The Ohio Supreme Court recently ruled that the “double dismissal” rule only applies to suits dismissed under Civil Rule 41(A)(1)(a), a voluntary dismissal by the plaintiff prior to commencement of trial. A plaintiffcan only take one 41(A)(1)(a) dismissal, as that rule states in part that “a notice of dismissal operates as an adjudication upon the merits of any claim that the plaintiff has once dismissed in any court.”
At issue in the case was whether a claim was barred because one of the prior dismissals taken by the plaintiff was under Civil rule 41(A)(2), with leave of court. A second dismissal was taken by the plaintiff under Civil Rule 41(A)(1)(a), and when the case was filed again, the defendant raised the defense that the case had been twice dismissed, and couldn’t be brought a third time. The Supreme Court upheld the Court of Appeal’s finding that the two prior dismissals did not fall under the “double dismissal” rule, Olynyk v. Scholes; Andres, et al., 114 O.S.3d 56, 2007-Ohio-2878.