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awarding attorneys' fees and costs to the defendant as a condition to voluntary dismissal
Summary of this case from Monterey at Malibu Bay Condo. Ass'n v. Empire Indem. Ins. Co.Opinion
Case No. 01-4473-CIV-MOORE/O'SULLIVAN
August 14, 2002
REPORT AND RECOMMENDATION
THIS MATTER is before the Court on Defendant, American Airlines, Inc.'s Motion for Attorneys' Fees and Costs (DE #17, 4/4/02). This matter was referred to United States Magistrate Judge John J. O'Sullivan by the Honorable K. Michael Moore, United States District Court Judge for the Southern District of Florida pursuant to 28 U.S.C. § 636(b). Upon due consideration, it is respectfully recommended that the motion be GRANTED in the total amount of $28,689.67 as explained below.
Procedural and Factual Background
Plaintiff originally brought suit in November 2000, against the defendant in Miami-Dade County Circuit Court concerning missing luggage. The suit was removed to this Court and then remanded on May 18, 2001, after American had filed its motion to dismiss, because, inter alia, "[t]he Complaint seeks recovery not for the lost baggage, a claim undeniably governed by the Warsaw Convention, but for losses incurred as a result of defendant's `deliberate or reckless' misconduct after they lost the bag." (Order in Case No. 00cv4483, DE #7, 5/18/01). Discovery pursued and in plaintiffs responses to American's requests for admissions and interrogatories, it became undeniably clear that plaintiff was indeed seeking recovery for lost baggage. American then again filed its notice of removal and this cause was once again before the Honorable K. Michael Moore.
On October 31, 2001, American moved for summary final judgment. On December 27, 2001, American filed a notice of plaintiffs failure to cooperate in preparing a joint scheduling report. On January 4, 2002, this Court entered an Order requiring plaintiff to show cause why her case should not be dismissed for failure to participate in the filing of the joint scheduling report.
In response to the Order to Show Cause, plaintiff filed a motion to amend her complaint and to remand the matter to County Court. On February 20, 2002, this Court denied plaintiffs motion to remand and granted plaintiffs motion to amend her complaint (DE #9). The Court ordered the parties to complete and file a joint scheduling report within ten days and expressly ordered plaintiff to respond to American's pending motion for summary judgment within ten days of the date of the order. Id.
On February 26, 2002, plaintiff instead served a "Notice of Voluntary Dismissal Without Prejudice." The Court subsequently dismissed the case on March 6, 2002, the same day American moved to vacate plaintiffs notice of voluntary dismissal. American then moved to set aside and vacate the Court's order of dismissal. The Court then found, "[als Defendant's motion for summary judgment was outstanding at the time Plaintiff filed her notice of voluntary dismissal without prejudice, the Plaintiff was required to obtain Defendant's consent to a stipulation of dismissal in order to voluntarily dismiss this case. Plaintiff failed to do this . . . In light of the Plaintiffs desire to dismiss this case without prejudice and the costs incurred by Defendant in conducting discovery and preparing a motion for summary judgment, the Court finds that the Defendant shall be entitled to reasonable attorney's fees and costs as a condition of dismissal. The Court feels that this is an appropriate solution to the presented problem, especially in light of Plaintiffs lack of diligence in responding to Defendant's pending motions . . ." (DE #16, 3/26/02).
American's motion for costs and fees ensued. On May 31, 2002 the undersigned ordered plaintiffs counsel to file objections to the items to which the plaintiff did not agree specifically addressing the particular costs and hours claimed. The plaintiff was directed to define with specificity each objection and what the plaintiff believes to be reasonable tasks, the reasonable amount of time for each task and the reasonable amount of each particular cost. (DE #22). Plaintiffs counsel did not file any such objections. It appears that plaintiffs only objections to the amount of attorney's fees and costs requested by American are those contained in the parties' June 14, 2002 Joint Notice of Agreement Regarding American's Motion for Attorneys' Fees and Costs.
In paragraph 2 of the Joint Notice, plaintiff indicates that she does not agree to the amount of time spent per entry. In paragraph 5, plaintiff, without explanation, states that she does not agree to pay any costs incurred prior to removal or to remove or remand. Plaintiff has not contested the reasonableness of the hourly rates charged by American's counsel. The parties were heard at oral argument on July 1, 2002.
