Spokane County v. Specialty Auto & Truck Painting, Inc.

¶30 (concurring in part, dissenting in part) — Exercising judicial creativity, the majority “limit [s] application of the ‘two dismissal’ rule to dismissals that are a unilateral act by the plaintiff.” Majority at 245. But there is no language in the rule to support such a construction. Though I agree the Court of Appeals correctly ordered dismissal of Spokane County’s lawsuit in Spokane County v. Specialty Auto & Truck Painting, Inc., 119 Wn. App. 391, 79 P.3d 448 (2003), I dissent from the majority’s analysis because the plain language of CR 41(a)(4) applies to all voluntary dismissals, regardless of how they are obtained. A proper analysis also requires dismissal of Faust v. Bellingham Lodge No. 493, Loyal Order of Moose, Inc., No. 03-2-00859-8 (Whatcom County Super. Ct. Aug. 1, 2003).

Sanders, J.

¶31 Court rules are interpreted as though they were statutes, applying the accepted canons of statutory construction. State v. Greenwood, 120 Wn.2d 585, 592, 845 P.2d 971 (1993); Farmers Ins. Exch. v. Dietz, 121 Wn. App. 97, 100, 87 P.3d 769 (2004). The plain language of the rule controls where it is unambiguous, thus requiring courts to refrain from subjectively interpreting the rule beyond its text. Nevers v. Fireside, Inc., 133 Wn.2d 804, 815, 947 P.2d 721 (1997); see also Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682-87, 80 P.3d 598 (2003) (applying plain language rule to Insurance Premium Finance Company Act, ch. 48.56 RCW). A plain language construction is *250ascertained not by reading the provision piecemeal, but rather by examining all the legislating body has said on the matter by examining the entire rule and all related rules. See Rest. Dev., 150 Wn.2d at 682.

¶32 CR 41(a) unambiguously describes how a civil action may be voluntarily dismissed by the plaintiff.4 The purpose of the rule is to allow the plaintiff to return to square one and pursue the same cause of action as if the previous suit never happened. See Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990) (construing federal counterpart to CR 41(a)); Humphreys v. United States, 272 F.2d 411, 412 (9th Cir. 1959) (same).

¶ 33 Voluntary dismissal may occur either by stipulation or by the plaintiff’s motion. Parties may stipulate to dismissal at any time, in which case the trial court has no discretion to deny the requested result. CR 41(a)(1)(A).5 But if the defendant does not stipulate, the plaintiff may still obtain a nonsuit by moving the court prior to resting his or her case, in which case dismissal is mandatory. CR 41(a)(1)(B);6 see also McKay v. McKay, 47 Wn.2d 301, 304, 287 P.2d 330 (1955) (construing prior version of rule, holding “plaintiff’s right in this respect is absolute and involves no element of discretion on the part of the trial court”). After the plaintiff rests, his or her absolute right to dismissal ends and the court’s permission must be obtained *251by showing good cause why dismissal is appropriate. CR 41(a)(2).7

¶34 While voluntary dismissals are all intended to grant plaintiffs a clean slate from which to start again, they are not intended to allow the plaintiff to press a judicial reset button as many times as is convenient. As such CR 41(a)(4) dictates the effect of voluntary dismissals:

(4) Effect. Unless otherwise stated in the order of dismissal, the dismissal is without prejudice, except that an order of dismissal operates as an adjudication upon the merits when obtained by a plaintiff who has once dismissed an action based on or including the same claim in any court of the United States or of any state.

By its simple language the plaintiff has one opportunity to start over. Despite how a voluntary dismissal is obtained, the net effect does not change.

¶35 Yet the majority injects a unilateral element into the text, claiming the exception to the default rule of dismissing the case without prejudice applies only when the voluntary dismissals are procured under CR 41(a)(1)(B) (dismissal upon plaintiff’s motion before resting case) and CR 41(a)(2) (dismissal obtained through court’s permission after resting case). In other words, the majority asserts CR 41(a)(4) selectively applies only to parts of CR 41(a), despite no express proviso allowing for such limited application. Such a construction flatly contradicts the statutory construction canon to construe statutes or court rules in a manner that avoids “unlikely, absurd, or strained consequences.” Thurston County v. City of Olympia, 151 Wn.2d 171, 175, 86 P.3d 151 (2004); see also State v. Wittenbarger, 124 Wn.2d 467, 484-85, 880 P.2d 517 (1994) (courts must construe rules consistent with their purpose, noting the rule’s spirit and intent prevail over strained interpretations). And while “[t]he narrow purpose of CR 41(a)(4) is to prevent the abuse and harassment of a defendant and the unfair use of *252dismissal,” majority at 245, it does not follow a priori that by merely securing the defendant’s stipulation to dismiss a lawsuit, a plaintiff acquires the right to refile his or her lawsuit an infinite number of times. As the Court of Appeals aptly noted, “CR 41(a)(1)(A) does create an absolute right to a stipulated dismissal—but not without prejudice.” Specialty Auto, 119 Wn. App. at 396.

