Meles v. Avalon Health Care, LLC
MEMORANDUM AND ORDER: For the foregoing reasons, the Motion to Recover Costs of Previously Dismissed Action 7 is hereby GRANTED IN PART. Ms. Meles is ORDERED to pay Trevecca costs in the amount of $1,050.95. It is so ORDERED. Signed by District Judge Aleta A. Trauger on 1/31/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AVALON HEALTH CARE, LLC d/b/a
TREVECCA HEALTH CARE,
Case No. 3:16-545
Judge Aleta A. Trauger
MEMORANDUM & ORDER
Pending before the court is a Motion to Recover Costs of Previously Dismissed Action
filed by the defendant (Docket No. 7), to which the plaintiff has filed a Response in opposition
(Docket No. 11), and the defendant has filed a Reply (Docket No. 16). For the reasons discussed
herein, the motion will be granted in part.
BACKGROUND AND PROCEDURAL HISTORY
On July 7, 2014, the plaintiff in this employment action, Alem Meles, initiated a prior
lawsuit against the defendant, her former employer Avalon Health Care, LLC d/b/a Trevecca
Health Care (“Trevecca”), in the Circuit Court for Davidson County, Tennessee, bringing claims
for several violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
(“Title VII”) and the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101, et seq.
(“THRA”), as well as claims for violation of the Family and Medical Leave Act, 20 U.S.C. §
2611, et seq. (“FMLA”). (Complaint, Meles v. Avalon Health Care, Case No. 3:14-cv-1487,
2015 WL 5568060 (M.D. Tenn. Sept. 22, 2015) (“Meles I”), Docket No. 1-1.) On July 22, 2014,
that action was removed to the Middle District of Tennessee. (Notice of Removal, Meles I,
Docket No. 1.) The trial in that action was initially set for October 20, 2015. (Meles I, Docket
On September 22, 2015, this court issued a Memorandum and Order, granting summary
judgment in favor of Trevecca as to the Title VII and THRA claims, but allowing the FMLA
claims (for both interference and retaliation) to proceed, subject to the sanction, under Rule 37,
that Ms. Meles would not be permitted at trial to introduce any evidence aside from her own
testimony during her case in chief. (Meles I, Docket Nos. 30-31.) A more detailed discussion of
the factual allegations, claims, and procedural history to that point can be found in the court’s
Memorandum (Meles I, Docket No. 31) and will not be repeated herein.
On October 7, 2015, approximately two weeks before trial was initially set to occur, the
court issued two Orders, one granting the parties’ joint Motion for Mediation and the other
scheduling a settlement conference before the Magistrate Judge for the following day. (Meles I,
Docket Nos. 41, 42.) The settlement conference was ultimately unsuccessful.
On October 8, 2015, Ms. Meles filed an unopposed Motion to Continue the trial date in
order to discuss with her counsel the summary judgment decision, litigation strategy, and the
possibility of an out-of-court settlement. (Meles I, Docket No. 43.) This motion was granted the
following day (Meles I, Docket No. 45), at which time the court also reset the trial for January
12, 2016 (Order, Meles I, Docket No. 47).
On December 12, 2016, at the request of the parties, the action was referred to the
Magistrate Judge for another settlement conference (Order, Meles I, Docket No. 50), which,
again, was ultimately unsuccessful (Meles I, Docket No. 54). On January 4, 2016,
approximately one week before trial was scheduled for the second time, the parties filed a joint
stipulation of voluntary dismissal without prejudice (Meles I, Docket No. 55), which was signed
by the court the following day (Meles I, Docket No. 56).
On March 7, 2016, Ms. Meles filed the currently pending action as an entirely new
lawsuit. (Docket No. 1), which was initially assigned to a different judge than the judge who had
overseen the prior action. 1 The Complaint in this second action brings only a claim for
violations of the FMLA, which are based on the exact same factual allegations as the prior
On March 17, 2016, the court issued an Order granting Ms. Meles’s request to proceed in
forma pauperis in this action. (Docket No. 5.)
On April 29, 2016, Trevecca filed the currently pending Motion to Recover Costs of
Previously Dismissed Action, along with a Memorandum in support and an attached Affidavit of
Costs by Chen Ni, counsel for Trevecca. (Docket Nos. 7, 8.) Trevecca argues that, under Rule
41(d), it is entitled to recover the costs associated with the prior action, Meles I. According to
the Ni Affidavit, the costs incurred by Trevecca in Meles I totaled $3,363.41. (Docket No. 8-1.)
