The plaintiff obtained an extension to file its brief in opposition to the motion. Although the summary judgment motion had been filed, not all of the briefs had been filed. The most likely reason is that the submission in Kansas Bankers was incomplete at the time the plaintiff dismissed the action. Therefore, the plaintiff had a right to dismiss the action.īecause the court in Kansas Bankers concluded that the plaintiff had the right to dismiss the action pursuant to § 25-601, the court must have concluded that the pending summary judgment motion did not constitute a final submission. The defendant had instead filed a motion for summary judgment. The court noted that the pendency of a counterclaim will preclude the plaintiff from dismissing an action in its entirety but added that the defendant had not filed a counterclaim. The court held that the district court lacked jurisdiction to grant the defendant’s motion for attorney’s fees because the action had already been dismissed when the defendant filed its motion. The district court granted the defendant’s motion. After the plaintiff dismissed the action, the defendant sought an award of attorney’s fees pursuant to § 25-824 on the ground that the plaintiff’s action was frivolous. The plaintiff in Kansas Bankers moved to dismiss the action-and the court entered its order dismissing the action-on the same day that the plaintiff’s brief in opposition to the defendant’s summary judgment motion was due. Halford, however, could be read as saying that the plaintiff’s right to dismiss is unaffected by a pending motion for summary judgment. The supreme court’s decision in Kansas Bankers Surety Co. Therefore, the submission of a motion for summary judgment should be treated as a final submission of the action. The court is called upon to determine as a matter of law whether there are any issues arising from the facts that present a triable issue. The plaintiff should not be allowed to avoid a potentially dispositive ruling by dismissing its action without prejudice so that it can bolster its case and refile in a more sympathetic forum.Ī motion for a directed verdict is treated as final submission “because the court is called upon to determine as a matter of law whether there are any issues arising from the facts submitted which present a jury question.” The same is true of a motion for summary judgment. This commentary argues that the submission of either motion should be treated as a final submission of the action. It is also unclear whether the filing and arguing of a motion to dismiss for failure to state a claim constitutes a final submission. It is unclear whether the filing and arguing of a summary judgment motion constitutes a final submission for purposes of § 25-601. The plaintiff can then dismiss the action without prejudice if it so chooses. The court’s decision in effect sets aside the submission and allows the action to proceed. If the court denies the motion, however, the action is no longer under final submission. An action is also under final submission when the defendant moves for a directed verdict in a jury trial and the parties have made their arguments on the motion. For example, an action is under final submission when the defendant moves to dismiss the action at the close of the plaintiff’s case in a bench trial. At that point, the action has been put in the hands of the trier of fact for a decision on the merits.Ī final submission can occur on a motion. A final submission occurs in a jury trial after the parties finish their closing arguments and the jury has been instructed. “Final submission contemplates submission on both the law and the facts when nothing remains to be done in order to render the submission complete.” A final submission occurs in a bench trial when the parties finish their closing arguments. Section 25-601(1) provides that the plaintiff can voluntarily dismiss an action without prejudice anytime before final submission.
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