OPERATION CLAMBAKE: SCIENTOLOGY COURT FILES

Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)




                                Michael J. FLYNN
                                       v.
             CHURCH OF SCIENTOLOGY OF CALIFORNIA, INC., et al. [FN1]

      FN1. Church of Scientology of Boston, Inc., Kevin Tighe, Robert Johnson,
     and David Aden.

                           Appeals Court of Massachusetts,
                                      Suffolk.
                                Argued Oct. 16, 1984.
                                Decided Dec. 4, 1984.
  Attorney who had brought action against two churches and three individuals
 allegedly associated with second church for the alleged unlawful taking
 of documents from his law office and from a dumpster outside his office moved
 for voluntary dismissal without prejudice.  The Superior Court, Suffolk County,
 Hiller B. Zobel, J., dismissed with prejudice, refusing to allow attorney to
 withdraw motion, and attorney appealed.  The Appeals Court, Fine, J., held
 that:  (1) attorney had absolute right to dismiss without prejudice his case
 against first church, which had not answered complaint or moved for summary
 judgment, and (2) attorney, who, at outset of hearing on his motion for
 voluntary dismissal, was given three possible resolutions of motion, which were
 dismissal with prejudice, denial of motion to dismiss, and denial of motion to
 dismiss with a stay of Federal Court proceedings against one defendant, and who
 declined to accept any of alternatives and proceeded to argue against them in
 support of motion to dismiss without prejudice, was entitled to withdraw motion
 to dismiss immediately upon announcement in open court of trial court's
 dismissal with prejudice, since attorney had no notice that possible
 consequence of his failure to accept option to withdraw motion at outset of
 hearing could be waiver of such option, and since it was reasonable for
 attorney to avail himself of opportunity to be heard orally in support of
 motion he had filed.
  Reversed and remanded.

 [1] PRETRIAL PROCEDURE
 Plaintiff had absolute right to voluntary dismissal without prejudice against
 defendant which had not answered complaint or moved for summary judgment prior
 to plaintiff's motion for voluntary dismissal;  there was no occasion for
 exercise of discretion, and no condition could be placed on exercise of that
 right.  Rules Civ.Proc., Rule 41(a)(1), 43A M.G.L.A.

 [1] PRETRIAL PROCEDURE
 Plaintiff had absolute right to voluntary dismissal without prejudice against
 defendant which had not answered complaint or moved for summary judgment prior
 to plaintiff's motion for voluntary dismissal;  there was no occasion for
 exercise of discretion, and no condition could be placed on exercise of that
 right.  Rules Civ.Proc., Rule 41(a)(1), 43A M.G.L.A.

 [1] PRETRIAL PROCEDURE
 Plaintiff had absolute right to voluntary dismissal without prejudice against
 defendant which had not answered complaint or moved for summary judgment prior
 to plaintiff's motion for voluntary dismissal;  there was no occasion for
 exercise of discretion, and no condition could be placed on exercise of that
 right.  Rules Civ.Proc., Rule 41(a)(1), 43A M.G.L.A.

 [2] PRETRIAL PROCEDURE
 Plaintiff has absolute right to voluntary dismissal without prejudice prior to
 service of an answer or motion for summary judgment by defendant, even if
 defendant being dismissed is not the only defendant in the case, and even if
 one or more of the other defendants had filed answers.  Rules Civ.Proc.,
 Rule 41(a)(1), 43A M.G.L.A.

 [2] PRETRIAL PROCEDURE
 Plaintiff has absolute right to voluntary dismissal without prejudice prior to
 service of an answer or motion for summary judgment by defendant, even if
 defendant being dismissed is not the only defendant in the case, and even if
 one or more of the other defendants had filed answers.  Rules Civ.Proc.,
 Rule 41(a)(1), 43A M.G.L.A.

 [3] PRETRIAL PROCEDURE
 Normally judges are accorded wide discretion in setting terms and conditions
 when dismissing a case under rule dealing with voluntary dismissal by
 plaintiff.  Rules Civ.Proc., Rule 41(a)(2), 43A M.G.L.A.

 [4] APPEAL AND ERROR
 Test to be applied in determining whether trial court acted properly in
 granting plaintiff's motion for voluntary dismissal but requiring dismissal to
 be with prejudice is whether to have dismissed without prejudice would have
 caused substantial prejudice to defendants.  Rules Civ.Proc., Rule 41(a)(1,
 2), 43A M.G.L.A.

 [5] PRETRIAL PROCEDURE
 Delay of less than two years from plaintiff's filing of suit to plaintiff's
 motion for voluntary dismissal was not so unreasonable as to constitute an
 abuse, particularly in light of absence of any effort of defendants to move
 case along, and thus, did not require dismissal of case with prejudice.
 Rules Civ.Proc., Rule 41(a)(1, 2), 43A M.G.L.A.

 [5] PRETRIAL PROCEDURE
 Delay of less than two years from plaintiff's filing of suit to plaintiff's
 motion for voluntary dismissal was not so unreasonable as to constitute an
 abuse, particularly in light of absence of any effort of defendants to move
 case along, and thus, did not require dismissal of case with prejudice.
 Rules Civ.Proc., Rule 41(a)(1, 2), 43A M.G.L.A.

 [6] PRETRIAL PROCEDURE
 Plaintiff's unavailability for deposition and his filing of motion for
 voluntary dismissal on day of his scheduled deposition did not provide
 sufficient basis for a dismissal with prejudice in the absence of a
 determination that plaintiff was in fact available for deposition on date
 scheduled and that he refused to appear.  Rules Civ.Proc., Rule 41(a)(1,
 2), 43A M.G.L.A.

 [7] PRETRIAL PROCEDURE
 Attorney's claims against two churches and three individuals who were allegedly
 associated with second church for the alleged unlawful taking of documents from
 his law office from dumpster located outside his office, which claims were
 sufficiently meritorious to form basis for some relief by the Federal District
 Court and for some concessions to be made by counsel for defendants, were not
 so lacking in merit as to require dismissal of plaintiff's case with prejudice,
 in response to his motion for voluntary dismissal.  Rules Civ.Proc., Rule
 41(a)(1, 2), 43A M.G.L.A.

 [8] PRETRIAL PROCEDURE
 In response to plaintiff's motion for voluntary dismissal without prejudice,
 defendants' claim that case should be dismissed with prejudice because they
 ought to be allowed to defend themselves in action and in forum selected by
 plaintiff and not be faced with same claims at later time was insufficient to
 justify dismissal with prejudice, in light of plaintiff's assurance that he
 would not sue defendants on claims.  Rules Civ.Proc., Rule 41(a)(1, 2),
 43A M.G.L.A.

 [9] PRETRIAL PROCEDURE
 A plaintiff, having moved to dismiss voluntarily, and being faced with
 conditions he finds too onerous, may, if he acts promptly, decline to have
 action dismissed and go forward on merits.  Rules Civ.Proc., Rule 41(a)(1,
 2), 43A M.G.L.A.

 [10] PRETRIAL PROCEDURE
 Plaintiff who, at outset of hearing on his motion for voluntary dismissal, was
 given three possible resolutions of motion, which were dismissal with
 prejudice, denial of motion to dismiss, and denial of motion to dismiss with a
 stay of Federal Court proceedings against one defendant, and who declined to
 accept any of alternatives and proceeded to argue against them in support of
 motion, was entitled to withdraw motion immediately upon announcement in open
 court of trial court's dismissal with prejudice, since plaintiff had no notice
 that possible consequence of his failure to accept option to withdraw motion at
 outset of hearing could be waiver of such option, and since it was reasonable
 for plaintiff to avail himself of opportunity to be heard orally in support of
 motion he had filed.  Rules Civ.Proc., Rule 41(a)(1, 2), 43A M.G.L.A.
  **410 *59 Harvey A. Silverglate, Boston, for Church of Scientology of
 California, Inc., et al.
  David M. Banash, Boston, for plaintiff.
  Charles W. Rankin, Boston, for Kevin Tighe.

  Before GREANEY, C.J., and DREBEN and FINE, JJ.

