Practice Points with Mark Scruggs: Giving Oral Notice of Voluntary Dismissal without Prejudice

Have you ever given oral notice in open court of your client’s voluntary dismissal without prejudice and then followed up with a written dismissal filed with the court?

If so, were you aware that your one-year re-filing period under Rule 41 began to run from the date you gave oral notice in open court – not the date on which the written Notice of Voluntary Dismissal Without Prejudice was filed?

Take a look at Cordrey v. Flinn, an unpublished opinion, in which the Court held:

Where plaintiff gave oral notice of voluntary dismissal in open court and filed written notice after the session of court had ended, the one-year statute of limitations on refiling his claims began when he gave oral notice. The trial court did not err in granting defendants' motions to dismiss plaintiff's claims due to the tolling of the limitations period.

247 N.C. App. 245, 785 S.E.2d 782 (2016)

The only exception to this rule is where the trial court accepts notice of voluntary dismissal without prejudice and then instructs the parties to enter a written stipulation. In that circumstance, the one-year re-filing period runs from the date the written stipulation of dismissal is filed.  See, Thompson v. Newman, 331 N.C. 709, 417 S.E. 2d 224 (1992).

In this situation, make sure there’s a record that the trial court instructed the parties to enter a written stipulation.

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