Arwine v. N.C. Department of Health
I.C. NOS. TA-20940 TA-21932.
| N.C. Indus. Comm. | Jun 20, 2011Background
- Full Commission revises Deputy Commissioner Glenn's order denying costs in a dismissal/refile sequence arising from TA-20940 and TA-21932.
- Plaintiff dismissed TA-20940 under Rule 41(a)(1) and refiled in TA-21932 on August 17, 2010.
- Deputy Commissioner Glenn dismissed TA-20940 without prejudice and ordered parties bear their own costs.
- Defendant sought costs under Rule 41(d); Plaintiff did not proceed in forma pauperis; Deputy Commissioner denied costs as an undue hardship.
- Full Commission held costs totaling $4,071.20 are payable by Plaintiff and stayed TA-21932 until paid; appeal treated as interlocutory but substantial right affected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether costs for the dismissed action are mandatory | Plaintiff argues costs should not be awarded against her. | Defendant argues 41(d) mandates costs unless § 7A-305 allows otherwise. | Costs are mandatory under 41(d) and 7A-305. |
| Whether deposition costs in TA-20940 are recoverable | Plaintiff contends costs should not include deposition expenses. | Defendant contends deposition costs are recoverable as reasonable expenses. | Deposition costs are recoverable under 7A-305(d)(10). |
| Whether the award should be limited by forma pauperis status | Plaintiff argues pauperis status changes the costs outcome. | Defendant asserts pauperis status does not defeat recoverable costs under Rule 41(d). | Rule 41(d) costs apply notwithstanding form pauperis status; not dispositive here. |
| Whether the order is final or interlocutory for appeal purposes | Defendant sought immediate review of the cost order. | Argument that the denial of costs is appealable as a substantial right. | Order is interlocutory but affects a substantial right; appeal allowed. |
| Effect of the order on the refiled action TA-21932 | Stay should prevent collection from TA-21932. | Stay until payment ensures costs are collected before TA-21932 proceeds. | TA-21932 stay until Plaintiff complies with the cost order. |
Key Cases Cited
- Cash v. Lincare Holdings, 181 N.C. App. 259 (2007) (appealability from final orders; substantial rights)
- Southern Uniform Rentals v. Iowa Nat'l Mutual Ins. Co., 90 N.C. App. 738 (1988) (substantial rights; interlocutory review standard)
- Springs v. City of Charlotte, N.C. App. (2011) (costs assessment under 7A-305(d) interpretation)