Current through June 1, 2026 · Last verified July 10, 2026
In one sentenceRule 41 governs how a case ends short of trial: a plaintiff may voluntarily dismiss without court permission before the defendant answers or moves for summary judgment, but needs a court order afterward, while a defendant may force an involuntary dismissal for failure to prosecute or comply with the rules.
(1)By Plaintiff; By Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute, an action may be dismissed by the plaintiff without order of court upon payment of costs: (A) By filing a notice of dismissal at any time before filing or service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs; or (B) by filing a stipulation of dismissal signed by all parties who have appeared in the action or by their attorneys. 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 previously dismissed in any court an action based on or including the same claim.
(2)By Order of Court. Except as provided in subsection (a)(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 him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this subsection (2) is without prejudice.
(1)By Defendant. For failure of a 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 him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52. Unless the court in its order for dismissal otherwise specifies, a dismissal under this section (b) and any dismissal not provided for in this Rule, other than a dismissal for failure to prosecute, for lack of jurisdiction, for failure to file a complaint under Rule 3, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
(2)By the Court. Actions not prosecuted or brought to trial with due diligence may be dismissed by the court with prejudice after reasonable notice by the court and in accordance with Rule 121, section 1-10.
(3)All motions for dismissal for failure to prosecute shall be presented in accordance with Rule 121, section 1-10 and shall specify whether the movant requests dismissal with or without prejudice. All orders dismissing for failure to prosecute shall specify whether the dismissal is with or without prejudice. Motions or orders that do not so specify shall be deemed motions for dismissal without prejudice or orders for dismissal without prejudice as appropriate.
(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 subsection (a)(1) of this Rule shall be made before a responsive pleading is filed or 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.
Amendment History
Amended effective January 1, 1987; January 12, 2017.
Plain-English Summary
A plaintiff has an early, no-permission-needed exit from a lawsuit. Filing a notice of dismissal at any point before the defendant answers or moves for summary judgment — whichever happens first — ends the case without a court order, as does a stipulation signed by everyone who has appeared. That kind of dismissal is without prejudice, meaning the plaintiff can refile, unless the notice or stipulation says otherwise. There is one sharp exception: if the plaintiff has already dismissed the same claim once before, in any court, a second notice of dismissal counts as a decision on the merits and blocks a third attempt.
Once those two doors close — an answer or summary judgment motion is on file — a plaintiff needs the court's permission to dismiss, on whatever terms the court sets. And if the defendant has already pleaded a counterclaim, the court will not let the plaintiff walk away over the defendant's objection unless that counterclaim can still be decided on its own.
A defendant can also force a dismissal: for the plaintiff's failure to prosecute the case or to follow the rules or a court order, or — after the plaintiff finishes presenting evidence in a bench trial — on the ground that the plaintiff hasn't shown a right to relief. Unless the court says otherwise, most of these dismissals count as decisions on the merits, closing the door on a repeat suit; the main exceptions are dismissals for failure to prosecute, lack of jurisdiction, failure to properly commence the action, or failure to join a required party, which default to being without prejudice. Any motion or order for dismissal based on failure to prosecute has to say which kind it is. And if a plaintiff who once dismissed a case comes back with the same claim, the court can make the plaintiff pay the costs of the earlier case before the new one moves forward.
Frequently Asked Questions
Can a plaintiff dismiss a case without asking the court?
Yes, but only in a narrow window: by filing a notice of dismissal before the defendant answers or moves for summary judgment, whichever comes first, or by filing a stipulation signed by everyone who has appeared in the case. After that window closes, dismissal requires a court order.
What is the "two-dismissal" consequence in Rule 41?
If a plaintiff has already dismissed the same claim once before in any court, a second notice of dismissal is treated as a decision on the merits rather than a dismissal without prejudice, so the plaintiff cannot bring the claim a third time.
Does losing an involuntary dismissal always bar a plaintiff from suing again?
Usually, yes — unless the court's order says otherwise, most involuntary dismissals under Rule 41(b) count as decisions on the merits. The main exceptions are dismissals for failure to prosecute, lack of jurisdiction, failure to properly commence the action, or failure to join a required party, which are treated as without prejudice by default.
Does Rule 41 apply to counterclaims and third-party claims?
Yes. The same dismissal rules apply to a counterclaim, cross-claim, or third-party claim, though a voluntary dismissal of one of those must happen before a responsive pleading is filed or served, or before evidence is introduced if no response is required.
Source & verification. The rule text is reproduced verbatim from the
official Colorado Rules of Civil Procedure (Colo. R. Civ. P. 41). Prescribed by the Supreme Court of Colorado (C.R.S. § 13-2-108; Colo. Const. art. VI). The plain-English summary is original and written by us. Last verified July 10, 2026. ·
Official source
Also known as:voluntary dismissalinvoluntary dismissaldismiss a lawsuit coloradonotice of dismissaldismissal without prejudicefailure to prosecute dismissal