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Beck v. Physicians Mutual Insurance Co.

September 7, 2007

DEBORAH BECK, ADMINISTRATRIX OF THE ESTATE OF ELSIE MCDONALD-HAWKINS, DECEASED PLAINTIFF
v.
PHYSICIANS MUTUAL INSURANCE COMPANY DEFENDANT



The opinion of the court was delivered by: James M. Moody United States District Judge

ORDER

On August 22, 2007, the Court entered judgment in favor of defendant and dismissed plaintiff's complaint. Prior to filing this case in federal court, the plaintiff pursued the same breach of contract claims against the same defendant in the Circuit Court of Drew County. That complaint was dismissed without prejudice upon plaintiff's motion.

Plaintiff has now filed for costs pursuant to Federal Rules of Civil Procedure 54(d)(1), 41(d) and 28 U.S.C. § 1920.

Under Federal Rule of Civil Procedure, costs other than attorneys' fees "shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed.R.Civ.P. 54(d); see also 28 U.S.C. § 1920. "Rule 54(d) presumes an award of costs to the prevailing party; however, the district court has substantial discretion in awarding costs." Marmo v. Tyson Fresh Meats, Inc., 457 F. 3d 748, 762 (8th Cir. 2006) (citing Computrol, Inc. v. Newtrend, L.P., 203 F.3d 1064, 1072 (8th Cir. 2000)). Under Federal Rule of Civil Procedure 41(d) if a plaintiff had previously dismissed the same complaint in state court that was subsequently dismissed in federal court, the Court may assess payment of costs of that previous action. Fed. R. Civ. P. 41(d).

The Court does not believe an assessment of costs would be appropriate because this case was brought in the representative capacity on the behalf of the estate of Elsie McDonald-Hawkins, deceased, and that estate has no discernable assets. Further there is no evidence of forum shopping or vexatious litigation.

Plaintiff's Motion for Costs is denied (#56).

IT IS SO ORDERED THIS 7 day of September, 2007.

20070907

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