Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

August 8, 2006

Here's an interesting chain of events:  the defendants file motions for summary judgment, the court issues an order granting them, faxing the order to all the parties.  The next day, the plaintiff voluntarily dismisses the action; a few hours later, the court's order granting the summary judgment is journalized.  What happens?

Well, according to our court's decision last week in Witt v. Lamson, the summary judgment is no more.  Actually, this was pretty much of a no-brainer; as Judge Gallagher points out in his opinion, Rule 41(A) and the case law gives the plaintiff an unfettered right to dismiss the case any time prior to trial or judgment.  The opinion notes the plaintiffs' actions "violate a sense of fair play," and that the rule is "open to unfair and abusive use," citing Justice Stratton's dissent in an Ohio Supreme Court case earlier this year that I discussed here.

It may be that the concerns the court cites are unfounded.  After all, if the plaintiffs refile, under our court's rules, the case will be reassigned to the same judge who granted summary judgment.  Unless the plaintiffs use the intervening time to come up with something they didn't have before, the result is going to be the same the next time around.  Short of an unusual situation, for example, if the judge who granted the motion was going to be retiring, or had been defeated for re-election, it's hard to see how the plaintiff is going to benefit from this tactic.

Still, the contention that allowing the plaintiff to dismiss at any time up to the day of trial creates a potential for abuse is hardly a novel one; other courts have made the same point, and the Supreme Court in the recent case mentioned above referred the question of revising the rule to its Commission on the Rules of Practice and Procedure. 

I think within the next few years you're going to see a modification of the rule, more in line with Federal practice.  There, the plaintiff can dismiss unilaterally only prior to an answer or motion for summary judgment being filed.  After that, the plaintiff needs either a stipulation by the parties, or an order of court "upon such terms and conditions as the court deems proper."  Those "terms and conditions," of course, can include payment of the defendants' attorney fees. 

It's going to happen.  You heard it here first.

Search

Recent Entries

  • April 26, 2017
    MIA
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech