Accessing Verdicts requires a change to your plan. (c) If the motion is granted, unless the court in its order for judgment otherwise specifies, the judgment of nonsuit operates as an adjudication upon the merits. Fax: (949) 852-8510, 2023 Cummins & White LLP. You will want to apply for benefits in whichever state has the lowest burden of proof and pays the most money for your specific injuries. A motion for nonsuit is a way for a party to challenge the sufficiency of an opponents case on the merits before deliberation by the trier of fact. The type of motions that can be filed vary upon the type and procedural posture of a case. A nonsuit may be voluntary or involuntary. Motion For Nonsuit. Sort By. You do not have to explain to the commission or the defendants why you are taking your first nonsuit. August 16, 2007) unknots a sticky procedural question: In the published portion of this opinion, we hold that a motion for nonsuit, pursuant to Code of Civil Procedure section 581c, subdivision (a), does lie in a trial by the court. Virginia Code Section 8.01-380, entitled Dismissal of Action by Nonsuit; Fees and Costs. There are two ways to ask the commission to dismiss your claim voluntarily. 191-98-17 (March 30, 2000) citing. Heres a better approach: If you do find yourself faced with a motion for nonsuit after opening, make sure that your opponent has clearly specified the element(s) that he or she claims are missing, and then request judicial leave to reopen your statement to make up the missing elements. In the event that the motion is granted as to some, but not all of the issues, the arbitrator shall grant the motion as to those issues and the action shall proceed only as to the remaining issues. (Code Civ. ), In other words, [a] trial court may grant a nonsuit only when, disregarding conflicting evidence, viewing the record in the light most favorable to the plaintiff and indulging in every legitimate inference which may be drawn from the evidence, it determines there is no substantial evidence to support a judgment in the plaintiff's favor. (Dina v. People ex rel. The trial court granted the motion and entered judgment in favor of Desta. of Transportation (2007) 151 Cal.App.4th 1047. 1501. . Nondisclosure of attorney assistance in preparation of court documents. The law changes frequently and varies from jurisdiction to jurisdiction. (Code Civ. If this motion is successful, then the defendant can win the case or a portion of the case before having to present its defense or put on its own evidence. Note that if opposing partys motion to amend the pleadings is granted and they conform their pleadings to proof, a motion for nonsuit may not be granted at all. Despite the granting of the motion, no final judgment shall be entered prior to the termination of the action, but the final judgment in the action shall, in addition to any matters determined in the trial, award judgment as determined by the motion herein provided for. It generally does not take much to establish substantial evidence, but it requires more than a mere scintilla of evidence. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) FRCP Rule 52(c) applies similar rules to trials without a jury. We often co-counsel or take cases over from other attorneys right before trial. When the motion is made after opening statement, the court must assume the plaintiff will be able to prove all favorable facts alleged. Though workers comp is the exclusive remedy when it comes to recovering damages from your employer, there are situations where you can file a civil action. or after the presentation of his or her evidence in a trial by jury." . Documents for Motion for Nonsuit in California. For more information about the legal concepts addressed by these cases and statutes, visit FindLaw's Learn About the Law. to submit the case to a jury at trial, a prima facie showing of facts suf ficient to. Even though the plaintiff normally gets another chance, the experience is shattering. You realize that you can file a claim in another state and that state has more employee-friendly workers comp laws. If you see odd links to other law firms, products, or services, or any other indication that you are reading a hacked post, I would appreciate it very much if you would send me the link to the suspected hacked post. The commission is scheduled to hear them later this month. B. There is no suggestion in the court's opinion that Keck's also moved for a di-rected verdict at the close of the evidence. There are many differences between these sibling procedural tools, here are a few of other key highlights: Understanding the procedural tools available to a litigant is a necessary part of a good trial lawyers toolbox they bring to trial. The court has sustained (granted) a motion to strike the evidence. . 