121 Wash. App. 97 | Wash. Ct. App. | 2004
Robert Dietz and Christy A. Klein appeal the trial court’s order denying reconsideration of its grant of the motion for voluntary dismissal of the complaint of Farmers Insurance Exchange and the counterclaim of Dietz and Klein pursuant to CR 41(a)(1)(B). Because the counterclaim of Dietz and Klein had not been “pleaded” — served and filed — prior to the service of Farmers’ motion for dismissal and there is no showing of prejudice, the trial court correctly dismissed the counterclaim. Accordingly, we affirm.
Dietz and Klein are former employees of Farmers. The Washington State Trial Lawyer’s Association (WSTLA) asked them to speak at a WSTLA continuing education seminar entitled, “The Rise of Colossus.” “Colossus” is a computer program insurers use to place a value on general damage claims of insureds.
The parties agreed to an expedited discovery schedule. Farmers deposed Dietz and Klein on November 5, 2002.
The following morning, November 6, Farmers decided not to pursue its claims. During a telephone conversation between counsel that morning, Farmers sought a stipulated dismissal from Dietz and Klein. Dietz and Klein responded that they had sent out for service and filing an answer and counterclaim on the previous day. Thus, they would not agree to a stipulated dismissal. When Farmers stated that no answer and counterclaim had been served, Dietz and Klein offered to send a copy by facsimile. Farmers declined that offer.
The record establishes the following undisputed sequence of events on November 6, the day of the telephone conversation. Dietz and Klein filed their answer and counterclaim in the superior court at 9:40 a.m. At 10:09 a.m., after the telephone conversation between counsel, Farmers filed its CR 41(a)(1)(B) motion for voluntary dismissal. At 11:00 a.m., Farmers served its motion on Dietz and Klein. At 12:10 p.m., Dietz and Klein served Farmers with their answer and counterclaim.
The trial court granted Farmers’ motion to dismiss and also dismissed the counterclaim of Dietz and Klein. But the court also granted them 10 days to submit written authority to support a motion for reconsideration. Following the parties’ submissions of additional materials, the court denied the motion for reconsideration. It also entered its findings of fact and conclusion of law.
Dietz and Klein appeal the latter order.
“PLEADED” COUNTERCLAIM
Dietz and Klein argue that the language of CR 41(a)(3) supports their argument that filing of their counterclaim in
Where a state procedural rule parallels a federal rule, we may look to the analysis of the federal rule for guidance where an issue has not been squarely addressed by the state.
Washington courts have not squarely addressed the meaning of “pleaded” in CR 41(a)(3). CR 41(a) states, in relevant part:
(a) Voluntary Dismissal.
(1) Mandatory. Subject to the provisions of rules 23(e) and 23.1, any action shall be dismissed by the court:
(B) By plaintiff before resting. Upon motion of the plaintiff at any time before plaintiff rests at the conclusion of his opening case.
(3) Counterclaim. If a counterclaim has been pleaded by a defendant prior to the service upon him of plaintiff’s motion for dismissal, the action shall not be dismissed against the defen
Under CR 41(a)(1)(B), Farmers had a right to dismissal of its complaint because it moved to dismiss prior to the conclusion of its opening case. The dispute here is whether the court should also have dismissed the counterclaim of Dietz and Klein. As their counsel properly conceded at oral argument, their counterclaim “can remain pending for independent adjudication by the court,” as the rule specifies. The issue is whether their counterclaim was “pleaded” by solely filing the counterclaim prior to service of Farmers’ motion to dismiss.
While there are no Washington cases on point, at least two federal courts have dealt with this issue when construing identical language in the parallel federal rule, Fed. R. Civ. R (FRCP) 41(a)(2).
The Court of Appeals for the Third Circuit in United States v. Professional Air Traffic Controllers Organization (PATCO),
The United States Claims Court adopted this reasoning in Chinook Research Laboratories, Inc. v. United States.
Dietz and Klein fault the conclusions in PATCO and Chinook because neither case explains why “service” rather
We note that in neither of the two cases did filing of the counterclaim precede the service of the motion for voluntary dismissal. Here, the filing of the counterclaim of Dietz and Klein did precede service of Farmers’ motion for voluntary dismissal. But neither the absence of an articulated rationale in the federal cases nor the factual distinction that we note persuades us that “pleaded” within the rule means just “filed.” Rather, we conclude that it means “served and filed.”
The purpose of service is to notify the party of an action.
As Dietz and Klein correctly point out, limiting the word “pleaded” to “served,” as the federal cases do, ignores a rule of construction that different words used within the same rule are presumably meant to mean different things.
This argument defeats rather than advances their claim that “pleaded” means “filed” alone. If “pleaded” cannot mean “service” alone as they suggest, it also cannot mean “filed” alone. Any other conclusion would violate the rule they cite to support their argument.
We think the better argument is that “pleaded” for purposes of the rule means both “served” and “filed.” Had the drafters of the rule intended pleaded to mean either filed or served alone, they could have said so. They did not.
Our conclusion that “pleaded” within the rule means “served and filed” is consistent with the dictionary definition for the word. Black’s Law Dictionary indicates that “plead” means both.