  FINE, Justice.
  On April 9, 1982, Michael J. Flynn, an attorney, brought an action against the
 Church of Scientology of California, Inc., The Church of Scientology of Boston,
 Inc., and three individuals, each of whom is alleged to have been associated
 with the Church of Scientology of Boston, Inc., either as a staff member or as
 an officer.  Mr. Flynn claims that the defendants were responsible for the
 unlawful taking of documents *60 from his law offices in Boston and from a
 dumpster located outside his office.  He alleges that these acts occurred over
 a period from December of 1979 until the fall of 1981, and that, among the
 documents taken, were confidential client communications.  He sought injunctive
 relief, compensatory damages, and an award of multiple damages and attorney's
 fees under G.L. c. 93A.
  On October 12, 1983, a judge of the Superior Court dismissed the lawsuit with
 prejudice following a hearing on Mr. Flynn's motion for voluntary dismissal
 under Mass. **411 R.Civ.P. 41(a)(2), 365 Mass. 803 (1974). [FN2]  The
 question posed by Mr. Flynn's appeal in this case is whether that action was
 proper.  In order to answer it, we must examine the history of the particular
 litigation, as well as other material which was before the judge when he acted
 on the plaintiff's motion.  Although a considerable amount of other material
 has been brought to our attention by the parties, we focus our attention
 exclusively on that material which was before the judge when he rendered his
 decision.  Because the language of the sections of the rules with which we are
 concerned is almost identical to the equivalent sections of the Federal Rules
 of Civil Procedure, we look for guidance to Federal law in interpreting those
 rules.  Rollins Environmental Servs., Inc. v. Superior Court, 368 Mass. 174,
 179-180, 330 N.E.2d 814 (1975).

      FN2. The rule provides:  "By Order of Court.  Except as provided in
     paragraph (1) of this subdivision (a) [voluntary dismissal by plaintiff by
     filing a timely notice of dismissal or by filing a stipulation of all
     parties], an action shall not be dismissed at the plaintiff's instance save
     upon order of the court and upon such terms and conditions as the court
     deems proper...."

  The following is a summary of the relevant events that occurred in the case
 after the complaint was filed and prior to the hearing.  On April 13, 1982, a
 hearing was held on the plaintiff's motion for a preliminary injunction, at
 which all parties except the Church of Scientology of California, Inc., were
 represented.  There was a discussion of proceedings which had taken place in a
 case pending in the United States District Court in Boston, Van Schaick v.
 Church of Scientology of California, Inc., No. 79-2491-G (D.Mass. filed Dec.
 13, *61 1979), and of certain orders which had been entered in that case
 relating to the documents allegedly taken from Mr. Flynn's office or trash,
 which were the same documents as those referred to in the instant case. [FN3]
 Perhaps because those orders provide some protection to Mr. Flynn as to the use
 that could be made of the documents, on the day it was heard the motion for
 preliminary injunction was denied.  It was again denied after an interlocutory
 review by a single justice of this court (pursuant to G.L. c. 231, s 118,
 first par.) a few days later.  On May 10, 1982, all parties except the Church
 of Scientology of California, Inc., filed answers.  On May 17, 1982, Mr. Flynn
 filed a demand for jury trial.  On September 12, 1983, Mr. Flynn filed a
 notice, dated August 29, 1983, of voluntary dismissal as to the Church of
 Scientology of California, Inc.  On September 19 and 22, 1983, respectively,
 the defendants gave notice that they would take the depositions of Mr. Flynn on
 September 29, 1983, and of four other individuals on various other dates.  On
 September 29, 1983, Mr. Flynn filed his motion to dismiss and also a motion to
 stay discovery pending resolution of the motion to dismiss.  The motion to stay
 discovery was allowed.  The motion to dismiss was heard and allowed with
 prejudice on October 12, 1983, all parties having been represented at the
 hearing except the Church of Scientology of California, Inc.

      FN3. The complaint in the Van Schaick case involved, inter alia,
     allegations of fraud, unrelated to the alleged theft of documents.  Mr.
     Flynn, on behalf of the plaintiff in that case, filed a "Motion for a
     Temporary Restraining Order, for a Preliminary Injunction for Return of
     Stolen Property and for an Evidentiary Hearing."  After hearing, an order
     was entered on September 14, 1981, whereby copies of any documents taken
     were to be furnished to Mr. Flynn and, until further order of the court,
     the defendants in the case were enjoined from delivering, transferring,
     distributing, disseminating, or destroying the documents.  Further motions
     were filed, and on April 5, 1982, after a hearing on "Defendants' Request
     for Modification of Order," during which hearing counsel for the defendants
     agreed to return certain documents to Mr. Flynn, a conditional order was
     entered vacating the order of September 14, 1981, effective ten days after
     (1) delivery to Mr. Flynn of all the subject documents in the possession of
     the defendants' attorney and (2) the filing of certain representations by
     defendants' counsel, including a representation that the defendants would
     not use the documents for harassment purposes.  Also included was an order
     that the Church of Scientology of California, Inc., produce copies of the
     documents taken.