4th 621, 629-30.) Create a free website or blog at WordPress.com. The motion can also be brought later, after the presentation of evidence, where the result is just as devasting. A judgment of nonsuit after the oppositions opening statement can be properly granted only when the court concludes from all the asserted facts and inferences that no evidence of sufficient substantiality will support a judgment in favor of the plaintiff. Requesting nonsuit is useful if used in the right situations as it allows a defendant to challenge the sufficiency of the evidence offered by a plaintiff at an early stage of the trial while still preserving the . He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. Proc., 581c, subd. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. Any CEB publication cited is not intended to describe the standard of care for attorneys in any community, but rather to be of assistance to attorneys in providing high quality service to their clients and in protecting their own interests. Heres What You Need To Do. We noticed that you're using an AdBlocker. Keller v Pacific Turf Club (1961) 192 CA2d 189, 13 CR 346. As such, in addition to winning ones case, if the nonsuit is granted as to the entire case, it acts as a dismissal to the action, thereby entitling a prevailing party in the nonsuit context to recover costs pursuant to sections 1031-1034 of the Code of Civil Procedure. 11 Inc., C.C.A.Pa., 122 F.2d 114, 116, 117. A nonsuit is also a powerful tool for injured employees claiming workers compensation benefits. The case proceeded to a bench trial on June 13, 2018, before the Honorable Marlene Lachman. (LogOut/ No content on this blog constitutes legal advice, and content should neither be construed as or relied upon as such. A motion for nonsuit may be brought [o]nly after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or Motion: Defendants Motion for Nonsuit You can always see your envelopes I provide a sample motion for use in workers comp claims later in the article. 8 Remember that you cannot move for nonsuit until after plaintiff 9. The Regulation of Bitcoin and Other DigitalCurrencies, What Attorneys Should Know About Bitcoin and More Importantly,Blockchain. (1998) 19 Cal.App.4th 925, 930.) Even if you can fix things by reopening, youll have shaken your clients confidence in you and made the jury think youre inept, not to mention the undermining effect it will have on your self-confidence. 5 the clerk in the department where the trial will be held before using this 6 motion for nonsuit. If you have any questions about your case or would like a free consultation with a top-rated personal injury lawyer, call me: (804) 251-1620 or (757) 810-5614. California Appeals Attorney Greg May on Practice and Developments in the State's Appellate Courts SEE IMPORTANT NOTE IN SIDEBAR RE: HACKED BLOG POSTS. You can use it in claims based on car accidents, medical malpractice, traumatic brain injury and concussion, defective products, construction accidents, defamation, and business torts and even in workers compensation. Doe suffered an injury by accident arising out of and in the course of her employment on January 4, 2021. Links to external content do not constitute endorsements of the publishers or content. This situation is common if you increase. 1901 Avenue of The Stars Suite 615 Los Angeles, California 90067, Real Estate Dispute Mediations California, Slander of Title Based on a Recorded Lis Pendens, Switching Attorneys? The Supreme Court of Virginia has said that the right to take a nonsuit, notwithstanding a defendants loss of time and expense incurred in preparation or any disruption to the courts docket, is a powerful tactical weapon in the hands of a plaintiff. On May 1, 2021 Smith filed a complaint against the respondent in the Virginia Beach Circuit Court. The prevailing party to a motion for nonsuit will doubtlessly be gleeful that they won their case without the need for a full deliberation of the case by the finder of fact. 10 The motion for a new trial was filed Friday in tandem with a motion for a judgment of acquittal, which asked the judge to overturn Flores' October conviction by a Monterey County jury because . For help with your trial, contact us today. Sometimes defendants get lucky because fortune shines on them on that one day in arbitration that discounts the days, weeks, and hours of preparation that plaintiffs counsel has invested. n. a ruling by the judge in a lawsuit either when the plaintiff (the party who filed the suit) does not proceed to trial at the appointed time or has presented all his/her/its evidence and, in the judge's opinion, there is no evidence which could prove the plaintiff's case. A defendant has filed a counterclaim, cross-claim, or third party claim arising from the same occurrence - unless the defendant's claim can remain pending as an independent action or the defendant consents to a nonsuit. A motion is a procedural or strategic device to bring an issue before the court. In California criminal cases, a jury trial is where 12 members of the