Rule 119.Dismissal of Actions

Rule 119 handles every way a family law case ends without a decision on the merits.

Voluntary dismissal

The moving party may dismiss without a court order by filing a notice before the responding party serves an answer or a summary judgment motion; if no responsive pleading is required, before evidence is introduced at hearing or trial; or by filing a stipulation signed by all parties who have appeared. Unless the notice or stipulation says otherwise, that dismissal is without prejudice.

Otherwise dismissal requires a court order on proper terms. Where the responding party has already pleaded a counterclaim, the action may be dismissed over its objection only if the counterclaim can remain pending for independent adjudication.

Involuntary dismissal

A responding party may move to dismiss for failure to prosecute or to comply with these rules or a court order.

And at trial, after the moving party has completed its evidence, the responding party — or the court on its own — may move for dismissal on the ground that on the facts and the law the moving party has shown no right to relief. Because there is no jury, the court as trier of fact may then determine the facts and render judgment, or may decline to rule until all the evidence is in. If it renders judgment on the merits, it must make Rule 801 findings. Moving does not waive the right to offer evidence if the motion fails.

The default is with prejudice

Subsection (b)(3) is the trap. Unless the order says otherwise, a dismissal under this rule and any dismissal not provided for in this rule — except for lack of jurisdiction or failure to join a party under Rule 211 — operates as an adjudication on the merits. Voluntary dismissals default to without prejudice; involuntary ones default to with.

Paying for the last one

Where a moving party who once dismissed an action brings the same claim again against the same party, the court may order payment of all or part of the costs of the earlier action and stay the proceedings until it is paid.

Ninety days of silence

Any action in which no action has been taken for 90 days may be dismissed absent a showing of good cause for retention. The dismissal is without prejudice as to all other matters, and the clerk must give at least 14 days' notice of the pending dismissal to all parties or their attorneys.