  *62 The judge at the dismissal hearing had before him three affidavits, one
 from Mr. Flynn, one from Eric D. Blumenson, an **412 attorney representing
 the Church of Scientology of Boston, Inc., and one from Harvey A. Silverglate,
 an attorney representing the Church of Scientology of Boston, Inc., the Church
 of Scientology of California, Inc., and some of the individual defendants.  A
 considerable portion of all of the affidavits from both sides contained cross-
 charges of harassment and abuse of the judicial process.  Mr. Flynn's affidavit
 referred, in addition, to the orders which had been entered by the United
 States District Court in the Van Schaick litigation and to a complaint in a
 case filed in the United States District Court on his behalf on September 7,
 1983.  The complaint in that case (Flynn v. Hubbard, No. 83-2642-C
 [D.Mass.] ), alleges that Hubbard [FN4] and his agents are engaged in a broad
 conspiracy to "destroy" Mr. Flynn.  Numerous wrongful acts are alleged to have
 been committed, including the same acts involving documents taken from Mr.
 Flynn's office and trash which form the basis of the instant suit.  The
 affidavit of Mr. Blumenson, on the other hand, relates the difficulties
 encountered in the attempt to schedule Mr. Flynn's deposition and refers to the
 age and history of the case.  In addition, Mr. Blumenson speculates as to Mr.
 Flynn's "hit and run" strategy, characterized by the filing of numerous
 lawsuits for purposes, he says, other than the receipt of legal redress.  He
 asserts further that Mr. Flynn has shown no reason why the allegations made in
 this lawsuit should be tried in a different forum, and he states that, if the
 motion to dismiss without prejudice is allowed, his client's name will remain
 tarnished, Hubbard being the only named defendant in Mr. Flynn's Federal
 District Court case.  Mr. Silverglate's affidavit refers to correspondence from
 Mr. Flynn seeking settlement of pending cases against the various church
 organizations and threatening to file numerous additional lawsuits if
 settlement is not reached.  Mr. Silverglate refers to an *63 alleged scheme
 on the part of Mr. Flynn for development of additional litigation against the
 various church entities and alleges that Mr. Flynn's general litigation
 strategy is to file duplicative cases and dismiss them whenever faced with
 adverse rulings.  The affidavit refers to the expense incurred in defending the
 litigation brought against the church.  Mr. Silverglate also describes the
 proceedings in the Van Schaick litigation regarding the documents.  And,
 finally, he speculates that in the Federal District Court litigation against
 Hubbard Mr. Flynn's strategy is to obtain a default judgment against Hubbard,
 whom he expects not to appear, and then to collect damages from the parties who
 are the defendants in this litigation.

      FN4. Lafayette Ronald Hubbard, also known as L. Ronald Hubbard, according
     to allegations in the complaint last resided in Hemet, California, and is
     the "founder, controller, principal and absolute authority over the
     Scientology organizations and individuals."

  At the outset of the hearing, the judge outlined three possible resolutions of
 the motion to dismiss:  "dismissal with prejudice;  denial of the motion to
 dismiss;  and denial of the motion to dismiss with a stay of the Federal court
 proceedings" against Hubbard.  Mr. Flynn's attorney declined to accept any of
 the three alternatives and proceeded to argue against them and in support of
 the motion to dismiss without prejudice.  In the course of the argument, an
 offer was made on Mr. Flynn's behalf that he bind himself by an agreement not
 to sue the defendants in this case on these claims and to pay just costs.  Mr.
 Flynn's attorney stated that a dismissal without prejudice was sought because
 of fear that a dismissal without prejudice would preclude him from litigating
 certain issues in the Federal case against Hubbard.  He stated further that his
 client had no interest in pursuing the instant case at this time.  Counsel for
 the defendants only reiterated their position that Mr. Flynn would seek to
 recover damages from the defendants in this case should the Federal case
 against Hubbard be won by default.  Without hearing further from counsel for
 any of the defendants, the judge announced his decision from the bench to allow
 the motion with prejudice.  Immediately thereafter, **413 Mr. Flynn's
 attorney sought to withdraw the motion to dismiss but was not permitted to do
 so.  Further material was filed by the plaintiff with the court after the
 ruling, and a request for reconsideration was filed and denied.
  [1][2] *64 1. The position of the Church of Scientology of California,
 Inc., is different from that of the other defendants.  The case against that
 party was effectively terminated on September 12, 1983, as a result of the
 filing by the plaintiff of a notice of dismissal under Rule 41(a)(1), 365
 Mass. 803 (1974), which allows dismissal "without order of court ... by filing
 a notice of dismissal at any time before service by the adverse party of an
 answer or of a motion for summary judgment, whichever first occurs ...."  No
 answer or motion for summary judgment had been served on the plaintiff by the
 Church of Scientology of California, Inc., on or before that date.  In these
 circumstances, the plaintiff had an absolute right to dismiss that party
 without prejudice.  There was no occasion for the exercise of discretion, and
 no conditions could be placed on the exercise of that right.  American
 Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir.1963).  D.C. Electronics,
 Inc. v. Nartron Corp., 511 F.2d 294 (6th Cir.1975).  This is so even if the
 party being dismissed is not the only defendant in the case and even if one or
 more of the other defendants had filed answers.  Plains Growers, Inc. v.
 Ickes-Braun Glasshouses, Inc., 474 F.2d 250, 254-255 (5th Cir.1973).  Terry
 v. Pearlman, 42 F.R.D. 335, 337 (D.Mass.1967).  Smith & Zobel, Rules Practice s
 41.3, at 48 (1977). [FN5]  The particular status of the Church of Scientology
 of California, Inc., with respect to the notice of dismissal was not addressed
 by the judge or by counsel at the hearing or in any of the documentation
 provided to the judge before the hearing.  Whether the inclusion of the Church
 of Scientology of California, Inc., within the order dismissing the action
 with prejudice was intentional or the result of oversight, it was error.  To
 the extent that a defendant needs to be protected against the abuse by a
 plaintiff of his right unilaterally *65 to dismiss a party without
 prejudice, the "two-dismissal rule" of Rule 41(a)(1) provides that
 protection. [FN6]

