Dean v. Brubaker

12 F.R.D. 388

• Court: District Court, W.D. Missouri
• Decided: April 22, 1952
• Docket: No. 7461
• Status: Published

Opinion

REEVES, Chief Judge.

It appears from the above motion that the plaintiff had filed an identical suit in a state court, said cause being numbered 538.999 and styled as here. It is alleged that the suit was dismissed by the plaintiff on March 26, 1952 and the present action was instituted on March 28, 1952. No opposition to the averments of this motion has been made and its. averments must be taken as true.

Missouri Statute, section 514.180 RSMo 1949, V.A.M.S., provides for compulsion in the matter of unpaid costs in a former suit when an identical suit has been filed. The Federal Rules' of Civil Procedure, Rule 41(d), 28 U.S.C.A., contains an almost identical provision, as follows:

“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.”

This rule is followed and enforced by the courts. See Compania Maritima Transoceanica, S. A., v. Stevenson, D.C., 11 F.R.D. 210.

In view of the above it should be ordered that plaintiff pay the costs accrued in the state court and that this action shall be stayed until such payment has been made.