EFTA01118793.pdf

Wdstlaw FLJUR ACTIONS § 160 Pagc I I Fla. Jur 2d Actions § 160 Florida Jurisprudence, Second Edition Database updated August 2012 Actions Kathleen M. Geiger, J.D., Samantha M. Khosla, J.D., M.A., Sonja Larsen, J.D., Richard Link, J.D., and Barbara J. Van Arsdale, J.D. IV. Dismissal and Discontinuance B. Voluntary Dismissal 2. By Court Order Tonic Summary Correlation Table References § 160. Effect on counterclaim West's Key Number Digest West's Key Number Digest, Pretrial Procedure k517.1 518 Treatises and Practice Aids Trawick's Florida Practice and Procedure § 21:3 (2010 ed.) (Other voluntary dismissals) If a counterclaim has been served by a defendant prior to the service upon him or her of the plaintiffs notice of dismissal, the action shall not be dismissed against the defendant's objections unless the counterclaim can remain pending for independent adjudication by the court.W Illustration: A father's petition for relief did not serve as a bar to the voluntary dismissal of the Department of Revenue's Uni- form Interstate Family Support Act/Uniform Reciprocal Enforcement of Support Act action on behalf of a Texas mother; the petition for relief was a contest to the registration of the Texas child support order and not a counter- claim seeking affirmative relief that would act as a bar to a voluntary dismissal.[I] A wife's answer to her husband's petition for dissolution of marriage and her motions for support for her children and for alimony for herself constituted counterclaims sufficient to prevent voluntary dismissal by the husband.W The purpose of the statute generally prohibiting the dismissal of an action when a counterclaim has been served on plaintiff prior to service upon the defendant of plaintiffs notice of voluntary dismissal is to preclude a plaintiff 'laterally terminating the litigation when the defendant countersuesaj us, where a counterclaim is filed by a defendant or a third party, the plaintiff cannot voluntarily dismiss the action as against the counter plaintiffa without an order of the trial court,M) when a counterclaimal or an C 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA01118793 FLJUR ACTIONS § 160 Page 2 Fla. Jur 2d Actions § 160 amended counterclaim is nending.[§) Although a counterclaim is not extinguished by voluntary dismissal of the complaint, a defendant cannot pursue a cross-claim against a codefendant after the plaintiff has voluntarily dis- missed the complaint.(2) A defendant is not required to effectuate service of process on the plaintiff of an amended counterclaim after plaintiffs notice of voluntary dismissal where the initial counterclaim was served before plaintiffs voluntary dis- missal was served on defendant and the amended counterclaim relates back to the date of service of the original counterclaim.02] The dismissal of a compulsory counterclaim with prejudice is not considered a final disposition and is, thus, not appealable until a final disposition of the original cause has been obtained on the meritsau Illustration: Clients' counterclaim remained pending where it was dismissed with prejudice and clients could not seek review until disposition of a law firm's original cause, and thus, to allow a voluntary dismissal of the original cause to oth- erwise cut off clients' rights under the counterclaim would violate Rules of Civil Procedure.aa] fF/911Fla. R. Civ. P. 1.420(a)(2). As to counterclaims, generally see Fla. Jur. 2d. Pleadings §§ I et seq. (FN2I fledge v. Hedge. 816 So. 2d 241 (Fla. Dist. Ct. App. 4th Dist. 2002). JENS] McFarley v, Mearlev. 353 So, 24 1250 (la. Dist. Ct. Aon. 24 Dist. 1978); Cooper v. Cooper. 194 So. 2d 278 (Fla. Dist. Ct. Apo. 2d Dist. 1967). JFN41 Murphy v. WISU Properties. Ltd.. 895 So, 2d 1088 (Fla, Dist Ct. App. 3d Dist 20041. (FNS) Rogers v. Publix Super Markets. Inc.. 575 So. 2d 214 (Ha. Dist. Ct. App. 5th Dist. 1990); Federal Jns. Co. v, Faiolitis. 478 So. 2d 106 (Fla. Dist. Ct. Ann. 2d Dist. 19851. JFN6J Rogers v. Publix Super Markets. Inc., 575 So. 2d 214 (Ha. Dist. Ct. App. Slit Dist. 1990). Siler v. Lumbennens Mut, Cas. Co.. 420 So. 2d 357 (Fla. Dist. Ct. App. 5th Dist. 1982). JEN7I Federal Ins. Co. v. Fatolitis, 478 So. 2d 106 (Fla. Dist. Ct. ADD. 2d Dist. 1985); Gull Const. Co. v. Hcndrie. 271 So. 2d 775 (Fla. Dist. Ct. App. 2d Dist. 1973). JF1481 Our Gang. Inc. v. Commvest Securities. Inc.. 608 So. 2d 542 (Ha. Dist. Ct. ADD. 4th Dist. 1992). JFN91 Layne Dredging Co. v. Regus. Inc.. 622 So. 2d 7 (Fla. Dist. Ct. ADD. 2d Dist. 1993) JFNIOI Murphy v. W1SU Properties, Ltd., 895 So. 2d 1088 (Fla. Dist. Ct. App. 3d Dist. 2004). (EN I I I Machinery Wholesalers. Inc. v. Wolpe. Leibowitz & Braman. 700 So. 2d 170 (Fla. Dist. Ct. Any. 3d Dist. 1997); Campbell v. Gordon. 674 So. 2d 783 (Fla. Dist. Ct. App. I st Dist. 19961. O 2012 Thomson Reuters. No Claim to Orig. US Cloy. Works. EFTA01118794 FLJUR ACTIONS § 160 Page 3 1 Fla. Jur 2d Actions § 160 JFN12jJohnso 7 Fla Di 2d Dist. 1993). Westlaw. O 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. FLIUR ACTIONS § 160 END OF DOCUMENT O 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA01118795