KATHLEEN M. TAFOYA, Magistrate Judge.
This matter is before the court on "Defendant DISH Network L.L.C.'s Motion for Costs and to Stay the Proceedings." (Doc. No. 10, filed Feb. 25, 2013.) Plaintiff filed her Response on March 18, 2013 (Doc. No. 13) and Defendant DISH Network L.L.C. ("DISH") filed a Reply on April 11, 2013 (Doc. No. 21). For the following reasons, DISH's Motion is DENIED.
DISH's Motion, filed pursuant to Federal Rule of Civil Procedure 41(d), seeks an assessment of costs, including reasonable attorney's fees, against Plaintiff and for a stay of these proceedings until it receives payment of these costs. DISH asserts that this assessment of costs and fees is appropriate because Plaintiff previously dismissed an action in another federal court that included the same claims. According to DISH,
Plaintiff filed the present action on January 25, 2013. (See Compl., Doc. No. 1.) Plaintiff asserts two claims for violations of the TCPA on behalf of herself and a class of others similarly situated. (Id.) DISH maintains that Plaintiff's claims under the TCPA in this action are based upon the same telephone calls that gave rise to her claims in the Florida Action.
Fed. R. Civ. P. 41(d). "To obtain an award of fees and costs, `the moving party need only establish that: (1) a plaintiff's previous action was dismissed; (2) a second action was commenced that is based upon or includes the same claim against the same defendant; and (3) there are costs and attorneys' fees incurred by the defendant in the prior action that will not be useful in the newly-filed action.'" Warnick v. Dish Network LLC, 12-cv-01952-WYD-MEH, 2013 WL 1151884, at *6 (D. Colo. Mar. 19, 2013) (quoting Siepel v. Bank of America, N.A., 239 F.R.D. 558, 563 (E.D. Mo. 2006)). However, the decision whether to impose costs and fees under Rule 41(d) is in the discretion of the court. Id. (citing Meredith v. Stovall, 216 F.3d 1087, 2000 WL 807355, at *1 (10th Cir. 2000) (unpublished table opinion)). "The purpose of the rule is to prevent the maintenance of vexatious lawsuits and to secure, where such suits are shown to have been brought repetitively, payment of costs for prior instances of such vexatious conduct." Oteng v. Golden Star Resources, Ltd., 615 F.Supp.2d 1228, 1240 (D. Colo. 2009) (quoting Meredith, 2000 WL 807355, at *1). "No showing of bad faith is required before costs may be imposed on the plaintiff under Rule 41(d), but the plaintiff's motive in dismissing the prior action may be taken into account." Id. (citing Wason Ranch Corp. v. Hecla Mining Co., 07-cv-00267-EWN-MEH, 2008 WL 906110, at *17 (D. Colo. Mar. 31, 2008)).
In this case, the court exercises its discretion and declines to assess costs against Plaintiff. As a threshold matter, although DISH has not submitted any authority to that effect, the court assumes, without deciding, that Plaintiff's current class action claims for violations of the TCPA are "based upon" the TCPA claims she brought solely on her own behalf in the Florida Action. Nevertheless, the court finds that Plaintiff has shown that this suit and the prior suit were not filed vexatiously. Plaintiff asserts that she dismissed the Florida Action and re-filed suit here because, during the Florida Action, she came to believe that the DISH policies and practices giving rise to her individual claims were systematic, and that therefore the same practices also may have affected other consumers. Plaintiff therefore dismissed the Florida Action in order to investigate the possibility of re-filing her claims as part of a class action so as to seek nationwide redress for DISH consumers.
Further, the court finds that Plaintiff's decision to file her action in this court was not tantamount to forum shopping. Because DISH is headquartered in Colorado, this District constitutes a proper and convenient venue choice for this action. See 28 U.S.C. 1391(b) ("A civil action may be brought in—(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located. . . .").
Notably, and correctly, DISH does not seek to recoup its costs and fees associated with defending Plaintiff's TCPA claims in the Florida Action. See Warnick, 2013 WL 1151884, at *6 (fees and costs from prior action that will be useful in second action cannot be recouped). Instead, DISH seeks only its costs relating to defending the FCCPA claims. However, it was reasonable for Plaintiff to abandon those claims. Because Plaintiff's Complaint seeks relief on behalf of class members nationwide, asserting claims under state law could undercut the likelihood of obtaining class certification. See Fed. R. Civ. P. 23(a)(2), (b)(3) (class action certification requires that there be questions of law or fact common to the class and that the court find those questions predominate over any questions affecting only individual members).
Altogether, the court finds that Plaintiff did not act vexatiously by dismissing the Florida Action and filing the present action in this District.
Accordingly, it is
ORDERED that "Defendant Dish Network L.L.C.'s Motion for Costs and to Stay the Proceedings" (Doc. No. 10) is DENIED.