Part VI: Trials · Last amended August 18, 2000 · Last verified July 28, 2026
In one sentenceRule 41 sets out how a Delaware civil action can end short of a full trial: voluntary dismissal by notice or stipulation, involuntary dismissal for failure to prosecute, court-ordered dismissal after notice and a chance to respond, and automatic dismissal for a dormant case or one stayed by bankruptcy.
(1)By plaintiff; by stipulation. Subject to payment of costs and the provisions of Rule 23(e), an action may be dismissed by the plaintiff without order of court (I) except in replevin, 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 the 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 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 defendant 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 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. After the plaintiff in an action tried by the Court without a jury, has completed the presentation of plaintiff’s evidence, the defendant, 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 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 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 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.
(e)Upon notice of the Court. The Court may order an action dismissed, sua sponte, upon notice of the Court, for failure of a party diligently to prosecute the action, for failure to comply with any rule, statute, or order of the Court, or for any other reason deemed by the Court to be appropriate. In the event that the Court shall conclude, sua sponte, that dismissal upon any of the foregoing grounds appears appropriate, the procedure for such dismissal shall be as follows: The Prothonotary shall forward to the party a notice directing that the party show cause why the action should not be dismissed for the reasons stated in the notice. The notice shall direct the party to respond within fifteen (15) days from the date of the notice. After consideration of such response, the Court shall enter an order dismissing the action or maintaining jurisdiction of the case. If a response is not filed within the time allowed, the dismissal shall be deemed to be unopposed. If the Court is satisfied that the action should be dismissed, it shall enter an order of dismissal. Upon entry of any order of dismissal, the Court shall specify the terms thereof including provision for payment of costs. In the case of any action which has been pending in this Court for more than six (6) months without any proceedings having been taken therein during that six (6) months, the Prothonotary shall mail, after the expiration of the six (6) months, 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 thirty (30) days. If no proceedings are taken in the action within a period of thirty (30) days after the mailing of such notice, it shall thereupon be dismissed by the Court as of course for want of prosecution.
(f)Without prior notice. The Court may order a complaint, petition or appeal dismissed, sua sponte, without notice, notwithstanding the provisions of subsection (e) of this Rule, when such complaint, petition or appeal manifestly fails on its face to invoke the jurisdiction of the Court and where the Court concludes, in the exercise of its discretion, that the giving of notice would serve no meaningful purpose and that any response would be of no avail.
(g)Dormant docket — Bankruptcy. When the Court is advised that a party has filed a bankruptcy petition, the action shall be stayed. The Prothonotary shall remove the action from the active docket to the dormant docket. All parties for whom an appearance has been entered, either by counsel or pro se, shall be notified of the date of the transfer to the dormant docket. Twenty-four months after the transfer, the action shall be dismissed without further notice unless, prior to the expiration of the twenty-four month period, a party seeks to extend the period, for good cause shown. Actions pending on the effective date of this rule and stayed due to bankruptcy shall be transferred to the dormant docket. The Prothonotary shall notify all parties for whom an appearance has been entered, either by counsel or pro se, of the date of the transfer to the dormant docket. Twelve months after the transfer, the action shall be dismissed without further notice unless, prior to the expiration of the twelve month period, a party seeks to extend the period, for good cause shown.
Amendment History
Amended effective Jan. 1, 1965; Jan. 1, 1967; Jan. 1, 1991; June 15, 1993; Aug. 1, 1996; Nov. 12, 1997; May 1, 1998; Aug. 18, 2000.
Plain-English Summary
Rule 41(a) lets a plaintiff dismiss voluntarily without a court order — except in replevin — by filing a notice any time before the defendant answers or moves for summary judgment, or by filing a stipulation signed by every party who has appeared. That dismissal is without prejudice unless the notice or stipulation says otherwise, with one sharp exception: if the same plaintiff already dismissed an action based on the same claim in any federal or state court, a second notice of dismissal counts as an adjudication on the merits. Once those windows close, a plaintiff needs a court order to dismiss, and if a defendant has already pleaded a counterclaim, the Court won't dismiss over the defendant's objection unless the counterclaim can still be adjudicated on its own.
Rule 41(b) covers involuntary dismissal on a defendant's motion for the plaintiff's failure to prosecute or to follow the rules or a court order. In a bench trial, once the plaintiff rests, the defendant can move to dismiss on the ground that the plaintiff has shown no right to relief on the facts and the law, without giving up the right to put on a defense if the motion fails. Unless the Court says otherwise, a dismissal under this rule counts as a decision on the merits — except a dismissal for lack of jurisdiction, improper venue, or failure to join a required party under Rule 19, none of which reach the merits.
Rule 41(e) lets the Court dismiss a case on its own, but only after notice: the Prothonotary sends a show-cause notice, the party gets 15 days to respond, and the Court then dismisses or keeps the case depending on what that response shows. A case that sits idle for six months without any activity gets a mailed warning, and if nothing happens within 30 days after that, it's dismissed as of course for want of prosecution. Rule 41(f) allows dismissal without any notice at all when a complaint, petition, or appeal plainly fails on its face to invoke the Court's jurisdiction and notice would serve no purpose. Rule 41(g) handles cases stayed by a party's bankruptcy filing: the Prothonotary moves the action to a dormant docket, notifies the parties, and the case is dismissed 24 months later without further notice unless a party shows good cause for an extension.
Frequently Asked Questions
Can I dismiss my own lawsuit without asking the Court?
Rule 41(a)(1) allows it, except in replevin, by filing a notice of dismissal before the defendant answers or moves for summary judgment, or by filing a stipulation signed by every party who has appeared. After that point, dismissal at the plaintiff's request requires a court order.
What is the "two-dismissal rule" under Rule 41?
Rule 41(a)(1) states that a notice of dismissal operates as an adjudication on the merits if the same plaintiff has already dismissed an action based on the same claim in any federal or state court.
What happens if my case sits inactive for months?
Rule 41(e) has the Prothonotary mail a notice after six months of inactivity, and if no proceedings follow within 30 days of that notice, the Court dismisses the action as of course for want of prosecution.
Can the Court dismiss my case on its own initiative?
Yes, under Rule 41(e), but with notice: the Prothonotary sends a show-cause notice and the party has 15 days to respond before the Court rules. Rule 41(f) allows dismissal without notice only where a complaint, petition, or appeal manifestly fails to invoke the Court's jurisdiction.
What happens to my case if I file for bankruptcy while it's pending?
Rule 41(g) has the action stayed and moved to a dormant docket, with the parties notified. It's dismissed 24 months after that transfer unless a party seeks an extension for good cause before the period runs out.
Source & verification. Rule text is reproduced verbatim from the
Delaware Rules of Civil Procedure for the Superior Court, adopted by the
Superior Court of the State of Delaware. Last verified July 28, 2026.
· Official source
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