Lead Opinion
{¶ 1} We hold today that when a plaintiff has asserted multiple claims against one defendant, and some of those claims have been ruled upon but not converted into a final order through Civ.R. 54(B), the plaintiff may not create a final order by voluntarily dismissing pursuant to Civ.R. 41(A) the remaining claims against the same defendant.
Factual and Procedural Background
{¶ 2} On May 6, 2003, plaintiff-appellant, Wally Pattison, brought an action in the Cuyahoga County Court of Common Pleas against his former employer, defendant-appellee W.W. Grainger, Inc., alleging age discrimination in violation of R.C. 4112.02(A) and wrongful termination based upon a violation of public policy. The trial court granted Grainger’s motion for summary judgment on June 21, 2005.
{¶ 3} Pattison appealed that decision to the Eighth District Court of Appeals, which dismissed the appeal for lack of a final, appealable order. The court found that Grainger’s motion for summary judgment had addressed only the first count of Pattison’s complaint, ignoring his public-policy claim, and that the trial court’s summary judgment had likewise failed to resolve that claim. The appellate court concluded, ‘We find, reluctantly, that we lack a final appealable order because the public policy claim for relief is still extant.” Pattison v. W.W. Grainger, Cuyahoga App. No. 86698,
{¶ 4} On June 29, 2006, Pattison filed in the trial court a Civ.R. 41(A)(1)(a) notice, dismissing the common-law claim without prejudice. A journal entry stating that this claim was dismissed pursuant to this notice of dismissal was filed by the trial court on July 10, 2006.
{¶ 5} Pattison then filed a second notice of appeal on August 9, 2006, which was more than 30 days from the filing of the voluntary dismissal, but less than 30
{¶ 6} The controversy in this case is not about whether the appeal was timely filed but instead is about whether Pattison’s voluntary dismissal of his public-policy claim created a final, appealable order upon which the appellate court could enter a judgment. Pattison is in the unusual position of arguing that the order he himself appealed from was not, in fact, a final, appealable order.
{¶ 7} The court below noted that its holding that a plaintiff could voluntarily dismiss a claim pursuant to Civ.R. 41(A) in order to create a final, appealable order conflicted with “the near unanimity of our other appellate districts.” Pattison v. W.W. Grainger,
{¶ 8} “In our view, Civ.R. 41(A)(1) creates a mechanism whereby a plaintiff may voluntarily dismiss his entire action, without prejudice. It does not provide for the dismissal, without prejudice, of part of a cause of action. To do so would permit piecemeal litigation and piecemeal appeals, which are disfavored in the law.” Borchers,
{¶ 9} Concurrently with its dismissal, and recognizing its conflict with Borch-ers, the Eighth District sua sponte certified the following question to this court:
{¶ 10} “In a case where a plaintiff has asserted multiple claims against a single defendant and some of those claims have been ruled upon but not converted into a final order with Civ.R. 54(B), can the plaintiff create a final order by voluntarily dismissing pursuant to Civ.R. 41(A) the remaining claims asserted against that defendant?”
{¶ 11} The cause is before this court upon the certification of a conflict.
Law and Analysis
{¶ 12} Civ.R. 41(A)(1) states that “a plaintiff, without order of court, may dismiss all claims asserted by that plaintiff against a defendant by * * * filing a notice of dismissal at any time before the commencement of trial.” (Emphasis added.)
{¶ 13} In its opinion, the Eighth District recognized that as to Civ.R. 41(A)(1)(a), “[m]ost of the courts in this state have construed the language ‘all claims’ literally.” Pattison,
{¶ 14} Civ.R. 41(A)(1)(a) was amended following this court’s decision in Denham v. New Carlisle (1999),
{¶ 15} “[A]n action may be dismissed by the plaintiff without order of court * * * by filing a notice of dismissal at any time before the commencement of trial.”
{¶ 16} The key difference between the pre-Denham rule and the current rule is that the pre-Denham rule stated that “an action may be dismissed by the plaintiff,” whereas the current rule reads that a plaintiff “may dismiss all claims asserted by that plaintiff against a defendant.” (Emphasis added.) In Denham, this court essentially held that “an action” in the pre-Denham version of the rule meant “all claims” asserted against a particular defendant. Civ.R. 41(A) was amended in 2001 “to reflect more precisely its interpretation by the Supreme Court in Denham v. City of New Carlisle,
{¶ 17} Denham was a wrongful-death action brought against multiple defendants. The plaintiff, the wife of the deceased, alleged that the EMS employees of the city had been negligent in providing care to her husband, leading to his death. The city was granted summary judgment based on immunity under R.C. 2744.02. The plaintiff then dismissed her remaining claims against all other defendants under Civ.R. 41(A)(1). Despite those dismissals, the appellate court found that the summary-judgment order was not a final, appealable order and dismissed the appeal.
