Rule 41.Dismissal of actions

Ch. VI: Trials · Last amended 2020 · Current through June 1, 2026 · Last verified September 9, 2026

In one sentenceRule 41 governs dismissal — voluntarily by notice or stipulation, or involuntarily for failure to prosecute or to comply — and makes dismissal without prejudice the default.

Full Text of Rule 41

Text sizeJump to: (a) (b) (c) (d) (e)

(a) Voluntary Dismissal; Effect Thereof.

(1) By Petitioner; By Stipulation. An action may be dismissed by the petitioner without order of court (i) by filing a notice of dismissal at any time before entry of appearance by the adverse party or (ii) by filing a stipulation of dismissal signed by all the parties who have appeared in the action.

(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 petitioner's instance except upon order of the Court and upon such terms and conditions as the Court deems proper. If a counterclaim has been pleaded by a respondent prior to the service upon respondent of the petitioner's motion to dismiss, the action shall not be dismissed against the respondent's objections unless the counterclaim can remain pending for independent adjudication by the Court.

(3) A dismissal under either paragraph (1) or (2) is without prejudice unless the parties otherwise agree or the Court determines after a hearing that the intent behind the filing of the action was to harass or annoy.

(b) Involuntary Dismissal; Effect Thereof.

(1) For failure of the petitioner to prosecute or to comply with these Rules or any order of court, a respondent may move for dismissal of an action or of any claim against that respondent. Dismissals under this subsection shall be without prejudice unless the Court determines after a hearing that the intent behind the filing of an action was to harass or annoy or for other good cause shown.

(2) After the petitioner has completed the presentation of evidence, the respondent, without waiving the 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 petitioner has shown no right to relief. The Court as trier of the facts may then determine them and render judgment against the petitioner or may decline to render any judgment until the close of all the evidence. 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 petitioner who has once dismissed an action in any court commences an action based upon or including the same claim against the same respondent, 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 petitioner has complied with the order.

(e) Sua Sponte Dismissal for Failure to Prosecute. In the case of any action which has been pending in this Court for more than 6 months without any proceedings having been taken therein during that 6 month period, the Clerk may, after the expiration of the 6 month period, mail to the parties a notice notifying them that the action will be dismissed by the Court for want of prosecution if no proceedings are taken therein within 30 days. If no proceedings are taken in the action within a period of 30 days after the mailing of such notice, it shall thereupon be dismissed by the Court as of course for want of prosecution. Such actions may also be dismissed for want of prosecution at any time by motion of any party or by the Court on its own motion.

End

Amendment History

Delaware prints each rule’s amendment history as a single “Credits” line naming every order that adopted or amended it. It is reproduced verbatim below.

[Amended effective November 1, 2020.]

Plain-English Summary

Voluntary. A petitioner may dismiss without an order by filing a notice of dismissal before the point the rule fixes, or by stipulation signed by everyone who has appeared. Otherwise dismissal at the petitioner's instance requires an order, on terms the court thinks proper.

Without prejudice, unless. A dismissal under either route is without prejudice, unless the parties agree otherwise or the court determines after a hearing that it should be with prejudice. That default matters in a family court, where a petition withdrawn today may need to be brought again when circumstances change — and where a self-represented litigant should not lose a right by filing the wrong piece of paper.

Involuntary. For failure to prosecute, or to comply with these rules or any court order, a respondent may move to dismiss the action or any claim. The remainder of the rule sets out the effect of such a dismissal and the circumstances in which it operates as an adjudication on the merits.

Frequently Asked Questions

Can I withdraw my Delaware Family Court petition?

Yes — by notice of dismissal before the point the rule fixes, by stipulation signed by all parties who have appeared, or otherwise by order of the court upon such terms as it thinks proper.

Can I refile after dismissing?

A dismissal is without prejudice unless the parties agree otherwise or the court determines after a hearing that it should be with prejudice.

Can my case be dismissed for inactivity?

Yes. For failure to prosecute, or to comply with these rules or any order of court, a respondent may move for dismissal of the action or of any claim.

Source & verification. The rule text and amendment history are reproduced verbatim from the Delaware Family Court Rules of Civil Procedure (Fam. Ct. Civ. R. 41), and every rule has been checked word for word against the Delaware Family Court’s own published edition of these rules. Current through June 1, 2026. The plain-English summary is original and written by us. Last verified September 9, 2026. · Official source

Also known as: voluntary dismissal Delaware Family Courtdismissal without prejudice Delawarefailure to prosecute DelawareFam. Ct. Civ. R. 41