In one sentenceRule 41 gives a plaintiff the right to take up to two voluntary nonsuits dismissing an action without prejudice, treats a third nonsuit of the same claim as an adjudication on the merits, lets a defendant move for an involuntary dismissal when the plaintiff fails to prosecute or comply with the rules, and treats any dismissal not otherwise specified as with prejudice unless the court says otherwise.
1Subject to the provisions of Rule 23.05, Rule 23.06 or Rule 66 or any statute, and except when a motion for summary judgment made by an adverse party is pending, the plaintiff shall have the right to take a voluntary nonsuit to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause and serving a copy of the notice upon all parties, and if a party has not already been served with a summons and complaint, the plaintiff shall also serve a copy of the complaint on that party; or by an oral notice of dismissal made in open court during the trial of a cause; or in jury trials at any time before the jury retires to consider its verdict and prior to the ruling of the court sustaining a motion for a directed verdict. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of plaintiff's motion to dismiss, the defendant may elect to proceed on such counterclaim in the capacity of a plaintiff.
2Notwithstanding the provisions of the preceding paragraph, a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has twice dismissed in any court an action based on or including the same claim.
3A voluntary nonsuit to dismiss an action without prejudice must be followed by an order of voluntary dismissal signed by the court and entered by the clerk. The date of entry of the order will govern the running of pertinent time periods.
1For 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 the defendant.
2After the plaintiff in an action tried by the court without a jury has completed the presentation of plaintiff's evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court shall reserve ruling until all parties alleging fault against any other party have presented their respective proof-in-chief. 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 grants the motion for involuntary dismissal, the court shall find the facts specially and shall state separately its conclusion of law and direct the entry of the appropriate judgment.
3Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this Rule 41, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication upon the merits.
41.03Dismissal of Counterclaim, Cross-Claim or Third-Party Claim. The provisions of this Rule 41 also apply to the dismissal of any counterclaim, cross-claim, or third-party claim.
41.04Costs 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 new action until the plaintiff has complied with the order.
Advisory Commission Comments
Advisory Commission Comments.
41.01: Prior practice in the circuit court permitted a claimant an unrestricted right to take a voluntary nonsuit in jury cases at any time before final retirement of the jury, and in nonjury cases until final submission of the case to the court for decision. Tenn. Code Ann. § 20-1311 et seq. [repealed]. In chancery the right to a voluntary dismissal without prejudice was much more limited; generally permission of the court was required after proof on the merits was taken. Gibson's Suits in Chancery, § 612 (5th ed. 1955). The Committee felt that the more liberal circuit court practice would probably be preferable to the Bar, particularly since most cases are now tried on oral testimony even in chancery. The provisions of the second paragraph of the Rule, however, impose a limit upon the number of voluntary dismissals which can be taken as a matter of right.
41.02: The provisions of the second paragraph were designed to eliminate the harsh rule formerly applied in chancery cases to the effect that a defendant could not move for dismissal at the end of the complainant's proof without resting his case and waiving his right to offer evidence. The Committee felt that a party should be able to test the legal sufficiency of his adversary's proof without such drastic consequences.
Advisory Commission Comments [1991].
Rule 41.01(1) is amended to require service of both the written notice of nonsuit and a copy of the complaint on other parties.
Advisory Commission Comments [1992].
Rule 41.01(1) is amended to require service of a complaint only on those parties not already served by summons and complaint.
Advisory Commission Comments [1998].
Adding the [second] sentence in Rule 41.02(2) concerning reservation of a ruling was thought necessary in light of Tennessee's adoption of comparative fault.
Advisory Commission Comments [2002].
Added to the list of situations where a plaintiff cannot take a nonsuit is a shareholder's derivative action, provided for by Rule 23.06.
Advisory Commission Comments [2004].
New paragraph 41.01(3) mandates a court order after nonsuit. The order entry date would start the saving year running under Tenn. Code Ann. § 28-1-105. In rare cases, the date would trigger times for filing post trial motions or a notice of appeal. SeeGreen v. Moore, 101 S.W.3d 415 (Tenn. 2003).
Advisory Commission Comments [2005].
Plaintiffs and their counsel should note that in certain circumstances a case cannot be recommenced after the filing of a voluntary nonsuit. See e.g. Lynn v. City of Jackson, 63 S.W.3d 332, 337 (Tenn. 2001) (stating, "the general rule in Tennessee is that savings statutes may not be applied to extend the period within which an action must be filed under the [Governmental Tort Liability Act]"); In re Estate of Barnhill, 62 S.W.3d 139 (Tenn. 2001) (holding that a will contest action cannot be refiled after a voluntary nonsuit).
Advisory Commission Comments [2006].
Although Rule 41.01(2) allows two nonsuits without prejudice, a plaintiff must carefully consider the separate issue of whether the saving statute, T.C.A. § 28-1-105, authorizes a recommencement of the plaintiff's action after a nonsuit. A plaintiff should note that taking a second nonsuit, which is permitted by Rule 41.01(2), does not initiate a second one-year period for recommencing the action under the saving statute. SeePayne v. Matthews, 633 S.W.2d 494, 495-96 (Tenn. Ct. App. 1982) (stating, "It has long been held that after the taking of any nonsuit to the original action, any additional suits would have to be filed within one year of the first nonsuit to be within the purview of T.C.A. Sec. 28-1-105.").
