Dixon v. Patel

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL ACTION NO. 3:25-CV-00512-KDB-SCR

ANDREW DIXON,

Plaintiff,

v. MEMORANDUM AND

ORDER

JALPA PATEL,

JORGE SANTIAGO,

JACK MORAN,

JOHNNY JENNINGS, AND

KYLE BROWN,

Defendants.

THIS MATTER is before the Court on Defendants’ Motion for Taxing of Costs of

Previously Dismissed Action and for a Stay (the “Motion”) (Doc. No. 2). On August 27, 2025, the

Court issued an Order to Show Cause, directing Plaintiff to respond to the Motion on or before

September 5, 2025 (Doc. No. 8). Despite the Order, Plaintiff has not responded to Defendants’

Motion, and the time to do so has elapsed. After carefully considering the Motion and supporting

memorandum, and for good cause shown, the Court will GRANT the Motion.

According to Defendants, on January 9, 2025, Plaintiff filed his Complaint in the Superior

Court of Mecklenburg County, North Carolina, alleging malicious prosecution and violations of

his Fourth, Eighth, and Fourteenth Amendment rights. See 3:25-cv-110 Doc. No. 1-1 at 3-4.

Defendants removed the matter to federal court on February 14, 2025. See id. at Doc. No. 1. On

February 24, 2025, Plaintiff voluntarily dismissed all his claims without prejudice. See id.

On or about June 10, 2025, Plaintiff filed a new complaint, alleging the same claims against

the same defendants in the Superior Court of Mecklenburg County, North Carolina. Compare Doc.

No. 1, with 3:25-cv-110 Doc. No. 1-1. On July 15, 2025, Defendants again removed the matter to

federal court. Id. Defendants also filed the instant Motion, seeking recovery of the $405 filing fee

incurred in the first action, pursuant to Rule 41(d).1 See Fed. R. Civ. P. 41(d) (“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.”).

“A court’s decision to award costs pursuant to Rule 41(d) is discretionary.” Sampson v.

Beneficial Fin. I, Inc., No. 3:19CV157, 2019 WL 5232616, at *3 (E.D. Va. Oct. 16, 2019) (citing

Andrews v. America’s Living Ctrs., LLC, 827 F.3d 306, 312 (4th Cir. 2016)). Importantly, Rule

41(d) exists “to serve as a deterrent to forum shopping and vexatious litigation.” Id. (quoting

Andrews, 827 F.3d at 309) (additional citations omitted). “Vexatious means ‘without reasonable

or probable cause or excuse.’” Andrews, 827 F.3d at 312 (quoting In re 1997 Grand Jury, 215 F.3d

430, 436 (4th Cir. 2000)). “A determination that a plaintiff has acted vexatiously turns on the facts

of the case and the court’s own assessment of the plaintiff’s behavior.” Sampson, 2019 WL

5232616, at *3 (quoting Andrews, 827 F.3d at 313).

In determining whether costs under Rule 41(d) are appropriate, courts will look to whether

the later filed action “is based on or includ[es] the same claim against the same party-defendant.”

Snyder v. Greenberg Traurig, LLP, No. 1:08CV1270(GBL), 2009 WL 10730866, at *7 (E.D. Va.

Oct. 9, 2009) (quoting Esposito v. Piatrowski, 223 F.3d 497, 499 (7th Cir. 2000)) (internal

quotations and additional citations omitted). “Although bad faith is not required to award costs

1 See Cisneros v. Andrews & Lawrence Prof’l Servs., LLC, No. PWG 18-CV-3236, 2022

WL 3227551, at *4 (D. Md. Aug. 10, 2022) (explaining the “plain text of Rule 41(d) suggests that

it … applies when the second action is an action in federal court ...”); Schnabel v. Lui, 302 F.3d

1023, 1037 (9th Cir. 2002) (“When a state court action is removed to federal court, the removal is

treated as if the original action had been commenced in federal court.”).

under Rule 41(d),” id. (citing Rogers v. Wal- Mart Stores, Inc., 230 F.3d 868, 874 (6th Cir. 2000)),

“a good faith reason for the dismissal may provide strong grounds for denying a Rule 41(d)

motion.” Id. (citing Beam Laser Sys. v. Cox Communs., Inc., 117 F. Supp. 2d 515, 520 (E.D. Va.

2000)). For example, when a plaintiff refiles their lawsuit and adds or amends factual allegations

in an attempt to strengthen their case, they are not acting vexatiously. See Costin v. Ally Bank

Corp., No. 7:13-CV-113-BO, 2013 WL 5603230 (E.D.N.C. Oct. 11, 2013) (denying a motion for

fees and a stay when the refiled matter contained new factual allegations).

Here, Plaintiff has filed an identical complaint and both Plaintiff’s notarized affidavit and

the date of the attorney’s signature are unchanged. Plaintiff has offered no good faith reason (or

indeed, any reason) for voluntarily dismissing his first action and has ignored the Court’s Order to

Show Cause. Therefore, Plaintiff will be ordered to reimburse Defendants for the $405 filing fee

incurred in the first action and the matter will be stayed for 30 days until Plaintiff complies. If

Plaintiff does not reimburse Defendants as ordered within 30 days, then this action shall be

dismissed for failure to prosecute in the absence of a showing of good cause why the action should

not be dismissed.

I. ORDER

NOW THEREFORE IT IS ORDERED THAT:

1. Defendants’ Motion for Taxing of Costs of Previously Dismissed Action and for a

Stay (Doc. No. 2) is GRANTED;

2. Plaintiff is ordered to reimburse Defendants for the $405 filing fee incurred in the

first action;

3. The matter is STAYED until Plaintiff complies; and

4. IfPlaintiff does not reimburse Defendants as ordered within 30 days, then the Clerk

is directed to dismiss this action for failure to prosecute in the absence of a showing

of good cause why the action should not be dismissed.

SO ORDERED ADJUDGED AND DECREED.

Signed: September 15, 2025

Kenneth D. Bell Vy,

United States District Judge \ i