SCOA: Nonsuiting Plaintiff Cannot Be Assessed Costs Until Refiling

In Kesai v. Almand, 2011 Ark. 207, — S.W.3d —-, decided on May 12, 2011, the plaintiff brought suit in Washington County Circuit Court seeking damages from a motor vehicle accident. The case proceeded to trial, and a jury was impaneled, selected, and sworn.

Just before the trial began, the plaintiff requested a voluntary dismissal. Because the jury had already been sworn, the circuit court entered an order charging the plaintiff with the costs of the court interpreter and with jury expenses. The order was amended to substitute the plaintiff’s counsel as the party responsible for paying the trial costs.

On appeal, the supreme court held that the circuit court order was in error. Under Ark. R. Civ. P. 41(d), when a party refiles an action after a voluntary or involuntary dismissal, the court in the new action “may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.”

However, the circuit court in the first action does not have authority to impose Rule 41(d) costs. That order can only be made in the later action.

In this case, since the plaintiff had not yet filed a new lawsuit, the circuit court’s order assessing Rule 41 costs was in error.

Arkansas Judiciary link (pdf).

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