It ain’t over ’til it’s over

Case dismissed?

By A.J. Wagner

In opera, it is said that it isn’t over until the fat lady sings. In the law, the singing begins at the filing of a final entry with prejudice. The term “with prejudice” means, literally, with harm or disadvantage. In the vernacular it means, “Move along,” “There’s nothing else to see,” “That’s all folks,” “Appeal it if you must.”

Sometimes, though, a case can be ended without prejudice. When this happens there is no singing. It’s more like an intermission open to the possibility of a second act.

You may ask yourself, “Who doesn’t want to hear the fat lady sing? That’s my favorite part.” But sometimes a case isn’t ready to go to trial and the trial date is looming. Most often, cases are dismissed voluntarily by the plaintiff (the person who started the lawsuit). Cases are often dismissed because the plaintiff is still undergoing medical treatment and all of the medical bills haven’t been collected. Sometimes cases are dismissed without prejudice because the attorneys need more time to prepare their case.

Trial court judges in Ohio are monitored by the state’s Supreme Court to determine if they are moving their cases along. Judges schedule trials and expect a case to move forward. A voluntary dismissal is, sometimes, the only way for an attorney to slow the case down and get it off the judge’s report to the Supreme Court so the judge doesn’t look bad for not moving cases along.

Rule 41(A)(1) of the Ohio Rules of Civil Procedure states:

“. . .  [A] plaintiff, without order of court, may dismiss all claims asserted by that plaintiff against a defendant by doing either of the following:

(a) filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by that defendant;

(b) filing a stipulation of dismissal signed by all parties who have appeared in the action.

Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice. . .”

Once a dismissal is made under this rule, the case can be reactivated if it is refilled within a year of the dismissal. So the plaintiff gets another year to complete treatment or the attorneys get another year to prepare their case for trial. Since the case won’t be scheduled for trial for six months or more, they may have even more than a year.

In practice it looks like this. A person is injured in a car accident. The injuries require several surgeries and rehabilitation. That person has two years to bring a lawsuit against the person who caused the accident even if the rehabilitation isn’t done. It takes nine months to a year to get a trial date. The injured party needs more surgery and has more rehabilitation to do as the trial date approaches. By dismissing the case under Rule 41 prior to the trial, the plaintiff gets another year and a half or more to recover before having to explain to a jury all of the injuries and the damages they have caused.

This topic comes up because last week Dyer, Garofolo, Mann and Schultz used Civil Rule 41(A) to dismiss the lawsuit they had pending against the City of Dayton to stop the City’s use of traffic cameras. There is a case currently pending before the Ohio Sixth District Court of Appeals with the same basic issues challenging the constitutionality of these big brother overseers. It makes sense to wait for this important decision before spending significant time and money on a trial here. If the Toledo based Appeals Court goes the way of courts in Missouri, Florida and California, the cameras may be tossed out. There are now eight states that outlaw or restrict the use of these cameras.

Should the courts uphold the cameras, they could still be thrown out at the ballot box. There have been around twenty-three votes on traffic cameras in the United States and in twenty-two of those, citizens tossed the cameras.

Much has been made of the safety provided by the cameras, but there are other non-punitive ways to address safety. The City of Detroit identified problem traffic areas with a focus on high-crash intersections. Specific improvements were implemented such as enlarging traffic light lenses, re-striping left turn lanes, re-timing the signals, and adding an all-red clearance interval (leaving both sides red for a bit when signals change). The result was a forty-seven percent reduction in crashes and a fifty percent reduction in injuries.

Dayton needs the revenue, but to collect it on the backs of citizens and visitors while violating their right to a presumption of innocence, to a fair trial and to due process belies the “Welcome Dayton” philosophy the City proclaims.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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