This construction serves practical purposes. Just as service of a counterclaim on a party serves the important function of providing notice to the plaintiff, filing a counterclaim with the court serves another important notice function — advising the court that a counterclaim is at issue. This serves to avoid wasting scarce judicial resources by ensuring that the court is apprised that a party wishes to proceed with a counterclaim and permits the court to focus on the question of whether that counterclaim should be dismissed or allowed to remain for independent adjudication. Again, this construction of the rule is consistent with the underlying purpose of construing the rules, “to secure
Dietz and Klein fail to cite any persuasive authority interpreting CR 41(a)(3) or FRCP 41(a)(2) that supports their argument that a counterclaim may not be dismissed if it has been merely filed before service of the motion for voluntary dismissal. Their reliance on In re Marriage of Daley
That case dealt with a default judgment under CR 55(a)(3) which provides that a defendant is entitled to advance notice of a motion for default if the defendant has appeared in the action. In Daley, the defendant failed to appear for a petition for dissolution and a default judgment was entered against him. The appellate court held that by previously filing an appearance, submitting responsive pleadings, and attending the status conference, the defendant “appeared” and “pleaded” for purposes of CR 55(a)(1) and (a)(3).
Daley is not relevant to the interpretation and application of CR 41. The rule was not at issue in that case and cannot be read to stand for the proposition that “pleaded” means “filed” for the purposes of CR 41.
Dietz and Klein further argue Kohloff v. Ford Motor Co.
First, the plaintiffs in Kohloff sought a stipulated dismissal under FRCP 41(a)(1)(f),
We hold that “pleaded” in CR 41(a)(3) as it relates to a counterclaim means “served and filed.” Because it is undisputed that the counterclaim here was filed but not served at the time that Farmers served its motion for voluntary dismissal, the only remaining question is whether Dietz and Klein were prejudiced by the dismissal of the counterclaim.
PREJUDICE
Alternatively, Dietz and Klein argue they were prejudiced by the dismissal of their counterclaim. They make the argument notwithstanding the concession at oral argument that their counterclaim may remain for independent adjudication.
We start with the premise that the mere prospect of a second lawsuit does not constitute the type of prejudice with which the rule is concerned.
Dietz and Klein appear to argue that they have been prejudiced by “gamesmanship” by Farmers. Specifically, they argue that once Farmers was advised that a counterclaim was out for filing and service, it should have accepted service of the defendants’ answer and counterclaim by facsimile. Instead, Farmers rushed to file and serve its motion to dismiss.
Of course, while filing by facsimile is permitted under the rules, nothing required Farmers to accept service by facsimile. We think that the trial judge correctly observed that “the race was definitely on when [Farmers] was told by [Dietz and Klein] that defendants had filed a counterclaim and would not agree to a stipulated dismissal of all claims . . . .” However, these facts alone neither constitute unethical conduct nor prejudice in our view.
Farmers served their motion for voluntary dismissal before Dietz and Klein served and filed their counterclaim. Their counterclaim had not been “pleaded” when Farmers served its motion for voluntary dismissal. Moreover, they failed to show any prejudice to preclude dismissal of their counterclaim. The trial court properly denied the motion to reconsider dismissal of that counterclaim.
We affirm the order denying the motion for reconsideration.
Grosse and Kennedy, JJ., concur.
Beal v. City of Seattle, 134 Wn.2d 769, 777, 954 P.2d 237 (1998).
Beal, 134 Wn.2d at 777; Beckman v. Wilcox, 96 Wn. App. 355, 359, 979 P.2d 890 (1999), review denied, 139 Wn.2d 1017 (2000).
See State v. Greenwood, 120 Wn.2d 585, 592, 845 P.2d 971 (1993).
CR 1.
Escude v. King County Pub. Hosp. Dist. No. 2, 117 Wn. App. 183, 190, 69 P.3d 895 (2003).
Emphasis added.
FRCP 41(a) reads in relevant part:
(a) Voluntary Dismissal: Effect Thereof.
(2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim, has been pleaded by a defendant prior to the service upon the defendant of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
Emphasis added.
449 F.2d 1299 (3d Cir. 1971).
PATCO, 449 F.2d at 1299.
PATCO, 449 F.2d at 1299 (emphasis added).
22 Cl. Ct. 853, 854 (1991).
Chinook, 22 Cl. Ct. at 854.
Chinook, 22 Cl. Ct. at 854.
Chinook, 22 Cl. Ct. at 854 (emphasis added) (citing 5 James Wm. Moore, Moore’s Federal Practice ¶ 41.09, at 41-97 (2d ed. 1990); PATCO, 449 F.2d at 1300)).
Chinook, 22 Cl. Ct. at 854 (emphasis added).
See Lund v. Benham, 109 Wn. App. 263, 268, 34 P.3d 902 (2001), review denied, 146 Wn.2d 1018 (2002).
CR 1.
Terry v. City of Tacoma, 109 Wn. App. 448, 457, 36 P.3d 553 (2001), review denied, 146 Wn.2d 1012 (2002) (“It is well established that when different words are used in the same statute we will presume that the legislature intended a
“plead, vb.... 3. To file or deliver a pleading <the plaintiff hasn’t pleaded yet>.” Black’s Law Dictionary 1173 (Brian A. Gamer ed., 7th ed. 1999).
CR 1.
77 Wn. App. 29, 888 P.2d 1194 (1994).
29 F. Supp. 843 (S.D.N.Y. 1939).
FRCP 41.
(a) Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time
“ppjhe mere fact that added legal expenses will be incurred if the suit is reinstated is not a sufficient ground for denial of a motion to dismiss without prejudice.” Tyco Labs., Inc. v. Koppers Co., 82 F.R.D. 466, 468 (E.D. Wis. 1979) (citing Stern v. Barnett, 452 F.2d 211, 213 (7th Cir. 1971); Vienneau v. Shanks, 78 F.R.D. 70 (W.D. Wis. 1978)).
Compare Pace v. S. Express Co., 409 F.2d 331 (7th Cir. 1969) (concluding that the district court was justified in denying a motion to dismiss without prejudice where the case had been pending for one and one-half years, considerable discovery had been undertaken at a substantial cost to the defendant, and the defendant had already briefed its motion for summary judgment).