In early August of 2021, the Georgia Supreme Court granted certiorari in Joyner v. Leaphart, 358 Ga. App. 383 (2021), a case that could have an impact on the interpretation of Georgia’s “two-dismissal rule” under O.C.G.A. § 9-11-41(a)(3).
Joyner stems from a medical malpractice, wrongful death case. The Plaintiffs, Vanessa and Brock Joyner, initially filed their suit against Dr. Leaphart and several other defendants in the State Court of Fulton County.
However, based on forum non conveniens grounds, the Fulton Court transferred the case to Chatham County.
What Happened Next
As the case progressed, the Plaintiffs decided to add two additional defendants to the action. Because the Plaintiffs believed the statute of limitations was close to running and because of the availability of electronic filing in Fulton County, the plaintiffs and their attorneys decided to file two more separate actions in Fulton County rather than Chatham County, where the original suit had been transferred.
Later, the parties agreed that the two new actions filed in Fulton County needed to become part of the original action transferred to Chatham County. The State Court of Chatham County agreed to enter into a consent order whereby the Plaintiffs could add the two new defendants. But, in what became their fatal step, before Chatham County had amended the suit to add the two newer defendants, the Plaintiffs voluntarily dismissed the two newer actions in Fulton State Court.
What the Law States
Subsequently, the Defendants filed a motion to dismiss the action in Chatham State Court. The Defendants cited the two-dismissal rule under O.C.G.A. § 9-11-41(a)(3). The Chatham Court granted the defendants’ motion to dismiss, and the Georgia Court of Appeals affirmed the trial court.
O.C.G.A. § 9-11-41 states that an “action may be dismissed by the plaintiff, without order or permission of court… by filing a written notice of dismissal at any time before the first witness is sworn.” However, filing a “second notice of dismissal operates as an adjudication upon the merits.”
In interpreting O.C.G.A. § 9-11-41, the Georgia Court of Appeals cited Walker v. Mecca, 320 Ga. App. 142, 143, 739 S.E.2d 450 (2013) and noted that the two-dismissal rule applies to actions and not defendants. So, when Joyner dismissed two suits against defendants intended to be part of a third ongoing suit, the third suit was deemed to adjudicate on the merits and warranted dismissal.
What this Means for You
Although the Supreme Court of Georgia is set to review Joyner, attorneys should not expect the Court to overrule the Court of Appeals’ interpretation of the two-dismissal rule. The likely outcome will be a nod to the legislature for change.
With that in mind, Plaintiffs’ attorneys should remember the Joyner decision when thinking about filing suit. Whether you are filing suit against one defendant or five, in one action or three, remember that voluntarily dismissing a case more than once will result in adjudication on the merits of the entire action. Regardless of how many defendants are left, the two-dismissal rule is tied to the action and not the defendants.