Mikhail Tsukerman v. Western Community Unit School

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 4, 2020*
Decided March 5, 2020
Before
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19‐3075
MIKHAIL S. TSUKERMAN Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v. No. 16‐3214
WESTERN COMMUNITY UNIT Sue E. Myerscough,
SCHOOL DISTRICT NO. 12 Judge.
Defendant‐Appellee.
ORDER
A year after voluntarily dismissing a discrimination case against his former
employer, Mikhail Tsukerman, a Jewish man in his fifties and a former high school
math teacher, refiled the case. The district court stayed the proceedings until
Tsukerman paid the employer’s expenses from the former litigation and, when he did
not pay, dismissed the case for want of prosecution. Because the court did not abuse its
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19‐3075 Page 2
discretion in imposing costs or dismissing the case when Tsukerman refused to pay, we
affirm the judgment.
Tsukerman’s tenure teaching at Western Community Unit School District lasted
only two years. In his second year, he witnessed two anti‐Semitic incidents. Someone
carved swastikas onto the walls of his classroom, and months later a student gave a
Nazi salute in his class. Western suspended the student who saluted but never caught
the other offender. At the end of the school year, Western did not renew Tsukerman’s
contract, citing several poor evaluations for his classroom management and teaching.
Tsukerman sued Western for discrimination based on his age and religion. After
discovery and briefing on Western’s motion for summary judgment, Tsukerman
(through counsel) voluntarily dismissed the case without prejudice under Federal Rule
of Civil Procedure 41(a)(1)(A)(ii). The stipulation for dismissal expressly reserved
Western’s right under Rule 41(d) to recover its costs from the earlier litigation if
Tsukerman refiled the case. Tsukerman’s counsel also told him that, if he refiled the
lawsuit (which counsel advised against), counsel’s firm would not represent him and
the court could stay the proceedings until Tsukerman paid Western’s prior costs.
Less than a year after the dismissal, Tsukerman (now pro se) moved to reopen
the case and amend his complaint. On Western’s motion, the district court stayed the
proceedings until Tsukerman paid Western’s costs from the previous litigation. See FED.
R. CIV. P. 41(d). Tsukerman asked the court to “waive” payment because he is indigent,
but the court denied his request. After three months without payment, the court
ordered Tsukerman to explain why the case should not be dismissed for want of
prosecution. He responded by reiterating the merits of his claims and underscoring his
“willingness, readiness and ability to prosecute this case … once the unjust and
oppressive obstacle in the form of … $3524 is removed.” Concluding that Tsukerman
was unwilling to pay and that nothing justified reconsidering the stay, the district court
dismissed the case with prejudice for want of prosecution. FED. R. CIV. P. 41(b).
On appeal, Tsukerman argues that the district court was wrong to dismiss his
case for want of prosecution because he is indigent and cannot afford to cover
Western’s expenses from the prior litigation. According to Tsukerman, courts should
have to consider a plaintiff’s ability to pay, along with the other factors (including their
good faith and the merits of the claim) listed in Hummel v. S.E. Rykoff, 634 F.2d 446, 453
(9th Cir. 1980), when considering whether to require payment of costs under Rule 41(d).
And Tsukerman insists that, under those factors, the district court abused its discretion
No. 19‐3075 Page 3
in ordering costs here because he is indigent, he brings the action in good faith, and his
attorney dismissed the case without Tsukerman’s permission.
Tsukerman is incorrect. We have held that “courts can bar future suits as a
sanction to … pay past court costs … even if the litigant is indigent.” Gay v. Chandra,
682 F.3d 590, 594 (7th Cir. 2012). Rule 41 specifically empowers courts to “stay the
proceedings” of the new suit until the plaintiff pays the past court costs whenever a
plaintiff who previously dismissed an action files another “based on or including the
same claim against the same defendants.” Thus, as we concluded in a case involving
costs under this rule, a plaintiff’s “inability to pay … does not allow him to side‐step the
dictates of Rule 41.” Esposito v. Piatrowski, 223 F.3d 497, 502 (7th Cir. 2000).
It follows that the district court did not abuse its discretion in dismissing this
case for failure to pay costs. Tsukerman knew that the court would likely order costs as
a condition of refiling because his counsel warned him so, and Western expressly
reserved its rights under Rule 41(d) to demand costs. Furthermore, when the court gave
him a chance to explain why it should not dismiss the case based on his failure to pay,
Tsukerman told the court that he would prosecute the case only if the court lifted the
requirement to pay costs. That signaled to the court that he had no intent to comply
with the order, even though, as we have just explained, the order was valid despite his
indigency. See FED. R. CIV. P. 41(b) (dismissal is proper when plaintiff fails to comply
with an order); Esposito, 223 F.3d at 499, 501–02 (dismissal for want of prosecution when
plaintiff did not pay Rule 41(d) costs).
Accordingly, the judgement of the district court is AFFIRMED.