Commercial Litigation and Arbitration

Even Though R. 41(d)(2) Provides Only for a Stay of Proceedings until Plaintiff Pays Costs of Prior, Voluntarily Dismissed Action, 2nd Case May Be Dismissed for Want of Prosecution Or under R. 41(b) If Costs Not Paid Per Order


Tsukerman v. W. Cmty. Unit Sch. Dist. No. 12, 2020 U.S. App. LEXIS 6881 (7th Cir. Mar. 5, 2020) (unpublished):

A year after voluntarily dismissing a discrimination case against his former employer, Mikhail Tsukerman, a Jewish man in his fifties and a former high school math teacher, refiled the case. The district court stayed the proceedings until Tsukerman paid the employer's expenses from the former litigation and, when he did not pay, dismissed the case for want of prosecution. Because the court did not abuse its discretion in imposing costs or dismissing the case when Tsukerman refused to pay, we affirm the judgment.

Tsukerman's tenure teaching at Western Community Unit School District lasted only two years. In his second year, he witnessed two anti-Semitic incidents. Someone carved swastikas onto the walls of his classroom, and [*2]  months later a student gave a Nazi salute in his class. Western suspended the student who saluted but never caught the other offender. At the end of the school year, Western did not renew Tsukerman's contract, citing several poor evaluations for his classroom management and teaching.

Tsukerman sued Western for discrimination based on his age and religion. After discovery and briefing on Western's motion for summary judgment, Tsukerman (through counsel) voluntarily dismissed the case without prejudice under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). The stipulation for dismissal expressly reserved Western's right under Rule 41(d) to recover its costs from the earlier litigation if Tsukerman refiled the case. Tsukerman's counsel also told him that, if he refiled the lawsuit (which counsel advised against), counsel's firm would not represent him and the court could stay the proceedings until Tsukerman paid Western's prior costs.

Less than a year after the dismissal, Tsukerman (now pro se) moved to reopen the case and amend his complaint. On Western's motion, the district court stayed the proceedings until Tsukerman paid Western's costs from the previous litigation. See Fed. R. Civ. P. 41(d). Tsukerman asked the court to "waive" payment because he is indigent, [*3]  but the court denied his request. After three months without payment, the court ordered Tsukerman to explain why the case should not be dismissed for want of prosecution. He responded by reiterating the merits of his claims and underscoring his "willingness, readiness and ability to prosecute this case ... once the unjust and oppressive obstacle in the form of ... $3524 is removed." Concluding that Tsukerman was unwilling to pay and that nothing justified reconsidering the stay, the district court dismissed the case with prejudice for want of prosecution. Fed. R. Civ. P. 41(b).

On appeal, Tsukerman argues that the district court was wrong to dismiss his case for want of prosecution because he is indigent and cannot afford to cover Western's expenses from the prior litigation. According to Tsukerman, courts should have to consider a plaintiff's ability to pay, along with the other factors (including their good faith and the merits of the claim) listed in Hummel v. S.E. Rykoff, 634 F.2d 446, 453 (9th Cir. 1980), when considering whether to require payment of costs under Rule 41(d). And Tsukerman insists that, under those factors, the district court abused its discretion in ordering costs here because he is indigent, he brings the action in good faith, and his attorney dismissed [*4]  the case without Tsukerman's permission.

[Note:  Rule 41(d) provides:

[(d) Costs of a Previously Dismissed Action. 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.]

Tsukerman is incorrect. We have held that "courts can bar future suits as a sanction to ... pay past court costs ... even if the litigant is indigent." Gay v. Chandra, 682 F.3d 590, 594 (7th Cir. 2012). Rule 41 specifically empowers courts to "stay the proceedings" of the new suit until the plaintiff pays the past court costs whenever a plaintiff who previously dismissed an action files another "based on or including the same claim against the same defendants." Thus, as we concluded in a case involving costs under this rule, a plaintiff's "inability to pay ... does not allow him to side-step the dictates of Rule 41." Esposito v. Piatrowski, 223 F.3d 497, 502 (7th Cir. 2000).

It follows that the district court did not abuse its discretion in dismissing this case for failure to pay costs. Tsukerman knew that the court would likely order costs as a condition of refiling because his counsel warned him so, and Western expressly reserved its rights under Rule 41(d) to demand costs. Furthermore, when the court gave him a chance to explain why it should not dismiss the case based on his failure to pay, Tsukerman told the court that he would prosecute the case only if the court lifted the requirement to pay costs. That signaled to the court that he had no intent to comply with the [*5]  order, even though, as we have just explained, the order was valid despite his indigency. See Fed. R. Civ. P. 41(b) (dismissal is proper when plaintiff fails to comply with an order); Esposito, 223 F.3d at 499, 501-02 (dismissal for want of prosecution when plaintiff did not pay Rule 41(d) costs).

[Note:  Rule 41(b) Provides:

[(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.]

Accordingly, the judgement of the district court is AFFIRMED.

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