1
2
3
4
5
SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR KING COUNTY

6
7

DELVONN HECKARD,
NO. 17-2-09152-9 SEA

8
Plaintiff,

MOTION FOR VOLUNTARY NONSUIT WITHOUT PREJUDICE

9
v.
10
MAYOR EDWARD MURRAY,
11
Defendant.
12
13
I.

INTRODUCTION

14
Pursuant to CR 41(a)(1)(B), Plaintiff Delvonn Heckard moves to dismiss his claims
15
against Defendant Ed Murray without prejudice. This voluntary non-suit is taken as a matter
16
of right and without notice in accordance with CR 41(a)(1)(B) and well-established case law
17
and can be entered ex parte. See King County Council v. King County Personnel Bd., 43 Wn.
18
App. 317, 716 P.2d 322 (1986) (absolute right to non-suit).

Moreover, there are no

19
counterclaims of record, and trial is not scheduled until April 2, 2018. In accordance with
20
Washington Civil Rules and case law, this motion must be granted as an absolute matter of
21
right.
22
23
MOTION FOR VOLUNTARY NON-SUIT
WITHOUT PREJUDICE - 1 of 4
(Cause No. 17-2-09152-9 SEA)

CONNELLY LAW OFFICES, PLLC
2301 North 30th Street
Tacoma, WA 98403
(253) 593-5100 Phone - (253) 593-0380 Fax

 1

II. BACKGROUND

2

This lawsuit was filed on April 6, 2017.1 The trial is scheduled for April 2, 2018. On

3

May 24, 2017, Mayor Murray filed an Answer and asserted no-counterclaims.2 Mr. Heckard

4

feels as though it would be wise to complete his extensive counseling and recovery this

5

December prior to moving forward with this matter. Additionally, Mr. Heckard determined

6

that it would be better for the success of his lawsuit, and the citizens of the City of Seattle, for

7

this matter to proceed at a later point in time after Mayor Murray is no longer sitting in power.

8

At present, Mr. Heckard feels as though Mayor Murray garners litigation benefits by

9

defending this lawsuit while simultaneously sitting as the Mayor.

Furthermore, Mayor

10

Murray, his former campaign team, and his legal team, have successfully tainted the jury pool

11

with false information about the accusers, including Mr. Heckard. Therefore, as the trial is set

12

to occur in King County, Mr. Heckard believes that a short delay in the trial date would prove

13

beneficial to the administration of justice. As situated, Mr. Heckard is not confident that he

14

can obtain a fair trial. For these, and many other reasons, Mr. Heckard filed this motion to

15

voluntarily non-suit this claim without prejudice.

16

III. ARGUMENT
A plaintiff has the absolute right under Washington law to dismiss his or her claim

17
18

without prejudice and without notice to a defendant. CR 41(a) states as follows:

19

(a) Voluntary Dismissal.

20

(1) Mandatory. Subject to the provisions of rules 23(e) and 23.1, any action
shall be dismissed by the court:

21
22
23

1

Docket No. 2 (Case Schedule)

2

Docket No. 63 (Answer)

MOTION FOR VOLUNTARY NON-SUIT
WITHOUT PREJUDICE - 2 of 4
(Cause No. 17-2-09152-9 SEA)

CONNELLY LAW OFFICES, PLLC
2301 North 30th Street
Tacoma, WA 98403
(253) 593-5100 Phone - (253) 593-0380 Fax

 1

(A) By Stipulation. When all parties who have appeared so stipulate in
writing; or

2

(B) By Plaintiff Before Resting. Upon motion of the plaintiff at any
time before plaintiff rests at the conclusion of plaintiff's opening
case.

3
4
5
6
7

(2) Permissive. After plaintiff rests after plaintiff's opening case, plaintiff may
move for a voluntary dismissal without prejudice upon good cause shown and
upon such terms and conditions as the court deems proper.
(3) Counterclaim. If a counterclaim has been pleaded by a defendant prior to
the service upon the defendant of plaintiff s motion for dismissal, the action
shall not be dismissed against the defendant's objection unless the
counterclaim can remain pending for independent adjudication by the court.

