For the Civil Procedure Pocket of Your Utility Belt
July 30, 2019
I like to believe every attorney has an inner nerd who loves
to pick up cool procedural tips. Maybe
it’s just me. I squirrel them away
because you never know which procedural tidbit will become the difference
between winning and losing a case.
The North Carolina Court of Appeals recently issued a
published opinion that was a little gift to our inner nerds. It was a question of how a voluntary dismissal
without prejudice in another state, and expiration of the time to refile in that
state, affected a later suit on the same claim in North Carolina.
In Barefoot v. Rule, No. COA18-1160 (N.C. Ct. App. May 21,
2019), plaintiff Sheena Barefoot filed a personal injury claim in Tennessee on
June 28, 2016, against defendant Jacquelyn Patricia Rule. The claim arose out of an auto accident that occurred
in North Carolina on July 3, 2015, but both parties were Tennessee residents. The Tennessee statute of limitations for personal
injury claims is one year, while it is three years in North Carolina.
On November 16, 2016, the Tennessee trial court entered an
order granting Plaintiff Barefoot a voluntary dismissal without prejudice under
Tennessee’s rule 41.01, which is similar to North Carolina’s Rule 41(a)(1). Both rules permit re-filing within one year
after the first dismissal even if the limitations period has run on the original
After the statute of limitations ran in Tennessee for both
the original personal injury claim and the one-year period to re-file the
lawsuit, on April 5, 2018, Plaintiff Barefoot filed suit in North Carolina
alleging essentially the same claims.
Although her claim was barred in Tennessee, the statute of limitations
as to the original personal injury claim had not yet run in North Carolina.
In the North Carolina lawsuit, Defendant Rule argued the
claim was barred by the doctrine of res judicata because the plaintiff had
failed to re-file her action within the time allowed after her voluntary
dismissal in the Tennessee lawsuit. The
defendant argued the Tennessee dismissal had become a final judgment with res
judicata effect as to the suit in North Carolina. The trial court agreed and granted judgment
on the pleadings in favor of the defendant.
The Court of Appeals, however, disagreed. The issue at the core of the appeal, as the
Court saw it, was how a voluntary dismissal without prejudice operates between
The Court of Appeals reviewed both Tennessee and North
Carolina case law interpreting the effect of a voluntary dismissal without
prejudice. In both states, a voluntary
dismissal without prejudice returns the parties to their original positions, as
though the first suit had never been filed. This frees a plaintiff to switch from state
court to federal court or to switch from one state’s courts to another state’s
courts to file a new lawsuit, and the rules of the second court will govern the
In this case, after the plaintiff dismissed her lawsuit in
Tennessee, she was left exactly where she was before her Tennessee lawsuit
commenced – she was free to file her lawsuit in Tennessee or North Carolina as
an entirely new claim. The Court therefore
concluded the Tennessee dismissal order did not have res judicata effect as to
the lawsuit in North Carolina. The trial
court’s decision was reversed and the case remanded.
Stash this one away in the civil procedure pocket of your
litigation utility belt. You never know
when it might come in handy.
I am a NC licensed attorney and practice in The Brocker Law Firm, P.A. I represent represent professionals before various licensing boards and administrative agencies. I counsel clients on ethics, disciplinary, and licensing matters, and provide general employment law advice and compliance counseling.