Tag Archives: Motions

SCOA: Previous Subject Matter Jurisdiction Dismissal Does Not Count For 2-Dismissal Rule

In the case Jonesboro Healthcare Ctr., LLC v. Eaton-Moery Envtl. Services, Inc., 2011 Ark. 501 (decided December 1, 2011), the Arkansas Supreme Court held that a previous dismissal for lack of subject matter jurisdiction will not count as a dismissal for purposes of the two-dismissal provision of Ark.R.Civ.P. 41(b).

Generally under Rule 41(b), a dismissal will be deemed to be with prejudice if the case has previously been dismissed. (Sometimes this is referred to as the “two-dismissal rule.”)

But in this case, notwithstanding what it said was the “literal” language of the rule, the supreme court held that a previous subject matter jurisdiction dismissal will not be considered the type of dismissal to which Rule 41(b) applies. Continue reading SCOA: Previous Subject Matter Jurisdiction Dismissal Does Not Count For 2-Dismissal Rule

SCOA: Appeal of 1st Dismissal, If Affirmed, Bars Further Pleading

In the December 9, 2010 opinion Orr v. Hudson, 2010 Ark. 484, the Arkansas Supreme Court held that when a plaintiff appeals a dismissal when he or she had the opportunity to plead further (i.e., by filing a new lawsuit), an affirmance of the dismissal means that the dismissal is with prejudice.

Appellant Tasha Orr, individually and as an estate representative, brought a medical negligence and wrongful death suit in Lee County Circuit Court against two doctors, Appellee Stephen Hudson, M.D., and Appellee Timothy Calicott, M.D. Per Rule 12(b)(3) of the Arkansas Rules of Civil Procedure, the Lee County Circuit Court granted the doctors’ motion to dismiss the complaint due to improper venue. Orr appealed, and the dismissal was affirmed.

Orr then filed her complaint in Faulkner County Circuit Court. The circuit court granted the doctors’ motion to dismiss that complaint on the basis that Orr had waived her right to plead further when she appealed the first dismissal and there was an affirmance. In Orr v. Calicott, 2009 Ark.App. 857, the Arkansas Court of Appeals disagreed, affirming the circuit court in part and reversing and remanding in part. Continue reading SCOA: Appeal of 1st Dismissal, If Affirmed, Bars Further Pleading

SCOA: Striking Untimely Counterclaim Answer Is Proper

In the December 9, 2010 opinion Looney v. Blair, 2010 Ark. 479, the Arkansas Supreme Court affirmed a circuit court’s order granting a Rule 12(f) motion to strike an untimely answer to a counterclaim.

Appellants Shane and Monica Looney had been served with a counterclaim filed by Appellee Faye Blair on February 9, 2009. The Looneys did not file their answer until April 23, 2009, about seven weeks after the March 4 due date. Blair filed a motion to strike the untimely answer, but did not file a motion for default. Continue reading SCOA: Striking Untimely Counterclaim Answer Is Proper