§41.6 Analysis

• Jurisdiction: Washington

§41.6ANALYSIS

This section discusses the circumstances in which actions may be dismissed, voluntarily or involuntarily, and with or without prejudice.

(1)Voluntary dismissal—in general

CR 41(a) sets forth the criteria and limits for voluntary dismissals. A voluntary dismissal under CR 41(a)(1) cannot be obtained if a defendant has pleaded a counterclaim prior to service of the motion for dismissal unless the counterclaim remains pendingfor independent adjudication by the court or unless the parties stipulate to dismissal. CR 41(a)(1) (A), (c). A voluntary dismissal is without prejudice unless otherwise stated in the order of dismissal or unless the plaintiff has once before dismissed an action based on or including the same claim in any court in the United States or of any state, in which event the adjudication will be determined to have been upon the merits. CR 41(a)(4).

(a)Dismissal as a matter of right

Pursuant to CR 41(a)(1)(A), parties have the ability to obtain a mandatory voluntary dismissal by stipulation. This provision is the mechanism most often used to dismiss cases following settlement.

Unless the plaintiff previously has dismissed a similar action, CR 41(a)(1)(B) provides a plaintiff the right to obtain a mandatory voluntary dismissal (sometimes called a nonsuit), without prejudice, at any time before the plaintiff rests at the conclusion of plaintiff's opening case, except when a counterclaim exists. The court has no discretion in granting a voluntary dismissal at any time before the plaintiff rests at the conclusion of plaintiff's opening case. Polello v. Knapp, 68 Wn.App. 809, 847 P.2d 20 (1993); Seattle-First Nat'l Bank v. WestwoodLumber, Inc., 59 Wn.App. 344, 796 P.2d 790 (1990), review denied, 116 Wn.2d 1003 (1991); King Cnty. Council v. King Cnty. Pers. Bd.,43 Wn. App. 317,716P.2d322 (1986). Aplaintiff's right to voluntary dismissal without court discretion has been a useful procedural device to avoid unfavorable developments in a pending action or to avoid time and expense on a tenuous claim. However, in case a plaintiff later refiles an action that is based on the same claims against the same defendant that has once been dismissed, a court has the discretion to order plaintiff to pay the defendant's taxable costs from the previously dismissed action. CR 41(d).

Applying "standard rules of statutory construction," Division I has held that the "plain language" of CR 41(a)(1)(B) requires dismissal upon the plaintiff's motion notwithstanding the trial court's previous denial of the plaintiff's motion for a preliminary injunction. League of Women Voters of Wash. v. King Cnty. Records, Elections & Licensing Servs. Div., 133 Wn.App. 374, 379, 135P.3d985 (2006). Rejecting the defendants' argument that the preliminary injunction hearing was essentially a "mini-trial," the court noted that RCW 4.56.120 deals with the same subject matter and allows a voluntary nonsuit at times other than the conclusion of the plaintiff's "opening case"—but alwaysat a point during trial (not before). To harmonize the statute with the rule, the court held that CR 41(a)(1)(B) must be interpreted to allow the plaintiff's voluntary nonsuit at any time up to the conclusion of its opening case at trial. Id.

Caveat: In Hubbard v. Scroggin, 68 Wn.App. 883, 846 P.2d 580 review denied, 122 Wn.2d 1004 (1993), the court held that an oral ruling granting a voluntary dismissal of a party is not final until it is reduced to writing and entered into the record.

