May 2016

You have a case set for trial in a state trial court.  You are tenth on the trial calendar, but the nine cases in front of you have crumbled and settled over the weekend.  Plus, your most important witness is gone from your state based on your guess that the case wouldn’t be reached for trial.  You’ve been hobbled by an Order granting a Motion in Limine excluding some of your evidence from trial. Even worse, the statute of limitations ran on your claims while your case was pending.  And you really aren’t ready (or don’t want) to try this case anyway.

Wouldn’t it be nice to wipe the slate clean and get a fresh start?  Well, you can do that in North Carolina, but probably in no other court.  If you are admitted to practice law in North Carolina, you know that in NC state court a plaintiff can dismiss his case "by filing a notice of dismissal [per Rule 41 of the NC Rules of Civil Procedure] at any time before the plaintiff rests his case." 

That is a much more generous allowance of the voluntary dismissal right than anywhere else.  In federal court (and under the Rules in many other states), by contrast, a voluntary dismissal must be filed much sooner: "before the opposing party serves either an answer or a motion for summary judgment."

The "Safety Net" Of Rule 41

The North Carolina Supreme Court (relying on North Carolina’s civil procedure expert, Gray Wilson) has said that:

The Rule 41(a) voluntary dismissal “has salvaged more lawsuits than any other procedural device, giving the plaintiff a second chance to present a viable case at trial.” 2 G. Gray Wilson, North Carolina Civil Procedure § 41-1, at 32 (2d ed. 1995). Many plaintiffs have used “this rule to cure an unforeseen defect in a claim that did not become apparent until trial . . . . The rule also offers a safety net to plaintiff or his counsel who are either unprepared or unwilling to proceed with trial the first time the case is called.” 2 G. Gray Wilson, North Carolina Civil Procedure § 41-1, at 33.

Brisson v. Santoriello, 351 N.C. 589, 597, 528 S.E.2d 569, 572-573 (2000).

The longer period of time in which a plaintiff can take a voluntary dismissal (without the permission of the opposing party) is not the "distinct" feature of the North Carolina Rule which Judge Bledsoe referenced last week in  BBB&T BOLI Plan Trust v. Massachusetts Mutual Life Ins. Co., 2016 NCBC 34 at ¶17 .  That feature is the extension of the statute of limitations governing your claims.  The Rule says that so long as your dismissed lawsuit was timely filed, "a new action based on the same claim may be commenced within one year after such dismissal."  That’s true even if the statute of limitations has expired at the time of the voluntary dismissal.

When Has A Plaintiff "Rested His Case"?

The words "rests his case" has a trial connotation to me.  When the Plaintiff has presented all of his documents and witnesses and turns the presentation of evidence over to the Defendant, he has rested his case.

But you can actually "rest your case"  much sooner than that, at least for Rule 41 purposes.  Defending your position in a summary judgment hearing means that you have rested your case within the meaning of Rule 41(a)(1)(i).  Op. ¶27 (citing Maurice v. Hatterasman Motel Corp., 38 N.C. App. 588, 591-92, 248 S.E.2d 430, 432-33 (1978)).  In fact, anytime that a plaintiff is facing a dispositive motion, he rests his case by "advanc[ing] its arguments about the merits of [his] case. . . ." Op. ¶28.

In the case before the Business Court last week, Plaintiff BB&T Trust filed its voluntary dismissal about three weeks before its trial was set to begin  During the course of the case (three years ago), Judge Murphy had denied a Motion to Amend in which the Trust tried to add additional theories of liability.  Shortly before trial, Judge Gale granted a Motion in Limine prohibiting the Trust from presenting evidence relating to those theories of liability that were the subject of its unsuccessful Motion to Amend.

So, can a voluntary dismissal be filed by a Plaintiff to avoid a Court’s adverse ruling, or has he "rested his case" by contesting the ruling?

Bad Faith Dismissals Are Not Allowed

The NC Supreme Court said in the Brisson decision that a voluntary dismissal must "not be done in bad faith."  351 N.C. 597, 528 S.E.2d 569, 573.

Judge Bledsoe rejected the argument that the BB&T Trust’s dismissal was taken in "bad faith."  He said that:

allowing Brisson’s bad faith exception to subject all voluntary dismissals to judicial scrutiny would undermine the intent of Rule 41(a) by creating unnecessary barriers for plaintiffs who wish to abandon their claims.

Op. ¶21.

So what makes out a "bad faith" dismissal?  It’s a pretty narrow circumstance, and is limited to the situation where "the initial complaint fails to conform with the rules of pleading and merely seeks to take advantage of the savings provision"  Op. ¶2.  The rationale for that limitation " is that where an initial complaint does not conform with the rules of pleading, a plaintiff should not be entitled to the “safety net” of Rule 41(a)’s [statute of limitations] savings provision after dismissal."  Op. ¶26.

Defendant MassMutual took a run at arguing that "bad faith" had to be determined on a case by case basis, and that the Plaintiff had acted in bad faith by waiting three years after the rejection of its Motion to Amend to take its voluntary dismissal.  Judge Bledsoe said that he would not extend the bad faith exception "so far beyond precedent,"  and that finding Plaintiff”s dismissal to be in bad faith "would defeat Rule 41(a)’s broad function as a ‘safety net.’"  Op. ¶26.

The Opinion makes it clear that an unfavorable ruling on a "non-dispositive motion" (like the ruling on the Defendant”s Motion in Limine) does not mean that a Plaintiff unsuccessfully contesting such a Motion has "rested his case."  Op. ¶29.

My "Unsecured Leave"

I’m going to be out of the country for the next couple of weeks.  For the first time, I’m not carrying a laptop with me, so don’t look for anything from my blog until near the end of the month.



