Rule 41.Dismissal of Actions

Rule 15-6-41 gives a plaintiff two ways to dismiss a case without asking the court first. One is filing a notice of dismissal before the other side serves an answer or a summary judgment motion, whichever comes first. The other is filing a stipulation of dismissal signed by every party who has appeared. Either way, the dismissal is without prejudice unless the notice or stipulation says otherwise, with one built-in exception: if the same plaintiff has already dismissed, by notice, an action in any United States or state court based on or including the same claim, a second notice of dismissal counts as a ruling on the merits.

Outside those two routes, a plaintiff needs the court’s permission to dismiss, on whatever terms and conditions the court sets. If a defendant already pled a counterclaim before being served with the plaintiff’s dismissal motion, the court cannot dismiss the plaintiff’s claim over the defendant’s objection unless the counterclaim can stand on its own for independent adjudication. A dismissal ordered this way is without prejudice unless the order says otherwise.

Rule 15-6-41 also covers dismissal for the plaintiff’s own inaction: a defendant may move to dismiss for failure to prosecute or to follow the rules or a court order. In a case tried to the court without a jury, once the plaintiff finishes presenting evidence, the defendant may move to dismiss on the ground that the facts and the law show no right to relief, without giving up the right to put on a defense if the motion fails. The court can rule right then, or wait until all the evidence is in, and if it rules against the plaintiff on the merits, it must make findings under Rule 15-6-52(a). Unless the dismissal order says otherwise, a dismissal under this rule, or any dismissal this rule does not separately address, operates as a ruling on the merits, except a dismissal for lack of jurisdiction or for failure to join a party under Rule 15-6-19.

All of this applies just the same to a counterclaim, cross-claim, or third-party claim. A claimant dismissing voluntarily and without a court order has to act before a responsive pleading is served, or, if none was filed, before evidence comes in at the trial or hearing. And if a plaintiff who already dismissed one case refiles the same claim against the same defendant, the court can order payment of the costs from the earlier case and hold up the new one until that order is satisfied.