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May 23, 2006

A reminder by the court in Olynyk v. Andrish that you can voluntarily dismiss a case more than once, if you're careful.  Rule 41(A) actually provides three means of dismissing your case:  by simple notice by the plaintiff, under 41(A)(1)(a), by stipulation of the parties, under 41(A)(1)(b), or by order of court, under 41(A)(2).  Without getting into the procedural history in Olynyk, which is as confusing as the DHARMA Initiative's orientation film on Lost, the plaintiff had requested the court to dismiss the case once, and then later filed a notice dismissal.  The trial court entered an order treating this as a dismissal with prejudice.  Judge Gallagher's opinion in Olynyk contains a thorough review of Ohio law showing that the "double dismissal" rule applies only to notice dismissals under 41(A)(1)(a).  Judge McMonagle, in her concurring opinion, also notes correctly that the trial court had no authority to enter its order after the dismissal; once the notice of dismissal is filed, the trial court loses jurisdiction.

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