The Ohio Supreme Court issued a brief decision last week in Morgan Stanley Dean Witter v. Sutula, 2010-Ohio-2468 [PDF] which I initially overlooked. The decision reverses the Eighth District’s grant of a writ of prohibition, but there’s an interesting nugget in here that affects all litigators.
That nugget is the parsing of Rule 41(A). The Court notes that “Civ.R. 41(A)[1] allows for a dismissal of all claims against particular defendants, and not individual claims.” In other words, a party cannot utilize Rule 41(A)(1) to dismiss part of its claim — the text of the rule actually states that 41(A)(1) is all or nothing.
There are certainly other attorneys who have had a few more trips around the block than yours truly, but in my two years as a law clerk and one year in practice, I have never seen this distinction made by a practicing attorney. It is absolutely standard procedure to dismiss some but not all claims via a Rule 41(A)(1) notice of dismissal.
Instead, it appears, if a party wants to dismiss only some of its claim, it must obtain an order of the court under Rule 41(A)(2). That rule provides that, “[e]xcept as provided in division (A)(1) of this rule, a claim shall not be dismissed at the plaintiff’s insistence except upon order of the court and upon such terms and conditions as the court deems proper.” In other words, the partial dismissal must come from the court, not the plaintiff, and a court can place conditions upon a partial dismissal.
I could be wrong, but this seems like an awfully important distinction, no? Think about it — how many partial dismissals have you filed in the last year? As it turns out, all of those claims are still pending. Or better yet, how many partial dismissals of claims against your client have been filed? You might have to defend those yet.
This post was written by Jeffrey M. Nye.
