I’ve long been aware that one could use Rule 41(b), SCRCP, to move to dismiss an action for failure to prosecute or as a sanction for the other party failing to comply with the rules of civil procedure or a court order. However yesterday, at the end of my case in chief of a contempt action I was prosecuting, an opposing counsel moved for an involuntary dismissal, citing this same rule. I argued that there was no directed verdicts in family court but the judge and opposing counsel noted that this was not a motion for a directed verdict (covered by Rule 50, SCRCP) but a motion for an involuntary non-suit.
Sure enough, Rule 41(b) is not one of the rules of civil procedure made inapplicable by Rule 2, SCFCR. Further the second sentence of Rule 41(b) reads,
After the plaintiff in an action tried by the court without a jury has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.
Reading the case law on involuntary non-suits I cannot determine how a motion for an involuntary non-suit based on the sentance above differs from a motion for a directed verdict. Further, no case law from a family court appeal cites Rule 41(b). One doubts the Supreme Court and the legislature (who together develop the state’s procedural rules) intended to allow a case to be involuntary dismissed at the end of a Plaintiff’s case in chief through an involutary dismissal while not allowing motions for a directed verdict. I assume this is an unintended oversight in the procedural rules–however it was an oversight my opposing counsel was astute enough to exploit–thankfully unsuccessfully.
However South Carolina family law attorneys should be aware that they (or their opposing counsels) can use Rule 41(b) as a backdoor method of obtaining a directed verdict.