DISCUSSION
Under Fed.R.Civ.P. 41(a)(2) a court may dismiss a case "upon such terms and conditions as the court deems proper." One such condition is the award of costs to the defendant. The purpose of awarding costs under Rule 41(a)(2) is twofold: to fully compensate the defendant for reasonable expenses incurred before dismissal and to deter vexatious litigation. See 5 J. Moore, J. Lucas, J. Wicker, Moore's Federal Practice §§ 41.05[1], 41.06 (2d ed. 1982). The award of costs usually includes all litigation-related expenses incurred by the defendant, including reasonable attorney fees. See American Cyanamid Co. v. McGhee, 317 F.2d 295, 298 (5th Cir. 1963); Green Giant Co. v. M/V Fortune Star, 92 F.R.D. 746, 749 (S.D. Ga. 1981); Mann v. Edwards, 37 F.R.D. 452, 454 (W.D. S.C. 1965) (citing Eaddy v. Little, 23 F. Supp. 377, 380 (E.D. S.C. 1964); Moore's Federal Practice, supra § 41.06. The award of costs is, like any other "term or condition" of dismissal, within the discretion of the trial court . . .Bishop v. West American Ins. Co., 95 F.R.D. 494, 495 (N.D. Ga. 1982).
Plaintiff presents several arguments in contending that dismissal should be granted without costs. Her arguments focus on the unfairness of surprise as stated in Stockman v. Downs, 573 So.3d 835 (Fla. 1991) and the lack of any statutory or contractual basis for such an award. While it is true that attorneys' fees are typically awarded only when authorized by statute, private contract, or a recognized exception to the American rule, Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 257-59 (1975),"[a] plaintiff ordinarily will not be permitted to dismiss an action without prejudice under Rule 41(a)(2) after the defendant has been put to considerable expense in preparing for trial, except on condition that the plaintiff reimburse the defendant for at least a portion of his expenses of litigation." Sobe News Inc. v Ocean Drive Fashions Inc., 199 F.R.D. 377, 378 (S.D. Fla. 2001) (J. Moore) (citing McCants v. Ford Motor Co. Inc., 781 F.2d 855 (11th Cir. 1986) (citing American Cyanamid, 317 F.2d at 298 and Bishop, 95 F.R.D. at 495). "The court should weigh the relevant equities and do justice between the parties in each case, imposing such costs and attaching such conditons to the dismissal as are deemed appropriate." Id. As Judge Moore deemed it proper that the plaintiff bear the cost of dismissal by paying his adversary's expenses plus a reasonable attorney's fee, the only remaining issue in this case is the amount of fees and costs to be awarded to the defendant (See DE #16). Accordingly, the undersigned ordered, in addition to the evidence already filed, copies of the bills submitted to American or an affidavit indicating how much American had paid in defense of this case.
"Where a subsequent similar suit between the parties is contemplated, expenses awarded might be limited to those incurred in discovering information and researching and pressing legal arguments that will not be useful in the later suit." McCants, 781 F.2d at 860. Judge Moore, however, made no such limiting indication in his order awarding fees and costs. In fact, in awarding entitlement to fees, Judge Moore noted that extensive discovery had occurred in state court. Accordingly, the undersigned recommends that the defendant be awarded the fees and expenses sought in its initial motion (DE #17). The defendant's counsel has done a thorough job of splitting time by task and all tasks appear to be reasonably billed. The costs sought are reasonably related to the litigation and are permissible under Fed.R.Civ.P. Rule 41(a)(2). Mann v. Edwards, 37 F.R.D. 452, 454 (W.D. S.C. 1965) (costs payable under Rule 41(a)(2) are not limited to taxable costs under 28 U.S.C. § 1920, but may include compensation for all litigation related expenses incurred by the defendant).
CONCLUSION
After carefully considering the court file and argument of counsel, the undersigned recommends that Defendant, American Airlines, Inc.'s Motion for Attorneys' Fees and Costs (DE #17, 4/4/02) be GRANTED in the amount of $26,316.00 in attorneys' fees and $2,289.86 in costs for a total award of $28,605.86 against the plaintiff, Elizabeth Siek.
The parties have ten (10) days from the date of receipt of this Report and Recommendation within which to serve and file written objections, if any, with the Honorable K. Michael Moore, United States District Court Judge. Failure to file objections timely shall bar the parties from attacking on appeal the factual findings contained herein. LoConte v. Dugger, 847 F.2d 745 (11th Cir. 1988), cert. denied, 488 U.S. 958, 109 S.Ct. 397 (1988); RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).