A plaintiff, on May 11, 2015, voluntarily dismisses his suit without prejudice. The defendant (without plaintiff's knowledge) calls the clerk's office and ask that the dismissal be changed to be with prejudice because a notice of intention to defend was filed. The clerk sends the case to the judge for review, and on June 15th, the court strikes the dismissal without prejudice and enters a dismissal with prejudice. (a) Does the court has revisory power to change the dismissal of the case, (b) did the defendant engage in improper ex parte with the court when he set the events in motion to have the dismissal changed, (c) was plaintiff entitled to a notice before the dismissal was changed to be with prejudice, and (d) can plaintiff appeal the decision, or (e) withdraw the notice of dismissal.
A motion for reconsideration can be filed within ten days of the decision being entered at court.
This is NOT legal advice, is GENERAL INFORMATION ONLY, and does NOT establish an Attorney/Client Relationship with you. Therefore my answer cannot address your specific legal situation and you should not rely upon my answer in your legal matter. I am an attorney licensed in Maryland and California.
Once a Notice of Intention to Defend is filed, the Plaintiff can only dismiss the Complaint with a Stipulation signed by all parties or by Order of court. The voluntary dismissal was not proper which is why the judge changed it to with prejudice. The court has revisory power over the judgment for 30 days.
If Plaintiff wants to be able to pursue the lawsuit later, he should file a timely motion for reconsideration and ask that the dismissal be changed to without prejudice or that the lawsuit be reinstated. The motion should be filed within 10 days to protect appellate rights. If a motion is filed within 10 days and denied, Plaintiff can appeal.
Defendant did not contact the judge, he contacted the Clerk. Therefore, there was not an ex parte communication. The judge does not have to give you notice before making the change.
This answer is being given for general informational purposes only and is not protected by the attorney-client privilege since this is a public forum. The information provided does not create an attorney-client relationship. No communications with me on this forum shall be construed as arising out of an attorney-client relationship. If a client needs specific legal advice or opinions, he or she should retain counsel for advice or to undertake representation.
Once the defendant has filed a responsive pleading to the complaint, the plaintiff loses the ability to unilaterally dismiss the case without prejudice. Absent consent of all parties, the dismissal is with prejudice. What you should have done was file a motion requesting that the court allow you to dismiss without prejudice. Having failed to do so, your dismissal was with prejudice despite the wording on your dismissal notice. The judge simply corrected the record to reflect the effect of the rule on your dismissal. You will need to file a motion now to vacate your dismissal and reinstate the case, and do so ideally within 10 days to preserve your appeal rights in case your motion is denied; otherwise, you can still file such a motion up to thirty days after the dismissal, but if filed more than ten days after, the 30 day time for noting your appeal may run out before the court ruled on your motion.
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