Before Steadman and Glickman, Associate Judges, and Belson, Senior
The opinion of the court was delivered by: Belson, Senior Judge
Appeal from the Superior Court of the District of Columbia (Hon. Joan Zeldon, Trial Judge)
This matter comes before us on appeal from the Superior Court's dismissal of appellants' complaint with prejudice pursuant to Super. Ct. Civ. R. 41 (a)(1). The issue presented by the undisputed facts is whether appellants' previous voluntary dismissals of this action in two Maryland District Courts resulted in an adjudication on the merits that warranted summary judgment in the trial court. We conclude that they did, and affirm the judgment of the trial court on the basis of the doctrine of res judicata.
This litigation involves an automobile accident that took place in January 1996 in the District of Columbia. On October 27, 1997, appellants' suit, prepared for filing in the District Court of Maryland for Prince George's County ("Prince George's County"), was filed through administrative error on the part of their attorneys' office in the District Court of Maryland for Montgomery County ("Montgomery County"). On January 13, 1998, after learning of the mistake and before the summons was served upon appellee, appellants filed a notice of dismissal in Montgomery County.
On January 8, 1998, appellants filed a complaint in Prince George's County. After appellee and co-defendant Genevieve Wood were served on February 3, 1998, appellants filed suit in the Superior Court of the District of Columbia. On or about February 27, 1998, appellants filed a voluntary notice of dismissal in Prince George's County.
In the Superior Court, appellee and Wood filed motions to dismiss, accompanied by attachments, on the basis that the case had already been "adjudicated on the merits." The Superior Court granted these motions, one on June 17, 1998 and the other on August 24, 1998. Although these motions were styled "motions to dismiss," they were actually motions for summary judgment since their attachments substantiated matters of fact upon which the motions depended. See Super. Ct. Civ. R. 12 (b). Appellants filed a timely notice of appeal. *fn1
Appellants contend that the consequences that attach to a plaintiff's filing two voluntary notices of dismissal do not apply here because their first suit was filed in Montgomery County due to inadvertence. This contention is not supported by statute, rule, or precedent. Maryland law controls, but the principles are essentially the same under District of Columbia law, as both jurisdictions apply the "two dismissal rule" patterned after Fed. R. Civ. P. 41.
Voluntary dismissal in a Maryland district court is governed by Md. Rule 3-506. "[A] plaintiff may dismiss an action without leave of court . . . by filing a notice of dismissal at any time before the adverse party files a notice of intention to defend." Md. R. 3-506 (a). Thus, each unilateral dismissal was permissible because it occurred before the appellees filed a response. The first dismissal was without prejudice; the second, however, "operate[d] as an adjudication upon the merits." Md. R. 3-506 (c) ("Unless otherwise specified . . . a dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a party who has previously dismissed in any court of any state or in any court of the United States an action based on or including the same claim."). See New Jersey ex rel. Lennon v. Strazzella, 627 A.2d 1055, 1058 (Md. 1993) ("By using the term `notice of dismissal,' Rule 2-506 (c)[ *fn2 ] makes clear that it is that form of voluntary dismissal that, following `a previous dismissal,' operates as an adjudication of the merits.").
This court has neither been referred to nor found Maryland cases creating any hardship exception to the rule. When the Court of Appeals of Maryland dealt with Md. R. 2-506 in New Jersey ex rel. Lennon, supra, it discussed the circumstances under which a second dismissal would be an adjudication on the merits. The court made no mention of any exception to the rule. *fn3
The Court of Appeals of Maryland further noted in New Jersey ex rel. Lennon, supra, that the pertinent Maryland rules are based on the Fed. R. Civ. P. 41 (a), see id. at 1058-59, and it looked to federal precedents and rulings by courts of other states with "two dismissal rules" for guidance in its interpretation of the Maryland rules. See id. at 1060. The Court of Appeals of Maryland also noted that the District of Columbia Superior Court has a similar rule patterned after Fed. R. Civ. ...