      FN5. Although there are cases to the contrary, see Harvey Aluminum,
     Inc. v. American Cyanamid Co., 203 F.2d 105, 107-108 (2d Cir.), cert.
     denied, 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383 (1953), according to
     "[t]he sounder view and the weight of authority" a defendant may be
     dismissed even if there are other defendants remaining in the case.  9
     Wright & Miller, Federal Practice & Procedure s 2362, at 149-150 (1971).

      FN6. Rule 41(a)(1) provides in pertinent part:  "[A] notice of
     dismissal operates as an adjudication upon the merits when filed by a
     plaintiff who has once dismissed in any court of the United States or of
     this or any other state an action based on or including the same claim."

  [3][4] 2. The dismissal of the case against the remaining defendants, with
 prejudice, poses greater difficulty.  Normally a judge is accorded wide
 discretion in setting "terms and conditions" when dismissing a case under
 Mass.R.Civ.P. 41(a)(2).  GAF Corp. v. Transamerica Ins. Co., 665 F.2d
 364, 368 (D.C.Cir.1981).  The question presented here would be whether the
 attachment of the ultimate condition, prejudice, was called for in the somewhat
 unusual and confusing circumstances of this case.  The test we would apply is
 whether to have done otherwise would have caused substantial prejudice to the
 defendants.  Selas Corp. v. Wilshire Oil Co., 57 F.R.D. 3, 7 (E.D.Pa.1972).
 See Wright & Miller, supra s 2364, at 196.
  [5][6][7][8] In arguing that the action of the judge should be upheld, the
 defendants rely on a number of factors, no one of which by itself would be
 sufficient to justify the dismissal with prejudice. [FN7]  *66 "[T]he
 sanction **414 of dismissal is the most severe sanction that a court may
 apply, and its use must be tempered by a careful exercise of judicial
 discretion" (emphasis original).  Durham v. Florida East Coast Ry., 385 F.2d
 366, 368 (5th Cir.1967).  The offer by the plaintiff to pay costs and to enter
 into a covenant not to sue would appear to satisfy many of the reasonable
 concerns of the defendants.  See Goldlawr, Inc. v. Shubert, 32 F.R.D. 467
 (S.D.N.Y.1962).  It may be, nevertheless, that, considering all of the
 circumstances together, in light of the complex background of the litigation
 between the parties, the numerous other cases filed in various courts by these
 and related parties, the heavy civil caseload of the Superior Court, and the
 broad discretion accorded to a judge, the determination that dismissal of the
 action ought to be with prejudice fell within the bounds of reasonableness.
 We would be reluctant to rule otherwise.  For another reason, however, it is
 not necessary for us to make that determination.

