Michael J. FLYNN
v.
CHURCH OF SCIENTOLOGY OF CALIFORNIA, INC., et al. [FN1]
FN1. Church of Scientology of Boston, Inc., Kevin Tighe, Robert Johnson,
and David Aden.
Appeals Court of Massachusetts,
Suffolk.
Argued Oct. 16, 1984.
Decided Dec. 4, 1984.
Attorney who had brought action against two churches and three individuals
allegedly associated with second church for the alleged unlawful taking
of documents from his law office and from a dumpster outside his office moved
for voluntary dismissal without prejudice. The Superior Court, Suffolk County,
Hiller B. Zobel, J., dismissed with prejudice, refusing to allow attorney to
withdraw motion, and attorney appealed. The Appeals Court, Fine, J., held
that: (1) attorney had absolute right to dismiss without prejudice his case
against first church, which had not answered complaint or moved for summary
judgment, and (2) attorney, who, at outset of hearing on his motion for
voluntary dismissal, was given three possible resolutions of motion, which were
dismissal with prejudice, denial of motion to dismiss, and denial of motion to
dismiss with a stay of Federal Court proceedings against one defendant, and who
declined to accept any of alternatives and proceeded to argue against them in
support of motion to dismiss without prejudice, was entitled to withdraw motion
to dismiss immediately upon announcement in open court of trial court's
dismissal with prejudice, since attorney had no notice that possible
consequence of his failure to accept option to withdraw motion at outset of
hearing could be waiver of such option, and since it was reasonable for
attorney to avail himself of opportunity to be heard orally in support of
motion he had filed.
Reversed and remanded.
[1] PRETRIAL PROCEDURE
Plaintiff had absolute right to voluntary dismissal without prejudice against
defendant which had not answered complaint or moved for summary judgment prior
to plaintiff's motion for voluntary dismissal; there was no occasion for
exercise of discretion, and no condition could be placed on exercise of that
right. Rules Civ.Proc., Rule 41(a)(1), 43A M.G.L.A.
[1] PRETRIAL PROCEDURE
Plaintiff had absolute right to voluntary dismissal without prejudice against
defendant which had not answered complaint or moved for summary judgment prior
to plaintiff's motion for voluntary dismissal; there was no occasion for
exercise of discretion, and no condition could be placed on exercise of that
right. Rules Civ.Proc., Rule 41(a)(1), 43A M.G.L.A.
[1] PRETRIAL PROCEDURE
Plaintiff had absolute right to voluntary dismissal without prejudice against
defendant which had not answered complaint or moved for summary judgment prior
to plaintiff's motion for voluntary dismissal; there was no occasion for
exercise of discretion, and no condition could be placed on exercise of that
right. Rules Civ.Proc., Rule 41(a)(1), 43A M.G.L.A.
[2] PRETRIAL PROCEDURE
Plaintiff has absolute right to voluntary dismissal without prejudice prior to
service of an answer or motion for summary judgment by defendant, even if
defendant being dismissed is not the only defendant in the case, and even if
one or more of the other defendants had filed answers. Rules Civ.Proc.,
Rule 41(a)(1), 43A M.G.L.A.
[2] PRETRIAL PROCEDURE
Plaintiff has absolute right to voluntary dismissal without prejudice prior to
service of an answer or motion for summary judgment by defendant, even if
defendant being dismissed is not the only defendant in the case, and even if
one or more of the other defendants had filed answers. Rules Civ.Proc.,
Rule 41(a)(1), 43A M.G.L.A.
[3] PRETRIAL PROCEDURE
Normally judges are accorded wide discretion in setting terms and conditions
when dismissing a case under rule dealing with voluntary dismissal by
plaintiff. Rules Civ.Proc., Rule 41(a)(2), 43A M.G.L.A.
[4] APPEAL AND ERROR
Test to be applied in determining whether trial court acted properly in
granting plaintiff's motion for voluntary dismissal but requiring dismissal to
be with prejudice is whether to have dismissed without prejudice would have
caused substantial prejudice to defendants. Rules Civ.Proc., Rule 41(a)(1,
2), 43A M.G.L.A.
