Month: August 2013

Fifth Circuit Allows Rule 60 Motion To Vacate Voluntary Dismissal

Music v. Church, Court of Appeals, 5th Circuit 2013 – Google Scholar.

The Fifth Circuit, with one dissent, has allowed a plaintiff to vacate a Rule 41 voluntary dismissal by using a Rule 60 motion to vacate.

Rule 41(a) allows a plaintiff to dismiss a lawsuit without prejudice. Here the plaintiffs used Rule 41(a) to accomplish that objective.

Plaintiff then brought a Rule 60 motion to vacate the judgement.

The Defendant argued that a Rule 41(a) voluntary dismissal is not a judgment, so it cannot be vacated. The Fifth Circuit held that a Rule 41(a) voluntary dismissal is a judgment and that Rule 60 can be used to vacate it. In so ruling, the Fifth Circuit joined the Fourth, Sixth and Seventh Circuits.

There does not appear to be a split in the circuits.

This procedure could be useful if the case is voluntarily dismissed pursuant to a settlement and one party does not abide by the terms of the settlement.

Edward X. Clinton, Jr.

Sanctions Motion Arising Out of 30(b)(6) Deposition Denied

TENNESSEE BANK & TRUST v. Lowery, Dist. Court, MD Tennessee 2013 – Google Scholar.

Under Rule 30(b)(6) a party may require the opposing party (usually an organization or corporation) to produce a witness with knowledge of certain facts. In this case, the plaintiff filed an amended complaint and then produced the 30(b)(6) witness. When the witness provided little support for the claims in the amended complaint, the defendants moved for Rule 11 sanctions.

The court denied the motion, ruling that the sanctions inquiry is governed by what the lawyer knew when she signed the complaint, not what emerged thereafter. The sanctions motion was denied as premature. The court ruled correctly, in my view, that the plaintiff had the right to complete discovery on its amended complaint before a Rule 11 sanctions motion could be heard.

Edward X. Clinton, Jr.