Appeals court clarifies when right to voluntary
dismissal may be exercised
by Andrew Bergh
CR 41 provides in no uncertain terms that a plaintiff may voluntarily
dismiss his lawsuit – on a “without prejudice” basis – as long as the
motion is made before the plaintiff rests his case. Assuming the statute
of limitations has yet to run, this essentially means the plaintiff gets
one “freebie.” As shown by Gutierrez v. Icicle Seafoods, Inc., _
Wn. App. _ (2017), however, special rules come into play when the
dismissal motion is made in the context of a pending motion for summary
As its name suggests, our featured case involves a maritime claim.
Carlos Gutierrez worked as a processor on the P/V R.M. Thorstensen, a
commercial fishing vessel owned by Icicle Seafoods, Inc. (“Icicle”).
After coming down with a sore throat, his symptoms worsened over the
next few days – so much so that he had difficulty breathing and couldn’t
eat or drink. After eight days Gutierrez was taken off the boat in
St. Paul, Alaska, flown by medical aircraft to Anchorage, and eventually
taken to a Seattle hospital where he underwent surgery for a
Gutierrez later sued Icicle in King County Superior Court, seeking
damages for negligence under the Jones Act, unseaworthiness, and failure
to pay maintenance and cure.
After extensive discovery, Icicle moved for summary judgment. The
plaintiff filed a timely and comprehensive response but for unclear
tactical reasons moved for a voluntary dismissal just two days later.
The trial court granted the nonsuit motion over Icicle’s objection.
Since Gutierrez had indicated in his opposition that he was withdrawing
his claim for failure to pay maintenance and cure, the trial court
dismissed this claim with prejudice. His remaining claims, however, were
dismissed without prejudice. The trial court opted to retain
jurisdiction for the limited purpose of imposing sanctions against
Gutierrez in conjunction with an earlier discovery order.
In the ensuing appeal, Icicle argued that by responding to its
summary judgment motion, Gutierrez had forfeited his right to a
dismissal on a without-prejudice basis. The Court of Appeals weighed in
on this subject just last month.
Predictably, Division One began its analysis by focusing on the
relevant court rule.
Under CR 41(a)(1)(B), an action shall be dismissed by the trial court
“[u]pon motion of the plaintiff at any time before plaintiff rests at
the conclusion of plaintiff’s opening case.” Note the use of the word
“shall,” which makes an order of dismissal mandatory. While not stated
in so many words, it’s clear from other provisions in the rule,
including CR 41(a)(4), that a dismissal under CR 41(a)(1)(B) should
normally be without prejudice.
This is not to say a plaintiff can’t move for dismissal without
prejudice after resting his case. To the contrary, such motion is
expressly permitted under CR 41(a)(2). In that situation, however, a
showing of “good cause” is required, and the order can include “such
terms and conditions as the court deems proper.”
As the Court of Appeals next observed, Washington case law has added
two important corollaries to CR 41:
A plaintiff’s right to a voluntary dismissal must be measured by
the “posture of the case at the precise time the motion is made
because the right to dismissal, if any, becomes fixed at that
In the summary judgment context, a plaintiff retains the right to
a voluntary nonsuit until the motion for summary judgment has been
“submitted to the court for decision.”
According to Icicle, the parties submit a case for decision as soon
as the opposing party files his opposition to the CR 56 motion.
Gutierrez thus wasn’t entitled to a dismissal without prejudice, said
the defendant, because he didn’t move for dismissal under CR 41 until
after his response had been filed. Rejecting this argument, the trial
court instead found that a case is only “submitted” once oral argument
on the summary judgment motion has either “convened” or “[been] waived.”
Albeit for slightly different reasons, Division One ultimately sided
with the trial court and affirmed the “without prejudice” dismissal
order requested by Gutierrez. In so holding, the Court of Appeals
reviewed three Washington decisions which over the years have
interpreted when a case is submitted for decision in the context of a
summary judgment motion.
The first case was decided over 50 years ago. In Beritich v.
