Osborne v. City of Marietta

The trial court did not err in granting the city's motion for summary judgment, after the plaintiff sought to dismiss his complaint without prejudice, because the plaintiff's failure to serve the city with his motion to dismiss rendered his claim merely dormant.

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Grams Osborne sued the City of Marietta after he was arrested for driving with a suspended license. Osborne claimed that the City improperly suspended his license and failed to notify him of the suspension. Osborne now appeals, pro se, from the trial court’s grant of summary judgment in favor of the City, claiming that the trial court erred in granting summary judgment after he had sought to dismiss his complaint without prejudice and the City had acted in bad faith. We find no error and affirm. The record reveals that the City filed its motion for summary judgment on January 15, 2009. The City claimed that Osborne’s driver’s license was rightfully suspended, and it produced a copy of Osborne’s driving history showing dozens of traffic violations. On February 13, 2009, Osborne filed a “motion to dismiss without prejudice,” which he amended on April 1, 2009. The trial court conducted a hearing on April 29, 2009, and on May 1, 2009, it issued an order granting the City’s motion for summary judgment. The trial court also found that Osborne’s “motion to dismiss” was never served on the City and that it was deemed moot by the grant of summary judgment in favor of the City.

1. OCGA § 9-11-41 a 1 A generally provides that a plaintiff may dismiss an action without order or permission of the trial court, “by filing a written notice of dismissal at any time before the first witness is sworn.” Here, Osborne filed a “motion to dismiss” in which he “asked that the Court approve the dismissal of the complaint without prejudice” Even if Osborne’s motion to dismiss could be interpreted as a notice of dismissal, such a notice must be served upon the defendant in order to take effect.1

Osborne v. City of Marietta

The trial court did not err in granting the city's motion for summary judgment, after the plaintiff sought to dismiss his complaint without prejudice, because the plaintiff's failure to serve the city with his motion to dismiss rendered his claim merely dormant.

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