§41.7 Significant Authorities

• Jurisdiction: Washington

§41.7SIGNIFICANT AUTHORITIES

There is no element of discretion vested in the trial court in granting a motion for voluntary dismissal under CR 41(a) as long as the motion is made before plaintiff rests at the conclusion of its opening case. Seattle-First Nat'l Bank v. Westwood Lumber, Inc., 59 Wn.App. 344, 796 P.2d 790 (1990), review denied, 116 Wn.2d 1003 (1991). The "conclusion of [the plaintiff's] opening case" means the conclusion of the opening case at trial. League of Women Voters of Wash. v. King Cnty. Records, Elections & Licensing Servs. Div., 133 Wn.App. 374, 379, 135 P.3d 985 (2006).

Only a "unilateral" motion to dismiss under CR 41(a)(1)(B) and a "stipulated" dismissal under CR 41(a)(1)(A) count against a plaintiff. CR 41(a)(4). Spokane County v. Specialty Auto & Truck Painting, Inc., 153 Wn.2d 238, 246, 103 P.3d 792 (2004). Conversely, once a plaintiff has twice dismissed an action by unilateral motion under CR 41(a)(1)(B), the second dismissal is necessarily with prejudice, and the court lacks discretion to order otherwise. Guillen v. Pierce County, 127 Wn.App. 278, 285, 110P.3d1184 (2005), review denied, 156 Wn.2d 1006 (2006).

After resting, the plaintiff may move for voluntary dismissal, without prejudice, upon a showing of good cause and upon such terms and conditions as the court deems proper. In re Detention ofJ.R., 80 Wn.App. 947, 912P.2d1062, review denied, 130 Wn.2d 1003 (1996).

When the trial court improperly denies a voluntary motion to dismiss under CR 41(a) and the denial is reversed on appeal, the plaintiff's right to commence a new action is fixed as of the time the motion to dismiss was made. Elliott v. Peterson, 92 Wn.2d 586, 599P.2d1282 (1979).

Plaintiff's right to a voluntary nonsuit will be measured at the precise time the motion is made. Goin v. Goin, 8 Wn.App. 801, 508P.2d1405 (1973). 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).

Defendant's filing, serving, and noting a motion for summary judgment, when no hearing is held, does not defeat plaintiff's right to secure a voluntary nonsuit. Paulson v. Wahl, 10 Wn.App. 53, 516 P.2d 514 (1973).

The right to a voluntary nonsuit is so absolute that when a plaintiff filed no response to a summary judgment motion but instead moved for dismissal one day prior to the hearing on the summary judgment, dismissal without prejudice was...