The posture of the case, which is measured at the precise time the motion is made, determines the plaintiff's right to a mandatory voluntary dismissal. Once the motion is made, the rights of the plaintiff, if any, become fixed. Paulson v. Wahl, 10 Wn.App. 53, 57, 516 P.2d 514 (1973). A plaintiff's filing of a summary judgment motion, however, curtails the plaintiff's right to obtain a mandatory voluntary dismissal. Id. at 57. The filing and scheduling of a defense motion for summary judgment does not constitute the submission of the motion to the court for decision, however, when a hearing has not been held and the court has not otherwise exercised its discretion in the matter. Id. In Greenlaw v. Renn, 64 Wn.App. 499, 824 P.2d 1263 (1992), the Court of Appeals stated that it is error for a trial court not to grant a voluntary dismissal pursuant to CR 41(a)(1)(B) as long as the motion for voluntary dismissal is filed prior to the hearing on a summary judgment motion. This court further held that the motion may be filed at any time before the plaintiff rests and may be invoked without substantial notice. This holding is contrary to earlier cases that required appropriate and timely notice of the motion for voluntary dismissal. E.g., McKay v. McKay, 47 Wn.2d 301, 287 P.2d 330 (1955). The 1967 adoption of CR 41 changed the common-law requirement of appropriate and timely notice of dismissal to preserve the plaintiff's absolute right to voluntarily dismiss an action.

Caveat: The holding in Paulson, 10 Wn.App. 53, is inconsistent with the result mandated under FED. R. CIV. P. 41(a)(1), which precludes voluntary dismissal after service of a summary judgment motion.

CR41(a) does not preclude a plaintiff from obtaining a voluntary nonsuit against one defendant in multidefendant actions. In Seattle-First National Bank, 59 Wn.App. 344, the court considered whether CR 41(a) gives a plaintiff the right to obtain a voluntary nonsuit as to one of multiple named defendants regardless of the status of the caseagainst codefendants. The court determined that because the claims against each of the defendants were essentially separate for trial purposes, the plaintiff did not waive its right to a voluntary dismissal as to a codefendant under CR 41(a)(1)(B). This conclusion was affirmed even though the plaintiff's motion for dismissal was not brought until after the conclusion of its opening case against a codefendant.

Following a voluntary dismissal of an action under CR 41(a) (1), a trial court may retain jurisdiction for the limited purpose of considering a defendant's motion for attorney fees pursuant to a statute or a contractual provision. Hawk v. Branjes, 97 Wn.App. 776, 986 P.2d 841 (1999).

(b)Dismissal in the discretion of the court

CR 41(a)(2) authorizes the plaintiff to move for a voluntary dismissal without prejudice after resting his or her opening case, but requires a showing of "good cause" and provides discretion to the trial court to grant the dismissal "upon such terms and conditions as the court deems proper." Heck v. Kaiser Gypsum Co., 56 Wn.2d 212, 351 P.2d 1035 (1960). Under this section of the rule, the trial court is vested with and charged to use its discretion to consider the possible prejudice to an adverse party of granting the voluntary dismissal and to make the voluntary dismissal conditioned upon terms that are just and reasonable. In McReynolds v. Thaler, 49 Wn.2d 905, 307 P.2d 1060 (1957), the court held that it was error for a trial court to grant a motion for voluntary dismissal without any exercise of judicial discretion and without any showing of good cause after the plaintiff rested its case and the defendants challenged the legal sufficiency of the evidence at the time the motion for voluntary nonsuit was made.

(c)Pendency of counterclaims

A counterclaim brought by a defendant does not necessarily preclude a plaintiff's voluntary dismissal of the action. Rather an action may be dismissed if the counterclaim can remain for independent adjudication. CR 41(a)(3) provides that if a counterclaim has been pleaded by a defendant prior to the service of plaintiff's motion for dismissal, the action cannot be dismissed unless the counterclaim can remain pending for independent adjudication by the court. A counterclaim is "pleaded" for purposes of CR 41(a)(3) when it has been filed and served on the plaintiff. Farmers Ins. Exch. v. Dietz, 121 Wn.App. 97, 103, 87 P.3d 769 (2004).

In In re Marriage of Parker, 78 Wn.App. 405, 897 P.2d 402 (1995), review denied, 128 Wn.2d 1016 (1996), the respondent in a dissolution action admitted that the marriage was irretrievably broken but requested spousal maintenance, child custody, a parenting plan, and an alternative division of property. The petitioner thereafter attempted to obtain a voluntary dismissal without notice to the respondent. The Court of Appeals ruled that the respondent's request for relief amounted to a counterclaim, thereby preventing voluntary...