UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-23477-BLOOM/Louis

ARLINE MOREIRAS and

JULIO MOREIRAS,

Plaintiffs,

v.

SCOTTSDALE INSURANCE

COMPANY,

Defendant.

________________________________/

ORDER

THIS CAUSE is before the Court on Defendant’s Motion for Costs and Stay Pursuant to 

Rule 41(d) and Motion for Sanctions, ECF No. [13], and Defendant’s Motion to Dismiss Amended 

Complaint, ECF No. [14]. The Court has considered the Motions, the Plaintiffs’ Response, the 

record in the case, the applicable law, and is otherwise fully advised.

I. Motion for Rule 41(d) Sanctions

Defendant seeks attorneys’ fees and costs incurred in an identical case Plaintiffs previously 

filed before the Court, Case Number 20-cv-21303-BB. In that case, the Court dismissed an 

identical complaint without prejudice following Plaintiffs’ failure to comply with a court order. 

See ECF No. [16] in 20-cv-21303-BB. Plaintiffs have now refiled the instant action, prompting 

the Defendant’s request for sanctions under Federal Rule of Civil Procedure 41(d), although 

Defendant has failed to submit the costs and attorney’s fees it seeks to recover. It claims that the 

Plaintiffs’ failure to include the correct parties in the first lawsuit resulted in unnecessary pleading 

practice, resulting in fees and costs that may not be used in the current litigation Plaintiffs do not 

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contest that their refiling of the lawsuit warrants sanctions; however, they respond that in order to 

show entitlement to costs under Rule 41(d), a party must show that it incurred costs in the first 

action that were not useful in the newly filed litigation and Defendant has failed to do so here.

Rule 41(d) of the Federal Rules of Civil Procedure provides that in a matter where a 

plaintiff dismisses an action and then refiles it based on the same claim against the same defendant, 

the court may: (1) order the plaintiff to pay all or part of the costs of that previous action; and (2) 

stay the proceedings until the plaintiff has complied. The Court has broad discretion to award fees 

and costs when a plaintiff dismisses and re-files certain claims in a separate action against the same 

defendant. See Pontenberg v. Boston Scientific Corp., 252 F.3d 1253, 1256 n. 2, 1260 (11th Cir. 

2001); see also Groom v. Bank of America, 2010 WL 627564, at *1 (M.D. Fla. Feb. 23, 2010)

(“Rule 41(d) expressly contemplates the prejudicial impact on a defendant when a plaintiff 

dismisses and re-files against that defendant.”). A party moving for costs under Rule 41(d) must 

show that: (1) the plaintiff dismissed a previous action; (2) the plaintiff then commenced a second 

action that is based upon or includes the same claim against the same defendants; and (3) the 

defendant incurred costs in the prior action that will not be useful in the newly-filed litigation. NF 

Imp. & Exp., Inc. v. VIA Mat Int'l AG, No. 11-23371-CIV, 2012 WL 13013236, at *2 (S.D. Fla. 

Sept. 25, 2012); Groom v. Bank of America, No.8:08-cv-2567-T-27, 2010 WL 627564, at *5 (M.D. 

Fla. Jan. 21, 2010). A showing of bad faith is not required to recover costs under the rule. Groom, 

2010 WL 627564, at *5. Rather, in determining whether an award of costs is appropriate, courts 

look to whether a plaintiff's conduct satisfies the requirements of Rule 41(d) and whether the 

circumstances of the case warrant an award of costs to prevent prejudice to the defendant. Id.

A review of the record in both cases establishes that Plaintiffs’ conduct and the prejudice 

to the Defendant satisfy granting of an award pursuant to Rule 41(d).The Defendant is entitled to 

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its attorney’s fees and costs to the extent that such costs will not be useful in this litigation.

However, its claim that “there is clear evidence that it incurred costs, inclusive of attorneys’ fees, 

that cannot be used in the current matter,” ECF No. [13] at 3, is insufficient to permit a finding at 

this stage. As such, the Motion is granted and the Court reserves ruling on the amount to be 

awarded. The Defendant’s request to stay the proceedings is denied.

II. Motion to Dismiss

Defendant seeks dismissal of Plaintiffs’ Third Amended Complaint (“Complaint”) and to 

strike Plaintiffs’ demand for attorney’s fees. It argues that Plaintiffs failed to attach to the 

Complaint the subject insurance policy and have failed to allege the damages incurred with 

specificity. Moreover, Defendant argues that the Complaint improperly seeks attorney’s fees 

pursuant to Florida Statutes, Section 627.428. In response, Plaintiffs seek to file a Fourth Amended 

Complaint, acknowledging that the subject policy was not properly attached to its previous 

Complaint. Plaintiffs fail to address the other points raised in the Motion. Glaringly absent from 

the Plaintiffs’ Response is a certification that Plaintiffs’ counsel conferred with Defendant’s 

counsel regarding the filing of a Fourth Amended Complaint, as required by Local Rule 7.1(a)(3). 

On October 27, 2020, the Court denied Plaintiffs’ earlier request to file their complaint for the 

identical reason. See ECF No. [17].

Accordingly, it is

ORDERED AND ADJUDGED that 

1. Defendant’s Motion to Dismiss, ECF No. [14], is GRANTED.

2. Plaintiffs must refile the Fourth Amended Complaint no later than December 4, 2020, 

pursuant to Local Rule 15.1.

3. Plaintiffs’ counsel is admonished that continued failure to comply with the Local Rules 

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will result in sanctions, including dismissal without prejudice without further notice. 

4. The Defendant’s Motion for Costs and Stay Pursuant to Rule 41(d) and Motion for 

Sanctions, ECF No. [13], is GRANTED in part and DENIED in part. The Court 

refuses to stay the litigation and, as the Court is unable to determine at this stage 

whether the costs incurred will be useful in the present action, the Court reserves ruling 

as to the amount to be awarded.

DONE AND ORDERED in Chambers at Miami, Florida, on December 1, 2020.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of record

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