Newman v. City of Des Peres et al

Filing 44

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that defendants' Rule 41(b) Motion for Involuntary Dismissal 42 is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that this case is dismissed without prejudice. IT IS F URTHER ORDERED that as a condition to refiling an action based on or including the same claim(s) against any or all of the same defendants, plaintiff shall pay to defendants their reasonable attorneys fees in bringing this motion to dismiss. Signed by District Judge Catherine D. Perry on 11/2/2018. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PERRY NEWMAN,
Plaintiff,
v.
CITY OF DES PERES, et al.,
Defendants.

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Case No. 4:17 CV 2771 CDP

MEMORANDUM AND ORDER
Defendants move to dismiss this case with prejudice under Fed. R. Civ. P.
41(b) for plaintiff’s failure to prosecute and failure to comply with Court orders.
Plaintiff has not responded to the motion and the time to do so has passed. I will
dismiss the case for the reasons stated in defendants’ motion, but will do so
without prejudice. However, as a condition to refiling an action based on or
including the same claim(s) against any or all of the same defendants, plaintiff
shall pay to defendants their reasonable attorney’s fees in bringing the instant
motion to dismiss. Fed. R. Civ. P. 41(d). See Copeland v. Hussmann Corp., 462
F. Supp. 2d 1012, 1024 (E.D. Mo. 2006) (courts have discretion to include
reasonable attorney’s fees as “costs” that a plaintiff may be ordered to pay to a
defendant upon the refiling of a previously dismissed case) (citing Evans v.
Safeway Stores, Inc., 623 F.2d 121 (8th Cir. 1980)). Defendants’ request for the

immediate imposition of costs and expenses is denied.
Accordingly,
IT IS HEREBY ORDERED that defendants’ Rule 41(b) Motion for
Involuntary Dismissal [42] is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that this case is dismissed without prejudice.
IT IS FURTHER ORDERED that as a condition to refiling an action based
on or including the same claim(s) against any or all of the same defendants,
plaintiff shall pay to defendants their reasonable attorney’s fees in bringing this
motion to dismiss.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 2nd day of November, 2018.

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