It appears from the motion that heretofore the above plaintiff had filed a suit against some of the same parties in a state court. The suit was dismissed by him at his costs, but without prejudice.
It is provided by paragraph (d) of Rule 41, Rules of Civil Procedure, 28 U.S.C., that:
“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.”
It will be noticed that this rule applies where another suit is brought “including the same claim against the same defendant.” This action is not brought against the “same defendant” but includes the defendants against whom a suit previously was brought. In opposing the motion counsel for plaintiff details a state of facts which would clearly justify the court in denying the motion. Two grounds are alleged: (a) The misfortune and poverty of the plaintiff, and (b) the fact that he is now a nonresident and there was prejudice against him at the place where the suit was filed. Accordingly, the motion to stay should be and will be denied.