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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.

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