Attorneys' Fees Properly Awarded After Voluntary Dismissal

Attorneys' Fees Appropriate after Rule 41 Notice of Dismissal

Vicari v. Lake Havasu City, 222 Ariz. 218, 213 P.3d 367 (App., Div. I, August 4, 2009) (J. Weisberg)

AWARD OF ATTORNEYS' FEES TO DEFENDANT APPROPRIATE AFTER PLAINTIFF FILES RULE 41 NOTICE OF DISMISSAL IN RESPONSE TO DEFENDANT'S RULE 12 MOTION TO DISMISS

Plaintiff sued the defendant for breach of contract on a third party beneficiary theory. The defendant moved to dismiss arguing it had no contractual relationship with plaintiff, and that plaintiff's complaint “failed to state a claim upon which relief could be granted.” Plaintiff did not respond to the motion but instead filed a rule 41 notice of voluntary dismissal of the lawsuit. The defendant then sought and was awarded attorneys' fees pursuant to ARS sec. 12-349—filing of an action without justification or in bad faith.

On appeal the Court of Appeals sustained the award finding that a voluntary dismissal does not allow a plaintiff to escape responsibility for paying fees where it has filed a frivolous lawsuit. Rule 41 itself makes no mention of fees and the reason for the enactment of the rule was to limit plaintiff from filing excessive successive lawsuits, dismissing one without prejudice just to file another over and again. This purpose would not be furthered by denying the legitimate request for fees here.

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