Arizona dismissal: the clerk can sign the order ending your case

Arizona removes a bottleneck that slows settlements elsewhere. Once the parties have signed a stipulation, the order does not have to wait for a judge.

Four people who can sign it

Rule 41(a)(1)(A):

Subject to Rules 23 (e), 23.1 (c), 23.2, 66(d), and any applicable statute, the plaintiff may dismiss an action: (i) By filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) By order based on a stipulation of dismissal signed by all parties who have appeared. The order may be signed by a judge, an authorized court commissioner, the clerk, or a deputy clerk.

Two routes, and the second carries the useful detail.

The notice route closes when the opposing party serves an answer or a motion for summary judgment — whichever comes first. Note that a motion to dismiss does not close it.

The stipulation route needs signatures from all parties who have appeared, and the resulting order "may be signed by a judge, an authorized court commissioner, the clerk, or a deputy clerk."

That last sentence is worth knowing when a settlement has to be documented quickly. A stipulated dismissal does not sit in a judge's queue; the clerk can process it.

The opening words matter too. The whole subdivision is "[s]ubject to Rules 23(e), 23.1(c), 23.2, 66(d), and any applicable statute" — so class actions, derivative actions, unincorporated-association actions and receiverships each have their own approval requirements that override this route.

The effect, and the second dismissal

Rule 41(a)(1)(B):

Unless the notice or order states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed an action in any court based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

The default is without prejudice, displaced by what the notice or order says. And the two-dismissal rule reaches a prior dismissal "in any court" — not merely an Arizona court, and not merely a court of record in this state.

So before filing a notice of dismissal, the question to answer is whether this claim has been dismissed anywhere before. If it has, the notice is not a pause; it is the end.

Note also that the two-dismissal rule attaches to a notice of dismissal. Where a plaintiff with a prior dismissal needs to withdraw again, the stipulation or court-order route avoids the automatic merits consequence — a distinction worth using deliberately.

Dismissal by court order

Rule 41(a)(2) covers everything else: once an answer or summary judgment motion has been served and there is no stipulation, an action may be dismissed at the plaintiff's request only by court order, on terms the court considers proper.

"On terms the court considers proper" is the defendant's opportunity to ask for costs, conditions on refiling, or the preservation of discovery already taken.

Involuntary dismissal

Rule 41(b) supplies the defendant's route where a plaintiff fails to prosecute or to comply with the rules or a court order, and the rule addresses the effect of such a dismissal. As with the voluntary routes, what the order says about prejudice governs — so the order is the document to read, not the docket entry.

The counterclaim brake

A defendant who counterclaims first changes what the court can do:

If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication.

The order of events is what matters. The counterclaim has to have been pleaded before the defendant was served with the motion to dismiss. Once it has been, the plaintiff cannot dismiss over objection unless the counterclaim can stand on its own.

Whether it can usually turns on jurisdiction: a counterclaim that needs the plaintiff's claim to keep it in court cannot remain pending independently, and the objection holds.

For a defendant who wants to keep the dispute in front of this court, the instruction is to counterclaim early rather than wait for the answer deadline.

A claimant's own dismissal closes sooner

Rule 41 is not only about plaintiffs. When the party dismissing is a counterclaimant, crossclaimant or third-party plaintiff, the timing changes:

A claimant's voluntary dismissal under Rule 41(a)(1)(A)(i) must be made: (1) Before a responsive pleading is served; or (2) If there is no responsive pleading, before evidence is introduced at a hearing or trial.

Note what is not there. A plaintiff's notice route closes on an answer or a motion for summary judgment. A claimant's closes on the responsive pleading alone — and where none is required, at the moment evidence is first introduced.

So a counterclaimant facing a summary judgment motion has not lost the notice route, and a counterclaimant whose claim draws no responsive pleading keeps it right up to the first evidence.

Refiling can be stopped until you pay for the last one

Rule 41(d) is the provision that gives a dismissal a price:

If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court: (1) May order the plaintiff to pay all or part of the costs of that previous action; and (2) May stay the proceedings until the plaintiff has complied.

Two discretionary powers, and the second is the one with teeth. A defendant meeting the same claim a second time can ask that the new case be stayed until the costs of the first are paid.

"In any court" — the earlier dismissal need not have been in Arizona.

A short checklist

If you are the plaintiff:

1. Check whether an answer or summary judgment motion has been served. That is what closes the notice route.
2. Check your dismissal history in any court before filing a notice.
3. Use the stipulation or order route if you have dismissed this claim before; the merits consequence attaches to a notice.
4. Get signatures from all parties who have appeared for a stipulated dismissal.
5. Take the order to the clerk — a judge's signature is not required.
6. Check the carve-outs for class, derivative, association and receivership cases.

If you are the defendant:

1. Serve an answer or a summary judgment motion if you want to close the notice route.
2. Ask for terms on any Rule 41(a)(2) dismissal.
3. Check the plaintiff's history — a second dismissal by notice ends the claim.
4. Read the order, not the docket, for what the dismissal actually did.

Where these rules live

• Ariz. R. Civ. P. 41 — Dismissal of actions
• Ariz. R. Civ. P. 23 — Class Actions
• Ariz. R. Civ. P. 12 — Defenses and Objections
• Responding to an Arizona complaint
• Arizona motion to dismiss
• Arizona TROs and injunctions

This page explains what the rules say. It isn't legal advice, and the approval requirements in class, derivative and receivership cases are outside what this page covers.