Reporter’s Notes—2019 Amendment: Rule 41(a) and (b) are reorganized and amended at the request of the Civil Division Oversight Committee to conform to current practice and to eliminate outdated terminology. Rule 41(a)(1) as amended retains, with some clarification of language, the provision of former Rule 41(a)(1)(i) that an action may be dismissed without order of court if a notice of voluntary dismissal is filed at any time before an answer or motion for summary judgment has been filed. The addition of “claim” makes clear that, as now provided in new paragraph (a)(5), one or more claims that have been joined in a single action may be dismissed without dismissal of the entire action. Other provisions of former paragraph (a)(1) have been separated for clarity and set forth in new paragraphs (a)(2)- (a)(6). New paragraph (a)(2) carries forward the provision of former Rule 41(a)(1)(ii) that a stipulation of dismissal signed by all appearing parties may be filed at any time. New paragraph (a)(3) carries forward the first and final sentences of former paragraph (a)(2) concerning dismissal by order of the court with a language clarification. New paragraph (a)(4) is the second sentence of former paragraph (a)(2) concerning counterclaims, with a language clarification. New paragraph (a)(5), permitting dismissal of some or all claims, is carried forward without change from former paragraph (a)(1)(ii). New paragraph (a)(6) carries forward the final sentence of former paragraph (a)(1)(ii) concerning adjudication on the merits. Former Rule 41(b)(1)(i), providing for involuntary dismissal of an action on a trial list that has been pending more than two years, has been deleted. Former subparagraphs (b)(ii) and (iii) have been renumbered as (i) and (ii) with language clarifications. Their time periods have been shortened and made uniform to allow more expeditious elimination of stale actions. Language has been added in (b)(ii) to make clear that the shorter time periods may be extended by the court and that dismissal may be entered against defendants who have not been served, leaving the action pending against those who have been served.
Reporter’s Notes—1995 Amendment: Rule 41(b)(2) is amended for consistency with simultaneous amendments to Rules 50 and 52 clarifying the procedure for judgment as a matter of law after the presentation of evidence by a party. The amendments conform the Vermont rules to the comparable federal rules as amended in 1991. See Reporter’s Notes to 1995 amendments of Rules 50 and 52(c). The deleted language provided the method for terminating a nonjury action on the merits when the plaintiff had failed to present sufficient evidence to sustain a burden of proof. New Rule 52(c) replaces the deleted language and provides for judgment against a defendant as well in similar circumstances. If a motion to dismiss on grounds of legal insufficiency is brought under Rule 41, it should now be treated as a motion for judgment under Rule 52(c).
Reporter’s Notes—1981 Amendment: Rule 41(b)(1) is amended to expand and modify the grounds upon which the court may dismiss an action on its own motion. Formerly, the rule provided that the court could, after notice, dismiss any action pending for two years unless good cause is shown for continuance. In view of the 1977 amendment to Rule 40(a)(2) providing for periodic issuance of a trial list and the use of the trial list to administer continuances, it cannot be assumed that the passage of time alone shows lack of progress and inaction if the court has never reached the case and placed it on the trial list. Thus, the amendment adds the requirement that the case have appeared on a trial list pursuant to Rule 40(a)(2). Two other grounds are added for dismissal of an action on the court’s motion. The first ground is that service has not been completed on any defendant and six months has passed since filing. The second is that the grounds for a default judgment exist but six months has passed and the prevailing party has not taken the actions specified in Rule 55 to obtain the default judgment. Again, this is a situation where no party exists who could, in the normal course, make the motion to dismiss the action, and the court must be given the power to clear its docket. Both of the added grounds for dismissal can be used only with the procedural protections specified in the rule—that is, notice to the plaintiff and an opportunity to show good cause for continuance. The amended rule will also be applicable in District Court, where the Civil Rule is incorporated by D.C.C.R. 41.
