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05/17/93 EILEEN THOUBBORON v. FORD MOTOR COMPANY

May 17, 1993

EILEEN THOUBBORON, ET AL., APPELLANTS
v.
FORD MOTOR COMPANY, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Richard A. Levie, Trial Judge)

Before Steadman, Schwelb and Sullivan, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge : On September 17, 1991, the trial Judge granted defendant Ford Motor Company's motion to dismiss as time-barred, with prejudice, all individual and class claims in a product liability action brought by thirty-three owners of Ford automobiles (the owners). The Judge then denied as moot the owners' motion, filed pursuant to Super. Ct. Civ. R. 41 (a)(2), to dismiss without prejudice their individual claims (but not their class claims). On appeal, the owners contend that the trial Judge abused his discretion by dismissing their individual claims with prejudice rather than without prejudice. We vacate the judgment and remand for further proceedings. *fn1

I.

This dispute has been around a while. On August 21, 1981, almost twelve years ago, John F. (Jack) Walsh and 103 other owners of Ford automobiles (the Walsh plaintiffs) filed suit against Ford in the United States District Court. They alleged that faulty transmissions in certain Ford models caused the vehicles to shift gears unexpectedly from "park" to "reverse," and that Ford had breached its written and implied warranties with respect to these transmissions.

The Walsh case had a long and checkered history. See Walsh v. Ford Motor Co., 130 F.R.D. 260, 263, 277 (D.D.C. 1990) (Walsh I). All told, it generated more than a dozen reported decisions in the federal district court and in the United States Court of Appeals. Dissatisfied with the trial court's Disposition in March, 1990, of certain class action issues, Walsh I, supra, counsel for the Walsh plaintiffs filed a notice of appeal in the United States Court of Appeals. That appeal was dismissed, however, because Walsh, the sole named appellant, had settled with Ford and had signed a complete release. Walsh v. Ford Motor Co., 292 U.S. App. D.C. 32, 945 F.2d 1188 (1991) (Walsh II). *fn2

On February 6, 1991, while the appeal in Walsh was still pending, counsel in Walsh filed the instant suit against Ford in the Superior Court on behalf of Eileen Thoubboron and thirty-three other Ford owners, all of whom were among the plaintiffs in Walsh. All of the claims of the Thoubboron plaintiffs related to events which had occurred more than a decade earlier, but the plaintiffs apparently believed that the filing of their suit in Walsh had tolled the statute of limitations. On March 4, 1991, Ford filed a motion to dismiss the complaint as time-barred. See D.C. Code § 28.2-725 (1991) (four-year statute of limitations). Ford relied on our decision in Bond v. Serano, 566 A.2d 47 (D.C. 1989) (per curiam), in which we declined, in the absence of statutory authorization, to impose a tolling exception to the statute of limitations by judicial fiat. Accord, Curtis v. Aluminum Ass'n., 607 A.2d 509 (D.C. 1992) (per curiam); Namerdy v. Generalcar, 217 A.2d 109, 113 (D.C. 1966). On March 18, 1991, the owners countered with a motion pursuant to Rule 41 (a)(2) to dismiss their individual claims (but not their class claims) without prejudice.

On September 17, 1991, the trial court granted Ford's motion on the authority of Bond, supra, noting that " Bond represents an unwillingness by our Court of Appeals to create judicially an exception to the statute of limitations, where no such exception has been enacted by the legislature." Relying on O'Shea v. Littleton, 414 U.S. 488, 494, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974), the Judge also dismissed the owners' class claims with prejudice. The Judge disposed summarily of the owners' motion for voluntary dismissal:

Despite some discrepancy in the moving papers regarding the basis for their motion, plaintiffs moved to voluntarily dismiss the individual but not the class claims of the named plaintiffs, pursuant to Super. Ct. Civ. R. 41 (a)(2). In so doing, plaintiffs requested the court not to act on the motion before a specified date in order to enable the plaintiffs to file an action in another jurisdiction.

In view of the granting of defendant's motion to dismiss, both the individual and class claims stand dismissed. Plaintiffs' motion is thus moot.

This appeal followed.

II.

The Ford owners contend that the trial Judge should not have dismissed their action with prejudice. They ask us to direct the Judge, instead, to dismiss the individual claims without prejudice pursuant to Super. Ct. Civ. R. 41 (a)(2), which provides in pertinent part that

except as provided in paragraph (1) of this subdivision of this Rule, *fn3 an action shall not be dismissed at the plaintiffs instance save upon order of the Court and upon such ...


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