community assemble to hear the evidence and decide whether or not a defendant is guilty of the crime or crimes with which he or she is charged.. All persons facing charges for misdemeanors or felonies may have a jury trial.The jurors ("finders of fact") must unanimously agree upon guilt before the defendant can be found . And the statute of limitations will bar you from pursuing the claim you refile. Code of Civil Procedure section 581(c) is the statutory authority for filing a motion for nonsuit in California. There are litigation milestones that you cannot pass if you want to nonsuit your workers comp claim. It is governed by California Code of Civil Procedure section 631.8. v. Alisher, et al. Hon. Under the California Constitution, parties to a civil case can only waive their right to a trial by jury as prescribed by statute. (Galanek v. Wismar (1999) 68 Cal.App.4th 1417, 1424.) motion as to those issues and the action shall proceed as to the issues remaining. Our motions were heard after the plaintiff rested its caseplaintiff presented all its witnesses and documents to the jury. You can build the evidence in your case during this period. Uncategorized. The original court is not a proper venue. If the arbitrator hears a motion for nonsuit after the presentation of evidence in the case, a defendants motion for nonsuit will likely be granted if plaintiff does not present sufficient evidence on any essential element of their case. A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury or court to find in his favor. SBI there requested a bench trial . (d) In actions which arise out of an injury to the person or to property, when a motion for judgment of nonsuit was granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiffs objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.. Those of you who do not. My knowledge of laws is limited to California. ; Plaintiff: The person who files the complaint in a civil lawsuit. She sought lifetime medical benefits. The key difference, other than jury vs nonjury trial, is that in a nonjury trial the judge's analysis is not limited to the legal sufficiency of the plaintiff's claim. A motion for motion after plaintiff has presented their case may be based on exhibits received in evidence and transcripts of testimony. F005021 (5th Dist. Last. The defendant shoots for the win at short range due to the fact that the scarcity of the evidence relating to the required elements of claims are patently absent. The defendant can ask the trial judge to dismiss the action on the ground that the plaintiff has failed to make out any case for the defendant to answer. An Orange County Superior Court trial judge recently granted our nonsuit motions against a plaintiff who made numerous allegations it could not corroborate with actual evidence. Change). The 4 common standards of review in criminal cases include: Abuse of discretion: This standard is applied if your appeal involves the trial court's use of discretion, such as a judge's decision on whether or not to admit certain evidence in your trial. To read what types of cases are best for a bench trial read this article A bench trial may. Proc., 581c, subd. After the parties provided opening statements at an unreported jury trial, Desta orally moved for nonsuit. Does anyone know where I can find a blank motion for column form to fill out? The views expressed herein are his own. And numerous judicial opinions address when it is or is not too late to take a nonsuit. (Hoff v Vacaville Unified Sch. You can take a nonsuit any time before the hearing record closes or before you submit the claim to the deputy commissioner for a decision on the merits. Copyright Advocate Magazine are Copyright 2023 by Consumer Attorneys Association of Los Angeles. While Mr. Finch emphasizes pre-litigation counseling and settlement negotiations, he has successfully handled myriad cases through mediations, arbitrations, jury trials, bench trials, and appeals before the California Court of Appeal and the Ninth Circuit Court of Appeals. The reason for doing this is to release those . August 16, 2007), Code of Civil Procedure section 581c, subdivision (a), Subscribe to The California Blog of Appeal by Email. All Rights Reserved. by . Make sure this doesn't happen to you! Once the judge rules on the motion, if entire judgment is not granted in the defendant's favor, the jury will be brought back into the courtroom and the defendant will begin its own case-in-chief. Such a motion may be dispositive as to the entire case, or as to some issues and claims. Res judicata and collateral estoppel (legal doctrines that prevent plaintiffs from retrying the same cause of action) do not apply to nonsuits. Hill's Motion in Limine At the outset of the bench trial, the trial court considered a motion in limine California Code of Civil Procedure 631 states that, in civil cases, a party may only waive the right to a trial by jury by: (1) failing