Reporter’s Notes: This rule is substantially similar to Federal Rule 41, with minor modifications discussed below. Rule 41(a) provides for a “voluntary dismissal,” or nonsuit, either as of right before the adverse party pleads or at any time by agreement of the parties. Otherwise leave of court is required. This is a major change for Vermont. The former practice was that plaintiff could dismiss at any time prior to verdict, subject to the payment of costs. See Stark v. Crowell, 117 Vt. 413, 94 A.2d 585 (1953); 12 V.S.A. § 2138 (now superseded). The second sentence of paragraph (1) is intended to clarify doubt on the point which had arisen under the federal rule. See 5 Moore, Federal Practice § 41.06-1. The rule, which follows the solution advocated by Moore, expresses a general policy of favoring action by the parties that tends to limit the issues or otherwise simplify the action. The rule also limits plaintiff’s right to dismiss without prejudice by providing that, where plaintiff has once dismissed, a second dismissal under Rule 41(a)(1) operates as an adjudication upon the merits. Where dismissal is by order of court under Rule 41(a)(2), the question of res judicata is in the court’s discretion. Rule 41(b)(1) is similar to former County Court Rule 3.2. Under Rule 40(b) the clerk at the beginning of a term will routinely list all cases ripe for dismissal on the progress calendar and send out the required notices with copies thereof. After the notice period is past, all such actions in which no request for hearing or continuance is forthcoming will be automatically dismissed. Thus, agreements for continuance will not be honored in the absence of a showing of cause after an action has been pending for two years. Rule 41(b)(2) includes two different forms of involuntary dismissal. Defendant may move for dismissal for plaintiff’s failure to prosecute his action or comply with the rules, and defendant may make such a motion in a nonjury action at the close of plaintiff’s case to raise the question of the sufficiency of plaintiff’s evidence or legal theory. The latter motion serves the function of a directed verdict motion in a jury case. Findings are required where dismissal is on the facts, because in such a case the trial court may be acting as trier of fact. The motion to dismiss for lack of prosecution or noncompliance with the rules was recognized in prior Vermont practice. See Capital Savings Bank & Trust Co. v. Hammett, 95 Vt. 47, 112 A. 360 (1921); former County Court Rule 10. Rule 41(d) is a more flexible provision pertaining to payment of costs than 12 V.S.A. § 2138 (now superseded), which required the imposition of costs in any discontinuance after process was served. In effect, the rule, by deferring the imposition of costs where plaintiff has dismissed as of right until plaintiff brings a second suit, emphasizes the possible vexatious effect of the second suit rather than the first dismissal. The discretion given to the court permits it to forgive costs where the plaintiff had good reason for the first dismissal or is financially unable to pay costs. Note in this connection, that, if plaintiff dismisses under Rule 41(a)(2) with leave of court, the dismissal may be upon conditions set by the court, which could include costs. In such a case, costs under Rule 41(d) would clearly be inappropriate. See, generally, 2B Barron & Holtzoff, Federal Practice and Procedure §§ 914, 923 (Wright ed. 1961). Annotations Conditions. Conflicting appointments of counsel. Dismissal with prejudice. Effect of dismissal. Findings of fact. Involuntary dismissal. New trial after appeal. Res judicata. Review. Stipulation. Two-dismissal rule. Voluntary dismissal. Conditions. Order purporting to authorize the Public Utility Commission to consider awarding fees in a future case was not a “condition” pursuant to the rule governing voluntary dismissal; once it was understood that the Commission could not revisit whether a departure from the American Rule was justified in this proceeding, it was clear that the order did nothing to change any party’s situation in a future case in any way. The order did not alter or expand the Commission’s authority to award attorney’s fees in a subsequent proceeding, even assuming the Commission had the power to do so; it was therefore not a condition and effected no purpose. In re Swanton Wind LLC, 2018 VT 141, 209 Vt. 224, 204 A.3d 635, 2018 Vt. LEXIS 235 (2018). Conflicting appointments of counsel. Engagement of counsel in other trial courts will not be considered cause for an automatic continuance or a