{¶ 18} This court reversed the appellate court. Relying on case law interpreting the federal version of the rule, this court held, “A trial court’s decision granting summary judgment based on immunity for one of several defendants in a civil action becomes a final appealable order when the plaintiff voluntarily dismisses the remaining parties to the suit pursuant to Civ.R. 41(A)(1).” Den-ham,
{¶ 19} As recognized by the Eighth District Court of Appeals, other appellate districts faced with this question have found that dismissal of a single claim among others against the same defendant is not permitted by Civ.R. 41. These holdings have been based on the text of the rule itself, as well as the general policy against piecemeal litigation. See Borchers v. Winzeler Excavating (Apr. 10, 1992), 2d Dist. No. 13297,
{¶20} Civ.R. 41(A) allows for a dismissal of all claims against particular defendants. The lower court’s position regarding judicial economy and the need to streamline cases suffers in that, were Civ.R. 41(A) to be used to dismiss fewer than all of the claims against a certain defendant, a plaintiff could create a final and appealable order as to one issue under Civ.R. 41(A) while still saving the dismissed claim to be refiled later. To allow a partial Civ.R. 41(A) dismissal is potentially prejudicial to defendants. In cases in which all claims against a party are dismissed without prejudice, there still is the risk of the action being refiled, but the amount of potential litigation that a defendant is subjected to is the same.
{¶ 21} The Eighth District gave little weight to this possibility, stating that “it has been our experience that plaintiffs who voluntarily dismiss a cause of action in order to create a final order rarely, if ever, refile those dismissed claims.”
{¶ 22} Therefore, we answer the question certified by the court of appeals in the negative. Accordingly, we reverse the judgment of the court of appeals and remand for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
Dissenting Opinion
dissenting.
{¶ 23} I respectfully dissent from the majority’s reading of Civ.R. 41(A) because I believe that the majority’s interpretation is unworkable, puts the plaintiff in an untenable position, and does not resolve the problem of piecemeal litigation as it purports to. I believe that Civ.R. 41(A) permits a party to dismiss fewer than all the claims in a multicount complaint, thereby creating a final, appealable judgment as to any other claim or claims that have been adjudicated. Alternatively, I would hold that courts should treat a Civ.R. 41(A) notice of dismissal of the remaining claims in a multicount complaint as a Civ.R. 15(A) motion for leave to amend the complaint to dismiss the claim or claims.
{¶ 24} The majority’s holding leaves a plaintiff in a conundrum. In order to appeal an adverse judgment on one or more claims of a multicount complaint, a plaintiff must dismiss with prejudice all other unresolved claims. This requirement forces the plaintiff to give up potentially meritorious claims. Alternatively, a plaintiff must proceed on the remaining unresolved claims, which may be so weak or peripheral that the parties and the court are forced to waste their time. And regardless of whether a plaintiff is successful on the remaining claims, if the
Civ.R. 41(A)
{¶ 25} I believe that a party can dismiss one or more claims, but fewer than all the claims, in a multicount complaint under Civ.R. 41(A). In Denham v. New Carlisle (1999),
{¶ 26} The court of appeals dismissed the wife’s appeal, finding that it was not a final, appealable order. Following the rationale of Fed.R.Civ.P. 41(a)(1), we reversed the judgment of the court of appeals, holding that a dismissal of the remaining defendants created a final, appealable order as to the summary judgment granted to the city, even though when the plaintiff dismissed the remaining defendants, she did so without prejudice under Civ.R. 41(A)(1). A dismissal without prejudice (unless the case was dismissed once before or the notice of dismissal states otherwise) allows a plaintiff to refile the claims against the dismissed parties.
{¶27} Here, the court of appeals found that the trial court had granted summary judgment on one claim. I believe that there is no difference between dismissing claims and dismissing parties. By filing a Civ.R. 41(A)(1) notice of dismissal of all remaining claims, the action was terminated. Dismissal of either all remaining claims or parties results in a final, appealable order as to any remaining claims that went to judgment. Contrary to the majority, I would hold that Pattison’s dismissal of the remaining common-law claim resulted in the dismissal of the entire action, thereby converting the summary judgment in favor of Grainger into a final, appealable order, just as in Denham.
{¶ 28} Contrary to the majority’s holding, I believe that the better result was reached by the court in Eiland v. Coldwell Banker Hunter Realty (1997),
{¶ 29} In the alternative, I believe that courts should treat a Civ.R. 41(A) notice of dismissal of fewer than all the claims in a multicount complaint as a Civ.R. 15(A) motion for leave to amend.
{¶ 30} With little elaboration, the majority states that parties seeking to dismiss fewer than all claims in a multicount complaint should file a motion for leave to amend. Determining whether dismissing fewer than all the claims in a multicount complaint is more appropriately accomplished by moving for leave to amend a complaint, as opposed to a notice of dismissal, is “more technical than substantial.” Mgt. Investors v. United Mine Workers of Am. (C.A.6, 1979),
{¶ 31} I believe that Civ.R. 15(A) provides a superior method to assess whether a motion to dismiss some, but not all, claims in a multicount complaint should be permitted. Under this rule, once a responsive pleading has been filed, courts have discretion whether to permit a party to amend its pleading. Civ.R. 15(A). However, “[l]eave of court [to amend] shall be freely given when justice so requires.” Id. Thus, under Civ.R. 15(A), a court should freely grant parties leave to dismiss fewer than all claims in a multicount complaint “when justice so requires.”
{¶ 32} Therefore, I would hold that the Civil Rules permit a party to dismiss fewer than all the claims in a multicount complaint, thereby converting any remaining claim or claims that have been adjudicated into a final, appealable order. In the instant case, I would hold that Pattison’s dismissal of the common-law claim was permitted under either Civ.R. 41(A) or Civ.R. 15(A). Accordingly, I respectfully dissent.