This action arises out of the April 5, 1992, arrest of plaintiff in Steubenville, Ohio. Considering the facts in a light most favorable to the plaintiff, as we must in this appeal from summary judgment for the defendants, the narrative is fairly straightforward. Officers James Marquis and Anthony Andrianno of the Steubenville Police Department, Officer John Myers of the Village of Mingo Junction Police Department, and Raymond Terry, special drug task force agent of the Jefferson County Prosecutor's Office, followed plaintiff's automobile in two unmarked police vehicles. After travelling about four blocks, the police officers stopped plaintiff's car, conducted a frisk of plaintiff and the other occupants of the car, and searched the interior of the car. During the search of the car, the officers discovered two dollar bills which allegedly had been used earlier in the day by police in a "controlled buy" of illegal drugs from plaintiff's brother, Andre Hython. Based on this evidence, the officers arrested plaintiff and charged him under state law with fleeing and eluding police and felony complicity in the trafficking of drugs. After the stop, but before the arrest, several of the officers talked via cellular telephone to defendant Stern, the Jefferson County Prosecutor, to confirm that they had probable cause for plaintiff's arrest.
First, we briefly consider the lower court's award of costs to defendant Stern under Fed.R.Civ.P. 41(d). The Rule states:
If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may 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 plain language of Rule 41(d) makes clear that an award under the rule lies within the sound discretion of the trial court. See Wright & Miller, Federal Practice and Procedure: Civil 2d § 2375 at 415 (West 1995). We review an award for abuse of such discretion.
Rule 41(d) applies directly to the procedural posture of this case and serves effectively to compensate defendant Stern, who in essence has had to defend the present suit twice, for the costs he incurred in the first action. Plaintiff has made no credible argument that the court below abused its discretion in awarding $2520.70 in costs to Stern, and we can discern none. Accordingly, that portion of the order below granting Stern's motion for costs is affirmed.
Second, we consider the grant of defendant Stern's motion for summary judgment.
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
Related Categories: Civil Procedure , Communications , Constitutional Law