United States District Court, D. Hawaii
CRAIG MOSKOWITZ, on behalf of himself and others similarly situated, Plaintiff,
AMERICAN SAVINGS BANK, F. S . B ., Defendant.
AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART
DEFENDANT AMERICAN SAVINGS BANK, F.S.B.'S MOTION FOR RULE
41(D) COSTS AND STAY OF PROCEEDINGS FINDINGS AND
RECOMMENDATION TO GRANT IN PART AND DENY IN PART DEFENDANT
AMERICAN SAVINGS BANK, F.S.B.'S MOTION FOR RULE 41(D)
COSTS AND STAY OF PROCEEDINGS
S.C. Chang United States Magistrate Judge.
the Court is Defendant American Savings Bank, F.S.B.'s
("Defendant") Motion for Rule 41(d) Costs and Stay
of Proceedings, filed July 19, 2017. On September 25, 2017,
Plaintiff Craig Moskowitz ("Plaintiff") filed an
Opposition.Defendant filed a Reply on October 2, 2017.
matter came on for hearing on October 25, 2017. Justin
Brackett, Esq., appeared, and Aytan Bellin, Esq., appeared by
phone, on behalf of Plaintiff. Kevin Herring, Esq., and
Michael Vieira, Esq., appeared, and John Doroghazi, Esq.,
appeared by phone, on behalf of Defendant. After careful
consideration of the parties' submissions, the applicable
law, and the arguments of counsel, the Court HEREBY
RECOMMENDS that the Motion be GRANTED IN PART AND DENIED IN
PART for the reasons articulated below.
The Connecticut Action
February 21, 2017, Plaintiff filed an action in the U.S.
District Court for the District of Connecticut -
Moskowitz v. American Savings Bank, F.S.B., Civil
No. 3:17-00307 AWT ("Moskowitz I") -
alleging violations of the Telephone Consumer Protection Act
("TCPA"). Mot., Ex. B. Plaintiff filed a Motion for
Class Certification and for a Temporary Stay of Further
Proceedings on That Motion concurrently with the complaint.
Id., Ex. D.
March 10 and April 6, 2017, Defendant filed Motions for
Extension of Time to Plead. Id., Exs. F & G.
April 21, 2017, Defendant filed a Motion to Dismiss Pursuant
to Fed.R.Civ.P. 12(b)(2). Id., Ex. E.
15, 2017, Plaintiff filed a Notice of Voluntary Dismissal.
Id., Ex. H.
The Present Action
23, 2017, Plaintiff commenced this action, asserting the same
claims against Defendant as in Moskowitz I. Indeed,
the Complaint is identical save for two changes: 1) paragraph
6 was edited to identify this district as the proper venue
because it is where Defendant resides and 2) a date in paragraph 11 was
edited from 2015 to 2016. Compl. at ¶¶ 6 & 11.
subsequently filed this Motion and a Motion to Stay Pending
Decision of D.C. Circuit.
requests its fees and costs incurred in Moskowitz I
pursuant to Rule 41(d) of the Federal Rules of Civil
Procedure ("FRCP"). Plaintiff counters that
attorneys' fees are never available under FRCP 41(d) and
alternatively, that fees are only recoverable under FRCP
41(d) when the statute underlying the cause of action
provides for them.
(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
Fed. R. Civ. P. 41(d). For this provision to apply, the
parties must be the same in both actions and the claims in
the new action must be the same or based upon the same claims
in the first action. Id. FRCP 41(d) confers broad
discretion upon courts to order stays and payment of costs,
though neither is mandatory. Platinum Logistics, Inc. v.
Platinum Cargo Logistics, Inc., 3:15- CV-617-CAB-KSC,
2015 WL 11921401, at *4 (S.D. Cal. Sept. 15, 2015) (citing
Esguivel v. Arau, 913 F.Supp. 1382, 1386 (CD. Cal.