[5] PRETRIAL PROCEDURE
Delay of less than two years from plaintiff's filing of suit to plaintiff's
motion for voluntary dismissal was not so unreasonable as to constitute an
abuse, particularly in light of absence of any effort of defendants to move
case along, and thus, did not require dismissal of case with prejudice.
Rules Civ.Proc., Rule 41(a)(1, 2), 43A M.G.L.A.
[5] PRETRIAL PROCEDURE
Delay of less than two years from plaintiff's filing of suit to plaintiff's
motion for voluntary dismissal was not so unreasonable as to constitute an
abuse, particularly in light of absence of any effort of defendants to move
case along, and thus, did not require dismissal of case with prejudice.
Rules Civ.Proc., Rule 41(a)(1, 2), 43A M.G.L.A.
[6] PRETRIAL PROCEDURE
Plaintiff's unavailability for deposition and his filing of motion for
voluntary dismissal on day of his scheduled deposition did not provide
sufficient basis for a dismissal with prejudice in the absence of a
determination that plaintiff was in fact available for deposition on date
scheduled and that he refused to appear. Rules Civ.Proc., Rule 41(a)(1,
2), 43A M.G.L.A.
[7] PRETRIAL PROCEDURE
Attorney's claims against two churches and three individuals who were allegedly
associated with second church for the alleged unlawful taking of documents from
his law office from dumpster located outside his office, which claims were
sufficiently meritorious to form basis for some relief by the Federal District
Court and for some concessions to be made by counsel for defendants, were not
so lacking in merit as to require dismissal of plaintiff's case with prejudice,
in response to his motion for voluntary dismissal. Rules Civ.Proc., Rule
41(a)(1, 2), 43A M.G.L.A.
[8] PRETRIAL PROCEDURE
In response to plaintiff's motion for voluntary dismissal without prejudice,
defendants' claim that case should be dismissed with prejudice because they
ought to be allowed to defend themselves in action and in forum selected by
plaintiff and not be faced with same claims at later time was insufficient to
justify dismissal with prejudice, in light of plaintiff's assurance that he
would not sue defendants on claims. Rules Civ.Proc., Rule 41(a)(1, 2),
43A M.G.L.A.
[9] PRETRIAL PROCEDURE
A plaintiff, having moved to dismiss voluntarily, and being faced with
conditions he finds too onerous, may, if he acts promptly, decline to have
action dismissed and go forward on merits. Rules Civ.Proc., Rule 41(a)(1,
2), 43A M.G.L.A.
[10] PRETRIAL PROCEDURE
Plaintiff who, at outset of hearing on his motion for voluntary dismissal, was
given three possible resolutions of motion, which were dismissal with
prejudice, denial of motion to dismiss, and denial of motion to dismiss with a
stay of Federal Court proceedings against one defendant, and who declined to
accept any of alternatives and proceeded to argue against them in support of
motion, was entitled to withdraw motion immediately upon announcement in open
court of trial court's dismissal with prejudice, since plaintiff had no notice
that possible consequence of his failure to accept option to withdraw motion at
outset of hearing could be waiver of such option, and since it was reasonable
for plaintiff to avail himself of opportunity to be heard orally in support of
motion he had filed. Rules Civ.Proc., Rule 41(a)(1, 2), 43A M.G.L.A.
**410 *59 Harvey A. Silverglate, Boston, for Church of Scientology of
California, Inc., et al.
David M. Banash, Boston, for plaintiff.
Charles W. Rankin, Boston, for Kevin Tighe.
Before GREANEY, C.J., and DREBEN and FINE, JJ.
FINE, Justice.
On April 9, 1982, Michael J. Flynn, an attorney, brought an action against the
Church of Scientology of California, Inc., The Church of Scientology of Boston,
Inc., and three individuals, each of whom is alleged to have been associated
with the Church of Scientology of Boston, Inc., either as a staff member or as
an officer. Mr. Flynn claims that the defendants were responsible for the
unlawful taking of documents *60 from his law offices in Boston and from a
dumpster located outside his office. He alleges that these acts occurred over
a period from December of 1979 until the fall of 1981, and that, among the
documents taken, were confidential client communications. He sought injunctive
relief, compensatory damages, and an award of multiple damages and attorney's
fees under G.L. c. 93A.
