Opinion
Civil Action No. 04-2119 Section: "R" (5).
April 25, 2005
ORDER AND REASONS
The defendant moves the Court for costs and attorney's fees. For the following reasons, the Court DENIES the defendant's motion.
I. BACKGROUND
Charlene Dupree worked at an IHOP franchise restaurant in Baton Rouge, Louisiana (the Baton Rouge IHOP). On August 3, 2004, Dupree sued IHOP for work-related injuries pro se and in forma pauperis. Dupree initially tried to serve process on her employer, the Baton Rouge IHOP. Specifically, Dupree filled out a U.S. Marshal's Form-285 on which she identified the "International House of Pancakes" as the defendant and provided the address of the Baton Rouge IHOP as the address for service of process. ( See R., Form USM-285, September 13, 2004.) She requested the marshal to serve the Baton Rouge IHOP through "Teo Regalado." The marshal was unable to serve process on Regalado at the Baton Rouge IHOP. ( Id.) The marshal wrote on the form that the "person to be served — Teo Regaldo [ sic] — is located at: Int. House of Pancakes, 8685 Memorial Blvd., Port Arthur, TX." ( Id.)
Dupree then completed another Form-285, and she requested that the marshals serve it on the "International House of Pancakes," again through Teo Regalado. Dupree provided 8685 Memorial Boulevard, Port Arthur, Texas (the Port Arthur IHOP) as the address for service of process on the form. ( See R., Form USM-285, September 13, 2004.) Dupree included the address of the Baton Rouge IHOP in the "Special Instructions" portion of the second Form-285. The marshal served the Port Arthur IHOP through certified mail.
The Port Arthur IHOP that the marshal served is different from the Baton Rouge IHOP, and it is not Dupree's employer. (Def.'s Mot. Dismiss, Aff. of Regalado at ¶ 4.) As the Court noted in its January 3, 2005 Order and Reasons, contrary to Dupree's apparent intent, she served the wrong IHOP. The Port Arthur IHOP moved the Court to dismiss the action for lack of personal jurisdiction. On January 3, 2005, the Court granted the motion and dismissed the action without prejudice. The Port Arthur IHOP now moves the Court to award it $8,843.60 in costs and attorneys' fees under Federal Rule of Civil Procedure 54.
II. DISCUSSION
A. Costs
Rule 54(d)(1) provides that the Court may award costs other than attorneys' fees to the prevailing party. There is a presumption in favor of the award of costs to the prevailing party. Sheets v. Yamaha Motors Corp., U.S.A., 891 F.2d 533, 539 (5th Cir. 1990). The Court, however, may exercise its discretion to deny an award of costs. Id.
At the outset, the Court notes that it is not entirely clear that Port Arthur was the "prevailing party" for the purposes of Rule 54(d). The Fifth Circuit has yet to decide whether a defendant is a prevailing party when the district court dismisses the case against him without prejudice. See Herman v. Pronto Courier Serv., NO. 3-95-CV-1340-R, 1999 WL 325493, at *1 (N.D. Tex. May 10, 1999) (noting same). Furthermore, other courts have held that when the district court dismisses the case on purely procedural grounds, such as lack of personal jurisdiction, the defendant is not a prevailing party for the purposes of Rule 54. See id. (collecting cases). Therefore it is not clear that Port Arthur is a prevailing party within the meaning of Rule 54 such that it is entitled to costs.
Even if Port Arthur is the prevailing party in the action, however, the Court declines to exercise its discretion to award costs under Rule 54. Significantly, the plaintiff proceeded pro se and in forma pauperis. Under these circumstances, the Court finds that the imposition of costs is unwarranted. See Chambers v. Cockrell, NO. CIV. A. 3:99CV1283-L, 2003 WL 22017036, at *29 (N.D. Tex. Aug. 26, 2003) (declining to award costs to the defendant because the plaintiff was pro se and proceeded in forma pauperis); Brown v. Belton, NO. CIV. A. 3:01-CV-1823, 2003 WL 21517357, at * 7 (N.D. Tex. Apr. 11, 2003) (same); Mixon v. Park Place Motors, NO. CIV. A. 3:02-CV-0800, 2002 WL 32705288, at *1 (N.D. Tex. Oct. 11, 2002) (same); Story v. Dallas County, NO. CIV. A. 3:00-CV-2345, 2002 WL 1782303, at *4 (N.D. Tex. July 31, 2002) (same). Accordingly, the Court rules that each party shall bear its own costs.
B. Attorneys' Fees
Rule 54(d)(2) further provides that parties may request and award of attorneys' fees by motion. Under the American Rule, however, parties are not entitled to attorneys' fees as a matter of course. Tachon Mech. Contractors, Inc. v. Aetna Cas. and Surety Co., 65 F.3d 486, 489 (5th Cir. 1995). Instead, parties are entitled to attorneys' fees only when a specific statute or contractual provision provides for them or when the opposing party has acted vexatiously or in bad faith. See id.; McCoy v. Orleans Parish Sch. Bd., NO. CIV. A. 02-2510, 2004 WL 2496218, at *3 (E.D. La. Nov. 4, 2004).
Port Arthur contends that it is entitled to attorneys' fees because Dupree acted vexatiously and in bad faith. The Court finds that Port Arthur's argument is without merit. Dupree attempted to effect service of process on the Baton Rouge IHOP. As noted supra, contrary to Dupree's intentions, she served the Port Arthur IHOP instead. Ultimately, the Court does not find that Dupree's actions in this matter are vexatious or in bad faith such that Port Arthur is entitled to attorneys' fees. Accordingly, the Court denies Port Arthur's motion as to attorneys' fees.
III. CONCLUSION
For the foregoing reasons, the Court DENIES Port Arthur's motion.