Plain-English Summary
Rule 41.01 gives a plaintiff broad, largely unilateral control over dismissing its own case: a written notice of dismissal filed and served any time before trial, an oral notice in open court during trial, or — in a jury case — a notice given any time before the jury retires and before the court has granted a motion for a directed verdict. That right is not unlimited. It gives way when a class action, a receiver’s case, or certain other statutory situations are involved, when a summary judgment motion is already pending, or when dismissing would strip a defendant of some vested right the case has already created. And it runs out after two nonsuits of the same claim: a third notice of dismissal counts as an adjudication on the merits, closing off the claim for good.
A voluntary nonsuit dismisses without prejudice, but it does not by itself extend how long a plaintiff has to refile. A separate statute — the savings statute — gives a plaintiff one year from the nonsuit to bring the claim again, and that year starts running from the first nonsuit, not from a second one taken later. Since 2004, a nonsuit also has to be followed by a signed order of dismissal, and the entry date of that order controls the running of any deadline that depends on it.
Rule 41.02 covers dismissal against the plaintiff’s wishes. A defendant can move to dismiss for failure to prosecute or to comply with the rules or a court order, and in a non-jury trial, a defendant can move to dismiss after the plaintiff finishes presenting its evidence, arguing the plaintiff has shown no right to relief under the facts and the law. Courts treat this kind of dismissal — like the failure-to-prosecute dismissal — as a serious step, one they use carefully rather than routinely, especially where the fault traces to counsel’s conduct rather than the client’s own choices. Unless the court’s order says otherwise, an involuntary dismissal, and any other dismissal not otherwise addressed by Rule 41, counts as an adjudication on the merits — except a dismissal for lack of jurisdiction, improper venue, or the absence of an indispensable party, which never counts as a merits ruling regardless of what the order says.
Rule 41.03 applies the whole of Rule 41 equally to a counterclaim, cross-claim, or third-party claim being dismissed. Rule 41.04 lets a court, when a plaintiff refiles a claim it previously dismissed, order payment of the costs from the earlier action and stay the new case until that order is satisfied.
Frequently Asked Questions
How many times can I voluntarily dismiss my own lawsuit?
Twice as a matter of right. Rule 41.01 lets a plaintiff take a voluntary nonsuit without prejudice up to two times; a third notice of dismissal of the same claim counts as an adjudication on the merits.
Does taking a nonsuit give me extra time to refile my case?
A related statute — not Rule 41 itself — gives you one year from the nonsuit to refile, and that year runs from your first nonsuit. Taking a second nonsuit, permitted under Rule 41.01, does not restart that one-year clock.
Is a dismissal for improper venue treated as a ruling on the merits?
No. Rule 41.02(3) specifically excludes dismissals for lack of jurisdiction, improper venue, and lack of an indispensable party from counting as adjudications on the merits, regardless of how the dismissal order is worded.
Can a defendant get my case dismissed for not moving it forward?
Yes. Rule 41.02 lets a defendant move to dismiss for failure to prosecute or to comply with the rules or a court order, though courts apply that remedy carefully rather than routinely, especially when the delay is attributable to counsel rather than the client.
Source & verification. The rule text and Advisory Commission Comments are reproduced verbatim from the
official Tennessee Rules of Civil Procedure (Tenn. R. Civ. P. 41). Prescribed by the Supreme Court of Tennessee (Tenn. Code Ann. §§ 16-3-402 to 16-3-407, 16-3-601). The plain-English summary is original and written by us. Last verified July 2, 2026. ·
Official source
Also known as:voluntary dismissalnonsuitinvoluntary dismissalfailure to prosecutedismissal with prejudice
Advisory Commission Comments.
41.01: Prior practice in the circuit court permitted a claimant an unrestricted right to take a voluntary nonsuit in jury cases at any time before final retirement of the jury, and in nonjury cases until final submission of the case to the court for decision. Tenn. Code Ann. § 20-1311 et seq. [repealed]. In chancery the right to a voluntary dismissal without prejudice was much more limited; generally permission of the court was required after proof on the merits was taken. Gibson's Suits in Chancery, § 612 (5th ed. 1955). The Committee felt that the more liberal circuit court practice would probably be preferable to the Bar, particularly since most cases are now tried on oral testimony even in chancery. The provisions of the second paragraph of the Rule, however, impose a limit upon the number of voluntary dismissals which can be taken as a matter of right.
41.02: The provisions of the second paragraph were designed to eliminate the harsh rule formerly applied in chancery cases to the effect that a defendant could not move for dismissal at the end of the complainant's proof without resting his case and waiving his right to offer evidence. The Committee felt that a party should be able to test the legal sufficiency of his adversary's proof without such drastic consequences.