ground for finding a court in abuse of discretion for dismissing the proceeding; counsel has burden of resolving appointment conflicts. In re Estate of Peloquin, 137 Vt. 559, 409 A.2d 586, 1979 Vt. LEXIS 1099 (1979). Where counsel received notice of date of drawing of jury and advised deputy clerk of court that he had two administrative hearings already scheduled for that date, and counsel failed to move for continuance, or use statutory procedure for resolution of appointment conflicts, and court dismissed the proceeding with prejudice, the judgment would stand on appeal to supreme court. In re Estate of Peloquin, 137 Vt. 559, 409 A.2d 586, 1979 Vt. LEXIS 1099 (1979). Dismissal with prejudice. Trial court properly dismissed appellant’s claims with prejudice when appellant filed his motion to dismiss nearly two months after appellee requested summary judgment and when the trial court found that appellee had investigated facts related to each issue and expended time and effort in addressing each of the issues in its motions to dismiss and for summary judgment. Watson v. Vill. at Northshore I Ass'n, Inc., 2018 VT 8, 207 Vt. 154, 184 A.3d 1133, 2018 Vt. LEXIS 13 (2018). It was not reasonable for appellant to assume that the dismissal of its third-party claims as moot would be without prejudice or that the claims were being dismissed under the rule governing third-party practice, as it was evident that the trial court did not dismiss the third-party claims under that rule to prevent delay or prejudice but under the rule regarding involuntary dismissal, and the dismissal acted as an adjudication upon the merits. Stratton Corp. v. Engelberth Constr., Inc., 2015 VT 75, 199 Vt. 388, 124 A.3d 489, 2015 Vt. LEXIS 55 (2015). While it is true that the rule regarding involuntary dismissal authorizes the court to dismiss a case where a party has failed to prosecute it, it is equally obvious that the court’s power to dismiss is not limited to such cases. Indeed, the rule expressly provides that unless the court in its order for dismissal otherwise specifies, a dismissal under the involuntary dismissal subsection and any dismissal not provided for in the rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party, operates as an adjudication upon the merits. Stratton Corp. v. Engelberth Constr., Inc., 2015 VT 75, 199 Vt. 388, 124 A.3d 489, 2015 Vt. LEXIS 55 (2015). Court’s dismissal of a foreclosure action on just jurisdictional grounds was no adjudication on the merits for purposes of a dismissal with prejudice. U.S. Bank National Ass'n v. Kimball, 2011 VT 81, 190 Vt. 210, 27 A.3d 1087, 2011 Vt. LEXIS 80 (2011). A dismissal with prejudice is treated as an adjudication on the merits. Littlefield v. Town of Colchester, 150 Vt. 249, 552 A.2d 785, 1988 Vt. LEXIS 165 (1988). Voluntary dismissal with prejudice of plaintiff’s appeal of denial of his subdivision application was tantamount to a concession that he was not entitled to the permit that was denied him. Littlefield v. Town of Colchester, 150 Vt. 249, 552 A.2d 785, 1988 Vt. LEXIS 165 (1988). Effect of dismissal. Plain language of the rule governing involuntary dismissals is exceedingly clear, by its express terms, unless a trial court specifically says otherwise in its order, a dismissal predicated on failure to seek a default judgment operates as an adjudication on the merits, and there is nothing in the broader context of the rule to indicate the drafters intended otherwise. Thus, a dismissal for failure to apply for default judgment operated as an adjudication on the merits, which under the doctrine of claim preclusion barred the lender’s foreclosure action. Deutsche Bank v. Pinette, 2016 VT 71, 202 Vt. 328, 149 A.3d 479, 2016 Vt. LEXIS 70 (2016). In a case where a mortgagee who has exercised the option to accelerate the amount due on a promissory note has an action involuntarily dismissed, and the lender does not allege a new default after the dismissal, that dismissal functions as an adjudication on the merits which precludes further litigation on the underlying note. Deutsche Bank v. Pinette, 2016 VT 71, 202 Vt. 328, 149 A.3d 479, 2016 Vt. LEXIS 70 (2016). Findings of fact. Findings of fact upon motion for involuntary dismissal of an action are not set aside on review unless clearly erroneous when viewed in the light most favorable to the prevailing party, excluding the effect of modifying evidence. Stephens v. Cohen, 138 Vt. 7, 409 A.2d 604, 1979 Vt. LEXIS 1100 (1979). In negligence action for injuries sustained from tripping over skate at bottom of stairs, notice of, or