the defendant as a

prevailing party).

      The claimants suggest that Salgado obtained a judicially sanctioned

recognition of her right to the funds because the district court instructed “[t]he

parties [to] distribute the funds pursuant to their Stipulation,” but this argument is

unpersuasive. The settlement stipulation embodied an agreement between

AnnChery, Salgado, and the claimants’ attorney concerning their rights to the

funds as to one another, but it said nothing about the United States’ right to the



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funds, which was the whole subject of this civil forfeiture action. See Prop.

Belonging to Hayes, 943 F.2d at 1295. With or without the settlement stipulation,

Salgado has not substantially prevailed because the government’s claim of superior

title to her share of the funds remains unadjudicated.

      Finally, we agree with the government that the district court lacked the

authority to make the government responsible for the claimants’ attorney’s fees as

a condition of dismissal under Rule 41(a)(2). Any provision of law that “renders

the United States liable for attorney’s fees for which it would not otherwise be

liable . . . amounts to a partial waiver of sovereign immunity.” Ardestani v.

Immigration & Naturalization Serv., 502 U.S. 129, 137 (1991). And “any waiver

of the National Government’s sovereign immunity must be unequivocal.” U.S.

Dep’t of Energy v. Ohio, 503 U.S. 607, 615 (1992); accord United States v.

Mitchell, 445 U.S. 535, 538 (1980). The general language of Rule 41(a)(2)—which

provides only that the district court may impose “terms that [it] considers proper”

on the grant of a motion for voluntary dismissal by leave of the court—is not an

“unequivocal” waiver of the sovereign immunity of the United States. The

claimants cite some nonprecedential decisions suggesting that Rule 41(a)(2)

permits an award of fees against the government, but those decisions overlook the

sovereign-immunity problem entirely. See, e.g., United States v. 2007 BMW 335i

Convertible, 648 F. Supp. 2d 944, 955 (N.D. Ohio 2009) (assuming that a



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discretionary award of attorney’s fees is possible under Rule 41(a)(2), but

declining to grant it). And in any event, even if the district court had the authority

to award fees, it was no abuse of its discretion not to do so. See 9 Charles Alan

Wright et al., Federal Practice and Procedure § 2366 (3d ed. May 2019 update)

(“The district judge is not obliged to order payment of the fee.”).

                                IV. CONCLUSION

      We AFFIRM the orders dismissing this action without prejudice and

denying the claimants’ motion for attorney’s fees.




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