Rule 41.Dismissal of Actions.

Subdivision (a)(1) gives a narrow window for walking away on your own. Subject to Rule 66(j) and to any statute of this state, a plaintiff may dismiss by filing a notice of dismissal at any time before the adverse party serves an answer or a motion for summary judgment, whichever comes first, or by filing a stipulation signed by all parties who have appeared. Unless the notice or stipulation says otherwise, that dismissal is without prejudice.

Once the window closes, subdivision (a)(2) takes over and the case can be dismissed at the plaintiff's request only by order of the court, on whatever terms and conditions the court deems proper. A counterclaim changes the picture. If the defendant pleaded one before being served with the motion to dismiss, the action cannot be dismissed over the defendant's objection unless the counterclaim can remain pending for independent adjudication. Subdivision (c) turns the same rules on counterclaims and cross-claims: a claimant dismissing one alone has to act before a responsive pleading or a motion for summary judgment is served, or, where there is neither, before evidence comes in at the trial or hearing.

Subdivision (b) covers dismissals the plaintiff does not want. The court may act on its own for lack of prosecution where the case has been pending more than five years, or at any time for failure to comply with these rules, after notice served on the plaintiff's attorney of record and on the plaintiff at a known address, or published as the court directs when there is no attorney and no known address. A defendant may move on those grounds and on failure to comply with any order of court. After the plaintiff has completed the presentation of the plaintiff's evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief, without waiving the right to offer evidence if the motion is not granted. The judge may rule then or wait for the close of all the evidence, and a judgment on the merits requires findings under Rule 52(a).

Subdivision (b)(3) is the sentence that decides whether you get a second chance. Unless the dismissal order says otherwise, a dismissal under subdivision (b), and any dismissal this rule does not provide for, operates as an adjudication upon the merits, with three exceptions: lack of jurisdiction, improper venue, and lack of an indispensable party. Subdivision (d) adds a cost of starting over, because a plaintiff who once dismissed and then sues the same defendant on the same claim can be ordered to pay the costs of the earlier action, and the new case can be stayed until those costs are paid.