The Business Court last month resolved a clash between North Carolina’s "Seed Law" and the Uniform Commercial Code, in Kornegay Family Farms, LLC v. Cross Creek Seed, Inc., 2016 NCBC 30.  The Plaintiff in the Kornegay case is one of eight Plaintiffs in the Business Court suing Defendant Cross Creek Seed for selling them certified tobacco seed that produced "abnormal tobacco crops." Op. 2.

The Plaintiffs are seeking millions of dollars in damages for their inadequate crops.  They will be limited to recovering the amount they paid for their seed if the limitation of damages clause placed on each container of seed is enforceable.  North Carolina’s Seed Law may invalidate that limitation.

North Carolina’s Seed Law

I had no idea that North Carolina has a "Seed Law."  It is codified in G.S. §106-277 to -277.34.  North Carolina was one of the first states in the country to enact a Seed Law (in 1891), but now almost every state has one.  The North Carolina law imposes penalties for the sale of mislabeled seed (in G.S. §106-277.24).

The purpose of the statute "is to regulate the labeling, possessing for sale, sale and offering or exposing for sale or otherwise providing for planting purposes of agricultural seeds and vegetable seeds; to prevent misrepresentation thereof. . . . "  N.C. Gen. Stat. §106-277.

The Public Policy Of The Seed Law

The NC Supreme Court held many years ago that the Seed Law represents a declaration of North Carolina’s public policy that a seller of seed cannot enforce a limitation of remedy  that limits a buyer’s recovery to the purchase price of the seed if the seed was mislabeled.  Op. 5.  It said that the Seed Law:

has declared the policy of North Carolina to be one of protecting the farmer from the disastrous consequences of planting seed of one kind, believing he is planting another. To permit the supplier of seed to escape all real responsibility for its breach of contract by inserting therein a skeleton warranty, such as was here used, would be to leave the farmer without any substantial recourse for his loss.

Gore v. George J. Ball, 279 N.C. 192, 208, 182 S.E.2d 389, 398 (1971).  The Gore Court held that It is a violation of North Carolina’s public policy to attempt to limit the damages of the purchase of mislabeled seed to the purchase price.

That decision involved a sale of seed before North Carolina adopted the Uniform Commercial Code. If a seller of mislabeled seed after the UCC came into effect can’t limit a buyer’s damages to the cost of the seed, that runs counter to Section 2-719 of the UCC (N.C. Gen. Stat. §25-2-719), which says that a seller can limit a buyer’s damages "by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts."

Judge Gale resolved the question of whether the UCC should yield to the Seed Law in this way:

  • The official comment to G.S. Section 25-2-719 says that "a limitation of remedies that purports to modify or limit the UCC’s remedial provisions ‘in an unconscionable manner’ is unenforceable.
  • Both the UCC and the Seed Law have been amended by the NC Legislature since the Gore decision was handed down.  Since "the legislature is always presumed to act with full knowledge of prior and existing law [so] where it chooses not to amend a statutory provision that has been interpreted in a specific way, we may assume that it is satisfied with that interpretation."  Op. 30 (quoting Polaroid Corp. v. Offerman, 349 N.C. 290, 303, 507 S.E.2d 284, 294 (1998).  [Do any of you believe that?]
  • The specific takes precedence over the general.  "Where a local non-UCC statute governs a specific point, it prevails over a general provision of the UCC.  Op. 31 (quoting 1 Lary Lawrence, Lawrence’s Anderson on the Uniform Commercial Code §1-102:18 (3d ed. 2002)).

Judge Gale ruled that "Gore does not allow Cross Creek to enforce its limitation of remedies against Plaintiffs if the seed sold to Plaintiffs was mislabeled."  Op. ¶38.

 Would The Limitation Of Remedy Clause Have Been Enforceable Without The Seed Law?

Many courts have addressed the validity of limitation of remedy clauses when a sale of seed was involved.  Many of those courts have refused to enforce them, either on the ground that they "failed of their essential purpose" or because they were unconscionable.  See, e.g., Schmaltz v. Nissen, 431 N.W.2d 657, 662 (S.D.1988)(limitation was unconscionable); Latimer v. William Mueller & Son, Inc., 149 Mich.App. 620, 637, 386 N.W.2d 618 (1986)(same); Lutz Farms v. Asgrow Seed Co., 948 F.2d 638, 646 (10th Cir. 1991)(both unconscionable and failed of its essential purpose); Nomo Agroindustrial SA de CV v. Enza Zaden North America, Inc., 492 F. Supp2d 1175, 1185 (D. Ariz. 2007)(limitation of remedy clause was unenforceable because it was both unconscionable and failed of its essential purpose).

Judge Gale said that it was unnecessary to reach the unconscionability/failure of essential purpose argument given that the Seed Law prohibited the enforcement of the limitation of remedy clause.  Op. 8.

Judge Gale On The Appeal Of His Opinion

One of the most interesting things about Judge Gale’s Opinion is his direct request to the North Carolina Supreme Court to consider an appeal of his decision.  He acknowledges that any appeal would be interlocutory and therefore not appealable (Op. 33) and that he cannot certify it for immediate appeal per Rule 54(a) of the NC Rules of Civil Procedure (because that Rule applies only to "final judgment[s] as to one or more but fewer than all of the claims or parties).  Id.

A quick appellate resolution of the Seed Law v. UCC issue makes sense.  Judge Gale said:

[w]ithout the ability to seek immediate appellate review of this Order & Opinion, the parties in each of these eight cases must await a final answer on a significant and controlling threshold issue until after a final, appealable judgment, which cannot be entered until complex fact and expert discovery are completed.  That discovery is likely to be long, burdensome, and expensive.

Op. 35.