On October 12, 1983, a judge of the Superior Court dismissed the lawsuit with
prejudice following a hearing on Mr. Flynn's motion for voluntary dismissal
under Mass. **411 R.Civ.P. 41(a)(2), 365 Mass. 803 (1974). [FN2] The
question posed by Mr. Flynn's appeal in this case is whether that action was
proper. In order to answer it, we must examine the history of the particular
litigation, as well as other material which was before the judge when he acted
on the plaintiff's motion. Although a considerable amount of other material
has been brought to our attention by the parties, we focus our attention
exclusively on that material which was before the judge when he rendered his
decision. Because the language of the sections of the rules with which we are
concerned is almost identical to the equivalent sections of the Federal Rules
of Civil Procedure, we look for guidance to Federal law in interpreting those
rules. Rollins Environmental Servs., Inc. v. Superior Court, 368 Mass. 174,
179-180, 330 N.E.2d 814 (1975).
FN2. The rule provides: "By Order of Court. Except as provided in
paragraph (1) of this subdivision (a) [voluntary dismissal by plaintiff by
filing a timely notice of dismissal or by filing a stipulation of all
parties], an action shall not be dismissed at the plaintiff's instance save
upon order of the court and upon such terms and conditions as the court
deems proper...."
The following is a summary of the relevant events that occurred in the case
after the complaint was filed and prior to the hearing. On April 13, 1982, a
hearing was held on the plaintiff's motion for a preliminary injunction, at
which all parties except the Church of Scientology of California, Inc., were
represented. There was a discussion of proceedings which had taken place in a
case pending in the United States District Court in Boston, Van Schaick v.
Church of Scientology of California, Inc., No. 79-2491-G (D.Mass. filed Dec.
13, *61 1979), and of certain orders which had been entered in that case
relating to the documents allegedly taken from Mr. Flynn's office or trash,
which were the same documents as those referred to in the instant case. [FN3]
Perhaps because those orders provide some protection to Mr. Flynn as to the use
that could be made of the documents, on the day it was heard the motion for
preliminary injunction was denied. It was again denied after an interlocutory
review by a single justice of this court (pursuant to G.L. c. 231, s 118,
first par.) a few days later. On May 10, 1982, all parties except the Church
of Scientology of California, Inc., filed answers. On May 17, 1982, Mr. Flynn
filed a demand for jury trial. On September 12, 1983, Mr. Flynn filed a
notice, dated August 29, 1983, of voluntary dismissal as to the Church of
Scientology of California, Inc. On September 19 and 22, 1983, respectively,
the defendants gave notice that they would take the depositions of Mr. Flynn on
September 29, 1983, and of four other individuals on various other dates. On
September 29, 1983, Mr. Flynn filed his motion to dismiss and also a motion to
stay discovery pending resolution of the motion to dismiss. The motion to stay
discovery was allowed. The motion to dismiss was heard and allowed with
prejudice on October 12, 1983, all parties having been represented at the
hearing except the Church of Scientology of California, Inc.
FN3. The complaint in the Van Schaick case involved, inter alia,
allegations of fraud, unrelated to the alleged theft of documents. Mr.
Flynn, on behalf of the plaintiff in that case, filed a "Motion for a
Temporary Restraining Order, for a Preliminary Injunction for Return of
Stolen Property and for an Evidentiary Hearing." After hearing, an order
was entered on September 14, 1981, whereby copies of any documents taken
were to be furnished to Mr. Flynn and, until further order of the court,
the defendants in the case were enjoined from delivering, transferring,
distributing, disseminating, or destroying the documents. Further motions
were filed, and on April 5, 1982, after a hearing on "Defendants' Request
for Modification of Order," during which hearing counsel for the defendants
agreed to return certain documents to Mr. Flynn, a conditional order was
entered vacating the order of September 14, 1981, effective ten days after
(1) delivery to Mr. Flynn of all the subject documents in the possession of
the defendants' attorney and (2) the filing of certain representations by
defendants' counsel, including a representation that the defendants would
not use the documents for harassment purposes. Also included was an order
that the Church of Scientology of California, Inc., produce copies of the
documents taken.
