In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3011

GERALD PAUL ESPOSITO,

Plaintiff-Appellant,

v.

FRANCIS PIATROWSKI, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 97-0296-DRH--David R. Herndon, Judge.

Submitted June 19, 2000--Decided August 4, 2000

 Before Coffey, Easterbrook, and Evans, Circuit Judges.

 COFFEY, Circuit Judge. Gerald Paul Esposito

appeals the district court’s dismissal of his

civil rights action brought pursuant to 42 U.S.C.

sec. 1983. Esposito/1 alleges that the

defendants, various nurses who worked in the St.

Clair County jail in Belleville, Illinois, while

he was confined in a pre-trial detainee status,

were deliberately indifferent to his serious

medical needs. Upon the recommendation of the

magistrate judge,/2 the district court dismissed

Esposito’s claims against Francis Piatrowski

pursuant to Federal Rule of Civil Procedure 41(b)

on the ground of res judicata. The district court

later dismissed the remaining defendants pursuant

to Rule 41(b) for want of prosecution. We affirm.

 In 1995, Esposito was incarcerated as a federal

pre-trial detainee at the St. Clair County jail.

While there, the plaintiff-appellant filed a

Section 1983 suit against three defendants,

including Piatrowski and Ron Smith (also a

nurse), alleging deliberate indifference to his

medical needs. Esposito voluntarily dismissed

Smith upon stipulation. The district court

thereafter granted Piatrowski’s motion to dismiss

without prejudice, allowing Esposito two months

to file an amended complaint curing the

deficiencies in his original complaint. Esposito

never filed an amended complaint, and in January
1997, the district court modified the dismissal

to be with prejudice. Esposito failed to appeal

the order of dismissal, and also failed to file

a motion to reconsider under Federal Rule of

Civil Procedure 60(b). 

 Esposito filed this action in April 1997,

alleging that six nurses who worked at the jail

(including Piatrowski and Smith) were

deliberately indifferent to his serious medical

needs during the period of April 1995 through

January 1996. Two of the defendants (Nurse Carol

and Nurse Jackie) were never served. On June 5,

1997, defendants Kathy McKim and Bridget Garland

moved to dismiss for failure to state a claim;

Piatrowski moved to dismiss the claims against

himself as barred by the doctrine of res

judicata; and Smith moved pursuant to Rule 41(d)

for reimbursement of costs incurred in defending

the first complaint, and requested that the case

be stayed until such costs were paid. 

 In the first of two reports to the district

court, the magistrate judge recommended denying

McKim and Garland’s motion to dismiss, but

recommended granting Piatrowski’s. The district

court adopted the magistrate judge’s

recommendation, and on January 9, 1998, over

Esposito’s objection, dismissed Esposito’s claims

against Piatrowski. A month later, the magistrate

judge issued a second report recommending

granting Smith’s motion for costs and staying all

further proceedings until Esposito paid. The

magistrate judge reasoned that costs were

warranted because Esposito had raised the same

allegations against Smith in the first action,

but elected to voluntarily dismiss the claims by

stipulation, and failed to sign various

submissions in the second action in violation of

Federal Rule of Civil Procedure 11./3 The

district court agreed and on March 4, 1998,

entered an order directing Smith to submit a bill

of costs. The district court also ordered all

further proceedings stayed until the costs were

paid. The order noted that Esposito had not

objected to the report and recommendation and

thus had waived his right to challenge it. 

 Shortly thereafter, Esposito moved for

reconsideration of the district court’s order

staying all proceedings until the payment of all

costs occurred. The plaintiff-appellant asserted

that he had not had enough time to submit a

signed objection to the magistrate judge’s

recommendation because he and the other

plaintiffs were housed in different facilities

and were thus unable to sign and file an

objection in a timely fashion. Meanwhile, Smith

filed a bill of costs, claiming that his share of

the total expense of defending the first action
(including attorneys’ fees, copying costs, travel

costs, and other expenses) was $6,758.91. The

district court denied Esposito’s motion to

reconsider, holding without elaboration that he

had "not shown a manifest error of law or

presented newly discovered evidence." Esposito

has failed to pay any portion of the costs

assessed. 

