Why Did the Lawyer Cross the Road? Let's Call the Whole Thing Off

Oct 12, 2020

Brad A. Fraser

Originally printed in Knoxville Bar Association "DICTA" magazine

"Let's Call the Whole Thing Off" is an iconic song from my parents’ generation written by George and Ira Gershwin for the 1937 film Shall We Dance.[i] In the movie, Fred Astaire and Ginger Rogers perform their famous dance on skates while singing the duet.[ii] The song isn’t as much about dialect as it is in class differences. I remember my parents singing the song frequently. The song was covered by other artists such as Bing Crosby/Rosemary Clooney,[iii] Sam Cooke,[iv] Billie Holliday,[v] Ella Fitzgerald/Louis Armstrong,[vi] and Harry Connick Jr.’s version in When Harry Met Sally.[vii]

The lyrics most people recall are these:

You say either and I say eyether
You say neither and I say nyther;
Either, eyether, neither, nyther
Let's call the whole thing off!

You like potayto and I like potahtoe
You like tomayto and I like tomahtoe;
Potayto, potahtoe, tomayto, tomahtoe!
Let's call the whole thing off![viii]

In the litigation, when we “call the whole thing off,” it is called a dismissal, or sometimes a “nonsuit.” To most lawyers, we consider a “nonsuit” voluntary, while dismissal can be either (eyether?) voluntary or involuntary. Dana Holloway, who founded our Leitner office in Knoxville, jokingly called it a “Mulligan”. The important distinction is whether dismissal is “without prejudice”, which may be refiled, or “with prejudice”, which may not.

The distinctions are critical in both state and federal jurisprudence. When a lawyer “crosses the road” to the federal courthouse, there are some procedural differences.

The Rules

Pursuant to the Tennessee Rule of Civil Procedure 41.01(1), plaintiffs have wide latitude to take a nonsuit, limited “subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any statute, and except when a motion for summary judgment made by an adverse party is pending.”[ix] Otherwise, “the plaintiff shall have the right to take a voluntary nonsuit to dismiss an action without prejudice.”[x] Rule 41.01 also allows plaintiffs to make an “oral notice of dismissal made in open court during the trial of a cause or in jury trial at any time before the jury retires to consider its verdict and prior to the ruling of the court sustaining a motion for a directed verdict.”

However, under the Federal Rules of Civil Procedure, the unilateral ability of a plaintiff to take a voluntary nonsuit without prejudice terminates when a defendant files an answer or motion for summary judgment.[xi] In federal court, Rule 41(a) limits the right of voluntary dismissal as “subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute.” In cases not subject to these Rules, the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared.[xii]

How many dismissals can a plaintiff take?

Another key distinction between the Tennessee Rules of Civil Procedural and the Federal Rules of Civil Procedure is the number of voluntary dismissals a plaintiff may take in each court. In state courts, the third nonsuit must be with prejudice.[xiii] However, in federal court, the second nonsuit must be with prejudice.[xiv]

When can a plaintiff voluntarily dismiss?

Tennessee courts have elaborated upon a plaintiff’s right to take a voluntary dismissal until the jury has retired to deliberate and have provided for narrow circumstances in which a court may exercise discretion to allow a voluntary dismissal.[xv] In Lacy v. Cox, the Tennessee Supreme Court set forth in detail the substantial differences between Tennessee Rule of Civil Procedure 41.01 and Federal Rule of Civil Procedure 41. Tennessee’s Rule 41.01 permits “voluntary dismissal as of right at a procedural stage that is significantly later than what Federal Rule 41 provides.”[xvi] The Court explained, “[w]hereas Federal Rule 41(a) terminates voluntary dismissal as of right upon service of an answer or a motion for summary judgment, whichever first occurs, Tennessee Rule 41.01(1) allows for voluntary dismissal in a jury trial ‘at any time before the jury retires to consider its verdict....’”[xvii]

Summarizing, the Court stated, “[u]nder the federal scheme, voluntary dismissal as of right ends—and voluntary dismissal by order of the court begins—at the pretrial stage; it is thus reasonable that a federal district court might exercise its discretion to grant voluntary dismissal without prejudice. . . on the first day of trial.”[xviii] Put simply, in Tennessee, a trial court has authority to allow a voluntary dismissal at nearly any stage, including subsequent to the granting of a new trial, but during the brief period that the jury is deliberating, a trial court is not permitted to grant a voluntary dismissal.[xix]

The “take away”:

In federal court, a litigant has a short window of time to take a voluntary nonsuit, but after that window closes, the Court may, in its discretion, allow a voluntary dismissal. Once the defendant files an answer or a motion for summary judgment, a plaintiff must either secure consent of all parties to dismiss a case without prejudice, or convince the court to permit such a dismissal. In Tennessee state courts, Plaintiffs retain this right up until the date of trial. However, plaintiffs have no right to take a “Mulligan” after the case is presented to the trier of fact, and the jury begins deliberations.

___

[i] IMDb, https://www.imdb.com/title/tt0029546/soundtrack, accessed Oct. 8, 2019.

[ii] Id.

[iii] https://www.amazon.com/Lets-Call-Whole-Thing-Off/dp/B0037BTXMU, accessed Oct. 8, 2019.

[iv] https://www.amazon.com/Lets-Call-Whole-Thing-Remastered/dp/B00SXS4CXW, accessed Oct. 8, 2019.

[v] https://www.amazon.com/Lets-Call-Whole-Thing-Off/dp/B00DOPSCG2, accessed Oct. 8, 2019.

[vi] https://www.amazon.com/Lets-Call-Whole-Thing-Off/dp/B07H1455JJ, accessed Oct. 8, 2019.

[vii] https://www.imdb.com/title/tt0098635/soundtrack, accessed Oct. 8, 2019.

[viii] https://www.lyrics.com/lyric/1..., accessed Oct. 8, 2019.

[ix] Tenn. R. Civ. P. 41.01(1).

[x] Tenn. R. Civ. P. 41.01(1).

[xi] Fed. R. Civ. P. 41(a).