 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
SMITH v. WASHINGTON2/24/2000
state court complaint triggered the two-dismissal rule, rendering her voluntary dismissal of her first state court action an adjudication on the merits, and dismissed appellant's complaint in her second state action with prejudice. Appellant brings this appeal of that decision, raising two points on appeal: that the stipulation of dismissal entered into by both parties in federal court did not constitute a dismissal by the plaintiff for purposes of the two-dismissal rule under Rule 41(a)(2); and, that appellant's federal action against appellee for violations of her civil rights under § 1983 and her state cause of action for medical negligence were not actions based upon or including the same claim for purposes of the two-dismissal rule.
The first issue presented by this appeal is the question whether a stipulation of dismissal executed by both the plaintiff and the defendant in a federal lawsuit, pursuant to Fed.R.Civ.P. 41(a)(1)(ii), should be treated as a dismissal by the plaintiff for purposes of applying the "adjudication on the merits" provision of the two-dismissal rule of Ark.R.Civ.P. 41(a)(2). The two dismissal rule of Ark.R.Civ.P. 41(a)(2) provides that a voluntary dismissal under Rule 41(a)(1):
operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice.
Id. Here, the first dismissal stems from the parties' filing of a "stipulation of dismissal signed by all the parties who have appeared in the action," pursuant to Fed.R.Civ.P. 41(a)(1)(ii), and our analysis turns to whether the stipulation of dismissal in federal court
is a dismissal by the plaintiff for the purposes of triggering Arkansas's two-dismissal rule.
We recognize that the basic purpose behind the Rules of Civil Procedure is "to administer justice through fair trials, not through summary dismissals as necessary as they may be on occasion." Surowitz v. Hilton Hotels Corp., 383 U.S. 363 (1966). The two-dismissal rule is generally considered to be in derogation of a plaintiff's previously existing right to voluntarily dismiss an action and to initiate a new action based on the same cause of action. Kuhn v. Williamson, 122 F.R.D. 192 (E.D.N.C. 1988). The primary purpose of the two-dismissal rule is to prevent unreasonable use of the plaintiff's unilateral rights to dismiss an action prior to the filing of the defendant's responsive pleading, and it is an exception to the general principle that a voluntary dismissal of an action does not bar a new suit based upon the same claim. See e.g. Sutton Place Dev. Co. v. Abacus Mortgage Inv. Co., 826 F.2d 637 (7th Cir. 1987); Poloron Products, Inc. v. Lybrand Ross Bros. & Montgomery, 534 F.2d 1012 (2d. Cir. 1975). The two-dismissal rule was unique at the time it was first adopted, and its intention was to prevent delays and harassment by plaintiffs securing numerous dismissals without prejudice. 9 Wright and Miller, Federal Practice and Procedure Civ. § 2368 (2d. ed. 1995). But where the purpose behind the two-dismissal exception would not appear to be served by its literal application, and where that application's effect would be to close the courthouse doors to an otherwise proper litigant, a court should be most careful not to construe or apply the exception too broadly. Poloron, supra.
Under the facts of this case, we are presented the question whether dismissal by stipulation is a voluntary or unilateral action by the plaintiff as required by our rule to trigger the two-dismissal rule. We find instructive the inte
Page 1 2 3 4 Arkansas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|