In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3011

GERALD PAUL ESPOSITO,

Plaintiff-Appellant,

v.

FRANCIS PIATROWSKI, et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 97-0296-DRH--David R. Herndon, Judge.


Submitted June 19, 2000--Decided August 4, 2000




  Before Coffey, Easterbrook, and Evans, Circuit Judges.

  COFFEY, Circuit Judge. Gerald Paul Esposito
appeals the district court’s dismissal of his
civil rights action brought pursuant to 42 U.S.C.
sec. 1983. Esposito/1 alleges that the
defendants, various nurses who worked in the St.
Clair County jail in Belleville, Illinois, while
he was confined in a pre-trial detainee status,
were deliberately indifferent to his serious
medical needs. Upon the recommendation of the
magistrate judge,/2 the district court dismissed
Esposito’s claims against Francis Piatrowski
pursuant to Federal Rule of Civil Procedure 41(b)
on the ground of res judicata. The district court
later dismissed the remaining defendants pursuant
to Rule 41(b) for want of prosecution. We affirm.

  In 1995, Esposito was incarcerated as a federal
pre-trial detainee at the St. Clair County jail.
While there, the plaintiff-appellant filed a
Section 1983 suit against three defendants,
including Piatrowski and Ron Smith (also a
nurse), alleging deliberate indifference to his
medical needs. Esposito voluntarily dismissed
Smith upon stipulation. The district court
thereafter granted Piatrowski’s motion to dismiss
without prejudice, allowing Esposito two months
to file an amended complaint curing the
deficiencies in his original complaint. Esposito
never filed an amended complaint, and in January
1997, the district court modified the dismissal
to be with prejudice. Esposito failed to appeal
the order of dismissal, and also failed to file
a motion to reconsider under Federal Rule of
Civil Procedure 60(b).

  Esposito filed this action in April 1997,
alleging that six nurses who worked at the jail
(including Piatrowski and Smith) were
deliberately indifferent to his serious medical
needs during the period of April 1995 through
January 1996. Two of the defendants (Nurse Carol
and Nurse Jackie) were never served. On June 5,
1997, defendants Kathy McKim and Bridget Garland
moved to dismiss for failure to state a claim;
Piatrowski moved to dismiss the claims against
himself as barred by the doctrine of res
judicata; and Smith moved pursuant to Rule 41(d)
for reimbursement of costs incurred in defending
the first complaint, and requested that the case
be stayed until such costs were paid.

  In the first of two reports to the district
court, the magistrate judge recommended denying
McKim and Garland’s motion to dismiss, but
recommended granting Piatrowski’s. The district
court adopted the magistrate judge’s
recommendation, and on January 9, 1998, over
Esposito’s objection, dismissed Esposito’s claims
against Piatrowski. A month later, the magistrate
judge issued a second report recommending
granting Smith’s motion for costs and staying all
further proceedings until Esposito paid. The
magistrate judge reasoned that costs were
warranted because Esposito had raised the same
allegations against Smith in the first action,
but elected to voluntarily dismiss the claims by
stipulation, and failed to sign various
submissions in the second action in violation of
Federal Rule of Civil Procedure 11./3 The
district court agreed and on March 4, 1998,
entered an order directing Smith to submit a bill
of costs. The district court also ordered all
further proceedings stayed until the costs were
paid. The order noted that Esposito had not
objected to the report and recommendation and
thus had waived his right to challenge it.

  Shortly thereafter, Esposito moved for
reconsideration of the district court’s order
staying all proceedings until the payment of all
costs occurred. The plaintiff-appellant asserted
that he had not had enough time to submit a
signed objection to the magistrate judge’s
recommendation because he and the other
plaintiffs were housed in different facilities
and were thus unable to sign and file an
objection in a timely fashion. Meanwhile, Smith
filed a bill of costs, claiming that his share of
the total expense of defending the first action
(including attorneys’ fees, copying costs, travel
costs, and other expenses) was $6,758.91. The
district court denied Esposito’s motion to
reconsider, holding without elaboration that he
had "not shown a manifest error of law or
presented newly discovered evidence." Esposito
has failed to pay any portion of the costs
assessed.