opportunity to avoid, a dangerous condition was essential to plaintiff’s case and where it was alleged defendant saw or should have seen the skate and there was testimony of plaintiff that defendant may have passed up the stairs immediately before plaintiff and thus may have had an opportunity to see the skate, finding that there was no evidence on that issue would be set aside as erroneous and involuntary dismissal would be reversed. Stephens v. Cohen, 138 Vt. 7, 409 A.2d 604, 1979 Vt. LEXIS 1100 (1979). Involuntary dismissal. Trial court exceeded its discretion by dismissing the case with prejudice for plaintiff’s failure to comply with its order. Although the trial court warned plaintiff that failure to prove the real party in interest would result in dismissal, the trial court made no findings that plaintiff failed to pursue the case, caused undue delay, or demonstrated continued noncompliance with the court’s orders, and the record did not demonstrate inaction by plaintiff; rather, plaintiff attended the hearing in question and complied with the trial court’s order to provide proof of the real party in interest, although the trial court was unpersuaded. Ditech Fin. LLC v. Brisson, 2025 VT 54, — Vt. —, 350 A.3d 366, 2025 Vt. LEXIS 91 (Vt. 2025). As opposed to a directed verdict, court in ruling on motion for involuntary dismissal in nonjury action is not required to take evidence in light most favorable to nonmoving parties. New England Educational Training Service, Inc. v. Silver Street Partnership, 156 Vt. 604, 595 A.2d 1341, 1991 Vt. LEXIS 123 (1991). In drafting an order granting defendant’s motion for dismissal for failure to appear and present a case, trial court’s reference to the decision as a default did not make the order a default judgment; it is the substance of the operative instrument that determines its judicial effect, not its label. Hayes v. Harwood, 141 Vt. 308, 448 A.2d 799, 1982 Vt. LEXIS 513 (1982). In trial by court without a jury, wherein defendant moved for judgment after conclusion of plaintiff’s evidence, motion was properly termed one for dismissal and court could determine the facts and render judgment; thus court was not, as argued by plaintiff on appeal, under duty to regard defendant’s motion as one for a directed verdict and take the evidence in the light most favorable to plaintiff and only question on appeal was whether judgment could be supported by evidence. Blais v. Blowers, 136 Vt. 488, 394 A.2d 1124, 1978 Vt. LEXIS 645 (1978). It was impermissible for court, on its own motion, to dismiss an action on grounds of plaintiff’s failure to complete service on defendants and untimely institution of suit, where action had not been pending two years. Reynolds v. Clapper, 132 Vt. 188, 318 A.2d 173, 1974 Vt. LEXIS 321 (1974). Where cause was ripe for dismissal by the trial court under provisions of this rule and litigation had been neglected for period of two years, it was error for trial court to enter a default judgment against defendant without giving notice under V.R.C.P. 55(b)(2). Town of Colchester v. Brault, 131 Vt. 616, 313 A.2d 29, 1973 Vt. LEXIS 363 (1973). New trial after appeal. Any motion seeking a remedy at law for seized property no longer in the state’s possession properly belongs in superior court. State v. Crannell, 171 Vt. 623, 768 A.2d 1260, 2000 Vt. LEXIS 378 (2000) (mem.). Where trial court’s grant of motion by defendants for judgment, made at close of plaintiff’s case, was reversed on appeal, and defendants had not waived their right to present evidence, new trial had to be granted. Stasieczko v. Nichols, 137 Vt. 112, 400 A.2d 992, 1979 Vt. LEXIS 956 (1979). Res judicata. Where the trial court enters an order of voluntary dismissal pursuant to this rule, the question of res judicata is in the court’s discretion. City of Barre v. Town of Orange, 139 Vt. 437, 430 A.2d 444, 1981 Vt. LEXIS 492 (1981). Where trial court entered an order dismissing with prejudice appeal of appraisal of value of property for tax purposes, this was an adjudication on the merits which established the appraisal of the property for that year and a subsequent attempt to litigate the appraisal for that year was barred by the doctrine of res judicata. City of Barre v. Town of Orange, 139 Vt. 437, 430 A.2d 444, 1981 Vt. LEXIS 492 (1981). Where, absent other circumstances, dismissal was based on failure of a plaintiff to prosecute or to comply with the rules or any order of court, dismissal operated as an adjudication on the merits; thus where trial court had dismissed plaintiff’s first complaint in