CARROLL, J. In this divorce
proceeding, husband appeals an order denying his motion to reopen the case
after wife’s notice of voluntary dismissal, filed pursuant to Vermont Rule of
Civil Procedure 41(a)(1)(i). On appeal, husband argues that: (1) Rule
41(a)(1)(i) “is in direct conflict” with the Vermont Rules for Family
Proceedings and is therefore inapplicable to the Family Division; (2) Rule
41(a)(1)(i) was not intended to apply in cases where significant resources have
been expended; and (3) that it is inequitable to apply Rule 41(a)(1)(i) in this
case due to alleged bad faith and bad acts by wife. We affirm.
The interpretation of a procedural
rule is a question of law which we review de novo. State v. Amidon, 2008 VT
122, ¶ 16, 185 Vt. 1, 967 A.2d 1126. The plain, ordinary meaning of a rule
controls when it is unambiguous. See State v. Villar, 2017 VT 109, ¶ 7, 206 Vt.
236, 180 A.3d 588 (“In construing a procedural rule, we look first to the
rule's plain language, just as with statutory construction.”); McClellan v.
Haddock, 2017 VT 13, ¶ 13, 204 Vt. 252, 166 A.3d 579 (“Our task . . . is to
ascertain and implement the Legislative intent . . . . In determining that
intent, our principal source, at least initially, must be the language of the
statute itself.” (quotation omitted)).
Rule 41(a)(1)(i) states that an
action “may be dismissed by the plaintiff without order of court by filing a
notice of dismissal at any time before service by the adverse party of an
answer or of a motion for summary judgment.” V.R.C.P. 41(a)(1)(i). This
language is unambiguous: if an adverse party has not served either an answer or
a motion for summary judgment on the plaintiff, then the plaintiff may choose
to dismiss the case3 by filing a notice of dismissal. Use of the permissive
term “may” shows that a V.R.C.P. 41(a)(1)(i) dismissal is at the plaintiff’s
option. And no court order is necessary to effectuate such a dismissal because
the case is to be dismissed “by the plaintiff without order of [the] court.”
Id.; Fed. Nat’l Mortg. Ass’n v. Johnston, 2018 VT 51, ¶ 5, __Vt.__, 189 A.3d
567 (“The language . . . ‘without order of court’ connotes that as long as a
plaintiff makes the filing and the requisite facts are present . . . then the case
is dismissed.”)
Generally, Vermont Rule 41(a)(1)(i)
does not permit consideration of how far a case has advanced where no answer or
motion for summary judgment has been served by an adverse party. The reason for a voluntary dismissal, whether
to forum shop, avoid sanctions, or simply seek a more convenient (or
advantageous) forum, is irrelevant.
The Rules of Civil Procedure apply
to “actions for divorce” except as “otherwise provided” in the Vermont Rules
for Family Proceedings. V.R.F.P. 4.0(a)(1)-(2)
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