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Rule 41.Dismissal of actions or claims

Current through January 1, 2025 · Last verified July 8, 2026

In one sentenceRule 41 lets a plaintiff voluntarily dismiss an action without a court order before the defendant answers or moves for summary judgment (generally without prejudice, unless the same claim was dismissed once before), otherwise requires a court order to dismiss, and authorizes involuntary dismissal -- generally as an adjudication on the merits -- for failure to prosecute, comply with the rules, or pay accrued court costs.

Full Text of Rule 41

Text sizeJump to: (a) (b)

(a) Voluntary dismissal.
(1) By the plaintiff.
(A) Without a court order. Subject to Rules 23(e), 23.1(c), 23.2 and any statute of the State, the plaintiff may dismiss an action or claim without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed the same claim, or any action in any Court of the United States or of this or any other state based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
(2) By court order; effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.
(b) Involuntary dismissal; effect. If the plaintiff fails to prosecute or to comply with these rules or a court order:
(1) a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this Rule— except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.
(2) any court in which an action has been pending for more than one year where no action has been taken by the plaintiff, the court may, in its discretion, order such action dismissed. For good cause shown, the court may, reinstate any action dismissed under this subsection on motion filed within three terms after entry of the order of dismissal.
(3) If the plaintiff is delinquent in the payment of accrued court costs, the court may, in its discretion, order such action dismissed. An order of reinstatement shall not be entered until any accrued court costs are paid.
(4) Before a court may dismiss an action under Rule 41(b), notice and an opportunity to be heard shall be given to all parties of record.
(5) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim. This Rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimant’s voluntary dismissal under Rule 41(a)(1) shall be made:
(A) before a responsive pleading is served; or
(B) if there is no responsive pleading, before evidence is introduced at a hearing or trial.
(6) If a plaintiff who previously dismissed an action in any court files an action on or including the same claim against the same defendant, the court:
(A) may order the plaintiff to pay all or part of costs of that previous action; and
(B) may stay the proceedings until the plaintiff has complied.
End

Amendment History

The current West Virginia Rules of Civil Procedure took effect January 1, 2025, as part of a rewrite that modernized the rules’ numbering and structure. West Virginia does not publish a per-rule amendment history inside the compiled rules text reproduced here. The text above is verified current through the source’s own January 1, 2025 update; for the underlying adopting order and any later amendments, see the West Virginia Judiciary’s compiled rules page.

Plain-English Summary

Rule 41 covers both ways a case can end early: the plaintiff walking away, and the court removing the plaintiff. A plaintiff can dismiss without asking the court's permission by filing a notice before the other side answers or moves for summary judgment, or by filing a stipulation every appearing party signs. That kind of dismissal is without prejudice — unless the plaintiff already dismissed the same claim once before, in which case a second notice operates as a final adjudication on the merits, closing the door on a third try. Once the case has moved past that early stage, dismissal at the plaintiff's request needs a court order, on whatever terms the court considers proper, and if the defendant has already pleaded a counterclaim that needs to stay in the case, the court can't dismiss over the defendant's objection unless that counterclaim can be adjudicated independently.

Dismissal can also come from the other direction. If the plaintiff fails to prosecute the case, doesn't follow the rules or a court order, lets a case sit for more than a year without action, or falls behind on court costs, the court can dismiss involuntarily — with notice and a chance to be heard first. Unless the dismissal order states otherwise, an involuntary dismissal (other than one for jurisdiction, venue, or failure to join a required party) counts as a decision on the merits, though a case dismissed for inaction can be reinstated for good cause on a motion filed within three terms of the dismissal.

The same voluntary-dismissal rules apply to counterclaims, crossclaims, and third-party claims. And if a plaintiff dismisses a case and then refiles the same claim against the same defendant, the court can order the plaintiff to pay the costs of the earlier action and stay the new case until that's done.

Frequently Asked Questions

Can a plaintiff dismiss a case without the court's permission?

Yes — by filing a notice of dismissal before the defendant serves an answer or a motion for summary judgment, or, at any point, a stipulation of dismissal signed by every party who has appeared.

Is a voluntary dismissal always without prejudice?

Generally, yes — unless the plaintiff already dismissed the same claim once before in any court, in which case a second notice of dismissal operates as an adjudication on the merits.

What can cause a court to dismiss a case involuntarily?

Failing to prosecute the case, failing to comply with the rules or a court order, leaving a case dormant for more than a year, or falling behind on accrued court costs — all after notice and a chance to be heard.

What happens if I dismiss a case and then refile the same claim later?

The court can order you to pay the costs of the earlier action and can stay the new case until you do.

Source & verification. The rule text is reproduced verbatim from the official West Virginia Rules of Civil Procedure (W. Va. R. Civ. P. 41). Prescribed by the Supreme Court of Appeals of West Virginia (W. Va. Const. art. VIII, § 3). The plain-English summary is original and written by us. Last verified July 8, 2026. · Official source
Also known as: voluntary dismissalnotice of dismissalinvoluntary dismissaldismissal for failure to prosecuterefiling a dismissed claim