action alleging fraud against estate of her late husband, dismissal of that action constituted an estoppel by judgment and created a bar to further litigation of the same cause of action seeking the same relief between the same parties. Cody v. Estate of Cody, 134 Vt. 113, 352 A.2d 684, 1976 Vt. LEXIS 607 (1976). Review. On appeal from involuntary dismissal in nonjury action, question is whether court’s findings of fact are clearly erroneous, viewing evidence in light most favorable to prevailing party. New England Educational Training Service, Inc. v. Silver Street Partnership, 156 Vt. 604, 595 A.2d 1341, 1991 Vt. LEXIS 123 (1991). On motion for dismissal at completion of state’s case, the supreme court must view evidence in light most favorable to nonmoving party and exclude all modifying evidence; where there is any evidence fairly and reasonably tending to justify a verdict in nonmoving party’s favor, dismissal must not be granted. State Environmental Board v. Chickering, 155 Vt. 308, 583 A.2d 607, 1990 Vt. LEXIS 199 (1990). Stipulation. In action to enforce a contract, stipulation by parties to settle the matter with prejudice, which stipulation was then filed with the court, complied with provisions of this rule and had force and effect of a final judgment without further order of the court. Alma Realty Co. v. Sugarbush Valley Corp., 136 Vt. 406, 392 A.2d 379, 1978 Vt. LEXIS 762 (1978). When all parties who are concerned and competent stipulate to a discontinuance of an administrative hearing, the discontinuance thereby becomes effective. Gloss v. Delaware & Hudson Railroad, 135 Vt. 419, 378 A.2d 507, 1977 Vt. LEXIS 644 (1977). Two-dismissal rule. Question of whether the two-dismissal rule applies to a voluntary dismissal is not ripe until a third action is filed because first, this preserves the summary nature of the voluntary dismissal, allowing dismissal as of right and without court action, and second, it reserves the question for when it is actually live in that if no subsequent action is filed, then it may not ever be necessary to address the question of whether the two-dismissal rule applies. If a third action is filed, at that point, the court can determine the facts of the prior two actions and decide if the two-dismissal rule applies. Federal National Mortgage Ass'n v. Johnston, 2018 VT 51, 207 Vt. 473, 189 A.3d 567, 2018 Vt. LEXIS 50 (2018). Voluntary dismissal. Rule governing voluntary dismissals states that an action may be dismissed by the plaintiff without order of court by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment; this language is unambiguous: if an adverse party has not served either an answer or a motion for summary judgment on the plaintiff, then the plaintiff may choose to dismiss the case by filing a notice of dismissal. Use of the permissive term “may” shows that such a dismissal is at the plaintiff’s option; and no court order is necessary to effectuate such a dismissal because the case is to be dismissed “by the plaintiff without order of [the] court.” Weitz v. Weitz, 2019 VT 35, 210 Vt. 248, 213 A.3d 1102, 2019 Vt. LEXIS 65 (2019). Because the husband in a divorce case never filed an answer nor moved for summary judgment, the wife retained the option to voluntarily dismiss the case by filing a notice of dismissal, and court approval was not required. Weitz v. Weitz, 2019 VT 35, 210 Vt. 248, 213 A.3d 1102, 2019 Vt. LEXIS 65 (2019). Rule for Family Proceedings permitting a defendant who has not filed an answer to contest parental rights and responsibilities, spousal maintenance, child support, maintenance supplement, property distribution, and counsel fees is not in conflict with the rule governing voluntary dismissal; it merely recognizes that a defendant in a divorce case may fail to file an answer. However, the failure to file an answer leaves the defendant exposed to potential voluntary dismissal. Weitz v. Weitz, 2019 VT 35, 210 Vt. 248, 213 A.3d 1102, 2019 Vt. LEXIS 65 (2019). Even if the Court were to entertain exceptions to the rule governing voluntary dismissals by notice by deciding that other litigation benchmarks could serve effectively as an answer or motion for summary judgment for the purposes of the rule, no exception was warranted here, where the trial court in a divorce case held no merits hearing, took no evidence, and gave no indication that plaintiff was unlikely to succeed on the merits; rather, the trial court merely oversaw discovery and alternative dispute resolution. Weitz v. Weitz, 2019 VT 35, 210 Vt. 248, 213 A.3d 1102, 2019 Vt. LEXIS 65 (2019).