805.04.Voluntary dismissal: effect thereof.

Early in a case, a plaintiff has real freedom to walk away. Section 805.04(1) lets a plaintiff dismiss an action without a court order, either by serving and filing a notice of dismissal any time before the other side serves a responsive pleading or motion, or by filing a stipulation of dismissal signed by every party who has appeared. That kind of dismissal is not on the merits unless the notice or stipulation says otherwise, with one built-in exception: a notice of dismissal counts as an adjudication on the merits if the same plaintiff has already once dismissed, in any court, an action based on or including the same claim.

Once the case has moved past that early window, Section 805.04(2) requires a court order for the plaintiff to dismiss, on whatever terms and conditions the court thinks proper, and that dismissal is not on the merits unless the order specifies otherwise. The same voluntary dismissal framework applies to a counterclaim, cross claim, or third-party claim under Section 805.04(3), though a claimant dismissing one of those alone has to do it before a responsive pleading is served, or, if there is none, before evidence is introduced at trial or the hearing.

Section 805.04(4) addresses what happens if a plaintiff who already dismissed once turns around and files again on the same claim against the same defendant. The court can order the plaintiff to pay the costs of the previously dismissed action, on terms the court thinks proper, and can stay the new case until the plaintiff complies.