223 F.3d 497 (7th Cir. 2000)
GERALD PAUL ESPOSITO, Plaintiff-Appellant,v.FRANCIS PIATROWSKI, et al., Defendants-Appellees.
No. 99-3011
In the  United States Court of Appeals  For the Seventh Circuit
Submitted June 19, 2000Decided August 4, 2000

Appeal from the United States District Court  for the Southern District of Illinois.  No. 97-0296-DRH--David R. Herndon, Judge.
Before Coffey, Easterbrook, and Evans, Circuit Judges.
COFFEY, Circuit Judge.


1
Gerald Paul Esposito  appeals the district court's dismissal of his  civil rights action brought pursuant to 42 U.S.C.  sec. 1983. Esposito1 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.


2
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).


3
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.


4
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.


5
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.


6
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.


7
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).


8
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.


9
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.


10
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.


11
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).


12
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.


13
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.


14
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.


15
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.


16
The judgment of the district court is AFFIRMED.



Notes:


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.


