Last amended October 1, 1995 · Last verified July 6, 2026
In one sentenceRule 41 governs how a case can end without a full trial on the merits, covering both a plaintiff’s voluntary dismissal of a lawsuit and a court-ordered involuntary dismissal for failing to prosecute the case or follow the rules, and setting the consequences that follow each kind of dismissal.
(1)BY PLAINTIFF; BY STIPULATION. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of this state, an action may be dismissed by the plaintiff without order of court (i) 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, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of Alabama, or of the United States, or of any state, an action based on or including the same claim.
(2)BY ORDER OF COURT. Except as provided in paragraph (1) of this subdivision of this rule, 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. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff’s motion to dismiss, the action may be dismissed but the counterclaim shall remain pending for adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
(b)Involuntary dismissal: Effect thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
(c)Dismissal of counterclaim, cross-claim or third-party claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to paragraph (1) of subdivision (a) of this rule shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing.
(d)Costs of previously dismissed action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.
(dc)District court rule. Rule 41 applies in the district courts, except that the references to Rule 23(e) and Rule 66 at Rule 41(a)(1) are deleted.
The rule is substantially the same as the corresponding federal rule. The second sentence of Rule 41(a)(2) has been altered to state unequivocally that a counterclaim interposed prior to dismissal of the action remains pending despite the dismissal. See also Rule 13(i). The similar portion of the federal rule is cryptically worded and at best states an exception which is needless in a state court of general jurisdiction, however necessary it may be in the federal courts where jurisdiction is limited.
The purpose of Rule 41(a) is to facilitate voluntary dismissals but to limit them to an early stage of the proceedings before issue is joined. Harvey Aluminum Inc. v. American Cyanamid Co., 203 F.2d 105 (2d Cir.1953), cert. denied 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383. Once issue has been joined, by answer or by motion for summary judgment, voluntary dismissal can only be upon court order, and the court is given broad powers to prevent harassment of or inconvenience to the defendant by an arbitrary dismissal at this advanced stage of the case.
Rule 41(b), F.R.C.P., as originally promulgated, applied to both jury and non- jury cases. By amendment, its function is clearly limited to non-jury cases. In a jury case, Rule 50 applies and the court is limited to a question of law (thereby preserving jury trial right) as to the sufficiency of plaintiff’s prima facie case. In a non-jury case, the court, under Rule 41(b), as ultimate trier of fact, is free to weigh the evidence and the credibility of the witnesses. See O’Brien v. Westinghouse Electric Corp., 293 F.2d 1 (3d Cir.1961) for a discussion of the confusion arising from the overlap that once existed. See, generally, 5 Moore’s Federal Practice, ¶ 41.13[3], at p. 1153 (2d Ed.1971). No present Alabama procedure permits such action in a non-jury trial.
A dismissal, whether voluntary or involuntary, may be set aside by the court, like any other judgment, on proper motion under Rule 60(b). A rehearing may be requested under Rule 59(a)(2) and amendments to the court’s findings may be pursued under Rule 52(b).
Committee Comments to October 1, 1995, Amendment to Rule 41
Subdivision (b). This amendment deletes the provision for dismissal by the court in a nonjury case for failure of proof. This matter is now covered by Rule 52(c).
District Court Committee Comments (Amended effective July 1, 1983.)
For commentary as to the unavailability of Rule 23 (“Class Actions”) and Rule 66 (“Receivers”), see the District Court Committee Comments applicable to those rules.
[Amended effective July 1, 1983.]
Plain-English Summary
Sometimes a plaintiff decides, early on, that a lawsuit should not go forward — maybe it was filed too soon, in the wrong place, or the dispute settled. Rule 41(a) lets a plaintiff walk away from the case without asking the judge’s permission, but only in a narrow early window: before the other side has filed an answer or asked for summary judgment, or any time if every party who has appeared signs off on a stipulation of dismissal. Once the case has moved past that early stage, a plaintiff can still dismiss voluntarily, but only with the court’s approval and on whatever terms the court sets, and any counterclaim the defendant has already filed keeps going regardless.
A dismissal a plaintiff files in that early window is normally without prejudice, meaning the plaintiff can refile the same claim later. But the rule builds in a real check on that freedom: if a plaintiff has already dismissed the same claim once before, in any Alabama or federal court, filing a second notice of dismissal on that same claim counts as a decision on the merits — the claim is over for good. This is often called the two-dismissal rule, and it exists to stop a plaintiff from using repeated dismissals to dodge an unfavorable ruling or wear down a defendant through serial filings. Even a first dismissal is not free of cost: if the plaintiff later refiles the same claim against the same defendant, the court can order the plaintiff to pay the costs from the earlier, dismissed case before letting the new one proceed.
The other half of the rule works in the opposite direction. Rule 41(b) lets a defendant ask the court to dismiss a case, or a particular claim, because the plaintiff has failed to prosecute it — letting it sit dormant, missing deadlines, ignoring court orders, or not following the rules generally. Unless the court says otherwise, an involuntary dismissal ordered under this rule counts as a decision on the merits, meaning the plaintiff generally cannot refile the same claim again. There are important exceptions: dismissals for lack of jurisdiction, improper venue, or failure to join a required party do not carry that same finality, since those problems are about where or how the case was brought, not whether the claim itself has merit. The same basic framework applies to counterclaims, cross-claims, and third-party claims, and either kind of dismissal, voluntary or involuntary, can later be reopened through a proper post-judgment motion if circumstances warrant it.
Frequently Asked Questions
Can I dismiss my own lawsuit without asking the judge?
Yes, but only early on — before the other side has answered or moved for summary judgment, or at any later point if every party who has appeared agrees in writing to the dismissal.
What is the "two-dismissal rule" and why does it matter?
If you voluntarily dismiss the same claim a second time, that second dismissal counts as a final decision on the merits, meaning you cannot bring that claim again. It exists to stop plaintiffs from repeatedly filing and dismissing the same claim to avoid an unfavorable outcome.
If my case gets dismissed for failure to prosecute, can I just file it again?
Usually not. An involuntary dismissal for failing to prosecute or comply with the rules generally counts as a decision on the merits, which normally bars refiling the same claim, unless the court’s order says otherwise.
Are all involuntary dismissals treated as final decisions on the merits?
No. Dismissals based on lack of jurisdiction, improper venue, or failure to join a necessary party are treated differently, since those issues concern where or how the case was brought rather than whether the underlying claim has merit.
What happens to a defendant’s counterclaim if the plaintiff dismisses the main case?
A counterclaim the defendant already filed before the dismissal keeps going and is not dismissed along with the plaintiff’s claim.
Source & verification. The rule text, amendment history, and Committee Comments are reproduced verbatim from the
official Alabama Rules of Civil Procedure (Ala. R. Civ. P. 41). Prescribed by the Supreme Court of Alabama (Ala. Const. amend. 328, § 6.11). The plain-English summary is original and written by us. Last verified July 6, 2026. ·
Official source
Also known as:voluntary dismissal Alabamainvoluntary dismissalfailure to prosecutetwo-dismissal ruledismissal without prejudiceAla. R. Civ. P. 41