Charles v. Miovas

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

NATHAN M.F. CHARLES, Esq., .

Plaintiff, CIVIL ACTION NO. 1:22-cv-01526

Vv, (WILSON, J.)

. (SAPORITO, M.J.)

PAUL J. MIOVAS, Esq.,

Defendant.

MEMORANDUM

This is a fee-paid federal civil rights action, brought by a licensed

attorney proceeding pro se. The plaintiff, Nathan M.F. Charles, brings

this civil rights action for damages against his former supervisor, Paul J.

Miovas, under 42 U.S.C. § 1988, claiming deprivation of his fundamental

right to interstate travel and his fundamental right to live with his

family. Miovas has moved to dismiss the action for failure to state a claim

upon which relief can be granted. (Doc. 9.) That motion is currently in

the midst of briefing.

But this is not the first time we have entertained this dispute. The

newly filed complaint in this action is a nearly verbatim copy of an

amended complaint filed by the plaintiff in a prior action, Charles v.

Miovas, Case No. 1:21-cv-01549 (M.D. Pa. dismissed June 24, 2022). In

that prior action, the plaintiff brought the very same claims against the

very same defendant. The defendant moved to dismiss the amended

complaint in that prior action for failure to state aclaim upon which relief

can be granted. After briefing was complete, we entered a report

recommending that the defendant’s motion be granted and all of the

plaintiffs claims be dismissed for failure to state a claim. We further

recommended that those claims be dismissed without leave to amend

because any amendment would be futile. The plaintiff filed an objection

to our report and recommendation, and the defendant filed a response to

that objection.

While the defendant’s motion and our report remained pending

before the court, awaiting a ruling by the presiding United States district

judge, the plaintiff filed a notice of voluntary dismissal pursuant to Rule

41(a)(1)(A)@) of the Federal Rules of Civil Procedure. As a consequence,

the prior action was dismissed without prejudice as a matter of course,

prior to a definitive ruling on the defendant’s motion to dismiss and our

report and recommendation.

Now, only a few months later, the plaintiff has returned to court,

filing the complaint □□ this action on September 30, 2022. As noted above,

-2-

this newly filed complaint is a nearly verbatim reproduction. of the

amended complaint in the prior, voluntarily dismissed action. The newly

filed complaint asserts the very same claims against the very same

defendant as were asserted in the prior action voluntarily dismissed by

the plaintiff.

As a consequence, the provisions of Rule 41(d) of the Federal Rules

of Civil Procedure are implicated. This rule provides that:

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.

Fed. R. Civ. P. 41(d). Moreover, in a recent decision interpreting this rule,

the Third Circuit, has held that the term “costs” in Rule 41(d) may include

attorney fees where the underlying statute defines “costs” to inelude

attorney fees. See Garza v. Citigroup Inc., 881 F.3d 277, 283-84 (8d. Cir.

2018). .

Here, the plaintiff has brought his claims—in both actions—against

the defendant under 42 U.S.C. § 1983. In civil actions to enforce § 1983,

Congress has seen fit to expressly define “costs” to include reasonable

-3.-

attorney fees incurred by a prevailing party—either plaintiff or

defendant. See 42 U.S.C. § 1988(b). “A plaintiff may be liable for

attorneys’ fees under § 1988 when ‘a court finds that his claim was

frivolous, unreasonable, or groundless, or that the plaintiff continued to

litigate after it-clearly becomes so.” Brown v. Borough of Chambersburg,

903 F.2d 274, 277 (8d Cir. 1990) (quoting Christiansburg Garment Co. v.

Equal Emp*t Opportunity Comm'n, 434 U.S. 412, 422 (1978)); see also Fox

v. Vice, 563 U.S. 826, 834-35 (2011); Nash v. Reedel, 86 F.R.D. 16, 17-18

(E.D. Pa. 1980). Moreover, “if a plaintiff is. found to have brought or

continued such a claim in bad faith, there will be an even stronger basis

for charging him with the attorney’s fees incurred by the defense.”

Christiansburg Garment Co., 434 U.S. at 422 (emphasis in original); see

also Nash, 86 F.R.D. at 18 (considering also whether plaintiff brought

suit to “harass, embarrass, or abuse” the defendant).

Accordingly, on the court’s own motion, we will consider whether

the plaintiff should be ordered to pay all or part of the costs incurred by

the defendant in connection with the prior voluntarily dismissed action,

including reasonable attorney fees, if justified. The parties will be

directed to file briefs on this issue, including any supporting affidavits or

-4-

declarations and any supporting evidence. Upon consideration of the

materials submitted by the parties, we will enter a report and

recommendation on the issue of an award of costs under Rule 41(d). In

the interim, all other proceedings in this case will be stayed.

An appropriate order follows. |

Dated: October _ #7 _, 2022 Seite a fa ea, 7°

JOSEPH F. SARORITO, JR.

United States Magistrate Judge

-5-