In Sumar v. Fox, the plaintiff had commenced a prior action that involved the same parties and identical causes of action. The defendants moved to dismiss that prior action due to lack of personal jurisdiction. The plaintiff did not oppose the defendant’s motion and it was granted on default. Thereafter, the plaintiff commenced the current action and the defendants moved to dismiss on the basis of the doctrine of res judicata. However, the trial court held and the appellate court affirmed that the prior dismissal was neither with prejudice, nor was it on the merits and as such, the doctrine of res judicata would not apply.
Thanks to Alison Weintraub for her contribution to this post.