 On September 1, 1998, the magistrate judge

ordered Esposito to report within seven days on

his compliance with the directive to reimburse

Smith for his costs. Esposito did not respond.

Some nine months later, on June 7, 1999, Smith,

McKim and Garland moved to dismiss the complaint

for want of prosecution pursuant to Rule 41(b),

and the magistrate judge agreed and recommended

granting their motion. On July 21, 1999, the

district court adopted the recommendation of the

magistrate judge and directed entry of an order

dismissing the complaint without prejudice for

want of prosecution. The following day, the clerk

prepared, and the court approved, a judgment

dismissing all six defendants pursuant to the

court’s order of the previous day. On appeal,

Esposito seeks reinstatement of his suit in its

entirety.

 We review dismissals under Rule 41(b) for abuse

of discretion./4 See Williams v. Chicago Bd. of

Educ., 155 F.3d 853, 857 (7th Cir. 1998). Rule

41(b) allows for involuntary dismissal "for

failure of the plaintiff to prosecute or to

comply with these Rules or any order of court."

If a plaintiff whose previous action has been

dismissed commences another action "based on or

including" the same claim against the same partydefendant, Rule 41(d) permits the court to order

the payment of costs. See Szabo Food Serv., Inc.

v. Canteen Corp., 823 F.2d 1073, 1077 (7th Cir.

1987). The rule further empowers the court to

order a stay of proceedings until such time as

the plaintiff has complied with the order. Fed.

R. Civ. P. 41(d).

 Esposito appeals the district court’s

determination that he should not be entitled to

proceed with the present action in its entirety

as a result of his failure to pay the courtordered costs incurred by one of the defendants

in defending against the first action. As

previously stated, the judgment of the district

court on July 22, 1999, not only dismissed

Esposito’s claims against Smith, who moved for

costs under Rule 41(d) as a result of his

participation in the first action, but also

dismissed his claims against all of the remaining

defendants, none of whom were involved in the

first suit or a party to the Rule 41(d) motion

for costs. Although Rule 41(d) does not expressly
authorize the dismissal of defendants who were

not parties in the first suit, such a result is

implied by the rule’s language in that it

specifically empowers the court to "make such

order for the payment of costs of the action

previously dismissed as it may deem proper and

may stay the proceedings in the action until the

plaintiff has complied with the order." The rule

does not limit the district court’s authority to

stay or dismiss proceedings only with respect to

those parties who were defendants in the first

action. Moreover, a party such as Esposito who

completely disregards a district court’s order by

failing to pay costs with respect to one

defendant should be precluded from proceeding

with a second suit and causing a similar loss to

new defendants. See Support Sys. Int’l, Inc. v.

Mack, 45 F.3d 185, 187 (7th Cir. 1995) (per

curiam). Applying Rule 41(d) to all defendants in

the action allows courts and defendants to avoid

the costs of groundless litigation. Consequently,

the district court properly dismissed all of the

defendants in Esposito’s second suit under Rule

41. 

 Here, the "costs" awarded to Smith from the

first action included the payment of attorneys’

fees. Federal courts adhere to the "American

Rule," which recognizes that attorneys’ fees are

not generally a recoverable cost of litigation

(unless specifically ordered by the court or

provided by contract). See Alyeska Pipeline Serv.

Co. v. Wilderness Soc’y, 421 U.S. 240, 247

(1975). As stated by the Supreme Court, "the law

of the United States, but for a few wellrecognized exceptions not present in these cases,

has always been that absent explicit

congressional authorization, attorneys’ fees are

not a recoverable cost of litigation." Runyon v.

McCrary, 427 U.S. 160, 185 (1976)./5

"Recognition of the availability of attorneys’

fees therefore requires a determination that

’Congress intended to set aside this longstanding

American rule of law.’" Key Tronic Corp. v.

United States, 511 U.S. 809, 815 (1994) (citation

omitted). There is no language in the text of

Rule 41(d) indicating that Congress intended to

alter the "American Rule" as the rule does not

refer to attorneys’ fees as an awardable cost.

 In Marek v. Chesny, 473 U.S. 1 (1985), the

Court analyzed whether attorneys’ fees may be

awarded as costs under Federal Rule of Civil

Procedure 68. Rule 68 provides that if a pretrial

offer of settlement is rejected and "the judgment

finally obtained by the offeree is not more

favorable than the offer, the offeree must pay

the costs incurred after the making of the

offer." Fed. R. Civ. P. 68; see also, Marek, 473

U.S. at 4. Rule 68 thus allows for an award of
"costs," but does not define the term; nor is

there any reference in the Advisory Committee

Notes indicating as to whether such costs include

attorneys’ fees. See Marek, 473 U.S. at 4. The

Court concluded that the vagueness of the rule

was likely intentional, and that consequently

"Rule 68 was intended to refer to all costs

properly awardable under the relevant substantive

statute." Id. at 9. "Thus, absent congressional

expressions to the contrary, where the underlying

statute defines costs to include attorneys’ fees,

we are satisfied such fees are to be included as

costs for purposes of Rule 68." Id. The Court

specifically noted that under Section 1983, the

underlying substantive statute in the case, a

party may recover attorneys’ fees as part of the

costs pursuant to the Civil Rights Attorney’s

Fees Awards Act of 1976. See 42 U.S.C. sec. 1988;

see also, Marek, 473 U.S. at 9. As a result, the

Court concluded that attorneys’ fees are subject

to the cost-shifting provision of Rule 68. Marek,

473 U.S. at 9. 

 Like Rule 68, Rule 41(d) refers to "costs," but

fails to define the term, and furthermore,

neither the rule nor the Advisory Committee Notes

address the question of whether attorneys’ fees

may be included in an award of costs. Because

Rule 41(d) does not refer to costs any

differently than does 28 U.S.C. sec. 1920, which

provides the statutory specification of allowable

costs, fees may be included as costs only where

the underlying statute so provides. Consequently,

consistent with Marek, we hold that a party may

recover reasonable attorneys’ fees as part of its

"costs" under Rule 41(d) only where the

underlying statute defines costs to include

attorneys’ fees. Thus, attorneys’ fees are not a

recoverable cost of litigation under Rule 41(d)

unless the substantive statute which formed the

basis of the original suit allows for the

recovery of such fees as costs (or unless such

fees are specifically ordered by the court). 

 The extension of Marek’s holding to Rule 41(d)

is consistent with our past treatment of

attorneys’ fees under other provisions within

Rule 41. Under Rule 41(a)(2), attorneys’ fees may

be awarded as a "term or condition" of voluntary

dismissal. See, e.g., LeBlang Motors, Ltd. v.

Subaru of America, Inc., 148 F.3d 680, 686 (7th

Cir. 1998). It would be inconsistent to award

attorneys’ fees as a condition of voluntary

dismissal under Rule 41(a)(2), but completely

prohibit the awarding of such fees when a case

that is voluntarily dismissed is refiled under

Rule 41(d). See Esquivel v. Arau, 913 F. Supp.

1382, 1391 (C.D. Cal. 1996). Moreover, awarding

such fees as part of costs advances the purpose

of Rule 41(d), which is to deter forum shopping
and vexatious litigation. See Simeone v. First

Bank Nat’l Ass’n, 971 F.2d 103, 108 (8th Cir.

1992). In Szabo Food Service, Inc. v. Canteen

Corporation, 823 F.2d 1073 (7th Cir. 1987), we

analyzed the propriety of awarding attorneys’

fees under Rule 41(a)(1)(i), which governs the

voluntary dismissal of an action by the plaintiff

prior to the service of an answer or a motion for

summary judgment. We observed then that no costs

may be awarded the first time a plaintiff

voluntarily dismisses a suit under Rule

41(a)(1)(i), and so attorneys’ fees cannot

independently be awarded under a statute like

Section 1988 that treats fees as part of costs.

Id. at 1077. But, in analyzing the propriety of

a fee award under Rule 41(a)(1)(i), we stated in

dicta that such fees may be awarded under Rule

41(d) if the plaintiff revives the lawsuit. Id.

Here, we resolve the question in the affirmative,

but limit it only to those instances where the

underlying statute that is the basis of the

original action permits the recovery of fees as

costs. 

 Like the respondent in Marek, Esposito brought

suit under Section 1983. Unlike prevailing

plaintiffs in Section 1983 actions, who receive

attorneys’ fees as a matter of course, prevailing

defendants in such actions may recover fees only

upon a finding that the plaintiff’s action was

frivolous, unreasonable, or groundless.

Christianburgh Garment Co. v. EEOC, 434 U.S. 412,

422 (1978); Khan v. Gallitano, 180 F.3d 829, 837

(7th Cir. 1999). Here, the district court did not

find that Esposito’s claim in the first suit was

frivolous and therefore could not award

attorneys’ fees as part of the costs. Esposito,

however, is not appealing from the deferred award

of costs from the first suit, and the current

suit was dismissed because Esposito disregarded

the district court’s order and paid nothing,

attorneys’ fees or otherwise. We would need to

decide the fees question if Esposito had paid the

costs but not the attorneys’ fees. But because he

failed to pay anything, the dismissal of his

second suit was proper. 

 Esposito does not deny that the current action

includes allegations brought in the previouslydismissed case, nor does he argue that the costs

themselves are excessive. Rather, he argues that

the order directing the payment of costs and the

stay of proceedings unfairly denied him access to

the courts because he is unable to pay the costs.

Esposito’s inability to pay, however, does not

allow him to side-step the dictates of Rule 41.

We are not persuaded that the district court

abused its discretion. 

 Finally, Esposito argues that the district court
erred by failing to consider his objections to

Smith’s motion for costs. Esposito’s objections,

however, merely reasserted the allegations in his

complaint and attempted to explain why he failed

to submit an amended complaint in the first

action. Esposito’s objections and reasoning fall

far short of convincing us that the district

court erred by ordering the stay and the

subsequent dismissal of the action. Esposito has

failed to demonstrate that the district court

abused its discretion. 

 The judgment of the district court is AFFIRMED.

/1 Two other plaintiffs, James Wendell Amann and

Paul Edward Lindquist, do not join in this

appeal. 

/2 The district court originally assigned the case

to Magistrate Judge Philip M. Frazier, presumably

pursuant to 28 U.S.C. sec. 636(b)(1), although

the record does not reveal the date of the

referral or whether the parties consented to

appear before the magistrate judge. Magistrate

Judge Frazier recused himself after Esposito

stated in a response memorandum that the

magistrate judge had earlier given him advice

regarding his incarceration at the jail.

Magistrate Judge Frazier did not make any rulings

in the case prior to his recusal. The case was

thereafter referred to Magistrate Judge Gerald B.

Cohn, although the record is silent as to the

date of that assignment. 

/3 The magistrate judge ordered eight documents

stricken for failing to contain the signatures of

all of the plaintiffs. Among the documents

stricken were the plaintiffs’ responses (and

memoranda) to both motions to dismiss, as well as

the plaintiffs’ response to Smith’s motion for

costs.

/4 We need not determine whether Esposito’s claims

against Piatrowski are barred by res judicata

because his claims, like those against the other

defendants, are subject to dismissal for want of

prosecution pursuant to Rule 41(b). 

/5 Attorneys’ fees may be awarded by order of the

court under certain factual circumstances not

present here. One such example is the courts’

inherent authority to order a party acting in bad

faith to pay for the attorneys’ fees of its

adversary. See F.D. Rich Co., Inc. v. United

States ex rel. Indus. Lumber Co., Inc., 417 U.S.

116, 129 (1974). Another example is where a

successful litigant has conferred a substantial

benefit on a class of persons and the award of
fees operates to spread the cost among the

members of the class. Id. at 129-30.