Sometimes a plaintiff will initiate a lawsuit in one court, voluntarily dismiss the case, and refile the same case in another court against the same defendants. This may occur because a plaintiff is ‘forum shopping’ and trying to find a judge or court that is more favorable. This also occurs because some plaintiffs do not know what they are doing—especially pro per litigants.
If this seems costly and unfair to defendants, it is. Fortunately, the Federal Rules of Civil Procedure provide a potential remedy.
Rule 41(d) states: “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: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied.”
Based on Federal Rule of Civil Procedure 41(d), a Court can order a plaintiff to pay a defendant’s costs even if the new lawsuit is not identical and has different legal theories. It simply has to be based on the same facts.
In one case, an inmate filed a complaint in Fresno Superior Court alleging that correctional officers lost his legal property. He brought claims for intentional infliction of emotional distress and conversion (improper taking of property). Defendants filed a demurrer (the equivalent of a motion to dismiss). The court dismissed the emotional distress claim but allowed the conversion claim to proceed. The inmate then voluntarily dismissed his entire case.
Three months later, the inmate filed a new case in federal court against the same Defendants, based on the same facts. He re-tooled his complaint to include various constitutional claims and re-asserted his conversion claim. Plaintiff testified that he refiled his complaint in federal court because (1) other prison officers—not Defendants—physically assaulted him and interfered with his ability to litigate the case, and (2) he “chose to pursue the claims in the federal forum which better protects inmates[‘] fundamental rights during litigation and is better served to promote the judicial process.”
Defendants filed a motion under Rule 41(d) to recover the costs they incurred in defending Plaintiff’s state court case. They requested $400 in costs and $4,100 in attorney’s fees.
Originally, the Magistrate Judge recommended denying Defendant’s motion, reasoning that the inmate was proceeding in forma pauperis (“IFP”), and requiring him to pay such an amount would effectively amount to a dismissal, which the Magistrate believed was an “unduly harsh penalty.”
However, the District Court judge found that the purpose of Rule 41(d) was to prevent forum shopping, including attempts to “gain any tactical advantage by dismissing and refiling the suit,” which Plaintiff essentially admitted that he was doing. The District Court judge thus ordered Plaintiff to pay Defendants $400 in the costs they incurred. The Court found that even though the inmate only had an income of $27.00 per month from inmate job wages, the $400 award was appropriate.
The District Court did not award attorney’s fees because it did not find that they were authorized under the plain language of Rule 41(d). The Court noted that there was no binding precedent from either the Supreme Court or Ninth Circuit on whether attorney’s fees are costs under Rule 41(d). Both district and appellate courts across the country are split on the issue. The Court, therefore, denied attorney’s fees, concluding that if Congress had intended to award attorney’s fees, it would have explicitly said so.
Rule 41(d) is an important tool that can be used to recover costs for defendants who have to deal with duplicative lawsuits. Enforcing this rule against all plaintiffs, including those with IFP status, can help discourage forum shopping. Hopefully, the courts or Congress will resolve the issue of whether defendants can also recover attorney’s fees.