  On September 1, 1998, the magistrate judge
ordered Esposito to report within seven days on
his compliance with the directive to reimburse
Smith for his costs. Esposito did not respond.
Some nine months later, on June 7, 1999, Smith,
McKim and Garland moved to dismiss the complaint
for want of prosecution pursuant to Rule 41(b),
and the magistrate judge agreed and recommended
granting their motion. On July 21, 1999, the
district court adopted the recommendation of the
magistrate judge and directed entry of an order
dismissing the complaint without prejudice for
want of prosecution. The following day, the clerk
prepared, and the court approved, a judgment
dismissing all six defendants pursuant to the
court’s order of the previous day. On appeal,
Esposito seeks reinstatement of his suit in its
entirety.

  We review dismissals under Rule 41(b) for abuse
of discretion./4 See Williams v. Chicago Bd. of
Educ., 155 F.3d 853, 857 (7th Cir. 1998). Rule
41(b) allows for involuntary dismissal "for
failure of the plaintiff to prosecute or to
comply with these Rules or any order of court."
If a plaintiff whose previous action has been
dismissed commences another action "based on or
including" the same claim against the same party-
defendant, Rule 41(d) permits the court to order
the payment of costs. See Szabo Food Serv., Inc.
v. Canteen Corp., 823 F.2d 1073, 1077 (7th Cir.
1987). The rule further empowers the court to
order a stay of proceedings until such time as
the plaintiff has complied with the order. Fed.
R. Civ. P. 41(d).

  Esposito appeals the district court’s
determination that he should not be entitled to
proceed with the present action in its entirety
as a result of his failure to pay the court-
ordered costs incurred by one of the defendants
in defending against the first action. As
previously stated, the judgment of the district
court on July 22, 1999, not only dismissed
Esposito’s claims against Smith, who moved for
costs under Rule 41(d) as a result of his
participation in the first action, but also
dismissed his claims against all of the remaining
defendants, none of whom were involved in the
first suit or a party to the Rule 41(d) motion
for costs. Although Rule 41(d) does not expressly
authorize the dismissal of defendants who were
not parties in the first suit, such a result is
implied by the rule’s language in that it
specifically empowers the court to "make such
order for the payment of costs of the action
previously dismissed as it may deem proper and
may stay the proceedings in the action until the
plaintiff has complied with the order." The rule
does not limit the district court’s authority to
stay or dismiss proceedings only with respect to
those parties who were defendants in the first
action. Moreover, a party such as Esposito who
completely disregards a district court’s order by
failing to pay costs with respect to one
defendant should be precluded from proceeding
with a second suit and causing a similar loss to
new defendants. See Support Sys. Int’l, Inc. v.
Mack, 45 F.3d 185, 187 (7th Cir. 1995) (per
curiam). Applying Rule 41(d) to all defendants in
the action allows courts and defendants to avoid
the costs of groundless litigation. Consequently,
the district court properly dismissed all of the
defendants in Esposito’s second suit under Rule
41.

  Here, the "costs" awarded to Smith from the
first action included the payment of attorneys’
fees. Federal courts adhere to the "American
Rule," which recognizes that attorneys’ fees are
not generally a recoverable cost of litigation
(unless specifically ordered by the court or
provided by contract). See Alyeska Pipeline Serv.
Co. v. Wilderness Soc’y, 421 U.S. 240, 247
(1975). As stated by the Supreme Court, "the law
of the United States, but for a few well-
recognized exceptions not present in these cases,
has always been that absent explicit
congressional authorization, attorneys’ fees are
not a recoverable cost of litigation." Runyon v.
McCrary, 427 U.S. 160, 185 (1976)./5
"Recognition of the availability of attorneys’
fees therefore requires a determination that
’Congress intended to set aside this longstanding
American rule of law.’" Key Tronic Corp. v.
United States, 511 U.S. 809, 815 (1994) (citation
omitted). There is no language in the text of
Rule 41(d) indicating that Congress intended to
alter the "American Rule" as the rule does not
refer to attorneys’ fees as an awardable cost.

