ORDERS:
ORDER OF DISMISSAL
This matter is before this tribunal pursuant to the Petition for Administrative Review and request for a contested case
hearing filed by Petitioner Roper Hospital, Inc. ("Roper") on December 7, 2001. In its Petition, Roper sought
administrative review of a November 29, 2001 decision of Respondent South Carolina Department of Health and
Environmental Control (DHEC) to revoke and void a determination of non-applicability of the South Carolina Certificate
of Need (CON) Act given on September 8, 2000, for Roper's combined freestanding emergency room and diagnostic center
in Mount Pleasant, South Carolina. On December 17, 2001, Respondent East Cooper Regional Medical Center ("East
Cooper") moved to intervene in this case, and, by an Order dated January 14, 2002, this tribunal granted East Cooper leave
to intervene as a respondent in this matter. On January 25, 2002, Petitioner Roper filed a motion for the voluntary
dismissal of its case without prejudice. By letter dated January 31, 2002, Respondent DHEC consented to this motion.
Respondent East Cooper, however, opposes the motion to dismiss, and has separately filed a motion for a temporary
injunction to enjoin the operation of Roper's emergency room and diagnostic center until the merits of this contested case
are heard. Based upon the memoranda filed by the parties in connection with these motions and the applicable law, I find
that Roper's motion to dismiss this case must be granted.
The Rules of Procedure for the Administrative Law Judge Division (ALJD) are silent on the procedure by which a
petitioner can voluntarily dismiss a pending contested case. However, pursuant to ALJD Rule 68, the South Carolina Rules
of Civil Procedure may be applied, where practicable, to resolve questions not addressed by the ALJD Rules. Thus, this
tribunal will look to Rule 41(a), SCRCP, which governs voluntary dismissals, for guidance in resolving Roper's motion to
dismiss this matter. (1) Rule 41(a)(2), SCRCP, provides, in pertinent part, that:
[e]xcept as provided in paragraph (1) of this subdivision of this rule,[ (2)] 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 . . . . Unless otherwise
specified in the order, a dismissal under this paragraph is without prejudice.
In interpreting this provision, the South Carolina Supreme Court has held that "[g]enerally, the plaintiff is entitled to a
voluntary non-suit without prejudice as a matter of right unless legal prejudice is shown by the defendant or important
issues of public policy are present." Burry & Son Homebuilders, Inc. v. Ford, 310 S.C. 529, 531, 426 S.E.2d 313, 314
(1992). Moreover, "[t]he granting or denial of a motion for a voluntary dismissal without prejudice is within the sound
discretion of the trial court and will not be disturbed absent a showing of an abuse of discretion." Bradshaw v. Ewing, 297
S.C. 242, 247, 376 S.E.2d 264, 267 (1989). (3)
Applying this standard in the present matter, I find that Roper's motion for a voluntary dismissal must be granted.
Respondent East Cooper has not demonstrated that it would suffer sufficient legal prejudice or that important issues of
public policy would go unresolved if Roper's motion to dismiss were granted. DHEC has ordered Roper to cease its
emergency operations in Mount Pleasant, see East Cooper's Mem. in Opp'n to Roper's Mot. to Dismiss, Ex. B, and East
Cooper would have the opportunity to challenge any decision by DHEC to license Roper to operate under the CON Act.
Further, the applicability or non-applicability of the CON Act to Roper's emergency room in Mount Pleasant is not an issue
with far-reaching public policy implications. Accordingly, this case must be dismissed.
Finally, as East Cooper's motion to enjoin the operation of Roper's emergency room sought such injunctive relief only
"until the merits of the above-captioned contested case can be heard" (East Cooper's Mot. for a Temporary Inj., at 1), the
dismissal of this case has rendered the motion moot.
IT IS THEREFORE ORDERED that Petitioner Roper's motion for a voluntary dismissal is GRANTED and the above-captioned contested case is DISMISSED without prejudice.
IT IS FURTHER ORDERED that Respondent East Cooper's motion for a temporary injunction is DENIED as moot.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
February 15, 2002
Columbia, South Carolina
1. See, e.g., Pee Dee Reg'l Landfill Auth. v. S.C. Dep't of Health & Envtl. Control, Docket No. 00-ALJ-07-0630-CC
(Admin. Law Judge Div. June 22, 2001) (applying the principles of Rule 41(a), SCRCP, to resolve a petitioner's motion for
a voluntary dismissal).
2. Rule 41(a)(1), SCRCP, which allows for dismissal without an order of the court, is inapplicable here because DHEC has
filed an answer to Roper's petition and East Cooper does not consent to the dismissal.
3. The court retains this discretion even if it has found that a dismissal would cause legal prejudice to the defendant. See
Burry & Son Homebuilders, Inc., 310 S.C. at 531, 426 S.E.2d at 314; see also James F. Flanagan, South Carolina Civil
Procedure 345 (2d ed. 1996). |
