In one sentenceRule 41 gives a plaintiff one dismissal without prejudice as of right (a second one counts as a ruling on the merits), lets a defendant seek dismissal for a plaintiff's failure to prosecute or comply with the rules, and covers the costs that follow.
(1)By Plaintiff; by Stipulation. – Subject to the provisions of Rule 23(c) and of any statute of this State, an action or any claim therein may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before the plaintiff rests his case, 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, 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 or any other state or of the United States, an action based on or including the same claim. If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless a stipulation filed under (ii) of this subsection shall specify a shorter time.
(2)By Order of Judge. – Except as provided in subsection (1) of this section, an action or any claim therein shall not be dismissed at the plaintiff's instance save upon order of the judge and upon such terms and conditions as justice requires. Unless otherwise specified in the order, a dismissal under this subsection is without prejudice. If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless the judge shall specify in his order a shorter time.
(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 therein 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 as trier of the facts may then determine them and 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 shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this section and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a necessary party, operates as an adjudication upon the merits. If the court specifies that the dismissal of an action commenced within the time prescribed therefor, or any claim therein, is without prejudice, it may also specify in its order that a new action based on the same claim may be commenced within one year or less after such dismissal.
(c)Dismissal of counterclaim; crossclaim, or third-party claim. – The provisions of this rule apply to the dismissal of any counterclaim, crossclaim, or third-party claim.
(d)Costs. – A plaintiff who dismisses an action or claim under section (a) of this rule shall be taxed with the costs of the action unless the action was brought in forma pauperis. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant before the payment of the costs of the action previously dismissed, unless such previous action was brought in forma pauperis, the court, upon motion of the defendant, shall make an order for the payment of such costs by the plaintiff within 30 days and shall stay the proceedings in the action until the plaintiff has complied with the order. If the plaintiff does not comply with the order, the court shall dismiss the action.
Amendment History
(1967, c. 954, s. 1; 1969, c. 895, s. 10; 1977, c. 290.)
Plain-English Summary
Rule 41(a)(1) lets a plaintiff voluntarily dismiss an action or claim without a court order, either by filing a notice of dismissal any time before resting the case or by filing a stipulation of dismissal signed by every party who has appeared. The dismissal is without prejudice unless stated otherwise, except that a second notice-dismissal of the same claim -- in any court of this state, another state, or the United States -- operates as an adjudication on the merits. A claim timely filed and then dismissed without prejudice this way can be refiled within one year, unless a stipulation sets a shorter window. Rule 41(a)(2) covers any other voluntary dismissal, which needs a judge's order on terms the judge sets; it's without prejudice by default, with the same one-year refiling window unless the judge shortens it.
Rule 41(b) lets a defendant move for involuntary dismissal for the plaintiff's failure to prosecute or to comply with the rules or a court order; in a non-jury trial, once the plaintiff has presented its evidence, the defendant may also move to dismiss on the ground that the facts and law show no right to relief, without waiving the right to put on evidence if the motion is denied -- the court can rule immediately or wait until all the evidence is in, and a judgment against the plaintiff on the merits requires findings under Rule 52(a). This kind of dismissal operates as an adjudication on the merits unless the court says otherwise, except that a dismissal for lack of jurisdiction, improper venue, or failure to join a necessary party never does; the court may still set a shortened (or unshortened) refiling window. Rule 41(c) applies the whole rule to counterclaims, crossclaims, and third-party claims.
Rule 41(d) taxes a plaintiff who dismisses under section (a) with the action's costs, unless the case was brought in forma pauperis; if that plaintiff then refiles the same claim before paying those costs, the defendant can get a court order requiring payment within 30 days and a stay of the new action until payment is made, with dismissal as the consequence if the plaintiff doesn't comply.
Frequently Asked Questions
How many times can a plaintiff voluntarily dismiss the same claim without it counting against them?
Once. Rule 41(a)(1) treats a second notice of dismissal of the same claim, filed in any court of this state, another state, or the United States, as an adjudication on the merits.
How long does a plaintiff have to refile after a voluntary dismissal without prejudice?
One year, unless a stipulation or the court's order sets a shorter window.
Can a defendant get a case dismissed for the plaintiff's failure to prosecute?
Yes. Rule 41(b) lets a defendant move for involuntary dismissal on that ground, or for failure to comply with the rules or a court order.
Source & verification. The rule text and history citation are reproduced verbatim from the
official North Carolina General Statutes, Chapter 1A (N.C. R. Civ. P. 41). Enacted by the North Carolina General Assembly (S.L. 1967, c. 954, codified at N.C.G.S. § 1A-1). The plain-English summary is original and written by us. Last verified July 3, 2026. ·
Official source
Also known as:voluntary dismissal without prejudicetwo dismissal ruleinvoluntary dismissal for failure to prosecutemotion to dismiss for failure to prosecuteone year refiling deadlinetaxing costs on dismissaladjudication on the merits dismissaldismissal for failure to comply with court order