In the case of Julie Greely v. Sean Greely, on March 19, 2008, the Supreme Court of New Jersey , the Supreme Court held that a plaintiff cannot unilaterally dismiss a matter if the other party has answered and further, that a party who started the law suit in New Jersey cannot then claim that New Jersey is an inconvenient forum.

The parties were married in Omaha, Nebraska in 1989. In 1995 the parties moved to New Jersey with their infant son. Shortly thereafter they had another child. In June 2006, plaintiff, wife, filed a  complaint for divorce. The defendant husband, who had moved back to Nebraska, responded. The parties engaged in discovery and a court-mandated early settlement panel conference.

In the meantime, plaintiff also moved back to Nebraska. On March 28, 2007, plaintiff filed a unilateral stipulation of dismissal without prejudice. The very next day, plaintiff filed a complaint in a Nebraska court seeking the same relief as in the New Jersey case.

Defendant’s New Jersey counsel immediately asserted that plaintiff’s purported unilateral “stipulated” dismissal of the New Jersey complaint for divorce was a nullity, and requested that plaintiff withdraw that stipulation.    Plaintiff refused. Defendant moved to reinstate the answer.

The trial court found “that the stipulation of dismissal was filed in violation of R. 4:37-1(a) and shall be vacated.” It also rejected plaintiff’s “suggestion” that the New Jersey complaint for divorce be dismissed under the doctrine of forum non conveniens. Plaintiff appealed.

The Appellate Division reversed the trial court, finding that “New Jersey has no further interest in this litigation since both parties have moved out of State, the children now reside in Nebraska and neither party owns property in this State.” The panel provided, however that the UCCJEA “governs litigation over custody issues” and that “the parties may use discovery and evidence derived from the New Jersey action in another state’s action.”

Defendant petitioned, and the Supreme Court granted certification. The Supreme Court reversed the Appellate Division, and reinstated the trial courts decision.

R. 4:37-1(a) permits two [and only two] processes for the voluntary dismissal of cases: (1) unilateral dismissals by filing a notice of dismissal at any time prior to service by the adverse party of an answer or of a motion for summary judgment, whichever occurs first; and (2) consensual dismissals by filing a stipulation of dismissal specifying the claims or claims being dismissed, signed by all parties who have appeared in the action. Thus, plaintiff’s purported unilateral stipulation of dismissal was and remains a legal nullity.

The trial courts rejection of plaintiff’s forum non conveniens as to non-custody matters was proper for reasons stated by the court. While the custody matters are governed by UCCJEA, which provides that a “court of this State that has jurisdiction under this act to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” N.J.S.A. 2A:34-71(a). It also clearly provides that “the issue of inconvenient forum may be raised upon the court’s own motion, request of another court or motion of a party.” Id.

While at the end of the day, Nebraska may very well be the most convenient jurisdiction to hear some or all of the issues, it seems apparent that parties simply cannot avoid the rules and exercise self-help to obtain a desired result.

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