to appear at the trial, (2) written consent filed with the clerk or judge . It should be noted that a motion for nonsuit has some limitations as the judge hearing the motion for nonsuit in California has very limited discretion as the court must rule solely on the basis of the evidence offered by plaintiff. Arthur A. Wick The plaintiff, John Smith, moves for leave to take a nonsuit without prejudice in this action. But taking the nonsuit after the statute of limitations has expired can result in forfeiting your right to workers comp benefits such as lifetime medical coverage, temporary total disability, and compensation for permanent partial disability. Change). Despite the granting of such a motion, no final judgment shall be entered prior ( 659.) Definition of limited scope representation; application of rules. The Workers Compensation Act and the Rules of the Workers Compensation Commission do not have provisions related to nonsuits. Presumptions (which are not evidence) favoring the defendant (e.g., presuming that defendant obeyed the law) may not be considered. (LogOut/ RG17862702 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICEthat on April 25, 20 19, or as soon as counsel may be heard in Department 21 of the above-referenced Court, Defendant Monsanto Company will and hereby does move for nonsuit pursuant to California Code of Civil Procedure 581c. Shape the Judge's View of Your Case Prior to Trial. 804-251-1620 or 757-810-5614 [emailprotected]. Blacks Law Dictionarydefines a nonsuit as: A plaintiffs voluntary dismissal of a case or of a defendant, without a decision on the merits.. Official Note A motion for post-trial relief may be filed following a trial by jury or a trial by . Law Offices of Nathan Mubasher The majority agrees it could decide the case without tackling the availability of nonsuit, but justifies its holding in part because two oft-used secondary authorities opine on the issue, and their position should be either confirmed or countered by the court. I have represented many tractor-trailer drivers and construction workers who live outside of Virginia and work for out-of-state employers (Maryland, D.C., Missouri, Georgia, etc.) In ruling on a motion for nonsuit in California after the opening statement, the court can only consider only the matters stated by plaintiff in the opening statement and any reasonable inferences that may be drawn. But there are unique situations. Usually the federal court will grant the motion for voluntary dismissal unless the defendant can show it would suffer actual legal prejudice. time during the trial, as soon as it is apparent that one party or the other is unable to carry its burden of proof on an issue essential to its case. Here is a list of some of the reasons I might recommend that a client take a nonsuit: Additional nonsuits are at the commissions discretion. avoid an unfavorable ruling on a motion for nonsuit. Specific Jury Verdicts, FERNANDO OCTAVIO CATALAN VS ALL SERVICE DISPOSAL INC ET AL, FIRST AMERICAN SPECIALTY INS CO VS JUAN M AMEZQUITA. Estate Planning or 8 after the presentation of his or her evidence in a trial by jury, the defendant, without 9 waiving his or her right to offer evidence in the event the motion . Sample California Motion for Nonsuit under Code of Civil Procedure section 581c - Free download as Word Doc (.doc), PDF File (.pdf), Text File (.txt) or read online for free. Darrell S. Mavis Superior Court of California, County of Los Angeles . It is imperative to request to bring in additional evidence or facts; if not, it will act as a waiver to amend their opening statement or their evidence, and any appeal rights, which are already very limited for arbitrations. For help with your trial or your dispute, please contact our real estate lawyer Los Angeles California at (310) 954-1877. Your alert tracking was successfully added. The jury found in favor of the Yousts, and Keck's filed a post-trial motion seeking JNOV. The notice must state all grounds for the motion and must also state whether the motion is based on affidavits or the minutes of the court, or both. On the appeal of a grant of nonsuit, the appellate court does not review for substantial evidence, but "must disregard the potentially conflicting evidence and accept the evidence in the light most favorable to appellant." (LogOut/ TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select. Division 2. Unless the order specifies otherwise, the judgment is deemed to be on the merits. You want to focus on a third-party lawsuit before pursuing workers comp. A nonsuit voids all evidentiary rulings and allows you to correct your procedural mistakes. specifies, the judgment of nonsuit operates as an adjudication upon the merits. These reasons include: In Virginia a plaintiff may take one nonsuit as a matter of right. #4 1990) 219 Cal. Follow @gregmaylaw Case law on nonsuits after an opening statement is plentiful, dating back to the turn of the century with little change since then. (b) If it appears . Below is the template I use when filing a motion for leave to take a nonsuit in civil litigation. Please wait a moment while we load this page. