Rule 41.Dismissal of Actions

Enacted effective October 1, 2011 · Last verified June 26, 2026

In one sentenceRule 41 governs dismissals — voluntary dismissal by the plaintiff (by early notice or stipulation, usually without prejudice), dismissal by court order, and involuntary dismissal for failure to prosecute or obey the rules, which usually operates as a decision on the merits.

Full Text of Rule 41

Text sizeJump to: (a) (b) (c) (d)

(a) Voluntary Dismissal.

(1) By the Plaintiff.

(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable state statute, the plaintiff may dismiss an action without a court order by filing:

(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or

(ii) a stipulation of dismissal signed by all parties who have appeared.

(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice.

(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.

(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule -- except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 -- operates as an adjudication on the merits.

(c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim. This rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimant’s voluntary dismissal under Rule 41(a)(1)(A)(i) must be made:

(1) before a responsive pleading is served; or

(2) if there is no responsive pleading, before evidence is introduced at a hearing or trial.

(d) Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court:

(1) may order the plaintiff to pay all or part of the costs of that previous action; and

(2) may stay the proceedings until the plaintiff has complied.

End

Plain-English Summary

Rule 41 sets out how a case ends short of judgment. A plaintiff may voluntarily dismiss without a court order by filing a notice before the opponent serves an answer or summary-judgment motion, or by a stipulation signed by all who have appeared; such a dismissal is without prejudice unless stated otherwise. After that point, dismissal requires a court order on proper terms, and a pending counterclaim can keep the case alive.

Involuntary dismissal (subdivision (b)) lets a defendant move to dismiss when the plaintiff fails to prosecute or to comply with the rules or a court order — and such a dismissal (along with most dismissals not under this rule) operates as an adjudication on the merits, except those for lack of jurisdiction, improper venue, or failure to join a required party. The rule also lets a court make a plaintiff who refiles a previously dismissed claim pay the costs of the earlier action.

Frequently Asked Questions

Can a plaintiff dismiss their own case?

Yes. Before the opposing party serves an answer or a summary-judgment motion, the plaintiff may dismiss by filing a notice; otherwise, by a stipulation signed by all appearing parties or by court order. Such a voluntary dismissal is without prejudice unless stated otherwise.

What is an involuntary dismissal?

A dismissal a defendant obtains when the plaintiff fails to prosecute or to comply with the rules or a court order. Unless stated otherwise, it operates as an adjudication on the merits — except dismissals for lack of jurisdiction, improper venue, or failure to join a required party.

Source & verification. Reproduced verbatim from the Montana Code Annotated as published by the State Law Library of Montana and the Montana Legislature. This rule has not been amended since its adoption. Adopted by the Supreme Court of Montana (AF 07-0157). Last verified June 26, 2026. · Official text

Also known as: dismissalvoluntary dismissalinvoluntary dismissaldismissfailure to prosecutenonsuit