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)
The law applies differently in each situation. Nothing on this page should be construed as or be relied upon as legal advice.