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Second (and third) chances

Short note today.  One of the problems of coming back from vacation is all the stuff that awaits your return.  Then again, I remember talking to a lawyer several years ago, who told me that what he does when he's on vacation is have his secretary email or fax his work to him every day.  That way, he tells me, he doesn't have to worry about catching up when he gets back.  Well, yeah, I guess if you work when you're on vacation you don't have to work extra hard when you get back from vacation, but that pretty much defeats the purpose of going on vacation, don't you think?

Then again, I probably would have a better chance of catching up on my work if I didn't do things like spend a half hour yesterday afternoon watching the videotape of the oral argument in the Ohio Supreme Court that morning in the appeal from the 8th District's decision in Olynyk v. AndrishThe plaintiff initially sued the Cleveland Clinic and several employees as John Doe defendants.  The case was dismissed by the court at the plaintiff's request under Rule 41(A)(2).  Plaintiff refiled, and then filed a notice of dismissal under 41(A)(1)(a).  When the plaintiff filed a third time, the court dismissed it, saying that previous dismissal was with prejudice because it was the second time plaintiff had dismissed.

As most civil lawyers know, there are three ways for a plaintiff to dismiss a case:  by filing a notice of dismissal under 41(A)(1)(a), by filing a stipulation of dismissal, signed by all the parties, under 41(A)(1)(b), or by order of court under 41(A)(2).  The effect of a dismissal under 41(A) is specified at the end of that paragraph:

Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits of any claim that the plaintiff has once dismissed in any court.

The question presented is a pretty simple one:  does the "double dismissal rule" -- the second being a dismissal with prejudice -- apply only if the defendant has filed two notices of dismissal under 41(A)(1)(a), or does it apply if the first dismissal was through one of the other two mechanisms, stipulation or court order?  (Obviously, if the second dismissal was by either of those two methods, it wouldn't prevent the plaintiff from refiling:  the rule clearly provides that only a notice of dismissal operates as an adjudication on the merits.)  The 8th District held that both dismissals had to be notice dismissals for the plaintiff to be precluded from refiling, and just about every other court which has examined the situation has agreed; in fact, the only dissenting view is dicta in a 5th District case from three years ago.

Other than that, though, the court didn't engage in much analysis, and from a policy standpoint there's at least an argument to be made that a second dismissal of a case by notice should preclude a third filing, regardless of how the first dismissal was accomplished.  I've written before of the ways in which the voluntary dismissal rule is abused, and I'm tempted to think that the Supreme Court might use this case as a means of signaling its displeasure with that abuse.  Unfortunately, Olynyk has some other baggage:  as noted, there's a question of whether the first dismissal even applied to Andrish, since he wasn't named specifically in the first lawsuit.  I wouldn't be surprised if the Court ultimately decided that it shouldn't have heard the appeal in the first place. 

One other thing to keep in mind when dismissing cases:  as the 8th District's decision last week in Conway v. RPM, Inc. points out, there's also a "two-dismissal rule" with regard to the savings statute, RC 2305.19.  Under that statute, you can refile within a year after a case has been dismissed otherwise than upon the merits, but you can only use the statute in that fashion once.  In that case, the first filing had been dismissed for want of prosecution. The plaintiff refiled within the one-year period, but ultimately that case was dismissed by stipulation.  Within a year after that, the plaintiff attempted to refile again, but the court of appeals agreed with the trial court that a second attempt to use the savings statute was barred.

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