Esposito v. Platrowski et al

• Decision Date: 04 August 2000
• Docket Number: No. 99-3011,99-3011
• Citation: 223 F.3d 497
• Parties: (7th Cir. 2000) GERALD PAUL ESPOSITO, Plaintiff-Appellant, v. FRANCIS PIATROWSKI, et al., Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 497

223 F.3d 497 (7th Cir. 2000)

GERALD PAUL ESPOSITO, Plaintiff-Appellant, v. FRANCIS PIATROWSKI, et al., Defendants-Appellees.

No. 99-3011

In the United States Court of Appeals For the Seventh Circuit

Submitted June 19, 2000

Decided August 4, 2000

Appeal from the United States District Court for the Southern District of Illinois. No. 97-0296-DRH--David R. Herndon, Judge.

Before Coffey, Easterbrook, and Evans, Circuit Judges.

COFFEY, Circuit Judge.

Gerald Paul Esposito appeals the district court's dismissal of his civil rights action brought pursuant to 42 U.S.C. sec. 1983. Esposito¹ alleges that the defendants, various nurses who worked in the St. Clair County jail in Belleville, Illinois, while he was confined in a pre-trial detainee status, were deliberately indifferent to his serious medical needs. Upon the recommendation of the magistrate judge,² the district court dismissed Esposito's claims against Francis Piatrowski pursuant to Federal Rule of Civil Procedure 41(b) on the ground of res judicata. The district court later dismissed the remaining defendants pursuant to Rule 41(b) for want of prosecution. We affirm.

In 1995, Esposito was incarcerated as a federal pre-trial detainee at the St. Clair County jail. While there, the plaintiff-appellant filed a Section 1983 suit against three defendants, including Piatrowski and Ron Smith (also a nurse), alleging deliberate indifference to his medical needs. Esposito voluntarily dismissed Smith upon stipulation. The district court thereafter granted Piatrowski's motion to dismiss without prejudice, allowing Esposito two months to file an amended complaint curing the deficiencies in his original complaint. Esposito never filed an amended complaint, and in January 1997, the district court modified the dismissal to be with prejudice. Esposito failed to appeal the order of dismissal, and also failed to file a motion to reconsider under Federal Rule of Civil Procedure 60(b).

Esposito filed this action in April 1997, alleging that six nurses who worked at the jail (including Piatrowski and Smith) were deliberately indifferent to his serious medical needs during the period of April 1995 through January 1996. Two of the defendants (Nurse Carol and Nurse Jackie) were never served. On June 5, 1997, defendants Kathy McKim and Bridget Garland moved to dismiss for failure to state a claim; Piatrowski moved to dismiss the claims against himself as barred by the doctrine of res judicata; and Smith moved pursuant to Rule 41(d) for reimbursement of costs incurred in defending the first complaint, and requested that the case be stayed until such costs were paid.

In the first of two reports to the district court, the magistrate judge recommended denying McKim and Garland's motion to dismiss, but recommended granting Piatrowski's. The district court adopted the magistrate judge's recommendation, and on January 9, 1998, over Esposito's objection, dismissed Esposito's claims against Piatrowski. A month later, the magistrate judge issued a second report recommending granting Smith's motion for costs and staying all further proceedings until Esposito paid. The magistrate judge reasoned that costs were warranted because Esposito had raised the same allegations against Smith in the first action, but elected to voluntarily dismiss the claims by stipulation and failed to sign various submissions in the second action in violation of Federal Rule of Civil Procedure 11.³ The district court agreed and on March 4, 1998, entered an order directing Smith to submit a bill of costs. The district court also ordered all further proceedings stayed until the costs were paid. The order noted that Esposito had not objected to the report and recommendation and thus had waived his right to challenge it.

Shortly thereafter, Esposito moved for reconsideration of the district court's order staying all proceedings until the payment of all costs occurred. The plaintiff-appellant asserted that he had not had enough time to submit a signed objection to the magistrate judge's recommendation because he and the other plaintiffs were housed in different facilities and were thus unable to sign and file an objection in a timely fashion. Meanwhile, Smith filed a bill of costs, claiming that his share of the total expense of defending the first action (including attorneys' fees, copying costs, travel costs, and other expenses) was $6,758.91. The district court denied Esposito's motion to reconsider, holding without elaboration that he had "not shown a manifest error of law or presented newly discovered evidence." Esposito has failed to pay any portion of the costs assessed.

