Little v. Ritchey's Truck Repair, Inc et al

Filing 23

ORDER denying in part and granting in part 17 Motion for Attorney Fees and Costs and 17 Motion to Stay. Signed by Judge William F. Jung on 1/6/2021. (CCB)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA – TAMPA DIVISION

PAUL LITTLE,
Plaintiff,

v.

Case No: 8: 20-cv-2196-T-02-AEP

RITCHEY’S TRUCK REPAIR, INC.,
and RITCHEY’S WRECKER AND TRANSPORT
SERVICE, LLC,
Defendants.
_____________________________/

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
FEES AND COSTS; ORDER STAYING CASE PENDING PAYMENT

This matter came before the Court for a hearing on Defendants’ motion for
fees and costs pursuant to Fed. R. Civ. P. 41(d). 1 The Court received briefing on
the matter (Docs. 17, 20) and heard oral argument today’s date from counsel. The
Court grants the motion in part and denies it in part. Plaintiff must tender to

1

Rule 41(d) states” (d) Costs of a Previously Dismissed Action. 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 the
previous action; and (2) may stay the proceedings until the plaintiff has complied.

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Defendants’ counsel the sum of $718.03 as costs due under Fed. R. Civ. P. 41(d),
and this case is stayed until this payment is made.
The relevant background is that Plaintiff filed a complaint in case no. 8:19cv-1700, alleging actions against his employer. After the case was nearly
completed, Plaintiff dismissed when the undersigned denied without prejudice
Plaintiff’s motion to amend, for failure to meet and confer as required by local
rules. Plaintiff concurrently filed the instant lawsuit, on similar facts. Upon
direction of the Court, the Defendants sought redress for this dismissal in this
present suit under Fed. R. Civ. P. 41(d), rather than in the former lawsuit.
Defendants sought various Rule 11-type sanctions in the former suit, which the
Court did not find merited, as no intentional misconduct by Plaintiff or his lawyers
was evident to the undersigned.
In the Rule 41(d) motion here, Defendants seek $1522.50 in expenses for
mediation in the prior case. They also seek $718.03 in deposition expense for
taking Plaintiff’s deposition there. They further seek attorney’s fees in the amount
of $34,731.60 for that prior lawsuit. In this regard, Defendants state that 90% of
the attorney’s fees incurred in the prior suit were wasted, with all that prior work
useless in this second lawsuit. This record is barren of any time sheets or records
the Court could employ to determine whether the first effort is wasted and useless

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for the second. A portion of these fees sought were for unsuccessful sanctions
motions.
Mediation expenses are not generally recoverable as litigation “costs.”
Jean-Pierre v. Naples Comm. Hosp., Inc., No. 2:18-cv-98-FtM-38MRM, 2020 WL
1862612 (M.D. Fla. Apr. 14, 2020). However, this is an expense that is entirely
duplicative and wasted due to the double filing, and Defendants should not be
required to pay it again. Accordingly, the Court will order the Plaintiff to pay the
entire cost of the mediation in the second, instant lawsuit. When drafting the case
management report, the parties will list this requirement. Plaintiff’s counsel agreed
to this extra expense at the hearing today.
The rule does not mention attorney’s fees. It mentions costs. There is some
mixed authority that permits attorney’s fees under Rule 41(d). At least one court
of appeals case is flatly to the contrary. Rogers v. Wal-Mart Stores, 230 F.3d 868,
875 (6th Cir. 2000). Rogers appears well-reasoned to the undersigned.2 Neither
Rule 41(d), nor 28 U.S.C. §1920 which lists taxable costs, lists attorney’s fees as
recoverable. The Court prefers to read plain words plainly. Other federal rules do
list attorney’s fees, but Rule 41(d) does not. See 230 F.3d at 875. Absent Eleventh
Circuit authority to the contrary, the undersigned finds Rogers persuasive and

2

For other varying interpretations, none from the Eleventh Circuit, see Horowitz v. 148 S.
Emerson Assocs. LLC, 888 F.3d 12, 24–26 (2d Cir. 2018) (citing cases).

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denies attorney’s fees. If Rogers were wrongly decided, the undersigned refrains
from exercising any discretion to award attorney’s fees under Rule 41(d) due to the
absence of vexatious or contumacious conduct. Plaintiff does not appear to be
engaging in “sharp” practices or forum shopping, however awkward his second
filing might have been. See Wishneski v. Old Republic Ins. Co., No. 5:06-cv-148Oc-10GRJ, 2006 WL 4764424, at *4 (M.D. Fla. Oct. 10, 2006). Plaintiff also
shows to the Court’s satisfaction that he is impecunious and unable to answer for
fees.
In any event, the motion does not set forth the rate or qualifications for the
rate, the detail concerning tasks worked when, for what purpose, and by whom, nor
the traditional third-party affidavit attesting to the appropriateness of rate, tasks,
and time. Thus there is no basis for the Court to rule as to fees in the matters filed
for this hearing. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (“[T]he fee
applicant bears the burden of establishing entitlement to an award and
documenting the appropriate hours expended and hourly rates.”). Merely citing an
amount due is not sufficient to adjudicate the fees. And that is true here when an
additional inquiry is required to determine whether the detailed and specific work
done in the first suit would be wasted or could be employed in the second suit. At
the hearing defense counsel offered to file the detailed back up, noting some
judge’s preference to receive the detail seriatim.

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Taxable “costs” do include transcript fees and disbursements for printing.
28 U.S.C. §1920. As those costs were for the Plaintiff’s deposition, they were
case-necessary and are recoverable. And a new deposition may likely be required
in this new case with slightly different allegations. Accordingly, the Court awards
$718.03 for these costs. Payment must be made for this case to proceed forward,
Fed. R. Civ. P. 41(d)(2). The motion for fees and costs (Doc. 17) is otherwise
denied.
DONE AND ORDERED, this 6th day of January, 2021.