Last amended January 1, 2012 · Last verified July 3, 2026
In one sentenceRule 41 sets out how, and with what effect, a plaintiff's action can be dismissed, whether the plaintiff walks away voluntarily or the court dismisses it for inaction.
(1)BY PLAINTIFF; BY STIPULATION. An action may be dismissed by the plaintiff without order of court (A) by filing a notice of dismissal at any time before the return date as provided in Rule 12(a) or service by the adverse party of an answer or of a motion for summary judgment, or (B) by filing a stipulation of dismissal signed by all parties who have appeared in the action, in the manner and form prescribed by Rule 41.1 of these rules. 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, territory or insular possession of the United States 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 the 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.
(1)For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against it.
(2)For failure to prosecute or to comply with these rules or any order of the court, the court may sua sponte dismiss an action or any claim with written notice to the parties. Such dismissal may be set aside and the action or claim reinstated by order of the court for good cause shown upon motion duly filed not later than 10 days from the date of the order of dismissal.
(3)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. The notice of dismissal or stipulation shall be made in the manner and form prescribed by Rule 41.1 of these rules.
(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.
Amendment History
Amended May 15, 1972, effective July 1, 1972
further amended December 7, 1999, effective January 1, 2000
further amended December 7, 2005, effective January 1, 2006
further amended November 21, 2006, effective January 1, 2007
further amended August 26, 2011, effective January 1, 2012
Plain-English Summary
A plaintiff can dismiss voluntarily and without a court order either 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, following the format Rule 41.1 requires. That dismissal is without prejudice unless it says otherwise, with one exception: a second dismissal of the same claim, after the plaintiff already dismissed it once before in any U.S. court, counts as a decision on the merits. Once those windows close, the plaintiff needs a court order to dismiss, and if a defendant has already pleaded a counterclaim, the court won't dismiss the plaintiff's claim over the defendant's objection unless the counterclaim can still be independently adjudicated.
The court can also dismiss involuntarily, on a defendant's motion or on its own initiative, when the plaintiff fails to prosecute the case or comply with the rules or a court order; a dismissal the court orders on its own must come with written notice, and can be set aside for good cause on a timely motion. Except for dismissals for lack of jurisdiction, improper venue, or failure to join a required party, these dismissals count as decisions on the merits unless the court says otherwise. The same dismissal rules apply to counterclaims, cross-claims, and third-party claims, and if a plaintiff who already dismissed one action brings the same claim again, the court can order the plaintiff to pay the costs of the earlier action and can pause the new case until that happens.
Frequently Asked Questions
Can a plaintiff dismiss a case without asking the court?
Yes, 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, in the form Rule 41.1 requires.
Does a voluntary dismissal count against bringing the same claim again?
Generally no, it's without prejudice, except that dismissing the same claim a second time operates as a decision on the merits.
Can the court dismiss a case on its own if the plaintiff stops prosecuting it?
Yes. Rule 41(b)(2) lets the court dismiss on its own initiative for failure to prosecute or comply with the rules or a court order, with written notice to the parties, and the dismissal can be set aside for good cause on a timely motion.
Source & verification. The rule text and History are reproduced verbatim from the
official Hawaii Rules of Civil Procedure (Haw. R. Civ. P. 41). Prescribed by the Supreme Court of Hawaii (Haw. Rev. Stat. § 602-11; Haw. Const. art. VI, § 7). The plain-English summary is original and written by us. Last verified July 3, 2026. ·
Official source
Also known as:voluntary dismissalinvoluntary dismissaldismissal without prejudicefailure to prosecute