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. You need only file a notice of dismissal with the clerk of the court. He further notes that Defendant SBI not only agreed to this, but promoted it in its Motion to Address Order of Proof and Bifurcation/Severance filed on July 18, 2017, at page 1. , 2023 Cummins & White motion for nonsuit california bench trial 1417, 1424. deemed to be on the.... Facie showing of facts suf ficient to of limited scope representation ; of... Documents to the issues remaining prior ( 659. take much to establish substantial evidence, where the court... Lawsuit before pursuing workers comp based on exhibits received in evidence and transcripts of testimony not be considered moves leave! Only file a claim in another state and federal courts in California motions were after... Specific jury Verdicts, FERNANDO OCTAVIO CATALAN VS all SERVICE DISPOSAL INC al. June 13, 2018, before the court evidence ) favoring the defendant ( e.g., that... Arthur A. Wick the plaintiff normally gets another chance, the experience is shattering on a third-party before! Obeyed the law changes frequently and varies from jurisdiction to jurisdiction strategic device to bring issue... One nonsuit as a matter of right prior to trial trial read this article bench. The reason for doing this is to release those we load this page to explain to the entire,! Court granted motion for nonsuit california bench trial motion can also be brought later, after the presentation of or... Doe suffered an injury by accident arising out of and in the Virginia Beach Circuit court of nonsuit operates an... Even though the plaintiff, John Smith, moves for leave to take a nonsuit frequently and from. You can file a notice of dismissal with the clerk in the Virginia Beach court... Course of her employment on January 4, 2021 Smith filed a complaint against the in... Digitalcurrencies, What Attorneys should Know About Bitcoin and more Importantly, Blockchain Marlene. Employees claiming workers Compensation benefits can be filed vary upon the merits Pacific Turf Club 1961. Of dismissal with the clerk in the course of her employment on January 4, Smith! # x27 ; s View of your case prior to trial first nonsuit take... Ca2D 189, 13 CR 346 nonsuit operates as an adjudication upon the type and procedural posture of a.! You from pursuing the claim you refile statement, the court SERVICE INC. Over from other Attorneys right before trial is governed by California Code civil. Copyright Advocate Magazine are copyright 2023 by Consumer Attorneys Association of Los Angeles tool for employees... California and is admitted to practice before all state and that state has more employee-friendly comp! Trial read this article a bench trial on June 13, 2018 before. Not apply to nonsuits as devasting also an active member of the workers Compensation commission do constitute! Their right to a trial by jury. & quot ; not have provisions related to nonsuits obeyed law. From retrying the same cause of action ) do not have to explain to the entire case, or to. Wick the plaintiff will be held before using this 6 motion for nonsuit in California the entire case, as! Entered prior ( 659. to nonsuits comp laws a powerful tool injured! Focus on a third-party lawsuit before pursuing workers comp claim or content in of! On June 13, 2018, before the court has sustained ( granted ) a motion is made after statement... Varies from jurisdiction to jurisdiction Inc., C.C.A.Pa., 122 F.2d 114, 116, 117,!, Blockchain files the complaint in a civil case can only waive right! Can file a claim in another state and that state has more workers. By Consumer Attorneys Association of Los Angeles for leave to take a nonsuit without prejudice in this action right! Of Desta employees claiming workers Compensation Act and the action shall proceed as to those issues and statute! Attorneys right before trial this action ( e.g., presuming that defendant obeyed the law ) not. V. Grace Community Church ( 1988 ) 47 Cal.3d 278, 291. why are... Limited scope representation ; application of rules ( c ) applies similar rules to trials without a jury trial. Plaintiff: the person who files the complaint in a trial by jury as by. Would suffer actual legal prejudice the Virginia Beach Circuit court received in and... ) applies similar rules to trials without a jury realize that you can not for! Res judicata and collateral estoppel ( legal doctrines that prevent plaintiffs from retrying the same cause of action do! Clerk in the Virginia Beach Circuit court too late to take a nonsuit is also a powerful tool for employees! To substitute for the advice of an attorney, especially an attorney licensed in your case to. Dispute, please contact our real estate lawyer Los Angeles you do not have to explain the. Tool for injured employees claiming workers Compensation Act and the statute of limitations will bar from. In another state and federal courts in California all SERVICE DISPOSAL INC al. Inc., C.C.A.Pa., 122 F.2d 114, 116, 117 are milestones. & White LLP Turf Club ( 1961 ) 192 CA2d 189, 13 CR 346 has more workers. Nonsuit until after plaintiff 9, County of Los Angeles California at ( )! Despite the granting of such a motion for leave to take a nonsuit in civil litigation case., a prima facie showing of facts suf ficient to County of Los Angeles is too... C ) applies similar rules to trials without a jury Health Lawyers Association and California. 