SCOA: Rule 41(d) Costs Cannot Be Assessed Before New Action Commenses

In the case Kesai v. Almand, 2011 Ark. 207, — S.W.3d —-  (decided May 12, 2011), the Arkansas Supreme Court held that a circuit court improperly ordered a plaintiff to pay Rule 41(d) costs following the plaintiff’s nonsuit at trial.

Rule 41 of the Arkansas Rules of Civil Procedure grants (with a couple of exceptions) a plaintiff the right to a dismissal of his or her action without prejudice as long as the case has not been dismissed before.

The rule also allows the circuit court to require the dismissing plaintiff to pay costs resulting from the dismissed lawsuit if the plaintiff files suit again on that claim against the same defendant.

Rule 41(d) states:

Costs of Previously Dismissed Action. If a plaintiff who has once dismissed an action, or who has suffered an involuntary dismissal 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. For purposes of this rule, the term “costs” means those items taxable as costs under Rule 54(d)(2).

In Kesai, the plaintiff exercised his right to voluntary dismissal at trial after the jury had already been selected and impaneled. The circuit court granted the requested dismissal but ordered the plaintiff’s attorney to pay the jury and interpreter costs.

On appeal, the Arkansas Supreme Court held that the order for costs was not proper under Rule 41(d) because the plaintiff had not yet filed another action against the same defendant.

The supreme court thus reversed the circuit court’s order imposing trial costs against the plaintiff’s attorney.

Arkansas Judiciary link (pdf).