1996)). Although FRCP 41(d) is intended "to serve as a
deterrent to forum shopping and vexatious litigation, "
id. (quoting Esguivel, 913 F.Supp. at 1386)
(quotations omitted), it does not require a showing of
subjective bad faith. Id. (quoting
Esguivel, 913 F.Supp. at 1388). "Ultimately,
[t]he purpose of Rule 41(d) is to protect defendants from the
harassment of repeated lawsuits by the same plaintiff on the
same claims.'" Id. (quoting Holt v.
Kormann, No. SACV 11-01047 DOC, 2012 WL 5829864, at *2
(CD. Cal. Nov. 15, 2012)) (alteration in original) .
Court, exercising its discretion, finds that FRCP 41(d)
applies here because 1) Plaintiff dismissed his previous
action, Moskowitz I; 2) both Plaintiff and Defendant
were parties in the previous action; and 3) Plaintiff has
filed a substantively identical Complaint in this action.
Attorneys' Fees and Costs Are Recoverable Pursuant to
argues that fees are not recoverable under FRCP 41(d). This
Court has twice determined that FRCP 41(d) includes both
expenses and attorneys' fees that were reasonably
incurred in the prior case and will not contribute to the
defense of this case. Aloha Airlines, Inc. v. Mesa Air
Group, Inc., No. 07-00007 DAE-KSC, 2007 WL 2320672, at
*4 (D. Haw. Aug. 10, 2007); Uy v. HSBC Bank USA, Nat.
Ass'n, No. CIV. 14-00261 HG, 2014 WL 6471331, at *2
(D. Haw. Nov. 3, 2014), report and recommendation
adopted, 2014 WL 6471747 (D. Haw. Nov. 18, 2014)
has not articulated a legitimate basis to revisit these
decisions. As with the plaintiff in Aloha Airlines,
Plaintiff relies on Rogers v. Walmart Stores, Inc.,
230 F.3d, 868 (6th Cir. 2000), to support his contention.
However, this Court already considered and rejected the
reasoning underlying the Rogers decision. Aloha
Airlines, 2007 WL 2320672, at *3 (citing Rogers
as a court that disallows attorneys fees under FRCP 41(d),
and instead following the majority of courts that award
attorneys' fees under FRCP 41(d)) .
alternatively argues that fees are only recoverable when the
statute underlying the cause of action provides for them and
he relies exclusively on Azizian v. Federated Dept.
Stores, Inc., 499 F.3d 950 (9th Cir. 2007) and Fourth
Circuit and Seventh Circuit cases for this proposition.
Azizian is wholly irrelevant. The Azizian
decision pertains to "costs on appeal" pursuant to
Federal Rule of Appellate Procedure ("FRAP") 7 and
consequently has no applicability here. Demonstrating a
fundamental misunderstanding of the law, Plaintiff criticizes
this Court for failing to "even mention"
Azizian in its Uy decision and proffers that Uy and
Aloha Airlines are no longer good law and may not be
followed in light of Azizian. Opp'n at 8-9.
Applying Plaintiff's flawed logic, any case, pertinent or
not, could upend valid, existing case law. The
Azizian holding has no bearing on any FRCP 41(d)
rulings, and Plaintiff could not identify a single case that
discussed it in connection with FRCP 41(d), much less
extended it to FRCP 41(d) .
Fourth and Seventh Circuit cases cited by Plaintiff do not
compel a different result than Aloha Airline and Uy,
as this Court is not bound to follow them. Putting that
aside, however, adopting a rule that fees could only be
awarded under FRCP 41(d) if the statute underlying the cause
of action provides for them, would cause perverse results. It
would allow plaintiffs whose conduct was intended to be
deterred by FRCP 41(d) to escape fee awards simply because
fees are unavailable with respect to the underlying claims.
