Monday, November 10, 2014

No Third Bites at the Apple

Nixon Peabody v. Superior Court, No B256873 (D2d4 Oct. 17, 2014)

Plaintiff voluntarily dismissed its case in LA Superior and a related case in the C.D. Cal, which lead to the involuntary dismissal with prejudice of a third, related, federal case under the “two dismissal” rule. See Fed. R. Civ. P. 41 (a)(1)(B) (second dismissal is counted as on the merits if plaintiff has previously dismissed a prior case
based on or including the same claim). Plaintiff then moved under Code of Civil Procedure § 473(d) to revive the LA Superior Court case, arguing that because its attorney had not informed it of the consequences of the dismissal, it should be relieved from default. The trial court said ok, but the court of appeal says no dice. Section 473(d) might permit relief when an attorney dismisses a client’s case without authorization, but it doesn’t apply when the attorney just fails to explain the consequences of a dismissal.

Writ granted.

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