10

(4) Effect. Unless otherwise stated in the order of dismissal, the dismissal
is without prejudice, except that an order of dismissal operates as an
adjudication upon the merits when obtained by a plaintiff who has once
dismissed an action based on or including the same claim in any court of the
United States or of any state.

11

CR 41(a) (emphasis added). Here, Mr. Heckard has not rested his case; Mayor Murray did

12

not assert any counter-claims; and trial is not scheduled until April 2, 2018. Moreover, as the

13

WSBA's Washington Civil Procedure Deskbook states:

8
9

17

The purpose of CR 41 (a) is to vest in plaintiff a unilateral right to a
voluntary dismissal until the time plaintiff rests, subject to the limitation of
CR 41 (a)(3)....The court has no discretion in granting a voluntary
dismissal at any time before the plaintiff rests at the conclusion of the
plaintiff's case. Polello v. Knapp, 68 Wn. App. 809 (1993); Seattle-First
National Bank v. Westwood Lumber, Inc., 59 Wn. App. 344 (1990); King
County Council v. King County Pers. Bd., 43 Wn. App. 317 (1986).

18

2 Washington State Bar Association, Washington Civil Procedure Deskbook, Dismissal of

19

Actions §§41.5 and 41.6 (1)(a) (2nd Ed., 2002) (emphasis added). Accordingly, dismissal

20

without prejudice is mandatory upon Plaintiff’s present motion pursuant to CR 41(a)(1)(B).

14
15
16

21
22

As a final matter, CR 41 voluntary dismissals without prejudice are regularly
presented ex parte and do not require notice to a defendant:

23
MOTION FOR VOLUNTARY NON-SUIT
WITHOUT PREJUDICE - 3 of 4
(Cause No. 17-2-09152-9 SEA)

CONNELLY LAW OFFICES, PLLC
2301 North 30th Street
Tacoma, WA 98403
(253) 593-5100 Phone - (253) 593-0380 Fax

 1
2
3

Although CR 41 does not speak to notice, the fact that the motion can be made
at any time before the plaintiff rests his or her case, and then must be granted
by the court, indicates that prior written notice of the motion is not
required. Indeed, motions for voluntary nonsuit are often made orally at trial,
without substantial notice. If the trial court relied on lack of notice as a
reason for refusing to grant Greenlaw's motion, it erred.

4
Greenlaw v. Renn, 64 Wn. App. 499, 503–04, 824 P.2d 1263, 1266 (1992) (emphasis added);
5
6
7

see also, 14 WASH. PRAC. Tegland, Civil Procedure §23.4 (2nd Ed., 2009), 3B WASH. PRAC.:
RULES PRACTICE, CR 41, Author's Comments (“the courts have held that the plaintiff need
not give advance notice to the defendant before requesting a voluntary dismissal”)

8
(emphasis added). As such, Mr. Heckard voluntarily moves to dismiss his claims against
9
Mayor Murray without prejudice.
10
IV. CONCLUSION
11
Mr. Heckard’s primary goal in relation to this lawsuit, letting the public know the
12
truth, is accomplished. For the reasons set forth herein, Mr. Heckard respectfully requests the
13
entry of an order dismissing this claim without prejudice.
14
15

DATED this 13th day of June, 2017.
CONNELLY LAW OFFICES, PLLC

16

Lincoln Beauregard

17

By _________________________________________
Lincoln C. Beauregard, WSBA No. 32878
Julie A. Kays, WSBA No. WSBA No. 30385
Attorneys for Plaintiff

18
19
20

L.A. LAW & ASSOCIATES, PLLC

21

Lawand Anderson
By _________________________________________
Lawand Anderson, WSBA No. 49012
Attorney for Plaintiff

22
23
MOTION FOR VOLUNTARY NON-SUIT
WITHOUT PREJUDICE - 4 of 4
(Cause No. 17-2-09152-9 SEA)

CONNELLY LAW OFFICES, PLLC
2301 North 30th Street
Tacoma, WA 98403
(253) 593-5100 Phone - (253) 593-0380 Fax