 Constitution Day, originally known as “Citizen Day”, has been celebrated since 1940 to recognize all those who have become citizens of the United States, and to commemorate the signing of a document which has been described as so “sufficiently rational and coherent to be regarded almost as the product of a single wise mind or legislator.” The Federalist, No. 78 p. 466; 36 U.S.C. § 106. The incredible four page document is the fundamental law that has held our Country together for more than 200 years. In recognition of this Holiday we wanted to share our favorite Constitutional provisions.
“My favorite clause of the United States Constitution is the Ex Post Facto clauses contained in Articles 9 and 10. The Ex Post Facto Clause, in part, prohibits the state and federal governments from criminally punishing conduct that was lawful when committed. Imagine finding yourself charged with a misdemeanor or felony for something you did in the past that, when committed, was totally legal. It would be wildly unfair to later punish you for those acts. Without the Ex Post Facto Clause, the risk of being criminally punished for acts that later become unlawful would create severe distrust in our criminal justice and legal systems.” - Stephanie “The 1st Amendment of the Constitution is the one I like more because it guarantees the rights of religion, free speech, and the press. It means that a citizen has the right to speak out against the government if they don't like what it is doing and they cannot be arrested for it. You also have the right to choose your own religion or none at all. And the press has the right to print what they want without fear of government interference. Compare this to countries like Russia where they used to throw people in prison for speaking out against the government, or Venezuela and even my home country of Bolivia, where the government has seized and taken over television and radio stations because they were reporting against the government, or many countries in the Middle East where you can be thrown in prison or even killed for being a Christian.” – Shirley “The Equal Protection Clause under the 14th Amendment of the U.S. Constitution is my favorite clause. This Clause is very important because it ensures that similarly situated individuals will be treated equally in regards to qualifications and access to rights and privileges regardless of their race, religion, national origin, alienage, gender, or legitimacy. In other words, this clause helps to ensure that everyone is treated fairly. This is important because it means that individuals will be judged and treated according to their actions and what they bring to the table rather than by where they came from, what religion they practice, or what gender they are.” - Brittny “The 10th and often overlooked Amendment to the Constitution reserves the rights not expressly given to the Federal in the Constitution to the States and to the People. It is an express reminder of the faith our Founding Fathers had in the ability of the People to solve the majority of problems on their own without government interference.” – Corey “Article 5 of US Constitution allowing for amendments is one of my favorite Articles in that it shows the foresight the Drafters of the US Constitution. By establishing a dynamic rule of law as opposed to a static establishment of order the Drafters gave the Constitution the ability to grow with our great country. While I firmly believe in the principles and guidance that our Founders observed in establishing One Nation under God, it is truly amazing that in 1789 the constructors of this concise body of law and order realized that as time passed and our Country aged, so too would its people and culture. Our generation has seen social and technological revolutions that only our Constitution could support. The ability to amend the Constitution while preserving the separation of powers so that a truly democratic government remains in tact is fascinating.” - Burton For more information on Constitutional Law contact Parton & Associates, PLLC.
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The North Carolina Rules of Civil Procedure Rule 41 permits a Plaintiff on his or her own account to dismiss a previously filed action at any time before resting their case. This permits the Plaintiff to take a second bite at the apple, so to speak, and re-file the same action a second time so long as its done within one year or, as case law points out, before the end of the original statute of limitations.
Rule 41 uses ambiguous language as to the time allotted for the Plaintiff to re-file the case: “If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal (…)” N.C. Gen. Stat. § 1A-1, Rule 41(a)(1). This language makes it sound like a Plaintiff can only re-file the action within one year of the dismissal, but case law provides otherwise. In Guyton v. FM Lending Servs., the Plaintiff voluntarily dismissed an action filed against the Defendant. This cause of action contained a three-year statute of limitations. More than a year later, Plaintiff brought the same action once again against the Defendant. The Trial Court dismissed the Plaintiff’s action because it was filed outside of the one year window under Rule 41. In reversing the Trial Court’s decision, the Court of Appeals explained that Rule 41 was implemented to extend the time to file one year from the date of the voluntary dismissal; however, Rule 41 is not to be used as a tool to shorten the Plaintiff’s time to re-file. Guyton v. FM Lending Servs., 199 N.C. App. 30 (2009). A Plaintiff will always have a right to re-file the action within the statute of limitations. Guyton, 199 N.C. App. 34. The Rule 41 one-year provision is a tool to give a Plaintiff with an expired statute of limitations an additional year to re-file the claim. Id. In other words, a Plaintiff who voluntarily dismisses a claim can re-file that claim within the statute of limitations of that claim or one year of the voluntary dismissal. Id. Rule 41 is a wonderful tool a Plaintiff can use to his or her advantage but its not without limitations. Under Rule 41 “a notice of dismissal operates as an adjudication upon the merits when filed by a Plaintiff who has once dismissed in any court of this or any other state or of the United States, an action based on or including the same claim.” N.C. Gen. Stat. § 1A-1, Rule 41(a)(1). In other words, the Plaintiff only gets one extra bite at the apple. A Plaintiff who tries to voluntarily dismiss a claim a second time will be barred from ever bringing the same claim again, even if the original statute of limitations has not yet expired on that action. Plaintiffs should also be careful when using a Voluntary Dismissal, since Courts are authorized to tax the costs incurred against the “voluntary dismisser”. For more information on how lawyers can use the North Carolina Rules of Civil Procedure to benefit their clients, contact Parton & Associates, PLLC. Written by Brittny M. Kaltenbach, Associate (NC License Pending) |
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DISCLAIMER:
Inclusion in laudatory organizations is not intended to represent that a particular result can be guaranteed or expected in your case. Each case is unique and must be evaluated separately. Membership standards are available and can be obtained by visiting each organization's individual website. |