Massachusetts dismissal: three years dormant, then a year's warning

Massachusetts is slower to dismiss a dormant case than almost any state, and more generous about warning you. But the rule also narrows what counts as keeping a case alive, and that is where files are lost.

Three years, and the activity that does not count

Rule 41(b)(1):

The court may on notice as hereinafter provided at any time, in its discretion, dismiss for lack of prosecution any action which has remained upon the docket for three years preceding said notice without activity shown other than placing upon the trial list, marking for trial, being set down for trial, the filing or withdrawal of an appearance, or the filing of any paper pertaining to discovery.

Read the exclusions carefully, because they are the trap. None of the following counts as activity for this purpose:

• placing the case upon the trial list
• marking it for trial
• being set down for trial
• filing or withdrawing an appearance
• filing any paper pertaining to discovery

The last is the one that catches people. A case in which the parties have exchanged interrogatories, noticed depositions and argued about documents for three years has, for Rule 41(b)(1) purposes, shown no activity at all.

So the question is not "has anything happened?" but "has anything happened other than those five things?" A motion, a stipulation, an amended pleading, a status filing — those count.

A day certain, at least a year away

The notice is unusually long:

The notice shall state that the action will be dismissed on a day certain, (not less than one year from the date of the notice) unless before that day the case has been tried, heard on the merits, otherwise disposed of, or unless the court on motion with or without notice shall otherwise order.

A full year's warning, with a specific date — and note what saves the case: it must have been tried, heard on the merits or otherwise disposed of, or the court must order otherwise. Merely resuming activity is not on the list, so a plaintiff who receives one of these notices should be asking the court for an order rather than assuming a filing will do. Contrast Mississippi, which gives thirty days, and Indiana, which acts after sixty days of quiet.

The notice goes to a specific person: "The notice shall be mailed to the plaintiff's attorney of record, or, if there be none, to the plaintiff if his address be known." So an attorney who has withdrawn will not receive it, and a self-represented plaintiff whose address is not on file may not either — which is a reason to keep an address current.

Dismissal on this route is "without prejudice."

Dismissal on the defendant's motion

Rule 41(b)(2) is separate and faster:

On motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute

No three-year period, and no year of warning. A defendant who can show a failure to prosecute may move at any time, on notice — so the generous timetable above is the court's own housekeeping rule, not a safe harbour against an opponent.

Voluntary dismissal

Rule 41(a) follows the familiar pattern: by notice before the answer or a motion for summary judgment, or by stipulation signed by all parties who have appeared, with the two-dismissal rule for a plaintiff who has dismissed the same claim before. After that, by court order upon terms the court considers proper.

Refiling can be stopped until you pay for the last one

Rule 41(d) attaches a condition to refiling:

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.

Discretionary as to the costs, but the stay is the practical lever: a defendant facing the same claim a second time can ask that the new case go nowhere until the costs of the first are paid.

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

A carve-out no other state has

The list of dismissals that do not operate on the merits is longer in Massachusetts than anywhere else:

other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, or for improper amount of damages in the Superior Court as set forth in G.L. c.212, § 3 or in the District Court as set forth in G. L. c. 218, § 19, operates as an adjudication upon the merits.

The familiar three are there. The fourth — improper amount of damages — reflects the Commonwealth's divided civil jurisdiction, where the Superior Court and the District Court each have a statutory expectation about the size of the case in front of them.

A case dismissed because it was brought in the wrong court for its amount has not been decided. Like a venue dismissal, it is a routing problem, and the plaintiff's claim survives it.

Note also the opening words of the effect provision: a dismissal on the court's own motion under paragraph (b)(1) — the three-year docket sweep discussed above — is excluded from the merits default as well. The rule says so twice, since (b)(1) already provides that "dismissal under this paragraph shall be without prejudice."

A claimant's own dismissal has a different clock

When the party dismissing is a counterclaimant, crossclaimant or third-party plaintiff, the timing changes:

A voluntary dismissal by the claimant alone pursuant to paragraph (1) of subdivision (a) of this rule shall be made before a responsive pleading or a motion for summary judgment is served, whichever first occurs, or, if there is none, before the introduction of evidence at the trial or hearing.

Massachusetts is unusual in adding "or a motion for summary judgment" to the claimant's clause. Most states close a claimant's notice route on the responsive pleading alone, which leaves a counterclaimant free to walk away even after a summary judgment motion lands. Here that motion closes the route, exactly as it does for a plaintiff.

Where no responsive pleading is required, the cut-off is the introduction of evidence at the trial or hearing.

A short checklist

If you are the plaintiff:

1. Count activity properly. Discovery papers, trial-list entries and appearances do not count.
2. Put something else on the docket in any long-running case — a motion, stipulation or status filing.
3. Keep your address and appearance current, or the notice may never reach you.
4. Diary the day certain, and seek an order — the notice is answered by disposal or a court order, not by activity.
5. Do not rely on the three years. A defendant can move at any time under Rule 41(b)(2).

If you are the defendant:

1. Move under Rule 41(b)(2) rather than waiting for the court's three-year sweep.
2. Give notice with the motion; the rule requires it.
3. Check what the docket actually shows — discovery activity does not defeat the court's own route.
4. Ask for terms on a late voluntary dismissal sought by order.
5. Check the plaintiff's dismissal history before treating a notice of dismissal as harmless.

Where these rules live

• Mass. R. Civ. P. 41 — Dismissal of Actions
• Mass. R. Civ. P. 12 — Defenses and Objections
• Responding to a Massachusetts complaint
• Massachusetts motion to dismiss
• Massachusetts depositions
• Massachusetts discovery deadlines

This page explains what the rules say. It isn't legal advice, and whether a particular filing counts as activity under Rule 41(b)(1) is a question this page does not answer.