Those costs are broken down as follows: $400 in filing fees for the Notice of Removal from state
court in the prior action, $237.46 in unspecified online research costs, $2,574.75 in costs for
deposing Ms. Meles, including court reporter fees and interpreter fees (further broken down to
show that $499.75 of those costs were incurred for an initial scheduled deposition of Ms. Meles
to which she did not show up, and $2,075 was incurred for a second scheduled deposition, which
This second action was initially before Judge Nixon but, upon his retirement, was reassigned to
Judge Trauger, who had presided over the prior action.
Ms. Meles filed nearly identical pleadings to her first action (including allegations that appear
to relate only to the Title VII claims previously dismissed on summary judgment), though the
instant Complaint expressly adds the allegation that Ms. Meles requested leave from Trevecca
under the FMLA and then was immediately told by a Trevecca representative that she was being
terminated from her employment (a fact that was not expressly included in the complaint in the
prior action but was asserted on summary judgment once the record was developed).
Ms. Meles did attend), and $151.20 in obtaining the EEOC filings associated with the first
action. (Id.) Also on April 19, 2016, Trevecca filed a Motion to Stay Litigation pending the
recovery of costs from the previous action under Rule 41(d)(2). (Docket No. 9.)
On May 9, 2016, Ms. Meles filed a Response in opposition to the Motion to Recover
Costs, arguing that she voluntarily dismissed her prior action in order to discuss with her counsel
the appropriate settlement amount she should accept and in light of language barriers that
obstructed her ability to communicate freely with her counsel. (Docket No. 11.) Ms. Meles also
asserts that the filing of the instant action “was precipated by the elevation of Defense counsel to
the Federal Bench and the belief that it was in her best interests to proceed in that manner.” 3
(Id., p. 2.) Finally, Ms. Meles argues that, because she is bringing this action in forma pauperis
(having been terminated from her menial position with Trevecca and unable to secure
employment elsewhere), the awarding of fees would pose an undue burden that might deny her
the ability to proceed with the litigation. Ms. Meles does not specifically challenge the amount
of fees requested by Trevecca. Also on May 9, 2016, Ms. Meles filed a Response in Opposition
to Trevacca’s Motion to Stay. (Docket No. 12.)
On May 19, 2016, Trevecca filed a Reply to its Motion to Recover Costs.
On January 11, 2017, upon reassignment of this case to Judge Trauger, the court issued
an Order denying Trevecca’s Motion to Stay. (Docket No. 25.) As of this time, the parties had
taken renewed discovery in this action, and a Motion for Summary Judgment by Trevecca had
Waverly Crenshaw was listed as named counsel for Trevecca in the previous action. Following
both the voluntary dismissal of that action and the refiling of the instant action, he was sworn in
as a United States District Judge in this district. Other counsel of record in this matter have
continued to represent Trevecca in the current action. It is unclear to the court what impact
Judge Crenshaw’s appointment to the bench has on this action, or how it relates in any way to
Ms. Meles’s decision to involuntarily dismiss her first action and then refile.
already been filed (and currently remains pending, to be addressed at a later date, once Ms.
Meles has had an opportunity to respond).
Federal Rule of Civil Procedure 41(d) provides as follows:
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.
“The plain language of Rule 41(d) makes clear that an award under the rule lies within the sound
discretion of the trial court.” Hython v. City of Steubenville, Case Nos. 95-3629, 95-3669, 1996
WL 456032, at *4 (6th Cir Aug. 12, 1996); see also Noel v. Guerrero, 479 F. App’x 666, 669-70
(6th Cir. 2012) (granting a motion for voluntary dismissal without prejudice and noting that this
does not unfairly expose a defendant to the possibility of duplicative litigation expenses because
costs may be awarded upon refiling under Rule 41(d)). The Sixth Circuit has affirmed a district
court’s award of costs where a plaintiff voluntarily dismissed her action after it had been
removed to federal court, then refiled the same claims in state court and, upon the action being
removed to federal court again, the district court awarded costs only for items that would not
benefit the defendant in the second action. Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868 (6th
Cir. 2000). The Sixth Circuit specifically stated that “[n]othing in the language of Rule 41(d) . . .
suggests that a defendant must show bad faith before a district court can order payment of costs
incurred in a voluntarily dismissed action.” Id. at 874. Finding, then, that the plaintiff
apparently used the voluntary dismissal to try and “wipe the slate clean” and avoid removal to
federal court, the Sixth Circuit found that the awarding of costs was appropriate, stating that Rule
41(d) is meant:
not only to prevent vexatious litigation, but also to prevent forum shopping,
especially by plaintiffs who have suffered setbacks in one court and dismiss to try
their luck somewhere else. . . . Hence, Rule 41(d) is also intended to prevent
attempts to gain any tactical advantage by dismissing and refiling the suit.
