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Law Blogs

Civil Voluntary Dismissals

9/7/2016

1 Comment

 
​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)
1 Comment
Karen Hartley link
5/15/2022 06:32:54 pm

If a case is dismissed and refiled within the year with similar claims plus additional ones.
It survives a motion to dismiss,
It survives summary judgement
You are forced to hire a new attorney mid game. You hire him to argue the claims that remain. He wants to drop 3 claims to the point he is obsessed with them. you know it will harm your case. You refuse to agree. The day you pay a 25k retainer he files a notice of appearance AND voluntarily drops the 3 claims you told him NOT to. He does not tell you he did this and tries to hide it. You find out the day it is clocked into the record.
You ask him why he did this against your will and without your consent. You ask him to reverse and fix it. He ignores and refuses. The first hearing 4 weeks in he says he has gone through he 25 k and I will need to pay him 25,000 more for him to continue to represent me. At the hearing he put the nail in the coffin and lost every motion he made. He intentionally sabotaged the case. There is corruption in this case and he was part of it, working for the other side NOT me. Ironically the conspiracy claim is what he was so desperate to drop.
Is there a way I can reinstate this a second time sine my attorney was corrupt and did it when I did not agree or give approval? Is there a clerical error rule or corrupt attorney rule?
It looks like I may have to pay attorney fees since it was voluntarily dismissed. This frustrates me to no end. How do I fix this?? It is a small county, the defendants attorney is very connected and has a reputation for making cases "go away"
I have been very vocal concerning my displeasure at him dismissing the SAME day he gets in the case after we had a heated debate a day before where he failed to convince me it was a good idea. But did it anyway.
This sounds crazy but he was never MY attorney.
Need some help.

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  • Home
  • Practice Areas
    • Litigation >
      • Administrative Agency Contests
      • Animal Law
      • Attorney-Client Privilege
      • Business & Contractual Disputes >
        • Avoiding Litigation
        • Strategic Use of Statutory Liens
      • Construction Litigation
      • Corporate Shareholder Rights Litigation
      • Defamation, Libel & Slander
      • Owners’ Association Disputes
    • Volunteer Services & Pro-Bono Work
    • Referrals
  • Testimonials
  • Contact
    • English
  • Legal Team
    • Corey V. Parton
    • Walton H. Walker III
    • Traci Fleury
    • S. Sunny Britt
    • Brittany McEachern
  • RESULTS
  • In The News
  • Law Blogs
  • Client Resources
    • Helpful Links for Clients
    • Military & First Responder Appreciation Program
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