Native American Arts, Inc. v. Mangalick Enterprises, Inc.

Filing 189

MEMORANDUM Opinion and Order:For the foregoing reasons, (1) Defendant's motion for fees and costs, R. 176, is denied; (2) Defendant's motion for fees and sanctions, R. 183, is denied; and (3) Plaintiff's motion for reconsideration, R. 178, is granted. The Court's order of January 15, 2014, R. 175, is vacated, and the case is dismissed without prejudice, with each side to bear its own costs. Signed by the Honorable Thomas M. Durkin on 5/7/2014:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NATIVE AMERICAN ARTS, INC.,
Plaintiff,
v.

No. 08 C 4464

MANGALICK ENTERPRISES, INC.,

Judge Thomas M. Durkin

Defendant.
MEMORANDUM OPINION AND ORDER
Background
Plaintiff’s original counsel in this case became ill during the course of the
litigation, which has spanned more than five years. R. 155 ¶ 3. Plaintiff’s current
counsel first appeared in the case on August 16, 2013, more than five years after the
case was filed. R. 143. Plaintiff’s original counsel passed away on September 18,
2013. R. 155 ¶ 3.
On December 30, 2013, Plaintiff moved to dismiss the case without prejudice.
R. 169. At the motion hearing on January 8, 2014, Plaintiff’s counsel stated that he
and Plaintiff had decided to concentrate Plaintiff’s and counsel’s resources in
pursuit of another related case and no longer wished to pursue this case.
On January 15, 2014, the Court dismissed this case with prejudice with each
side to bear its own costs. R. 175. The next day, January 16, Defendant moved for
costs under Federal Rule of Civil Procedure 54, and for attorneys’ fees under 25
U.S.C. § 305e. R. 176. That same day, January 16, Plaintiff moved to have the Court

reconsider its dismissal of the case with prejudice and sought a dismissal without
prejudice. R. 178. On January 20, Defendant moved for attorneys’ fees and
sanctions pursuant to Rule 41 and 19 U.S.C. § 1927. R. 183.
Analysis
I.

Costs
Under Federal Rule of Civil Procedure 41(a)(2), “an action may be dismissed

at the plaintiff’s request . . . by court order, on terms that the court considers
proper. . . . Unless the order states otherwise, a dismissal under this paragraph (2)
is without prejudice.” A decision to dismiss a case without prejudice under Rule
41(a)(2) is within the Court’s reasoned discretion. See Wells Fargo Bank, N.A. v.
Younan Props., Inc., 737 F.3d 465, 467 (7th Cir. 2013).
As the Court’s order of January 15 provides, the Court never intended for
Plaintiff’s counsel to bear any costs. The Court, however, mistakenly dismissed the
case with prejudice, and Federal Rule of Civil Procedure 54(d)(1) requires
assessment of costs upon dismissal with prejudice. See Mother and Father v.
Cassidy, 338 F.3d 704, 710 (7th Cir. 2003). Considering the circumstances of the
untimely death of Plaintiff’s original counsel, it is not appropriate for Plaintiff’s
current counsel to bear the costs of Plaintiff’s decision to concentrate its resources
on another related case. Defendant will not be prejudiced by this decision because
the two cases are related, and the time and effort Defendant put into defending this
case is at least somewhat applicable to the related case that Plaintiff will continue

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to pursue. Thus, the Court vacates it dismissal of the case with prejudice, R. 175,
and dismisses the case without prejudice, with each side to bear its own costs.
II.

Fees Under 28 U.S.C. § 1927
Defendant seeks sanctions and an award of attorneys’ fees pursuant to 28

U.S.C. § 1927, which provides:
Any attorney or other person admitted to conduct cases in
any court of the United States or any Territory thereof
who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses, and
attorneys’ fees reasonably incurred because of such
conduct.
Defendant’s brief recites a litany of alleged delays caused by Plaintiff’s former
counsel who has passed away. The only allegation of “unreasonably and
vexatiously” “multipli[ng]” the proceedings against Plaintiff’s current counsel is that
he produced many documents in preparation for an expert deposition that was
already scheduled when he took over the case, which was then canceled when
Plaintiff determined to discontinue this case and proceed with the related case.
These circumstances do not evince “gamesmanship” or unreasonable delay as
Defendant contends. R. 183 at 8. The Court will not award sanctions or attorneys’
fees on this basis.
III.

Fees Under 25 U.S.C. § 305e
Defendant also seeks an award of attorneys’ fees pursuant to 25 U.S.C. §

305e, which provides:

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(b)
(c)

A person specified in subsection (d) may, in a civil
action in a court of competent jurisdiction, bring an
action . . . [for certain statutory harm].
In addition to the relief specified in subsection (b),
the court may award punitive damages and the costs
of the civil action and a reasonable attorney’s fee.

The plain terms of subsection (b) apply only to a “person” who may “bring an action”
for certain statutory harm. Subsection (c), which provides for attorneys’ fees, is
expressly an addition to the “relief specified in subsection (b).” Since the “relief
specified in subsection (b)” is only available to a “person” who may “bring an action”
for certain statutory harm, any person who has not brought such an action may not
seek attorneys’ fees. Defendant has not brought such an action against Plaintiff
here. Thus, the statute does not provide Defendant a right to attorneys’ fees.
Conclusion
For the foregoing reasons, (1) Defendant’s motion for fees and costs, R. 176,
is denied; (2) Defendant’s motion for fees and sanctions, R. 183, is denied; and (3)
Plaintiff’s motion for reconsideration, R. 178, is granted. The Court’s order of
January 15, 2014, R. 175, is vacated, and the case is dismissed without prejudice,
with each side to bear its own costs.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: May 7, 2014

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