*62 The judge at the dismissal hearing had before him three affidavits, one
from Mr. Flynn, one from Eric D. Blumenson, an **412 attorney representing
the Church of Scientology of Boston, Inc., and one from Harvey A. Silverglate,
an attorney representing the Church of Scientology of Boston, Inc., the Church
of Scientology of California, Inc., and some of the individual defendants. A
considerable portion of all of the affidavits from both sides contained cross-
charges of harassment and abuse of the judicial process. Mr. Flynn's affidavit
referred, in addition, to the orders which had been entered by the United
States District Court in the Van Schaick litigation and to a complaint in a
case filed in the United States District Court on his behalf on September 7,
1983. The complaint in that case (Flynn v. Hubbard, No. 83-2642-C
[D.Mass.] ), alleges that Hubbard [FN4] and his agents are engaged in a broad
conspiracy to "destroy" Mr. Flynn. Numerous wrongful acts are alleged to have
been committed, including the same acts involving documents taken from Mr.
Flynn's office and trash which form the basis of the instant suit. The
affidavit of Mr. Blumenson, on the other hand, relates the difficulties
encountered in the attempt to schedule Mr. Flynn's deposition and refers to the
age and history of the case. In addition, Mr. Blumenson speculates as to Mr.
Flynn's "hit and run" strategy, characterized by the filing of numerous
lawsuits for purposes, he says, other than the receipt of legal redress. He
asserts further that Mr. Flynn has shown no reason why the allegations made in
this lawsuit should be tried in a different forum, and he states that, if the
motion to dismiss without prejudice is allowed, his client's name will remain
tarnished, Hubbard being the only named defendant in Mr. Flynn's Federal
District Court case. Mr. Silverglate's affidavit refers to correspondence from
Mr. Flynn seeking settlement of pending cases against the various church
organizations and threatening to file numerous additional lawsuits if
settlement is not reached. Mr. Silverglate refers to an *63 alleged scheme
on the part of Mr. Flynn for development of additional litigation against the
various church entities and alleges that Mr. Flynn's general litigation
strategy is to file duplicative cases and dismiss them whenever faced with
adverse rulings. The affidavit refers to the expense incurred in defending the
litigation brought against the church. Mr. Silverglate also describes the
proceedings in the Van Schaick litigation regarding the documents. And,
finally, he speculates that in the Federal District Court litigation against
Hubbard Mr. Flynn's strategy is to obtain a default judgment against Hubbard,
whom he expects not to appear, and then to collect damages from the parties who
are the defendants in this litigation.
FN4. Lafayette Ronald Hubbard, also known as L. Ronald Hubbard, according
to allegations in the complaint last resided in Hemet, California, and is
the "founder, controller, principal and absolute authority over the
Scientology organizations and individuals."
At the outset of the hearing, the judge outlined three possible resolutions of
the motion to dismiss: "dismissal with prejudice; denial of the motion to
dismiss; and denial of the motion to dismiss with a stay of the Federal court
proceedings" against Hubbard. Mr. Flynn's attorney declined to accept any of
the three alternatives and proceeded to argue against them and in support of
the motion to dismiss without prejudice. In the course of the argument, an
offer was made on Mr. Flynn's behalf that he bind himself by an agreement not
to sue the defendants in this case on these claims and to pay just costs. Mr.
Flynn's attorney stated that a dismissal without prejudice was sought because
of fear that a dismissal without prejudice would preclude him from litigating
certain issues in the Federal case against Hubbard. He stated further that his
client had no interest in pursuing the instant case at this time. Counsel for
the defendants only reiterated their position that Mr. Flynn would seek to
recover damages from the defendants in this case should the Federal case
against Hubbard be won by default. Without hearing further from counsel for
any of the defendants, the judge announced his decision from the bench to allow
the motion with prejudice. Immediately thereafter, **413 Mr. Flynn's
attorney sought to withdraw the motion to dismiss but was not permitted to do
so. Further material was filed by the plaintiff with the court after the
ruling, and a request for reconsideration was filed and denied.
