Tennessee nonsuit: filing the notice is not enough — you need the signed order

Tennessee's voluntary nonsuit is unusually generous — the right runs almost to the courthouse steps. But it is not self-executing, and the date that matters is not the date you file.

The right to nonsuit, and when it closes

Rule 41.01(1):

Subject to the provisions of Rule 23.05, Rule 23.06 or Rule 66 or any statute, and except when a motion for summary judgment made by an adverse party is pending, the plaintiff shall have the right to take a voluntary nonsuit to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause and serving a copy of the notice upon all parties

Compare the federal rule, where the notice route closes when an answer or a summary judgment motion is served. In Tennessee the right runs at any time before the trial of a cause, and the only case-specific bar is a pending motion for summary judgment by an adverse party.

So an answer does not close the door. A motion to dismiss does not close it. A summary judgment motion, while it is pending, does.

The carve-outs at the start — Rules 23.05, 23.06 and 66, plus any statute — cover class settlements, class dismissals and receiverships, each of which has its own approval requirement.

The order is what counts

Rule 41.01(3) is the provision that catches people:

A voluntary nonsuit to dismiss an action without prejudice must be followed by an order of voluntary dismissal signed by the court and entered by the clerk. The date of entry of the order will govern the running of pertinent time periods.

Two obligations and one consequence.

The notice must be followed by an order, signed by the court and entered by the clerk. Filing the notice starts the process; it does not complete it.

And the date of entry governs the running of pertinent time periods — not the date the notice was filed. Any saving statute, refiling window or appeal period runs from entry.

That gap between filing and entry can be days or weeks, and it is the plaintiff's job to close it. A plaintiff who files a nonsuit and calendars from that date may be counting from the wrong day.

The counterclaim brake

Rule 41.01(1) protects a defendant who has already counterclaimed:

If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of plaintiff's motion to dismiss, the defendant may elect to proceed on such counterclaim in the capacity of a plaintiff

So the nonsuit does not sweep away a counterclaim filed first. The defendant elects to carry on as plaintiff on that claim.

Involuntary dismissal, and comparative fault

Rule 41.02 covers dismissal for failure to prosecute or to comply with the rules or an order, and it carries a provision shaped by Tennessee's comparative fault regime:

The court shall reserve ruling until all parties alleging fault against any other party have presented their respective proof-in-chief

In a multi-party case where fault is alleged in several directions, the court does not rule on a mid-trial dismissal motion as each party finishes. It waits until every party alleging fault has put in its proof — which prevents a defendant being dismissed before the evidence bearing on its share has been heard.

Refiling can be stopped until you pay for the last one

Rule 41.04 conditions the refiled case on the earlier one:

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 new action until the plaintiff has complied with the order.

Tennessee says "the new action" where most states say "the action," which removes any doubt about which case is stayed.

Given the breadth of the nonsuit right above — available until trial — this is the provision that stops it being free. A plaintiff who nonsuits and refiles should expect the costs question to be raised, and a defendant should raise it.

Two dismissals, not one

Every other state's rule turns a second notice of dismissal into a judgment on the merits. Tennessee gives a plaintiff one more:

Notwithstanding the provisions of the preceding paragraph, a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has twice dismissed in any court an action based on or including the same claim.

"Twice dismissed." So the third notice is the one that bites, not the second.

That is a real difference, and it is easy to get wrong by reasoning from the federal rule or from a neighboring state. Count the prior dismissals before assuming the route is closed — and note that they count from any court, not only Tennessee's.

The nonsuit can be taken out loud

The notice route is not the only one. The same paragraph continues:

or by an oral notice of dismissal made in open court during the trial of a cause; or in jury trials at any time before the jury retires to consider its verdict and prior to the ruling of the court sustaining a motion for a directed verdict.

Two more ways to take a nonsuit, and both are late.

Orally, in open court, during trial. No filing is required in the moment.

And in a jury trial, up to the point the jury retires — provided the court has not already sustained a directed verdict motion.

So the two events that close the door in a jury trial are the jury retiring and a directed verdict ruling, whichever comes first. A plaintiff whose case is going badly still has an exit while the jury is in the box.

The paragraph also adds a service obligation that is easy to overlook: "if a party has not already been served with a summons and complaint, the plaintiff shall also serve a copy of the complaint on that party." An unserved defendant is entitled to see what was filed against it.

A short checklist

If you are the plaintiff:

1. Check for a pending summary judgment motion. That is the one thing that closes the nonsuit route.
2. File the notice and serve it on all parties.
3. Get the order signed and entered — the notice alone does not complete the dismissal.
4. Calendar from the date of entry, not the date of filing. Time periods run from entry.
5. Check for a counterclaim filed before your motion; it survives.
6. Watch the carve-outs in class and receivership cases.

If you are the defendant:

1. File a summary judgment motion if you want to close the plaintiff's exit.
2. Counterclaim early if you want to keep the dispute alive whatever the plaintiff does.
3. Elect to proceed on your counterclaim if a nonsuit is taken.
4. In a comparative fault case, expect the ruling to wait until every party alleging fault has put in its proof.

Where these rules live

• Tenn. R. Civ. P. 41 — Dismissal of Actions
• Tenn. R. Civ. P. 23 — Class Actions
• Tenn. R. Civ. P. 12 — Defenses and Objections
• Responding to a Tennessee complaint
• Tennessee motion to dismiss
• Tennessee TROs and injunctions

This page explains what the rules say. It isn't legal advice, and how a saving statute interacts with the date of entry in a particular case is a question this page does not answer.