Starlet Corp. 69 Wn.2d 454 (1966), the plaintiff didn’t move for a
voluntary nonsuit until after the trial court had orally announced its
summary judgment decision. The Washington Supreme Court said this was
too late because our summary judgment procedure, at least from the
defense perspective, would become a “virtual nullity” if a plaintiff
could “exit stage left” after hearing the adverse ruling.
Although Beritech didn’t address exactly when a plaintiff
loses the right to a voluntary dismissal, this issue arose seven years
later in Paulson v. Wahl, 10 Wn. App. 53 (1973). In that case,
the Court of Appeals clarified that the filing of a summary judgment
motion by the defense – in and of itself – doesn’t affect the
plaintiff’s right to voluntarily dismiss his case. This was so, said the
Paulson court, because the parties don’t submit their case for
decision until after the hearing begins and the trial court hasn’t
“otherwise exercised its discretion in the matter.”
The third case – Greenlaw v. Renn, 64 Wn. App. 499 (1992) – is
of more recent vintage. There, the issue was whether the plaintiff had
lost his right to a voluntary dismissal because the time for submitting
responsive materials had expired. Rejecting this construction, Division
Two held that a motion for voluntary nonsuit must be granted as a matter
of right when it “is filed and called to the attention of the trial
court before the hearing on a summary judgment motion has started.”
Turning to the facts at hand, Division One emphasized that the
hearing on Icicle’s summary judgment motion hadn’t started and the trial
court had never given any indication of its decision. Consequently,
unlike Beritech, there was no concern Gutierrez could evade an
unfavorable decision prior to the entry of a written order.
As between Paulson and Greenlaw, the Court of Appeals
found the latter more persuasive.
We find this case most analogous to Greenlaw. Although
Gutierrez filed responsive briefing and Greenlaw did not, in
both cases the time to file responsive briefing had expired. The
plaintiff occupied the same position in each case; neither plaintiff
had the right to file additional briefing but each retained the
opportunity to present oral argument at the summary judgment
hearing. Like Greenlaw, the parties had not submitted the
case to the trial court for decision.
Division One took Icicle to task in two additional respects.
The defendant’s argument, said the Court of Appeals, “implicitly
assume[d]” that oral argument is “window dressing” that plays no role in
the decision-making process. Not quite so. Oral argument can provide
“information and clarification,” said Division One, that may influence
the court’s decision. Accordingly, unless the parties waive argument,
they haven’t submitted to the court everything the court will consider.
Icicle also contended that because extensive discovery had been
completed, along with some discovery rulings by the trial court,
dismissal without prejudice wasn’t appropriate “as a matter of
fairness.” This fell on deaf ears, however, because CR 41(a)(1)(B)
nowhere gives the trial court the discretion to take fairness into
When Gutierrez filed his CR 41 motion, he had an absolute right
to a voluntary nonsuit. The trial court had to grant his request for
dismissal. It had no discretion to decide whether it considered
dismissal without prejudice fair relief.
As noted above, the trial court had dismissed one of Gutierrez’s
claims with prejudice because he specifically withdrew it in his summary
judgment response. According to Icicle, the plaintiff’s interrogatory
answers established that he had also abandoned other claims, including
his lost wages claim – and that they too should therefore be dismissed
But the Court of Appeals again disagreed. Under CR 41(a)(4), trial
courts may dismiss a claim with prejudice in limited circumstances –
e.g., where the plaintiff has formally conceded it or the statute of
limitations has run. Such circumstances weren’t present here, said
Division One, because Gutierrez had made no such concession and his
claims against Icicle weren’t yet time-barred.
In my experience, plaintiff lawyers usually get queasy when
contemplating a motion for voluntary nonsuit. Maybe it’s got something
to do with using up their one and only freebie. Or, maybe it stems from
a concern the trial court for some crazy reason will dismiss the action
with prejudice and/or impose substantial terms.
My recommendation to those in this position? First of all, consider
taking some Pepto-Bismol for your queasiness. But if a motion for
voluntary nonsuit is truly in your client’s best interests, rest assured
that CR 41 and the interpretive case law like Gutierrez v. Icicle
Seafoods, Inc. are much more friend than foe.
WSTLA EAGLE member, former prosecutor and insurance defense attorney, now limits his
practice to plaintiff's personal injury cases, including professional
liability and insurance bad faith.
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