In my cause, about 50 days after it was filed, I motioned to voluntarily dismiss a party.

The next day a motion for protective order was filed against us, so as not to contact the public agency who was dismissed. I made the mistake of thinking my Ohio 41(a) motion to dismiss w/o prejudice as of right would automatically dismiss this Defendant and the motion for protective order was moot.

I received an order from the court on Friday stating that the motion for protective order was granted. All until further ordered.

I'm surprised, most case law says that the court had lost jurisdiction as soon as I filed the motion to dismiss.

My thoughts as to possible hangups as to why their motion would have still netted them the order:

1. Jurisdiction was retained by the court because the case involves an important matter of public policy (health department). If not, then:

2. I used a motion instead of a notice, implying that I was asking permission rather than asserting my right to dismiss. Or:

3. Never responded to their motion, believing it would be a useless gesture.

4. The defendant's attorney misrepresented material facts in his motion (knew I should have responded no matter what..rookie mistake)

Any feedback is greatly appreciated.

Best regards.

Dismissal of a party is typically done with a "Notice of Dismissal with Prejudice" ... or without ... and not by motion, since the court is typically not required to "rule" on a dismissal. It is, as you say, your right to dismiss a party at any time.

Sadly, however, a dismissed party may move for attorneys fees and costs if he has incurred any, and dismissing a defendant does not, of course, put a stop to any counterclaim, cross-claim, or third-party complaint that party may have filed.

Does that help a bit, Justin?

Yes, thank you.

They have no counterclaim, cross-claim, or third party complaint.

So in order to correct my mistake, would I do well to withdraw the motion to dismiss w/o prejudice, and file a "notice" regarding the dismissal?

Thanks again.

My thought is,

File a Notice of Dismissal
and
Motion to Strike my Motion to Dismiss.

I'll give all the grounds as to how it was an inadvertent mistake, due to a misapprehension of the true meaning of Rule 41 and that a distinction exists between motion and notice to dismiss, respectively.

Any thoughts or pointers are appreciated.

Best regards.
* Last updated by: JUSTIN6 on 12/8/2013 @ 9:19 PM *

Without offering "legal advice" here, but with faith in the principle that "legal education" is everyone's right, in general a notice of dismissal simply kills a pending action as to the party dismissed. The way to withdraw a motion is "Notice of Withdrawal of Motion". Once an action has been killed, pending motions go away, since there is no action in which to hear them ... at least in all jurisdictions we know of.