Chapter VI: Trials · Not amended since adoption on record · Last verified July 14, 2026
In one sentenceRule 41 sets out the ways a Mississippi civil action can end without a trial on the merits — voluntary dismissal by the plaintiff, involuntary dismissal for failure to prosecute or obey a court order, and dismissal on the clerk's own motion after a year of inactivity — along with what each kind of dismissal means for a later lawsuit on the same claim.
(1)By Plaintiff By Stipulation. Subject to the provisions of Rule 66, or of any statute of the State of Mississippi, and upon the payment of all costs, an action may be dismissed by the plaintiff without order of court:
(i)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
(ii)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.
(2)By Order of Court. Except as provided in paragraph (a)(1) 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 counter-claim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action may be dismissed but the counter-claim shall remain pending for adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
(b)Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court may make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any other 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 Counter-claim, Cross-Claim or Third-Party Claim. The provisions of this rule apply to the dismissal of any counter-claim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to paragraph (a)(1) 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.
(1)Notice. In all civil actions wherein there has been no action of record during the preceding twelve months, the clerk of the court shall mail notice to the attorneys of record that such case will be dismissed by the court for want of prosecution unless within thirty days following said mailing, action of record is taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case. If action of record is not taken or good cause is not shown, the court shall dismiss each such case without prejudice. The cost of filing such order of dismissal with the clerk shall not be assessed against either party.
(2)Mailing Notice. The notice shall be mailed in every eligible case not later than thirty days before June 15 and December 15 of each year, and all such cases shall be presented to the court by the clerk for action therein on or before June 30 and December 31 of each year. These deadlines shall not be interpreted as a prohibition against mailing of notice and dismissal thereon as cases may become eligible for dismissal under this rule. This rule is not a limitation upon any other power that the court may have to dismiss any action upon motion or otherwise.
(e)Cost of Previously Dismissed Action. If a plaintiff whose action has once been dismissed 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.
Advisory Committee Notes
After the court clerk has given notice pursuant to Rule 41(d), a party seeking to avoid dismissal for lack of prosecution must either take some “action of record” or apply in writing to the court and demonstrate good cause for continuing the case. Rule 41(d) does not define what constitutes “an action of record.” See Ill. Central R.R. Co. v. Moore, 99 So. 2d 723, 726 (Miss. 2008). Pleadings, discovery requests, and deposition notices are “actions of record.” Id. at 728. An ex parte letter to the court clerk simply requesting that the case remain on the court’s active docket is not an application in writing that demonstrates good cause. Id. at 729- 730. Rather than writing a letter to the clerk, a party should file a written motion with the court that complies with Rule 7(b)(1) and that demonstrates good cause, and should serve
such motion in accordance with M.R.C.P. 5. Id. at 727-730. But see Cucos, Inc. v. McDaniel, 938 So. 2d 238, 247 (Miss. 2006) (finding that the trial court did not abuse its discretion in considering the plaintiff’s attorney’s letter to the clerk requesting that the case remain on the court’s active docket as sufficient to prevent dismissal where:…(i) the court held a hearing and the plaintiff’s lawyer also represented he was trying to schedule conferences so that defense counsel could talk to plaintiff’s expert witnesses in an effort to facilitate settlement; (ii) local practice was to treat such letters as sufficient; and (iii) the plaintiff was not served with a proper copy of the order of dismissal). Generally, compliance with local practice that is inconsistent with the Mississippi Rules of Civil Procedure will not, standing alone, be sufficient to prevent dismissal. See Ill. Central R.R. Co. v. Moore, 994 So. 2d 723, 728 (Miss. 2008).
Plain-English Summary
Rule 41(a) gives a plaintiff two ways to walk away from a case without asking the court's permission, so long as all costs are paid. Before the defendant answers or moves for summary judgment, the plaintiff can file a simple notice of dismissal. After that point, the plaintiff needs either a stipulation signed by everyone who has appeared in the case or an order from the court, on whatever terms the court sets. Either way, the dismissal is without prejudice unless the notice, stipulation, or order says otherwise, and a counterclaim already on file survives even if the plaintiff's own claim is dismissed by court order.
Rule 41(b) covers dismissal at the defendant's request: for failure to prosecute the case or to follow the rules or a court order, and — in a bench trial — for failing to show any right to relief once the plaintiff has finished presenting evidence. That last option lets a judge cut a weak case short instead of sitting through a defense case that cannot change the outcome. A dismissal under this subdivision counts as a decision on the merits unless the court says otherwise, with three built-in exceptions: dismissals for lack of jurisdiction, improper venue, or failure to join a required party under Rule 19 never bar a later suit. Rule 41(c) applies these same rules to a counterclaim, cross-claim, or third-party claim.
Rule 41(d) protects the court's docket from cases that go nowhere. When a case has had no recorded activity for twelve months, the clerk mails a notice warning that the case will be dismissed unless, within thirty days, someone takes an action of record or files a written showing of good cause to keep it alive. The rule builds this into a twice-yearly cycle — notices go out roughly a month before June 15 and December 15, and the clerk brings the eligible cases to the court by June 30 and December 31. A dismissal under this subdivision is without prejudice and carries no cost to either side.
Rule 41(e) addresses what happens after a plaintiff refiles a claim that was already dismissed once: the court may order the plaintiff to pay the costs of that earlier action and can pause the new case until those costs are paid. Taken together, the rule gives plaintiffs a narrow window to bail out cleanly, gives defendants a remedy for stalled or losing cases, and gives the court a housekeeping tool for cases nobody is pushing forward.
Frequently Asked Questions
Can I dismiss my own lawsuit without a judge's order?
Only within a narrow window, and only upon payment of all costs. Rule 41(a)(1) lets you file a notice of dismissal before the other side answers or moves for summary judgment, or a stipulation signed by everyone who has appeared in the case. After that point, you need a court order, on whatever terms the court sets.
What does it mean that a voluntary dismissal is "without prejudice"?
It means you can generally bring the same claim again later, since the first dismissal is not treated as a ruling against you on the merits. That is the default outcome unless the notice, stipulation, or order states otherwise, and Rule 41(e) still lets the court require you to pay the costs of the earlier action before the new one proceeds.
What happens if my case sits inactive for a long time?
Rule 41(d) lets the clerk step in after twelve months with no action of record. The clerk mails a notice, and the case is dismissed without prejudice unless someone takes an action of record or files a written showing of good cause within thirty days. Courts have held that an informal letter to the clerk is generally not enough — a proper written motion is the safer route.
Does a dismissal for failing to prosecute the case stop me from suing again?
Usually, yes. Rule 41(b) treats a dismissal under that subdivision as a decision on the merits unless the court specifies otherwise. The exceptions are dismissals for lack of jurisdiction, improper venue, or failure to join a required party under Rule 19, none of which bar a later suit.
If I dismiss a case and refile it later, can the other side make me pay for the first round?
Yes. Rule 41(e) allows the court to order payment of the costs from the previously dismissed action and to stay the new case until those costs are paid.
Source & verification. Rule text and Advisory Committee Notes are
reproduced verbatim from the Mississippi Rules of Civil Procedure, adopted by the
Supreme Court of Mississippi. Last verified July 14, 2026.
· Official source
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