Effect of Voluntary Dismissal

In a procedurally tangled case, the Washington Supreme Court upholds dismissal under CR 41(a)(4). Feature Realty, Inc. v. Kirkpatrick & Lockhart Preston Gates Ellis, No. 79967-9 Wash. Courts website (Aug. 9, 2007).

Feature Realty sued Spokane over a delay in a permit request. The trial court granted summary judgment, but the Supreme Court reversed. For the second go-round, Feature hired Jerry Neal (a partner in Preston Gates & Ellis) and a California attorney named Terrence Butler. They reached a settlement -- but the city backed out because the settlement had violated the Open Public Meetings Act. Feature went to federal court, but E.D. Wash. and the 9th Cir. agreed that the settlement was void.

So Feature sued Neal, Butler, and Neal's law firm for malpractice -- in California. Since the underlying representation was in Washington, the firm moved to stay the complaint based on forum non conveniens and Neal moved to quash the subpoena for lack of personal jurisdiction. Feature tried to keep alive its suit against Butler (the California lawyer) in California, but the California court said huh-uh, so Feature filed in King County and voluntarily dismissed its California suit.

But Feature hadn't timely served the defendants. So it requested dismissal and refiled in King County. The defendants won a motion to have the case transferred to Spokane. And then they moved for summary judgment and won based on CR 41(a)(4):

Unless otherwise stated in the order of dismissal, the [voluntary] 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.

In other words, you get one voluntary dismissal free, but the second one counts. One issue on appeal is whether the California appeal should count.

And you thought Civil Procedure was over after your 1L year!