Given that the purpose of FRCP 41(d) is to deter
vexatiousness and forum shopping and to protect defendants
from the harassment of repeated lawsuits by the same
plaintiff on the same claims, fees should not be predicated
on the availability of fees as to the underlying claims. They
should be predicated on whether or not a "plaintiff who
previously dismissed an action in any court files an action
based on or including the same claim against the same
defendant, " as contemplated by FRCP 41(d).
41(d) is collateral to the underlying claims in a case,
unlike other cost provisions such as FRAP 7 and 39, and FRCP
68. It is akin to a sanction, unconnected to the actual
claims presented in the litigation, and concerns a
plaintiff's conduct related to litigation, versus a
party's liability as to the claims in a given case.
Appellate costs, like FRCP 54 fees and costs, are awarded to
prevailing parties. In those instances, the award of fees and
costs is tied to the claims in a respective action,
and it logically follows that the statute underlying the
cause of action must provide for fees and costs.
reasons stated above, the Court concludes, as it has before,
that FRCP 41(d) permits the recovery of both fees and costs.
The Court does not impose a requirement that fees are only
available when authorized by the statutes/provisions
governing the underlying claims.
Defendant Need Not Establish Bad Faith or
asserts that Defendant has utterly failed to demonstrate that
he "acted in bad faith, vexatiously, wantonly, or for
oppressive purpose." Opp'n at 9. However, as already
noted, a showing of subjective bad faith is not required.
Neither is vexatiousness the standard applied by the Court
with respect to FRCP 41(d). Uy, 2014 WL 6471331, at *2. FRCP
41(d) is meant to serve as a deterrent to forum shopping and
vexatious litigation, but it does not follow that
vexatiousness or forum shopping are preconditions to an FRCP
pertinent facts in this case are uncontested: Plaintiff
commenced Moskowitz I against Defendant; Defendant
filed a motion to dismiss for lack of personal jurisdiction;
Plaintiff, without responding to the motion to dismiss,
voluntarily dismissed Moskowitz I; and following the
dismissal, Plaintiff filed an identical lawsuit against
Defendant here. This sequence of events falls squarely within
FRCP 41(d) and is precisely the type of situation covered by
FRCP 41(d). To wit, Plaintiff has "commence[d] an action
based upon or including the same claim[s] [as brought in a
previously dismissed action] against the same
defendant." Esquivel, 913 F.Supp. at 1387
(quotations omitted) (alterations in original).
submits that he reasonably believed (and still believes) that
specific jurisdiction existed with respect to Defendant in
Connecticut. He nevertheless dismissed Moskowitz X
and elected to refile in this district to avoid questions
concerning the existence of personal jurisdiction. According
to Plaintiff, his voluntary dismissal saved time and money
and conserved the resources of the Connecticut district court
as well as the Second Circuit. These arguments are unavailing.
plaintiff "bears the responsibility of determining the
appropriate forum in which to prosecute her case . . . and of
establishing that personal jurisdiction exists."
Id. (citing Decker Coal Co. V. Commonwealth
Edison Co., 805 F.2d 834, 839 (9th Cir. 1986); Data
Disc, Inc. v. Sys. Tech. Assocs., 557 F.2d 1280, 1285
(9th Cir. 1977)). Plaintiff's dismissal of
Moskowitz X (without responding to Defendant's
motion to dismiss) and subsequent refiling of the identical
action here arguably demonstrates some recognition that
Moskowitz I "was vulnerable on the grounds
asserted in [Defendant's] motion." Id.
Plaintiff simultaneously defends the propriety of
jurisdiction in Connecticut while acknowledging that during
his review of Defendant's motion to dismiss, he
became aware of two non-binding district court cases from
outside of the Second Circuit that held that notwithstanding
the state in which a defendant's call to a cell phone is
received, there is no specific jurisdiction over the
defendant in that state if the number of [sic] receiving cell
phone contains an out-of-state area code.
Opp'n at 10-11. Thus, despite Plaintiff's claim that
his decision to voluntarily dismiss Moskowitz I was
primarily motivated by a desire to conserve resources and
minimize costs, it is equally as plausible that Plaintiff