Rule 41.Dismissal of Actions

Rule 41 carries the general dismissal machinery with two provisions shaped for this court — one in (a)(1), one in (b)(1).

Voluntary dismissal, including after a judgment nisi

A plaintiff may dismiss without a court order in two situations. The first is the familiar one: filing a notice of dismissal at any time before service by the adverse party of an answer. The second has no civil counterpart — after a judgment nisi has been entered, on the filing of a stipulation of dismissal signed by all parties who have appeared, which is presented forthwith to a judge, who thereupon enters an order of dismissal.

That matters because of how a Massachusetts divorce ends. The judgment nisi is not final immediately, and (a)(1)(ii) is the mechanism for unwinding the case in the interval by agreement rather than by motion.

Dismissal is without prejudice unless the notice or stipulation says otherwise — except that a notice of dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed, in any court, an action based on or including the same claim.

Otherwise dismissal at the plaintiff's instance requires a court order on such terms as the court deems proper. Where the defendant has already pleaded a counterclaim, the action is not dismissed over the defendant's objection unless the counterclaim can remain pending for independent adjudication.

Involuntary dismissal, and the three-year docket rule

Subsection (b)(1) lets the court, in its discretion, dismiss for lack of prosecution any action that has sat on the docket for three years without activity — not counting placing on the trial list, marking for trial, being set down for trial, the filing or withdrawal of an appearance, or any discovery paper.

The notice requirement is unusually generous. It must state that the action will be dismissed on a day certain not less than one year from the date of the notice, unless before then the case has been tried, heard on the merits, otherwise disposed of, or the court orders otherwise. It goes to the plaintiff's attorney of record, or to the plaintiff if there is none and the address is known, otherwise by publication as the court directs. Dismissal under this paragraph is without prejudice.

Subsection (b)(2) covers dismissal on the defendant's motion for failure to prosecute or to comply with the rules or an order, and the mid-trial motion after the plaintiff rests in a non-jury trial — where the court as trier of fact may find the facts and render judgment, or wait for the close of all the evidence, and must make Rule 52(a) findings if it enters judgment on the merits.

Subsection (b)(3) sets the default: a dismissal under (b), and any dismissal not provided for in the rule, operates as an adjudication on the merits unless it is under (b)(1), or the court specifies otherwise, or it is for lack of jurisdiction, improper venue, or failure to join a party under Rule 19.

Subsection (d) lets the court order payment of the costs of a previously dismissed action when the same claim is brought again, and stay the new proceedings until the plaintiff has complied.