[1][2] *64 1. The position of the Church of Scientology of California,
Inc., is different from that of the other defendants. The case against that
party was effectively terminated on September 12, 1983, as a result of the
filing by the plaintiff of a notice of dismissal under Rule 41(a)(1), 365
Mass. 803 (1974), which allows dismissal "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, whichever first occurs ...." No
answer or motion for summary judgment had been served on the plaintiff by the
Church of Scientology of California, Inc., on or before that date. In these
circumstances, the plaintiff had an absolute right to dismiss that party
without prejudice. There was no occasion for the exercise of discretion, and
no conditions could be placed on the exercise of that right. American
Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir.1963). D.C. Electronics,
Inc. v. Nartron Corp., 511 F.2d 294 (6th Cir.1975). This is so even if the
party being dismissed is not the only defendant in the case and even if one or
more of the other defendants had filed answers. Plains Growers, Inc. v.
Ickes-Braun Glasshouses, Inc., 474 F.2d 250, 254-255 (5th Cir.1973). Terry
v. Pearlman, 42 F.R.D. 335, 337 (D.Mass.1967). Smith & Zobel, Rules Practice s
41.3, at 48 (1977). [FN5] The particular status of the Church of Scientology
of California, Inc., with respect to the notice of dismissal was not addressed
by the judge or by counsel at the hearing or in any of the documentation
provided to the judge before the hearing. Whether the inclusion of the Church
of Scientology of California, Inc., within the order dismissing the action
with prejudice was intentional or the result of oversight, it was error. To
the extent that a defendant needs to be protected against the abuse by a
plaintiff of his right unilaterally *65 to dismiss a party without
prejudice, the "two-dismissal rule" of Rule 41(a)(1) provides that
protection. [FN6]
FN5. Although there are cases to the contrary, see Harvey Aluminum,
Inc. v. American Cyanamid Co., 203 F.2d 105, 107-108 (2d Cir.), cert.
denied, 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383 (1953), according to
"[t]he sounder view and the weight of authority" a defendant may be
dismissed even if there are other defendants remaining in the case. 9
Wright & Miller, Federal Practice & Procedure s 2362, at 149-150 (1971).
FN6. Rule 41(a)(1) provides in pertinent part: "[A] notice of
dismissal operates as an adjudication upon the merits when filed by a
plaintiff who has once dismissed in any court of the United States or of
this or any other state an action based on or including the same claim."
[3][4] 2. The dismissal of the case against the remaining defendants, with
prejudice, poses greater difficulty. Normally a judge is accorded wide
discretion in setting "terms and conditions" when dismissing a case under
Mass.R.Civ.P. 41(a)(2). GAF Corp. v. Transamerica Ins. Co., 665 F.2d
364, 368 (D.C.Cir.1981). The question presented here would be whether the
attachment of the ultimate condition, prejudice, was called for in the somewhat
unusual and confusing circumstances of this case. The test we would apply is
whether to have done otherwise would have caused substantial prejudice to the
defendants. Selas Corp. v. Wilshire Oil Co., 57 F.R.D. 3, 7 (E.D.Pa.1972).
See Wright & Miller, supra s 2364, at 196.
[5][6][7][8] In arguing that the action of the judge should be upheld, the
defendants rely on a number of factors, no one of which by itself would be
sufficient to justify the dismissal with prejudice. [FN7] *66 "[T]he
sanction **414 of dismissal is the most severe sanction that a court may
apply, and its use must be tempered by a careful exercise of judicial
discretion" (emphasis original). Durham v. Florida East Coast Ry., 385 F.2d
366, 368 (5th Cir.1967). The offer by the plaintiff to pay costs and to enter
into a covenant not to sue would appear to satisfy many of the reasonable
concerns of the defendants. See Goldlawr, Inc. v. Shubert, 32 F.R.D. 467
(S.D.N.Y.1962). It may be, nevertheless, that, considering all of the
circumstances together, in light of the complex background of the litigation
between the parties, the numerous other cases filed in various courts by these
and related parties, the heavy civil caseload of the Superior Court, and the
broad discretion accorded to a judge, the determination that dismissal of the
action ought to be with prejudice fell within the bounds of reasonableness.
We would be reluctant to rule otherwise. For another reason, however, it is
not necessary for us to make that determination.
FN7. They refer first to the length of time during which the case was
pending and the absence of diligence on the part of the plaintiff in
bringing it forward. We do not view the delay as so unreasonable as to
constitute an abuse, particularly in light of the absence of any effort by
the defendants to move the case along. Next, the defendants point to Mr.