¶36 The majority strains the language of CR 41(a)(4) to reach its desired result, claiming without support CR 41(a)(4)’s language “when obtained by the plaintiff ” must apply only when the plaintiff alone secures dismissal. See majority at 246. Whether dismissal is through stipulation or not, under CR 41(a) the plaintiff is still a part of the decision to dismiss the case. The plaintiff “obtains” a stipulated dismissal by requesting the defendant’s permission just as much as another plaintiff “obtains” a dismissal by motion. The presence of the defendant’s agreement does not alter the situation. The only way a plaintiff does not “obtain” dismissal through CR 41 is if the case is dismissed by the court, CR 41(b)(2), or by the defendant, CR 41(b)(3). As such the majority’s claim a plaintiff does not “obtain” dismissal through stipulation is simply unsound.

¶37 In re Burley, 33 Wn. App. 629, 658 P.2d 8 (1983), is not to the contrary. Contra majority at 245. Burley held a mother’s paternity suit could not be dismissed with prejudice under the rule after the State had voluntarily dismissed two lawsuits against the father. The court held the plaintiff must be “a real party in interest in the prior two superior court actions which had obtained a voluntary dismissal of those claims.” Burley, 33 Wn. App. at 638. Burley rightly concluded a plaintiff who never brought the previous lawsuit should not be denied her day in court because a previous plaintiff who brought a similar claim previously dismissed his claim. But it does not stand for the proposition the two-dismissal rule is limited based on how the previous dismissals were obtained by the same plaintiff. *253As such Burley is entirely consistent with Division Three’s opinion below, despite the majority’s opposite claim.8

¶38 This conclusion is supported by the rule’s clear language, in that the two-dismissal rule applies only to “a plaintiff who has once dismissed an action based on or including the same claim in any court of the United States or of any state.” CR 41(a)(4). Though the majority reads this language to assert a limitation of the two-dismissal rule based on how the prior dismissals were obtained, see majority at 246, the more logical reading is that it limits the rule’s application to against whom it may be asserted. And determining who that litigant is does not necessitate inquiry into how the plaintiff voluntarily dismissed the previous lawsuit, but rather whether the plaintiff voluntarily dismissed a previous lawsuit “based on or including the same claim.” CR 41(a)(4).

¶39 This court has procedures to amend the rule if it operates in an undesirable manner. Amending the rule by judicial fiat, however, is not acceptable. I would read the plain language of the rule and dismiss both cases.

¶40 I therefore agree with the majority that the lawsuit in Specialty Auto must be dismissed. But to the extent the majority permits the Faust lawsuit to proceed, I dissent.

This contrasts to involuntary dismissals under CR 41(b), in which case the suit is dismissed without the plaintiff’s consent. See CR 41(b). Such happens when any claimant (i.e., plaintiff, counterclaimant, cross-claimant, etc.) fails to note the case for trial for a year, CR 41(b)(1), no action takes place for 12 months or longer, CR 41(b)(2), or the defendant moves for dismissal after the plaintiff is finished presenting his or her evidence at trial, CR 41(b)(3).

“Subject to the provisions of rules 23(e) and 23.1, any action shall be dismissed by the court... [w]hen all parties who have appeared so stipulate in writing.” CR 41(a)(1)(A).

“Subject to the provisions of rules 23(e) and 23.1, any action shall be dismissed by the court.. . [u]pon motion of the plaintiff at any time before plaintiff rests at the conclusion of his opening case.” CR 41(a)(1)(B).

“After plaintiff rests after his opening case, plaintiff may move for a voluntary dismissal without prejudice upon good cause shown and upon such terms and conditions as the court deems proper.” CR 41(a)(2).

Orr v. Stuart, 32 F.R.D. 435 (W.D. Ark. 1963) does not support the majority’s construction either. Orr examined Federal Rule of Civil Procedure 41(a) and held the plaintiff’s second stipulated dismissal did not operate as an adjudication on the merits. Id. at 441. However the second dismissal was obtained by court order pursuant to Federal Rule of Civil Procedure 41(a)(2). See Orr, 32 F.R.D. at 438. Because the federal two-dismissal rule operates only to voluntary dismissals under Fed. R. Civ. P. 41(a)(1), the plaintiff’s dismissal under rule 41(a)(2) did not operate as an adjudication on the merits. Orr, 32 F.R.D. at 441.