Most car accident attorneys in Atlanta know that a plaintiff has the right to dismiss a defendant without prejudice once they have been properly served and can refile the lawsuit within 6 months of the dismissal. OCGA 9-2-61. This option is frequently used when there is a delay in getting service on a defendant and the defense attorney files a Motion to Dismiss.
In a recent Court of Appeals decision though the question arose about a situation where there were multiple defendants and the Plaintiff dismissed some of the defendants, but not all. While under OCGA 9-11-41, a plaintiff can dismiss a defendant or all defendants without filing a motion (leave of court), if the plaintiff wants to drop some and keep some, they must file a motion under OCGA 9-21. In Gresham v. Harris, the Court was faced with a situation where the defendant filed a dismissal without prejudice of less than all defendants. Because he cannot do that under the law, the Court has discretion on how to treat such an attempt and they felt like being nice, they treated it as a Motion to Dismiss less than all Defendants pursuant to OCGA 9-11-21 and ruled on it some weeks later. Within six months of the court’s ruling and Order on the dismissal, the Plaintiff refiled the case.
The defense argued that the refiling was untimely because the six months should be counted from the time of the initially attempted dismissal. The Court of Appeals disagreed and let the plaintiff off the hook and found that the refiling was timely because the initial attempt at dismissal was to be treated as nothing more than a Motion to Dismiss and did not start the timer running.