Flynn's unavailability for the deposition and the timing of the filing of
the motion for a voluntary dismissal, on the very day of Mr. Flynn's
scheduled deposition. The effort to schedule Mr. Flynn's deposition for
that date, however, was the first effort by the defendants in this case to
schedule the deposition or to conduct any discovery. Mr. Flynn may not
have acted promptly or as courteously as one would have liked in an effort
to work out a mutually convenient date but, in the absence of a
determination that Mr. Flynn was in fact available for the deposition on
September 29, 1983, and that he refused to appear, we do not view the
deposition scheduling problem as a sufficient basis for the action taken.
The defendants argue further that the action was justified because the
allegations in the complaint lacked merit. Yet we note that they were
sufficiently meritorious to form the basis for some relief afforded by the
Federal District Court in the Van Schaick case and for some concessions to
be made by counsel for the defendants. The defendants also refer to the
expense of the litigation to date as a valid basis for the action taken.
The imposition of costs, including counsel fees, as a condition of
dismissal, however, ought to have satisfied these interests. Finally, the
defendants urge that the action taken was proper because they ought to be
allowed to defend themselves in this action and in the forum selected by
the plaintiff and not be faced with the same claims at a later time. Mr.
Flynn offered assurance that he would not sue these defendants on these
claims, and, even if that assurance does not provide complete protection to
the defendants, it is not altogether clear why, in fairness, they are
entitled to more. (We express no view as to the effect a dismissal with
prejudice would have on Flynn's Federal District Court case.) Moreover,
Mr. Flynn's interest in suing another individual on a broader claim, of
which the instant claim is a part, in a different forum is, on the surface
at least, a plausible explanation of his desire to have this case
dismissed.
[9][10] 3. Even if we were to regard the dismissal with prejudice to have
been a proper exercise of discretion, we think the judge should have permitted
Mr. Flynn to withdraw his motion to dismiss when he sought to do so immediately
upon the announcement in open court of the ruling on the motion. The
defendants argue that because the denial of the plaintiff's motion to dismiss
was one of the three options offered by the judge to counsel at the outset of
the hearing, and because counsel did not accept that offer, the plaintiff
should have been foreclosed from withdrawing the motion. He had no notice,
however, that a possible consequence of his failure to accept *67 that
option at the outset of the hearing might be waiver of that option, and it was
reasonable for him to avail himself of the opportunity to be heard orally in
support of the motion he had filed. It is generally recognized that a
plaintiff, having moved to dismiss voluntarily, and being faced with conditions
he finds too onerous, may, if he acts promptly, decline to have the action
dismissed and go forward on its merits. Scam Instrument Corp. v. Control
Data Corp., 458 F.2d 885, 889 (7th Cir.1972). Yoffe v. Keller Indus., Inc.,
580 F.2d 126, 131 n. 13 (5th Cir.1978), cert. denied, 440 U.S. 915, 99 S.Ct.
1231, 59 L.Ed.2d 464 (1979). GAF Corp. v. Transamerica Ins. Co., 665 F.2d
at 367-368. Wright & Miller, supra s 2366, at 183. 5 Moore's Federal
Practice P 41.06, at 41-80 (1984). We are aware that on occasion it has been
stated that a plaintiff filing a motion voluntarily to dismiss an action should
be prepared to take the consequences, including the possibility that the court
might dismiss with prejudice. American Cyanamid Co. v. McGhee, 317 F.2d at
298. Considerations of fairness would seem to require, however, that, except
in extraordinary situations, a party **415 should not be penalized for having
filed a motion to dismiss. The cases which recognize an option on the part of
the moving party, when faced with conditions he finds unacceptable, to fall
back to the position of litigating the merits of the controversy in the forum
of his original choice appear to be based upon such a concept of fairness.
Except to the extent that the defendants are called upon to oppose the motion
to dismiss, a consideration which can be satisfied by the imposition of costs,
the recognition of such an option leaves the defendants no worse off than they
would have been had no such motion been filed. They may still have their day
in court.
Accordingly, we reverse the judgment and remand the case to the Superior Court
for further proceedings.
So ordered.