You Cannot Re-File A Case Dismissed Without Prejudice With A Different Judge

The Indiana Court of Appeals closed the door on a way to avoid a judge that you don’t like in Zavodnik v. Richards, ___ N.E.2d ___ (Ind. Ct. App. 2013) , Cause No. 49A02-1209-CC-750. It turns out that you can’t voluntarily dismiss a case in front of one judge and then re-file it in front of another judge. Instead, the Court chose to give Trial Rule 41(F) some meaning.

Zavodnik filed lawsuits against a series of individuals, including Guzman and Richards, from 2008 to 2010. Those lawsuits were consolidated before Judge Oakes in Marion County. Judge Oakes dismissed all of the cases without prejudice under Trial Rule 41(E). That decision was appealed and the Court of Appeals affirmed the dismissal of most of the cases, including those against Guzman and Richards, but reversed a few of the dismissals.

In the next couple of months, Zavodnik filed new lawsuits against Guzman, Richards, and others, containing the same allegations as the original complaints. These new complaints were assigned to Judge Dreyer. Guzman moved to dismiss the new suit against him based on Zavodnik’s failure to seek reinstatement of his original complaint before Judge Oakes under Trial Rule 41(F). Judge Dreyer granted that motion and sua sponte dismissed the complaint naming Richards, too.

On appeal, Zavodnik argued that there was no rule preventing him from filing the new complaints in a different court. However, the Court disagreed.

[W]hen a trial court has involuntarily dismissed a case without prejudice pursuant to Trial Rule 41(E), subsection (F) of that rule ascribes to the dismissing trial court the discretion to consider whether a complaint should be reinstated. … We also presume that the Indiana Supreme Court, in drafting Trial Rule 41, did not intend to place a nullity in the rule by adding subsection (F)’s explicit procedure for how to go about reinstatement of a complaint dismissed without prejudice. Zavodnik’s position, that such complaints can be re-filed in a different court without following the reinstatement procedure, would render that provision meaningless.

The Court did not fault Judge Dreyer for dismissing the lawsuit naming Richards sua sponte, but noted that Zavodnik had not argued this issue on appeal.

It’s not clear whether Zavodnik made an innocent mistake or was trying to game the system. Either way, the Court’s conclusion appears to be a fairly straightforward application of the Trial Rules. However, it is a case to be aware of, so that you don’t make the same kind of “mistake.”


    If a case is dismissed without prejudice, then a party who wishes to pursue the claim must move for reinstatement under Trial Rule 41(F), rather than file a new lawsuit.
Brad A. Catlin
Price Waicukauski & Riley, LLC
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