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For the Civil Procedure Pocket of Your Utility Belt

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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 claim.

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 states.

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 new lawsuit.

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.