Id. (internal citations omitted).
Trevecca argues that the only possible explanation for Ms. Meles’s involuntary dismissal
of her first lawsuit was to gain a tactical advantage by refiling and attempting to wipe the slate
clean of her prior Rule 37 sanctions. Trevecca also argues that Ms. Meles has had two
opportunities to bring her claims to trial but both times has backed out after settlement
negotiations failed. According to Trevecca, both times it incurred significant expenses in
preparing for settlement conferences and trial dates, including drafting motions in limine, pretrial
stipulations and orders, compiling witness and exhibit lists, and preparing witnesses, all of which
will have to be done yet again in this currently pending action. As a result, Trevecca argues that
it should be awarded costs under Rule 41(d). Ms. Meles argues that she did not intend to pursue
a tactical advantage by voluntarily dismissing her first action and refiling. Ms. Meles
distinguishes her case from Rogers because she did not refile in a different jurisdiction and,
therefore, she asserts, she cannot be accused of forum shopping. Ms. Meles, however, overlooks
the fact that she did had other options for proceeding with this litigation even if she was not
ready to go to trial in January of 2016, aside from involuntary dismissal and refiling, such as
asking for a continuance at that time. Moreover, her only justification for being unready to go to
trial in January of 2016 was that she needed yet more time to discuss litigation strategy and
settlement options with her attorney.
While the court is sensitive to the fact that Ms. Meles may have had language barriers
inhibiting her communications with her attorney, the fact remains that the first action was
involuntarily dismissed one week before trial, at which time Ms. Meles had already been through
two settlement conferences, one three months prior, and had worked with her attorney for well
over a year through the pre-trial process, all of which cuts against the argument that yet
additional time was truly warranted. Moreover, Ms. Meles never even attempted to seek a
continuance of the trial. Instead, she refiled the same pleadings under a new case number just
two months later and was initially assigned to a different judge, all of which supports an
inference that she may have been attempting to avoid Rule 37 sanctions or to avoid trial before
Judge Trauger, who had already ruled against her on the majority of her claims at summary
judgment in the prior action. In any event, Rule 41 does not require a showing of bad faith and,
even absent such motives, the court finds that the voluntary dismissal and refiling of this action
is unjustified, has created additional work for Trevecca and the court, and serves no purpose
other than securing a possible tactical advantage for Ms. Meles.
Finally, Ms. Meles argues that the court should deny costs in this situation because she is
proceeding in forma pauperis and clearly cannot afford to pay the costs. Rule 41(d), however,
does not provide that financial ability is a factor that needs to be considered in the court’s
determination of whether to award costs. Indeed, the authority cited by Ms. Meles – Duffy v.
Ford Motor Co., 218 F.3d 623, 632 (6th Cir. 2000) – expressly rejects the argument that a
plaintiff’s financial ability to pay costs should be a factor the court relies on in determining
whether costs should be awarded. See also Chandler v. Case Western Reserve, 57 F. App’x 683,
686 (6th Cir. 2003). Finally, while Duffy reverses the district court’s dismissal of an action for
failure to pay costs associated with a prior action under Rule 41(d), the Sixth Circuit explicitly
states that its holding is limited to the “unique circumstances” of that case, in which the district
court abused its discretion by failing to consider whether the incompetence of the plaintiffs’ prior
counsel was responsible for the dismissal (without the plaintiffs’ knowledge) rather than any
action of the plaintiffs themselves.
For these reasons, the court finds that an award of costs is appropriate in this action.
Because, however, the deposition of Ms. Meles from the previous action is clearly useful in the
instant action (indeed, Trevecca has filed the prior deposition in support of its currently pending
motion for summary judgment (see Docket No. 19-1)), the court will not award costs for the
successful deposition. The court will, however, award Trevecca costs of $499.75 for the
attempted deposition in the prior action that Ms. Meles did not attend. Additionally, the court
will not grant Trevecca’s request for costs associated with legal research, because Trevecca has
not specified the nature of that research and the court cannot determine whether it may be useful
in the instant action. The court will, however, award Trevecca costs associated with the other
items identified by Trevecca that are clearly not relevant to the instant action: $400 in filing fees
for removal of the first action to federal court and $151.20 for obtaining the EEOC fling that was
relevant only to Ms. Meles’s Title VII claims that are no longer before the court in the instant
For the foregoing reasons, the Motion to Recover Costs of Previously Dismissed Action
is hereby GRANTED IN PART. Ms. Meles is ORDERED to pay Trevecca costs in the amount
It is so ORDERED.
Enter this 31st day of January 2017.
ALETA A. TRAUGER
United States District Judge
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