Group VI: Trials · Last amended March 1, 2011 · Last verified July 15, 2026
In one sentenceRule 41 lets a plaintiff voluntarily dismiss a claim without a court order before the defendant answers or moves for summary judgment, or by a stipulation signed by every party who has appeared, and it treats an involuntary dismissal for failure to prosecute as a decision on the merits unless the court says otherwise.
(A)Without a court order. Except when a provisional remedy has been allowed, and subject to Rules 23 and 66 and any applicable 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. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
(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.
Explanatory Note
Rule 41 was amended March 1, 1990; March 1, 1994; March 1, 2011. Rule 41 is derived from Fed.R.Civ.P. 41. Rule 41 prohibits dismissal by stipulation under subdivision (a) when a provisional remedy has been allowed. A directed verdict should be moved for under Rule 50 in a trial by jury, instead of asking for a dismissal. Rule 41 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended. Subdivision (b) was amended, effective March 1, 1994, to track the 1991 federal amendment. Language was deleted that authorized the use of this rule to terminate a non-jury action on the merits when the plaintiff failed to meet a burden of proof. A motion to dismiss under Rule 41 on the ground that a plaintiff's evidence is legally insufficient should now be treated as a motion for judgment on partial findings as provided in Rule 52(c). Rule 41 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Plain-English Summary
Rule 41(a) gives a plaintiff two ways to walk away from a case without asking the court's permission: filing a notice of dismissal before the opposing party serves an answer or a motion for summary judgment, or filing a stipulation of dismissal signed by every party who has appeared. Either one is off the table once a provisional remedy has been allowed, and both are subject to Rules 23 and 66 and any statute that says otherwise. Ordinarily the dismissal is without prejudice, so the claim can be brought again — but the rule includes a check on repeat filers: if the plaintiff already dismissed a federal- or state-court action based on the same claim once before, a second notice of dismissal counts as an adjudication on the merits, closing the door on a third try.
Outside those two paths, dismissal at the plaintiff's request takes a court order, on terms the court considers proper. If the defendant already pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the court can only dismiss over the defendant's objection if that counterclaim can still be adjudicated independently. Unless the order says otherwise, this kind of dismissal is also without prejudice.
Rule 41(b) covers the flip side: an involuntary dismissal when the plaintiff fails to prosecute the case or comply with the rules or a court order. Here the default runs the other way — unless the dismissal order states otherwise, the dismissal operates as an adjudication on the merits, with specific carve-outs for dismissals based on lack of jurisdiction, improper venue, or failure to join a party under Rule 19. Rule 41(c) extends the same voluntary-dismissal timing rules to a counterclaim, crossclaim, or third-party claim, and Rule 41(d) lets the court order a plaintiff who refiles a previously dismissed claim to pay the costs of that earlier action, staying the new case until the plaintiff complies.
Frequently Asked Questions
Can I dismiss my own lawsuit without asking the court for permission?
Yes, in two situations under Rule 41(a)(1): by filing a notice of dismissal before the defendant serves an answer or a motion for summary judgment, or by filing a stipulation of dismissal signed by every party who has appeared in the case.
What happens if I've already dismissed this same claim once before?
Rule 41(a)(1)(B) applies what is often called the two-dismissal rule: if you previously dismissed a federal- or state-court action based on or including the same claim, a second notice of dismissal operates as an adjudication on the merits rather than a dismissal without prejudice.
Can the defendant get my case dismissed if I stop pursuing it?
Yes. Rule 41(b) lets a defendant move to dismiss when the plaintiff fails to prosecute the action or comply with the rules or a court order, and unless the order says otherwise, that dismissal operates as an adjudication on the merits — except when it rests on lack of jurisdiction, improper venue, or failure to join a party under Rule 19.
If the defendant has already filed a counterclaim, can I still dismiss my case without an order?
Not automatically. Rule 41(a)(2) requires a court order in that situation, and if the defendant pleaded the counterclaim before being served with your dismissal motion, the court can dismiss over the defendant's objection only if the counterclaim can remain pending for independent adjudication.
If I dismiss and refile the same claim, do I owe the other side anything?
The court can order you to pay all or part of the costs of the previously dismissed action and can stay the new proceedings until you comply, under Rule 41(d).
Source & verification. Rule text and the Explanatory Note are
reproduced verbatim from the North Dakota Rules of Civil Procedure, adopted by the
Supreme Court of North Dakota. Last verified July 15, 2026.
· Official source
Also known as:nd voluntary dismissal without prejudicetwo dismissal rule north dakotand failure to prosecute dismissalinvoluntary dismissal adjudication on merits ndstipulation of dismissal nd civil