      FN7. They refer first to the length of time during which the case was
     pending and the absence of diligence on the part of the plaintiff in
     bringing it forward.  We do not view the delay as so unreasonable as to
     constitute an abuse, particularly in light of the absence of any effort by
     the defendants to move the case along.  Next, the defendants point to Mr.
     Flynn's unavailability for the deposition and the timing of the filing of
     the motion for a voluntary dismissal, on the very day of Mr. Flynn's
     scheduled deposition.  The effort to schedule Mr. Flynn's deposition for
     that date, however, was the first effort by the defendants in this case to
     schedule the deposition or to conduct any discovery.  Mr. Flynn may not
     have acted promptly or as courteously as one would have liked in an effort
     to work out a mutually convenient date but, in the absence of a
     determination that Mr. Flynn was in fact available for the deposition on
     September 29, 1983, and that he refused to appear, we do not view the
     deposition scheduling problem as a sufficient basis for the action taken.
     The defendants argue further that the action was justified because the
     allegations in the complaint lacked merit.  Yet we note that they were
     sufficiently meritorious to form the basis for some relief afforded by the
     Federal District Court in the Van Schaick case and for some concessions to
     be made by counsel for the defendants.  The defendants also refer to the
     expense of the litigation to date as a valid basis for the action taken.
     The imposition of costs, including counsel fees, as a condition of
     dismissal, however, ought to have satisfied these interests.  Finally, the
     defendants urge that the action taken was proper because they ought to be
     allowed to defend themselves in this action and in the forum selected by
     the plaintiff and not be faced with the same claims at a later time.  Mr.
     Flynn offered assurance that he would not sue these defendants on these
     claims, and, even if that assurance does not provide complete protection to
     the defendants, it is not altogether clear why, in fairness, they are
     entitled to more.  (We express no view as to the effect a dismissal with
     prejudice would have on Flynn's Federal District Court case.)  Moreover,
     Mr. Flynn's interest in suing another individual on a broader claim, of
     which the instant claim is a part, in a different forum is, on the surface
     at least, a plausible explanation of his desire to have this case
     dismissed.

  [9][10] 3. Even if we were to regard the dismissal with prejudice to have
 been a proper exercise of discretion, we think the judge should have permitted
 Mr. Flynn to withdraw his motion to dismiss when he sought to do so immediately
 upon the announcement in open court of the ruling on the motion.  The
 defendants argue that because the denial of the plaintiff's motion to dismiss
 was one of the three options offered by the judge to counsel at the outset of
 the hearing, and because counsel did not accept that offer, the plaintiff
 should have been foreclosed from withdrawing the motion.  He had no notice,
 however, that a possible consequence of his failure to accept *67 that
 option at the outset of the hearing might be waiver of that option, and it was
 reasonable for him to avail himself of the opportunity to be heard orally in
 support of the motion he had filed.  It is generally recognized that a
 plaintiff, having moved to dismiss voluntarily, and being faced with conditions
 he finds too onerous, may, if he acts promptly, decline to have the action
 dismissed and go forward on its merits.  Scam Instrument Corp. v. Control
 Data Corp., 458 F.2d 885, 889 (7th Cir.1972).  Yoffe v. Keller Indus., Inc.,
 580 F.2d 126, 131 n. 13 (5th Cir.1978), cert. denied, 440 U.S. 915, 99 S.Ct.
 1231, 59 L.Ed.2d 464 (1979).  GAF Corp. v. Transamerica Ins. Co., 665 F.2d
 at 367-368.  Wright & Miller, supra s 2366, at 183.  5 Moore's Federal
 Practice P 41.06, at 41-80 (1984).  We are aware that on occasion it has been
 stated that a plaintiff filing a motion voluntarily to dismiss an action should
 be prepared to take the consequences, including the possibility that the court
 might dismiss with prejudice.  American Cyanamid Co. v. McGhee, 317 F.2d at
 298.  Considerations of fairness would seem to require, however, that, except
 in extraordinary situations, a party **415 should not be penalized for having
 filed a motion to dismiss.  The cases which recognize an option on the part of
 the moving party, when faced with conditions he finds unacceptable, to fall
 back to the position of litigating the merits of the controversy in the forum
 of his original choice appear to be based upon such a concept of fairness.
 Except to the extent that the defendants are called upon to oppose the motion
 to dismiss, a consideration which can be satisfied by the imposition of costs,
 the recognition of such an option leaves the defendants no worse off than they
 would have been had no such motion been filed.  They may still have their day
 in court.
  Accordingly, we reverse the judgment and remand the case to the Superior Court
 for further proceedings.
  So ordered.

End of file...