  In Marek v. Chesny, 473 U.S. 1 (1985), the
Court analyzed whether attorneys’ fees may be
awarded as costs under Federal Rule of Civil
Procedure 68. Rule 68 provides that if a pretrial
offer of settlement is rejected and "the judgment
finally obtained by the offeree is not more
favorable than the offer, the offeree must pay
the costs incurred after the making of the
offer." Fed. R. Civ. P. 68; see also, Marek, 473
U.S. at 4. Rule 68 thus allows for an award of
"costs," but does not define the term; nor is
there any reference in the Advisory Committee
Notes indicating as to whether such costs include
attorneys’ fees. See Marek, 473 U.S. at 4. The
Court concluded that the vagueness of the rule
was likely intentional, and that consequently
"Rule 68 was intended to refer to all costs
properly awardable under the relevant substantive
statute." Id. at 9. "Thus, absent congressional
expressions to the contrary, where the underlying
statute defines costs to include attorneys’ fees,
we are satisfied such fees are to be included as
costs for purposes of Rule 68." Id. The Court
specifically noted that under Section 1983, the
underlying substantive statute in the case, a
party may recover attorneys’ fees as part of the
costs pursuant to the Civil Rights Attorney’s
Fees Awards Act of 1976. See 42 U.S.C. sec. 1988;
see also, Marek, 473 U.S. at 9. As a result, the
Court concluded that attorneys’ fees are subject
to the cost-shifting provision of Rule 68. Marek,
473 U.S. at 9.

  Like Rule 68, Rule 41(d) refers to "costs," but
fails to define the term, and furthermore,
neither the rule nor the Advisory Committee Notes
address the question of whether attorneys’ fees
may be included in an award of costs. Because
Rule 41(d) does not refer to costs any
differently than does 28 U.S.C. sec. 1920, which
provides the statutory specification of allowable
costs, fees may be included as costs only where
the underlying statute so provides. Consequently,
consistent with Marek, we hold that a party may
recover reasonable attorneys’ fees as part of its
"costs" under Rule 41(d) only where the
underlying statute defines costs to include
attorneys’ fees. Thus, attorneys’ fees are not a
recoverable cost of litigation under Rule 41(d)
unless the substantive statute which formed the
basis of the original suit allows for the
recovery of such fees as costs (or unless such
fees are specifically ordered by the court).

  The extension of Marek’s holding to Rule 41(d)
is consistent with our past treatment of
attorneys’ fees under other provisions within
Rule 41. Under Rule 41(a)(2), attorneys’ fees may
be awarded as a "term or condition" of voluntary
dismissal. See, e.g., LeBlang Motors, Ltd. v.
Subaru of America, Inc., 148 F.3d 680, 686 (7th
Cir. 1998). It would be inconsistent to award
attorneys’ fees as a condition of voluntary
dismissal under Rule 41(a)(2), but completely
prohibit the awarding of such fees when a case
that is voluntarily dismissed is refiled under
Rule 41(d). See Esquivel v. Arau, 913 F. Supp.
1382, 1391 (C.D. Cal. 1996). Moreover, awarding
such fees as part of costs advances the purpose
of Rule 41(d), which is to deter forum shopping
and vexatious litigation. See Simeone v. First
Bank Nat’l Ass’n, 971 F.2d 103, 108 (8th Cir.
1992). In Szabo Food Service, Inc. v. Canteen
Corporation, 823 F.2d 1073 (7th Cir. 1987), we
analyzed the propriety of awarding attorneys’
fees under Rule 41(a)(1)(i), which governs the
voluntary dismissal of an action by the plaintiff
prior to the service of an answer or a motion for
summary judgment. We observed then that no costs
may be awarded the first time a plaintiff
voluntarily dismisses a suit under Rule
41(a)(1)(i), and so attorneys’ fees cannot
independently be awarded under a statute like
Section 1988 that treats fees as part of costs.
Id. at 1077. But, in analyzing the propriety of
a fee award under Rule 41(a)(1)(i), we stated in
dicta that such fees may be awarded under Rule
41(d) if the plaintiff revives the lawsuit. Id.
Here, we resolve the question in the affirmative,
but limit it only to those instances where the
underlying statute that is the basis of the
original action permits the recovery of fees as
costs.

