ORDER

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
AWARE WOMAN V RANEY
DOCKET / CHRONOLOGICAL FILE
ORDER

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
Case No. 99-5-CIV-ORL-18C

AWARE. WOMAN CENTER FOR CHOICE, INC., et al.,
Plaintiffs,
v.
MEREDITH T. RANEY, JR., et al.,
Defendants.

ORDER

On September 1, 1999 this Court, invoking Local Rule 3.10, dismissed without prejudice all of the plaintiffs' claims because the plaintiffs failed to prosecute their case. Defendant Mark Hall, who mounted a vigorous defense to the plaintiffs' claims, now asks the Court to modify its September 1 order to provide (l) that the plaintiffs' claims against Mr. Hall are dismissed with prejudice, or (2) that the plaintiffs' claims against Mr. Hall are dismissed without prejudice but that Mr. Hall may recover reasonable costs; and attorneys' fees. The plaintiffs failed to respond to this motion. After reviewing Mr. Hall's motion and the applicable law, the Court concludes that Mr. Hall should be allowed to recover reasonable litigation costs and attorneys' fees.

Although Local Rule 3.10, which authorizes dismissal of an action for failure to prosecute, does not provide for the recovery of costs and attorneys' fees, districts courts have the inherent power to impose sanctions such as costs and attorneys' fees when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. See Chambers v. NASCO, Inc., 501 U.S. 32, 44-46 (1991). In considering whether to grant an award of costs and attorneys' fees, a Court should consider the interests of both the plaintiff and the defendant. See Read Corp. v. Bibco Equip. Co., 145 F.R.D. 288,290 (D.N.H. 1993). An award of costs and attorneys' fees is appropriate where necessary to protect a defendant. See Puerto Rico Maritime Shipping Auth. v. Leith, 668 F.2d 46, 51(1st Cir. 1981)

Here, the Court declines to dismiss the plaintiffs' action with prejudice because dismissal with prejudice is a harsh remedy that should only be granted where there exists substantial prejudice. See Read Corp., 145 F.R.D. at 290. At the same time, the Court finds that the plaintiffs' failure to prosecute this case, as outlined in this Court's September 1, 1999 order, imposed a significant cost upon Mr. Hall and constitutes vexatious conduct sufficient to warrant an award of costs and attorneys' fees for Mr. Hail.

Accordingly, the Court GRANTS Mr. Hall's motion (doc. 62) for reconsideration of this Court's September l, 1999 order. Furthermore, the Court AMENDS its September 1, 1999 order (doc. 61) to include that the plaintiffs pay to Mr. Hall reasonable costs and attorneys' fees. Mr. Hall may file a motion to assess costs and attorneys' fees, which the Court will refer to a magistrate, to determine the precise amount of costs and attorneys' fees owed by the plaintiffs to Mr. Hall.

It is SO ORDERED in Orlando, Florida this 21 day of October, 1999.

G. KENDALL SHARP <signed>
United States District Judge