Ex Parte DeArman

"The 'Motion To Stay' is granted and the Court will hold all other matters in abeyance pending a ruling by Judge Arthur Hanes on the class certification question pending before him in Case No. CV-96-1119 AJH [theLawsonclass action]."

"The issue was squarely presented to this Court late last year. InEx parte First National Bank ofJasper,675 So.2d 348(Ala. 1995), the petitioner asked for an order requiring a trial judge to dismiss a putative class action, where five prior similar putative class actions were pending against the petitioner. The Court denied the petition, but held that if a class was certified in any of the six cases, then the other five (includingallindividual actions by members of the class) wouldbe abated, regardless of the order in which the competing actions were filed.Id.at 349.

"The Court relied upon Alabama Code §6-5-440which provides,inter alia, as follows:

"No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. . . ."

"Ala. Code [1975,] §6-5-440. Application of this abatement statute has never been a matter of discretion, but has always been interpreted and enforced as a mandatory, nondiscretionary rule. See, e.g.,Sessions v. Jack Cole Co., [276 Ala. 10, ]158 So.2d 652[(1963)];Sparks v. Canal Ins.Co.,534 So.2d 582(Ala. 1988).

"In applying this statute to a class certification order, this Court inEx parte FirstNational Bank of Jasperheld that strict 'first to file' rules normally applicable to competing actions do not necessarily apply when one or more of the competing actions is a class action; instead, the Court held, while Ala. Code §6-5-440is 'controlling . . ., it must be interpreted in light of the class action procedures outlined in Rule 23, Alabama Rules of Civil Procedure.' 675 So.2d at 349. The Court then declared a simplemandatoryrule for abatement in the class action context: 'Once a certification occurs in any court, that certification abatesall other pendingactionsand the named plaintiffs in the other actions would then become members of the certified class in the court in which the certification occurred.' 675 So.2d at 349. Thus, the trial court here didprecisely as this Court directedinExparte First National Bank of Jasper."

"We begin our discussion by noting that the plaintiff chooses the forum for the litigation upon filing the lawsuit. At common law, 'the plaintiff had a right to abandon an action . . . and become nonsuit at any time before verdict.'Hamlin v. Walker,228 Mo. 611, ,128 S.W. 945,946(1910). Under our present rules, the plaintiff's right to a voluntary dismissal after the service 'by the adverse party of an answer or of a motion for summary judgment' is circumscribed by 'such terms and conditions as the court deems proper.' Ala.R.Civ.P. 41(a)(1) and (2). 'A defendant is not entitled to reversal [of an order of dismissal under Rule 41(a)(2)] unless he can show that the trial court failed to exercise or abused its discretion, orexercised an unpermitteddiscretion.'Bevill v. Owen,364 So.2d 1201,1203(Ala. 1979) (emphasis added [inFNB of Jasper II]).

"The Bank contends, however, that after August 21, 1995, the plaintiffs had no right to seek — and the trial court had no discretion to grant — a dismissal of the action. The Bank says this is so, because, it argues, §6-5-440is essentiallyself-executing, that is, it springs into operation without a motion by the defendant to invoke it, and without the trial court's considering such a motion and the grounds on which it is based. According to this argument, on August 21, 1995, when the Walker County Circuit Court certified a class action, §6-5-440operatedimmediatelyto abateautomaticallyall other actions, and specifically, for our purposes here the one pending in Fayette County. Thus, it insists, the trial court, in its order of dismissal on January 19, 1996, erred in concluding thatScheile [v. First National Bank, CV-94-062] was 'pending' in Fayette County and, consequently, erred to reversal in dismissing the action on the basis of that conclusion, Rule 41(a)(2) notwithstanding.

"In support of this proposition, the Bank states: 'The Court [inFNB of Jasper I]heldthat "[o]nce a certification occurs in any court, that certification abates all other pending actions and the named plaintiffs in the other actions would then becomePage 1291members of the certified class in the court in which the certification has occurred." 'Brief ofAppellant, at 9 (quoting 675 So.2d at 349) (emphasis added [inFNB of Jasper II]).

"The Bank, however, misconstruesFNB of Jasper I.First, the quoted statement did not — indeed, could not — represent theholding of FNB of JasperIas the Bank construes it. This is so because whenFNB of Jasper Iwas decided, there had been no certification in any court on which toestablishsuch a holding.TheFNB of Jasper I holding, which was very narrow, was that until a certification occurredsomewhere, it would be premature to consider the application of §6-5-440. [Emphasis original.] This holding is, in fact, contained in the excerpt we quoted with approval from the Fayette County Circuit Court's order, which denied the Bank's motion to dismiss, stay, or abate the action in that county:

" ' "The court finds that this [abatement] claim may have merit but ispremature.It is ordered that [the petitioner's] Plea in Abatement . . . is hereby denied. Thecourt will reconsider thismotion [following] certification andidentification of class members in those actionslisted in [the petitioner's Supplement to Record] filed September 13, 1994." '

"675 So.2d at 349 (emphasis added [inFNB of JasperII]).

"This statement does not support the rule the Bank advocates, namely, that §6-5-440is self-executing. On the contrary, in stating that it would 'reconsider' the Bank's motion to dismiss, stay, or abate the action after 'certification' in one of the other actions, the Fayette Circuit Court expressly contemplated reconsidering the issue only when — and if —the Bank renewed its motionto abate the action in Fayette County. We quoted the trial court's order as illustrating well the procedure §6-5-440requires.

"The essence of the matter is that §6-5-440is, neither by its express terms nor by this Court's construction of it, self-executing. On the contrary, §6-5-440states: 'No plaintiff isentitledto prosecute two actions . . . at the same time for the same cause . . . against the same party. In such a case, the defendantmayrequire the plaintiffto electwhich he will prosecute, if commenced simultaneously, and the pendency of the former is a gooddefenseto the latter if commenced at different times.' (Emphasis added [inFNB ofJasper II].) To take advantage of §6-5-440, the defendant must file a motion calling for the plaintiff to choose which action will be prosecuted. Thus, the defendant 'may,' but, by implication, need not, 'requirethe plaintiff to elect' a forum, if the plaintiff has commenced actions simultaneously, and the burden is upon thedefendanttoassert as a defensethe pendency of a previously commenced action. When actions are commenced simultaneously, theplaintiff has theright to choose the forumin which to proceed. . ..

"Nothing in the text of the statute suggests that the legislature intended to relieve the defendant of the responsibility to take all appropriate measures to abate an action to which it has a defense. Because the Bank's construction of §6-5-440would divest theplaintiffof the right to elect a forum and would vest that right in thedefendant, its construction would essentially stand the statute on its head. [Emphasis original.]"