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Civil Practice — Payment of Costs – Delivery to Clerk – Rule 41

Civil Practice — Payment of Costs – Delivery to Clerk – Rule 41

Fowler v. Riddle (Lawyers Weekly No. 15-16-0378, 12 pp.) (Douglas McCullough, J.) Appealed from Buncombe County Superior Court (Gary Gavenus, J.) N.C. App. Unpub.

Holding: Pursuant to N.C. R. Civ. P. 41(d), after plaintiffs voluntarily dismissed their first action and then re-filed it, plaintiffs were taxed with the costs of the first action and ordered to pay the costs within 30 days or have their re-filed action dismissed. Where plaintiffs mailed a check for the costs to the clerk on the 29th day, and where the clerk of court received the check on the 31st day, the trial court properly dismissed plaintiffs’ re-filed action.

We affirm the trial court’s order of dismissal.

Plaintiffs fail to cite any direct authority for their proposition that mailing payment to the clerk of court within 30 days, rather than receipt by the clerk of court, satisfies their obligation under Rule 41(d). The workers’ compensation cases cited by plaintiffs are distinguishable.

The plain language of Rule 41(d) requires “payment of such costs by the plaintiff within 30 days.” According to the ordinary meaning of the term “payment,” a plaintiff who voluntarily dismisses an action or claim must perform by delivering money, specifically the costs of the action, within 30 days. “Payment” only occurs if the costs are “given and accepted” in full discharge of an obligation. Because plaintiffs failed to deliver the costs of the voluntarily dismissed action to defendants within 30 days of the costs order, we affirm the order of the trial court dismissing plaintiffs’ re-filed action.

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