(1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23.05, of Rule 66, and of any statute, an action, or any claim therein, may be dismissed by the plaintiff without order of court, by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or by filing a stipulation of dismissal signed by all parties who have appeared in the action. 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 this state, of the United States or of any state an action based on or including the same claim.
Rule 41.01.Voluntary dismissal -- Effect thereof.
Current through June 18, 2026 · Last verified July 9, 2026
In one sentenceRule 41.01 lets a plaintiff dismiss an action without a court order by filing a notice before the defendant answers or moves for summary judgment, or by a signed stipulation, but a second such dismissal of the same claim operates as an adjudication on the merits, while any other voluntary dismissal needs a court order that protects a defendant's pending counterclaim.
Full Text of Rule 41.01
(2) By Order of Court. Except as provided in paragraph (1) of this rule, an action or any claim therein, 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 him 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 section is without prejudice.
Amendment History
(Amended effective April 1, 1963; amended October 18, 1977, effective January 1, 1978; amended November 27, 2000, effective February 1, 2001.)
Plain-English Summary
Rule 41.01 covers two ways a plaintiff can walk away from a case, or a claim within it, before it is decided.
The first is a dismissal without court involvement. A plaintiff can file a notice of dismissal at any point before the defendant serves an answer or a motion for summary judgment, whichever comes first, or file a stipulation of dismissal signed by everyone who has appeared in the case. Unless the notice or stipulation says otherwise, this dismissal is without prejudice, meaning the plaintiff can refile later.
That without-prejudice default carries an exception known as the two-dismissal rule. If the plaintiff has already dismissed an action based on or including the same claim once before, in any Kentucky court, federal court, or a court of another state, a second notice of dismissal counts as a decision on the merits. Filing it a third time is not an option; the claim is over.
Outside those two situations, subject to Rule 23.05, Rule 66, and any applicable statute, a plaintiff cannot dismiss a case without a court order. If a defendant has already pleaded a counterclaim before the plaintiff's motion to dismiss is served, the court cannot dismiss the action over that defendant's objection unless the counterclaim can still go forward on its own. Absent contrary language in the court's order, this kind of dismissal is also without prejudice.
Frequently Asked Questions
Can a plaintiff dismiss a Kentucky lawsuit without going to the judge?
Yes, before the defendant serves an answer or a motion for summary judgment, the plaintiff can file a notice of dismissal without a court order. The parties can also file a signed stipulation of dismissal at any time. Once the defendant has answered or moved for summary judgment, dismissal at the plaintiff's request requires a court order.
What is Kentucky's two-dismissal rule?
If a plaintiff has already dismissed an action based on or including the same claim once before, whether in a Kentucky court, a federal court, or a court of another state, a second notice of dismissal operates as an adjudication on the merits. That means the claim cannot be brought a third time.
Can a case be dismissed if the defendant already filed a counterclaim?
If the defendant pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the court cannot dismiss the action over the defendant's objection unless the counterclaim can remain pending for independent adjudication.
Source & verification. The rule text is reproduced verbatim from the
official Kentucky Rules of Civil Procedure (Ky. R. Civ. P. 41.01). Prescribed by the Supreme Court of Kentucky (Ky. Const. § 116). The plain-English summary is original and written by us. Last verified July 9, 2026. ·
Official source
Also known as: voluntary dismissal kentuckynotice of dismissal before answerky cr 41.01two dismissal rule kentuckydismiss lawsuit without prejudice kentuckystipulation of dismissal signed by all parties