The petition also noted that the majority of circuits, after Buckhannon, adopted a “risk of refiling” test. According to this test, a defendant is not considered to have prevailed if the plaintiff is still able to file a new lawsuit. Abdelsayed’s team argued that this approach discouraged defendants from standing firm on valid defenses while incentivizing plaintiffs to file unfounded claims.
This case originated in August 2021 when Affordable Aerial filed a lawsuit against Abdelsayed and Trends Realty in the Southern District of Florida. The company alleged that Abdelsayed had used one of its copyrighted aerial photographs without permission on the Trends Realty website. However, in August 2022, Affordable Aerial voluntarily dismissed the lawsuit without prejudice, meaning it could potentially refile the case later.
In response, Abdelsayed and his company sought to recover attorney fees, arguing that under Rule 68 and the Copyright Act, they were entitled to immediate reimbursement. They claimed that the dismissal without prejudice meant they had already won the case. The district court had originally ruled that should the case be refiled, Affordable Aerial would need to pay the defendants’ legal fees incurred up to that point. However, the court denied Abdelsayed’s request for immediate recovery of fees, which led to the appeal.
