Dismissal Rules

A bird. Because there aren't
really any good photos of
the rules of civil procedure.
Weitz v. Weitz, 2019 VT 35

By Elizabeth Kruska

I’ll keep this short.

Mr. and Mrs. Weitz want or wanted to get divorced. One or both of them live or lived in Massachusetts. They also have a house in Vermont and a house in New Hampshire. Mrs. Weitz filed for divorce in Vermont. Initially Mr. Weitz wanted the case to be heard in New Hampshire, but then agreed to Vermont. The case went on for nearly a year and a half, and then Mrs. Weitz moved to dismiss the case. The court agreed and the case was dismissed. Then she re-filed for divorce, but this time in Massachusetts. They’re batting .500 on trying to get divorced in New England. Whether Maine, Connecticut, and Rhode Island get involved remains to be seen.

Mr. Weitz was not pleased by this dismissal, and moved to re-open the proceedings. He felt like Mrs. Weitz was abusing the court systems by filing, and then dismissing only to re-file somewhere else. He appealed.

SCOV affirmed. Justice Carroll, writing for the court, spells out really clearly why this was okay.

The Vermont Rules of Family Court (V.R.F.P.) incorporate many of the Vermont Rules of Civil Procedure (V.R.C.P.). The relevant rules here have to do with filing a complaint and answer.

The plaintiff files the complaint. Then generally, the defendant files an answer. The defendant can also, at the time of filing an answer, file a counterclaim, which the plaintiff would have to answer. Under the rules, a plaintiff may dismiss his or her complaint at any point before an answer or motion for summary judgment is filed.

The relevant rule, V.R.C.P. 41, which is exactly the same as Rule 41 under the federal rules, has been interpreted many times by many courts. They all pretty uniformly say that a plaintiff can dismiss a case before the defendant files an answer or moves for summary judgment. When the case is pre-answer, it’s almost as if the case “belongs” to the plaintiff. The plaintiff is the one that has the power to dismiss the case entirely voluntarily and without the other side having to agree. And the court doesn’t get involved – it just dismisses and doesn’t need to order anything.

However, if the defendant responds with an answer or files a motion for summary judgment, then the plaintiff has to file a motion to dismiss and either get agreement from the defendant or have the court rule on the motion.

The problem Mr. Weitz has here is that he never filed an answer. His response to that is that it’s pretty common in Vermont divorce actions for a defendant not to answer. The case might go forward, as it did here. He pointed out also that the parties did a lot of discovery, explored alternative dispute resolution, and had some court hearings. Mr. Weitz’s position is that because of the customary practice to not file answers, and because so much work had been done, that it was wrong for the court to dismiss at this point.

He’s got good ideas, but SCOV points out that he could have avoided this result by filing an answer and/or a counterclaim. SCOV also points out in a footnote – always read the footnotes! – that the Family Rules Committee ought to take up the issue raised by this case and determine whether the rules should be clarified. SCOV also points out that a defendant who doesn’t file an answer does so at his or her peril, because the rules currently permit exactly this result.

Mr. Weitz also argued that the case was in an advanced stage of litigation, which should have prevented the voluntary dismissal. He cites a federal case where the court said the case had progressed too far for a voluntary dismissal.

SCOV wasn’t persuaded by that argument. First of all, the rule makes no distinction regarding how much work needs to have been done. It’s pretty clear there can’t be a unilateral voluntary dismissal once an answer or motion for summary judgment has been filed. Also, although the parties had done work outside the courtroom, there wasn’t a lot of court action or involvement up to the time the case was dismissed. There were a handful of very short status hearings, and some discovery certificates filed. This is very different than the federal case Mr. Weitz cited, where there had been several days’ worth of hearings. SCOV isn’t convinced this divorce case was similarly positioned.

Mr. Weitz’s last argument is that Mrs. Weitz was engaging in forum shopping. There’s some thought that she did a bunch of up-front work in Vermont, but then re-filed in Massachusetts because she would get a more favorable outcome there with respect to child support. SCOV says the court isn’t going to get in to why someone does something – if the case is at the point where a voluntary dismissal is possible, and it gets filed, then the court dismisses the case.

So, I guess, from a practice standpoint, it’s a good idea for a divorce defendant to file an answer, even though it’s not necessarily required. Filing an answer potentially protects a defendant’s right against a plaintiff’s voluntary dismissal.