Crawford v. Kingston

728 S.E.2d 904, 316 Ga. App. 313, 2012 Fulton County D. Rep. 2004, 2012 WL 2333506, 2012 Ga. App. LEXIS 545
CourtCourt of Appeals of Georgia
DecidedJune 20, 2012
DocketA12A0742
StatusPublished
Cited by5 cases

This text of 728 S.E.2d 904 (Crawford v. Kingston) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crawford v. Kingston, 728 S.E.2d 904, 316 Ga. App. 313, 2012 Fulton County D. Rep. 2004, 2012 WL 2333506, 2012 Ga. App. LEXIS 545 (Ga. Ct. App. 2012).

Opinion

Andrews, Judge.

On appeal from the trial court’s dismissal of her renewed personal injury action against Scott Kingston, Christine Crawford argues that because an intervening dismissal in federal court was involuntary and could not operate as an adjudication on the merits under [314]*314OCGA § 9-11-41 (a) (3), and because the federal complaint was never served on Kingston, she had the right to renew her action under OCGA § 9-2-61. We agree and reverse.

The record shows that Crawford filed her first complaint concerning an August 2006 motor vehicle accident in Cherokee County State Court. Crawford voluntarily dismissed this complaint in September 2009, after the running of the applicable statute of limitation. See OCGA § 9-3-33 (actions for personal injury “shall be brought within two years after the right of action accrues”). In December 2009, and based on her belief that Kingston was a Florida resident, Crawford filed a complaint arising from the same facts in federal court for the Northern District of Georgia. Crawford could not locate or serve Kingston in Florida, however, and Kingston’s counsel made a special appearance in order to contest service and jurisdiction. After a discovery dispute, Kingston was ordered to amend his responses, at which point Crawford learned that Kingston had moved to Georgia. In March 2010, and after Crawford conceded that the federal court had lost diversity jurisdiction, the court dismissed the federal action without prejudice.

Three days later, Crawford refiled her Georgia action in Cherokee County (the “renewal action”). Kingston then moved to dismiss the renewal action on the ground that the federal dismissal was voluntary and operated under OCGA § 9-11-41 (a) (3) as an adjudication on the merits. At the hearing on his motion, Kingston also argued that the renewal action was barred under OCGA § 9-2-61. After additional briefing, the trial court granted the motion on the latter ground.

1. Crawford first argues that the federal dismissal was not voluntary for purposes of OCGA § 9-11-41 (a). We agree.

OCGA § 9-11-41 (a) provides:

(1) . . . Subject to the provisions of.. . any statute, an action may be dismissed by the plaintiff, without order or permission of court: (A) By filing a written notice of dismissal at any time before the first witness is sworn; or (B) By filing a stipulation of dismissal signed by all parties who have appeared in the action.
(2) By order of court. Except as provided in paragraph (1) of this subsection, an action shall not be dismissed upon the plaintiff’s motion except upon order of the court and upon the terms and conditions as the court deems proper. . . .
[315]*315(3) Effect. A dismissal under this subsection is without prejudice, except that the filing of a second notice of dismissal operates as an adjudication upon the merits.

(Emphasis supplied.)

On this record, we cannot agree with Kingston’s contention that the federal dismissal was voluntary. Under Georgia law, “only voluntary dismissals filed by a plaintiff are to be counted for purposes of [OCGA § 9-11-41].” (Emphasis supplied.) Reese v. Frazier, 158 Ga. App. 237, 238 (2) (279 SE2d 529) (1981); see also Troup v. Chambers, 280 Ga. App. 392 (634 SE2d 191) (2006) (“[s]ubsection (a) (3) of the statute has nothing to do with involuntary dismissals”). Even when a federal plaintiff moves to dismiss her own action, the Eleventh Circuit has held that “the actual dismissal is by the court and therefore does not implicate the [Federal Rule of Civil Procedure 41 (a) (1)] two-dismissal rule.” ASX Investment Corp. v. Newton, 183 F3d 1265, 1268 (11th Cir. 1999). As the court explained:

The primary purpose of the “two dismissal” rule is to prevent an unreasonable use of the plaintiff’s unilateral right to dismiss an action prior to the filing of the defendant’s responsive pleading.... A dismissal obtained by motion and order of the court under Rule 41 (a) (2) or similar state rule is not unilateral and does not pose the same danger of abuse or harassment as does a Rule 41 (a) (1) dismissal by plaintiff’s notice. In ruling on such motions, a court has discretion to determine whether the dismissal will be with or without prejudice and with or without conditions based on its view of the case and the plaintiff’s actions.

(Citations and punctuation omitted; emphasis supplied.) Id.

Here, and even though Crawford requested the dismissal of her own federal action, the dismissal itself was by an order of the federal court for a failure of its own jurisdiction. As such, that dismissal was involuntary under OCGA §9-11-41 (a) (2) rather than voluntary under subsection (a) (1), and thus could not operate as an adjudication on the merits under subsection (a) (3). Troup, 280 Ga. App. at 393 (reversing grant of motion to dismiss third complaint when dismissal of federal suit for lack of jurisdiction over remaining state law claims was involuntary).

2. Crawford also argues that her third complaint is not barred by OCGA § 9-2-61. We agree.

[316]*316OCGA § 9-11-41 (a) provides that it is “subject to the provisions” of the renewal statute, OCGA § 9-2-61, which in turn provides:

(a) When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later...; provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ruth Stokes v. Tim Hill
Court of Appeals of Georgia, 2013
Stokes v. Hill
749 S.E.2d 819 (Court of Appeals of Georgia, 2013)
Devona Walker v. Kyle Mecca
Court of Appeals of Georgia, 2013
Walker v. Mecca
739 S.E.2d 450 (Court of Appeals of Georgia, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
728 S.E.2d 904, 316 Ga. App. 313, 2012 Fulton County D. Rep. 2004, 2012 WL 2333506, 2012 Ga. App. LEXIS 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crawford-v-kingston-gactapp-2012.