Washington dismissal: you can drop the case as of right until you rest

Most states cut off the plaintiff's right to walk away when the answer is filed or the summary judgment motion lands. Washington moves that line much later — all the way to the moment the plaintiff rests at trial.

Before resting, it is yours as of right

Rule 41(a)(1) lists the routes to dismissal, and the second is unusually generous:

Subject to the provisions of rules 23 (e) and 23.1, any action shall be dismissed by the court: (A) By stipulation. When all parties who have appeared so stipulate in writing; or (B) By plaintiff before resting. Upon motion of the plaintiff at any time before plaintiff rests at the conclusion of plaintiff's opening case.

Note the verb: the action "shall be dismissed by the court." This is not a discretion exercised on terms; on a timely motion the dismissal follows.

So a Washington plaintiff facing a trial that is going badly retains the option until the moment of resting. That is a real strategic asset, and a real risk for a defendant who has spent the case preparing for trial.

After resting, good cause and terms

Rule 41(a)(2):

After plaintiff rests after plaintiff's opening case, plaintiff may move for a voluntary dismissal without prejudice upon good cause shown and upon such terms and conditions as the court deems proper.

The line is bright. Before resting: as of right. After resting: good cause, and whatever terms the court thinks proper.

A defendant's protection therefore lies in getting the plaintiff to rest — and in asking for terms once that has happened.

The counterclaim brake

Rule 41(a)(3) protects a defendant who has filed a counterclaim: where one has been pleaded before service of the plaintiff's motion to dismiss, the action is not dismissed against the defendant's objection unless the counterclaim can remain for independent adjudication.

So a counterclaim is the practical answer to a plaintiff who may want to walk away late.

What the dismissal means

Rule 41(a)(4):

Unless otherwise stated in the order of dismissal, the dismissal is without prejudice, except that an order of dismissal operates as an adjudication upon the merits when obtained by a plaintiff who has once dismissed an action based on or including the same claim in any court of the United States or of any state.

The familiar two-dismissal rule, reaching dismissals in any court of the United States or of any state — so the history to check is national, not local.

One year after issue is joined

Rule 41(b)(1) sets the want-of-prosecution rule, and it runs from an unusual point:

Any civil action shall be dismissed, without prejudice, for want of prosecution whenever the plaintiff, counterclaimant, cross claimant, or third party plaintiff neglects to note the action for trial or hearing within 1 year after any issue of law or fact has been joined, unless the failure to bring the same on for trial or hearing was caused by the party who makes the motion to dismiss. Such motion to dismiss shall come on for hearing only after 10 days' notice to the adverse party.

Four features worth noting.

The clock starts when issue is joined, not at filing — so it begins when the pleadings close, and the period is one year from there.

The obligation is to note the action for trial or hearing, not to complete it. Noting it stops the clock.

There is a clean defense: the failure was caused by the party moving to dismiss. A defendant who caused the delay cannot use it.

And the motion needs 10 days' notice, so a plaintiff who has slipped has a short window to act before the hearing.

Refiling can be stopped until you pay for the last one

Rule 41(d) conditions a second attempt on paying for the first:

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 taxable 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.

Washington confines this to taxable costs, which is narrower than the plain "costs" several states use. But the stay power is the same: the refiled case can be halted until the order is complied with.

For a plaintiff weighing the generous pre-resting dismissal right above, this is the counterweight — the right to walk away is wide, and the price of coming back is set by the court.

The clerk's notice, and the status report that answers it

Alongside the one-year rule, Washington runs a docket sweep on the clerk's own motion:

In all civil cases in which no action of record has occurred during the previous 12 months, the clerk of the superior court shall notify the attorneys of record by mail that the court will dismiss the case for want of prosecution unless, within 30 days following the mailing of such notice, a party takes action of record or files a status report with the court indicating the reason for inactivity and projecting future activity and a case completion date.

Two ways to answer the notice: take action of record, or file a status report. The report has three required contents — the reason for the inactivity, the activity to come, and a case completion date — so a one-line letter saying the case is still alive will not do.

Two safety valves follow.

The filing of a document indicating that discovery is occurring between the parties shall constitute action of record for purposes of this rule.

Discovery counts, which matters in cases that are being worked but generate no filings.

A party who does not receive the clerk's notice shall be entitled to reinstatement of the case, without cost, upon motion brought within a reasonable time after learning of the dismissal.

That is an entitlement, not a discretion — but it rests on not having received the notice, which is a reason to keep the address of record current rather than a reason to rely on it.

Tell the court when the case settles

Rule 41(e) carries a duty that has nothing to do with dismissal practice and everything to do with courtroom calendars:

If a case is settled after it has been assigned for trial, it shall be the duty of the attorneys or of any party appearing pro se to notify the court promptly of the settlement. If the settlement is made within 5 days before the trial date, the notice shall be made by telephone or in person. All notices of settlement shall be confirmed in writing to the clerk.

Note that the duty falls on any party appearing pro se as well as on attorneys, and that inside five days of trial a filing is not enough — the notice has to be by telephone or in person, then confirmed in writing.

A court that has cleared a week for a trial has turned other matters away to do it. This is the provision that lets the week be reused.

A short checklist

If you are the plaintiff:

1. Know where the line is. Before you rest, dismissal is as of right; afterwards it takes good cause.
2. Note the action for trial within a year of issue joining, and diary that date from the close of pleadings.
3. Check for a counterclaim before assuming you can dismiss the whole action.
4. Check your dismissal history in any state or federal court before relying on a without-prejudice dismissal.
5. Use the 10 days' notice to note the case for trial if a want-of-prosecution motion arrives.

If you are the defendant:

1. Get the plaintiff to rest. That is when the as-of-right window closes.
2. Ask for terms on any dismissal sought after resting.
3. File a counterclaim if you want protection against a late walk-away.
4. Move after a year from issue joining if nothing has been noted — but check you did not cause the delay.
5. Give the 10 days' notice; the motion is not heard without it.

Where these rules live

• Wash. Super. Ct. Civ. R. 41 — Dismissal of actions
• Wash. Super. Ct. Civ. R. 12 — Defenses and Objections
• Wash. Super. Ct. Civ. R. 23 — Class Actions
• Responding to a Washington complaint
• Washington motion to dismiss
• Washington depositions

This page explains what the rules say. It isn't legal advice, and when an issue of law or fact is joined in a particular case is a question this page does not answer.