Group VI: Trials · Not amended since adoption on record · Last verified July 13, 2026
In one sentenceRule 41 governs how a plaintiff can voluntarily dismiss an action — by notice or stipulation, generally without prejudice, though a second such dismissal of the same claim operates as an adjudication on the merits — and how a defendant can obtain an involuntary dismissal, which South Carolina calls a non-suit, for failure to prosecute or comply with the rules.
(1)By Plaintiff; By Stipulation. Subject to the provisions of Rule 23(c), of Rule 66(a), and of any statute, an action may be dismissed by the plaintiff without order of court (A) by filing and serving a notice of dismissal at any time before service by the adverse party of an answer or motion for summary judgment, whichever first occurs, or (B) 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 the United States or of any state an action based on or including the same claim.
(2)By Order of Court. Except as provided in paragraph (1) of this subdivision 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 counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
(b)Involuntary Dismissal: Non-suit; 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 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 subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
(c)Dismissal of Counterclaim, Cross-Claim or Third Party Claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to paragraph (1) of subdivision (a) 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.
(d)Costs of Previously-Dismissed Action. 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, 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.
Notes
Note: This Rule 41 is the same as the Federal Rule, except that it requires service as well as filing the notice of voluntary dismissal by plaintiff if taken before answer or motion to dismiss is served. This Rule amends present State practice as to dismissal (non-suit); but clarifies Circuit Rules 29, 30, 59 and 76, which this Rule 41 and Rule 50 (directed verdict) replace. It is particularly helpful when the court tries a law action without a jury, and specifies the court's duty on such procedure. Rule 41(b) also makes clear when involuntary dismissal operates as an adjudication on the merits.
Plain-English Summary
A plaintiff can walk away from a case without asking the court's permission, but only within a narrow window. Rule 41(a)(1) allows dismissal by filing and serving a notice of dismissal any time before the other side serves an answer or a summary judgment motion, whichever comes first, or by filing a stipulation signed by every party who has appeared. Left unstated, that dismissal is without prejudice — the plaintiff can sue again. But the rule has a limit built in: if the plaintiff has already dismissed the same claim once before, in any state or federal court, a second notice of dismissal operates as an adjudication on the merits, meaning the claim cannot be brought a third time. Once an answer or summary judgment motion has been served, that easy exit closes — dismissal at the plaintiff's request then requires a court order, on whatever terms the court sets, and a pending counterclaim can block dismissal against a defendant's objection unless that counterclaim can be independently adjudicated.
Rule 41(b) covers the defendant's side of the coin: involuntary dismissal, which the rule and South Carolina practice call a non-suit. A defendant can move to dismiss for the plaintiff's failure to prosecute or to follow the rules or a court order. In a bench trial, once the plaintiff has finished presenting evidence, the defendant can move to dismiss on the ground that the plaintiff has shown no right to relief under the facts and the law, without giving up the chance to put on its own evidence if the motion fails. The court can rule on the spot or wait until all the evidence is in, and if it rules against the plaintiff on the merits, it has to make findings under Rule 52(a).
The default effect of an involuntary dismissal, or of any dismissal the rule otherwise does not address, is an adjudication on the merits — unless the court's order says otherwise. Three categories are carved out from that default and never count as a merits adjudication regardless of how the order is worded: a dismissal for lack of jurisdiction, one for improper venue, or one for failure to join a party under Rule 19.
These same rules apply to a counterclaim, cross-claim, or third-party claim, though a claimant's own voluntary dismissal of such a claim has to happen before a responsive pleading is served or, if none is required, before evidence is introduced. And if a plaintiff who once dismissed an action turns around and refiles the same claim against the same defendant, Rule 41(d) lets the court order payment of the costs from the first action and stay the new one until those costs are paid.
Frequently Asked Questions
What does South Carolina mean by a non-suit?
Rule 41(b) uses "non-suit" as the label for an involuntary dismissal — one a defendant obtains, rather than one the plaintiff chooses, typically for failure to prosecute, failure to follow the rules or a court order, or a failure of proof after the plaintiff rests in a bench trial.
Can I dismiss my own case without asking the court?
Yes, but only before the other side serves an answer or a summary judgment motion, by filing and serving a notice of dismissal, or at any time by filing a stipulation signed by every party who has appeared.
What is the two-dismissal rule?
Rule 41(a)(1) says that if a plaintiff has already dismissed the same claim once before, in any state or federal court, filing a second notice of dismissal operates as an adjudication on the merits — the claim cannot be brought again.
If my case is dismissed for lack of jurisdiction, does that count against me later?
No. Rule 41(b) specifically excludes dismissals for lack of jurisdiction, improper venue, and failure to join a Rule 19 party from the rule that otherwise treats a dismissal as an adjudication on the merits.
Can a defendant get costs if I dismiss and then refile the same claim?
Yes. Rule 41(d) allows the court to order payment of the costs from the previously dismissed action and to stay the new case until the plaintiff complies.
Does Rule 41 apply to counterclaims or third-party claims?
Yes, under Rule 41(c). A claimant's own voluntary dismissal of such a claim must happen before a responsive pleading is served, or before evidence is introduced if no response is required.
Source & verification. Rule text, official Notes, and amendment
history are reproduced verbatim from the South Carolina Rules of Civil Procedure,
adopted by the Supreme Court of South Carolina. Last verified July 13, 2026. ·
Official source
Also known as:non-suit South Carolinavoluntary dismissal SCRCPtwo dismissal ruleinvoluntary dismissal SCdismiss without prejudice South Carolina