RULE 41. DISMISSAL OF ACTIONS
(a) Voluntary dismissal
(1) By the Plaintiff
stipulation. Subject to the provisions of Rule 23(l), of Rule 66, and of
any statute of this state, an action
may be dismissed by the plaintiff without order of court, unless a provisional remedy has
been allowed, (i) 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, whichever first occurs, or (ii) by
filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless
otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice,
except that a notice of dismissal operates as an adjudication upon the merits when filed by
a plaintiff who has once dismissed in any court of the United States or of any state an action
based on or including the same claim.
(A) