United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM & ORDER
A. TRAUGER United States District Judge
before the court is a Motion to Recover Costs of Previously
Dismissed Action filed by the defendant (Docket No. 7), to
which the plaintiff has filed a Response in opposition
(Docket No. 11), and the defendant has filed a Reply (Docket
No. 16). For the reasons discussed herein, the motion will be
granted in part.
AND PROCEDURAL HISTORY
7, 2014, the plaintiff in this employment action, Alem Meles,
initiated a prior lawsuit against the defendant, her former
employer Avalon Health Care, LLC d/b/a Trevecca Health Care
(“Trevecca”), in the Circuit Court for Davidson
County, Tennessee, bringing claims for several violations of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq. (“Title VII”) and the
Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101,
et seq. (“THRA”), as well as claims for
violation of the Family and Medical Leave Act, 20 U.S.C.
§ 2611, et seq. (“FMLA”).
(Complaint, Meles v. Avalon Health Care, Case No.
3:14-cv-1487, 2015 WL 5568060 (M.D. Tenn. Sept. 22, 2015)
(“Meles I”), Docket No. 1-1.) On July 22, 2014,
that action was removed to the Middle District of Tennessee.
(Notice of Removal, Meles I, Docket No. 1.) The trial in that
action was initially set for October 20, 2015. (Meles I,
Docket No. 11.)
September 22, 2015, this court issued a Memorandum and Order,
granting summary judgment in favor of Trevecca as to the
Title VII and THRA claims, but allowing the FMLA claims (for
both interference and retaliation) to proceed, subject to the
sanction, under Rule 37, that Ms. Meles would not be
permitted at trial to introduce any evidence aside from her
own testimony during her case in chief. (Meles I, Docket Nos.
30-31.) A more detailed discussion of the factual
allegations, claims, and procedural history to that point can
be found in the court's Memorandum (Meles I, Docket No.
31) and will not be repeated herein.
October 7, 2015, approximately two weeks before trial was
initially set to occur, the court issued two Orders, one
granting the parties' joint Motion for Mediation and the
other scheduling a settlement conference before the
Magistrate Judge for the following day. (Meles I, Docket Nos.
41, 42.) The settlement conference was ultimately
October 8, 2015, Ms. Meles filed an unopposed Motion to
Continue the trial date in order to discuss with her counsel
the summary judgment decision, litigation strategy, and the
possibility of an out-of-court settlement. (Meles I, Docket
No. 43.) This motion was granted the following day (Meles I,
Docket No. 45), at which time the court also reset the trial
for January 12, 2016 (Order, Meles I, Docket No. 47).
December 12, 2016, at the request of the parties, the action
was referred to the Magistrate Judge for another settlement
conference (Order, Meles I, Docket No. 50), which, again, was
ultimately unsuccessful (Meles I, Docket No. 54). On January
4, 2016, approximately one week before trial was scheduled
for the second time, the parties filed a joint stipulation of
voluntary dismissal without prejudice (Meles I, Docket No.
55), which was signed by the court the following day (Meles
I, Docket No. 56).
March 7, 2016, Ms. Meles filed the currently pending action
as an entirely new lawsuit. (Docket No. 1), which was
initially assigned to a different judge than the judge who
had overseen the prior action. The Complaint in this second
action brings only a claim for violations of the FMLA, which
are based on the exact same factual allegations as the prior
March 17, 2016, the court issued an Order granting Ms.
Meles's request to proceed in forma pauperis in
this action. (Docket No. 5.)
April 29, 2016, Trevecca filed the currently pending Motion
to Recover Costs of Previously Dismissed Action, along with a
Memorandum in support and an attached Affidavit of Costs by
Chen Ni, counsel for Trevecca. (Docket Nos. 7, 8.) Trevecca
argues that, under Rule 41(d), it is entitled to recover the
costs associated with the prior action, Meles I. According to
the Ni Affidavit, the costs incurred by Trevecca in Meles I
totaled $3, 363.41. (Docket No. 8-1.) Those costs are broken
down as follows: $400 in filing fees for the Notice of
Removal from state court in the prior action, $237.46 in
unspecified online research costs, $2, 574.75 in costs for
deposing Ms. Meles, including court reporter fees and
interpreter fees (further broken down to show that $499.75 of
those costs were incurred for an initial scheduled deposition
of Ms. Meles to which she did not show up, and $2, 075 was
incurred for a second scheduled deposition, which Ms. Meles
did attend), and $151.20 in obtaining the EEOC filings
associated with the first action. (Id.) Also on
April 19, 2016, Trevecca filed a Motion to Stay Litigation
pending the recovery of costs from the previous action under
Rule 41(d)(2). (Docket No. 9.)
9, 2016, Ms. Meles filed a Response in opposition to the
Motion to Recover Costs, arguing that she voluntarily
dismissed her prior action in order to discuss with her
counsel the appropriate settlement amount she should accept
and in light of language barriers that obstructed her ability
to communicate freely with her counsel. (Docket No. 11.) Ms.
Meles also asserts that the filing of the instant action
“was precipated by the elevation of Defense counsel to
the Federal Bench and the belief that it was in her best
interests to proceed in that manner.”(Id., p.
2.) Finally, Ms. Meles argues that, because she is bringing
this action in forma pauperis (having been
terminated from her menial position with Trevecca and unable
to secure employment elsewhere), the awarding of fees would
pose an undue burden that might deny her the ability to
proceed with the litigation. Ms. Meles does not specifically
challenge the amount of fees requested by Trevecca. Also on
May 9, 2016, Ms. Meles filed a Response in Opposition to
Trevacca's Motion to Stay. (Docket No. 12.)
19, 2016, Trevecca filed a Reply to its Motion to Recover
January 11, 2017, upon reassignment of this case to Judge
Trauger, the court issued an Order denying Trevecca's
Motion to Stay. (Docket No. 25.) As of this time, the parties
had taken renewed discovery in this action, and a Motion for
Summary Judgment by Trevecca had already been filed (and
currently remains ...