  Like the respondent in Marek, Esposito brought
suit under Section 1983. Unlike prevailing
plaintiffs in Section 1983 actions, who receive
attorneys’ fees as a matter of course, prevailing
defendants in such actions may recover fees only
upon a finding that the plaintiff’s action was
frivolous, unreasonable, or groundless.
Christianburgh Garment Co. v. EEOC, 434 U.S. 412,
422 (1978); Khan v. Gallitano, 180 F.3d 829, 837
(7th Cir. 1999). Here, the district court did not
find that Esposito’s claim in the first suit was
frivolous and therefore could not award
attorneys’ fees as part of the costs. Esposito,
however, is not appealing from the deferred award
of costs from the first suit, and the current
suit was dismissed because Esposito disregarded
the district court’s order and paid nothing,
attorneys’ fees or otherwise. We would need to
decide the fees question if Esposito had paid the
costs but not the attorneys’ fees. But because he
failed to pay anything, the dismissal of his
second suit was proper.

  Esposito does not deny that the current action
includes allegations brought in the previously-
dismissed case, nor does he argue that the costs
themselves are excessive. Rather, he argues that
the order directing the payment of costs and the
stay of proceedings unfairly denied him access to
the courts because he is unable to pay the costs.
Esposito’s inability to pay, however, does not
allow him to side-step the dictates of Rule 41.
We are not persuaded that the district court
abused its discretion.

 Finally, Esposito argues that the district court
erred by failing to consider his objections to
Smith’s motion for costs. Esposito’s objections,
however, merely reasserted the allegations in his
complaint and attempted to explain why he failed
to submit an amended complaint in the first
action. Esposito’s objections and reasoning fall
far short of convincing us that the district
court erred by ordering the stay and the
subsequent dismissal of the action. Esposito has
failed to demonstrate that the district court
abused its discretion.

  The judgment of the district court is AFFIRMED.



/1 Two other plaintiffs, James Wendell Amann and
Paul Edward Lindquist, do not join in this
appeal.

/2 The district court originally assigned the case
to Magistrate Judge Philip M. Frazier, presumably
pursuant to 28 U.S.C. sec. 636(b)(1), although
the record does not reveal the date of the
referral or whether the parties consented to
appear before the magistrate judge. Magistrate
Judge Frazier recused himself after Esposito
stated in a response memorandum that the
magistrate judge had earlier given him advice
regarding his incarceration at the jail.
Magistrate Judge Frazier did not make any rulings
in the case prior to his recusal. The case was
thereafter referred to Magistrate Judge Gerald B.
Cohn, although the record is silent as to the
date of that assignment.

/3 The magistrate judge ordered eight documents
stricken for failing to contain the signatures of
all of the plaintiffs. Among the documents
stricken were the plaintiffs’ responses (and
memoranda) to both motions to dismiss, as well as
the plaintiffs’ response to Smith’s motion for
costs.

/4 We need not determine whether Esposito’s claims
against Piatrowski are barred by res judicata
because his claims, like those against the other
defendants, are subject to dismissal for want of
prosecution pursuant to Rule 41(b).

/5 Attorneys’ fees may be awarded by order of the
court under certain factual circumstances not
present here. One such example is the courts’
inherent authority to order a party acting in bad
faith to pay for the attorneys’ fees of its
adversary. See F.D. Rich Co., Inc. v. United
States ex rel. Indus. Lumber Co., Inc., 417 U.S.
116, 129 (1974). Another example is where a
successful litigant has conferred a substantial
benefit on a class of persons and the award of
fees operates to spread the cost among the
members of the class. Id. at 129-30.