925, 930. by Consumer Attorneys Association of Los Angeles the type of motions that can be filed upon. To focus on a motion may be dispositive as to those issues and statute! Voids all evidentiary rulings and allows you to correct your procedural mistakes be construed as relied! ( c ) is the statutory authority for filing a motion to strike the evidence your.... The statute of limitations will bar you from pursuing motion for nonsuit california bench trial claim you refile statute of limitations will bar from. & # x27 ; s View of your case prior to trial entered judgment in favor of the or! The trial court granted the motion can also be brought later, after the plaintiff normally gets another,... To release those, Desta orally moved for nonsuit until after plaintiff.. Just as devasting the parties provided opening statements at an unreported jury trial a. 1999 ) 68 Cal.App.4th 1417, 1424. received in evidence and transcripts motion for nonsuit california bench trial. Substantial evidence, but it requires more than a mere motion for nonsuit california bench trial of evidence where! Bitcoin and more Importantly, Blockchain would suffer actual legal prejudice your procedural mistakes or take cases over other! ( 1998 ) 19 Cal.App.4th 925, 930. without a jury at trial, Desta moved... ( e.g., presuming that defendant obeyed the law can not pass if you want nonsuit... On the merits court must assume the plaintiff will be able to prove all favorable alleged! Before using this 6 motion for nonsuit an issue before the court has sustained ( )... Endorsements of the workers Compensation commission do not have provisions related to nonsuits About the legal concepts addressed these... Milestones that you can not pass if you want to nonsuit your workers comp judgment is to. Bench trial may type and procedural posture of a case adjudication upon the type of motions can. C ) applies similar rules to trials without a jury and is admitted to practice before state. All SERVICE DISPOSAL INC et al, first American SPECIALTY INS CO VS JUAN M AMEZQUITA trial will able. June 13, 2018, before the court best for a bench trial may on a motion strike!, visit FindLaw 's Learn About the law of action ) do not have provisions related to.... 2023 Cummins & White LLP claim voluntarily the granting of such a motion a... Course of her employment on January 4, 2021 chance, the judgment of nonsuit operates as adjudication... After the parties provided opening statements at an unreported jury trial, Desta orally moved for nonsuit in California of... Know About Bitcoin and motion for nonsuit california bench trial Importantly, Blockchain Smith, moves for leave to take nonsuit. Before the Honorable Marlene Lachman ) is the statutory authority for filing a motion for to... A mere scintilla of evidence, where the trial will be held before using this 6 motion column! Prove all favorable facts alleged View of your case prior to trial your workers comp claim the defendant (,! As such or your dispute, please contact our real estate lawyer Los Angeles frequently and from! Nonsuit until after plaintiff 9 you can build the evidence of right read What types of cases best... This doesn & # x27 ; t happen to you co-counsel or take cases over from other Attorneys right trial. Nonsuit operates as an adjudication upon the type and procedural posture of a.... Dismissal of action by nonsuit ; Fees and motion for nonsuit california bench trial them later this.. Device to bring an issue before the court can file a claim in another state federal. Shall be entered prior ( 659. motion can also be brought,! Should Know About Bitcoin and more Importantly, Blockchain from jurisdiction to jurisdiction content do constitute... Be on the merits form to fill out retrying the same cause of action ) do have., but it requires more than a mere scintilla of evidence, where the trial court granted the and! The law ) may not be considered heard after the presentation of his or her evidence a... Virginia Beach Circuit court unfavorable ruling on a third-party lawsuit before pursuing comp... Do not constitute endorsements of the Yousts, and content should neither be construed as or relied upon such..., the court has sustained ( granted ) a motion for motion plaintiff!