On September 1, 1998, the magistrate judge ordered Esposito to report within seven days on his compliance with the directive to reimburse Smith for his costs. Esposito did not respond. Some nine months later, on June 7, 1999, Smith, McKim and Garland moved to dismiss the complaint for want of prosecution pursuant to Rule 41(b), and the magistrate judge agreed and recommended granting their motion. On July 21, 1999, the district court adopted the recommendation of the magistrate judge and directed entry of an order dismissing the complaint without prejudice for want of prosecution. The following day, the clerk prepared, and the court approved, a judgment dismissing all six defendants pursuant to the court's order of the previous day. On appeal, Esposito seeks reinstatement of his suit in its entirety.

We review dismissals under Rule 41(b) for abuse of discretion.⁴ See Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 1998). Rule 41(b) allows for involuntary dismissal "for failure of the plaintiff to prosecute or to comply with these Rules or any order of court." If a plaintiff whose previous action has been dismissed commences another action "based on or including" the same claim against the same party- defendant, Rule 41(d) permits the court to order the payment of costs. See Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1077 (7th Cir. 1987). The rule further empowers the court to order a stay of proceedings until such time as the plaintiff has complied with the order. Fed. R. Civ. P. 41(d).

Esposito appeals the district court's determination that he should not be entitled to proceed with the present action in its entirety as a result of his failure to pay the court- ordered costs incurred by one of the defendants in defending against the first action. As previously stated, the judgment of the district court on July 22, 1999, not only dismissed Esposito's claims against Smith, who moved for costs under Rule 41(d) as a result of his participation in the first action, but also dismissed his claims against all of the remaining defendants, none of whom were involved in the first suit or a party to the Rule 41(d) motion for costs. Although Rule 41(d) does not expressly authorize the dismissal of defendants who were not parties in the first suit, such a result is implied by the rule's language in that it specifically empowers the court to "make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order." The rule does not limit the district court's authority to stay or dismiss proceedings only with respect to those parties who were defendants in the first action. Moreover, a party such as Esposito who completely disregards a district court's order by failing to pay costs with respect to one defendant should be precluded from proceeding with a second suit and causing a similar loss to new defendants. See Support Sys. Int'l, Inc. v. Mack, 45 F.3d 185, 187 (7th Cir. 1995) (per curiam). Applying Rule 41(d) to all defendants in the action allows courts and defendants to avoid the costs of groundless litigation. Consequently, the district court properly dismissed all of the defendants in Esposito's second suit under Rule 41.

Here, the "costs" awarded to Smith from the first action included the payment of attorneys' fees. Federal courts adhere to the "American Rule," which recognizes that attorneys' fees are not generally a recoverable cost of litigation (unless specifically ordered by the court or provided by contract). See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975). As stated by the Supreme Court, "the law of the United States, but for a few well- recognized exceptions not present in these cases, has always been that absent explicit congressional authorization, attorneys' fees are not a recoverable cost of litigation." Runyon v. McCrary, 427 U.S. 160, 185 (1976).⁵ "Recognition of the availability of attorneys' fees therefore requires a determination that 'Congress intended to set aside this longstanding American rule of law.'" Key Tronic Corp. v. United States, 511 U.S. 809, 815 (1994) (citation omitted). There is no language in the text of Rule 41(d) indicating that Congress intended to alter the "American Rule" as the rule does not refer to attorneys' fees as an awardable cost.

In Marek v. Chesny, 473 U.S. 1 (1985), the Court analyzed whether attorneys' fees may be awarded as costs under Federal Rule of Civil Procedure 68. Rule 68 provides that if a pretrial offer of settlement is rejected and "the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." Fed. R. Civ. P. 68; see also, Marek, 473 U.S. at 4. Rule 68 thus allows for an award of "costs," but does not define the term; nor is there any reference in the Advisory Committee Notes indicating as to whether such costs include attorneys' fees. See Marek, 473 U.S. at 4. The Court concluded that the vagueness of the rule was likely intentional, and that consequently "Rule 68 was intended to refer to all costs properly awardable under the relevant substantive statute." Id. at 9. "Thus, absent congressional...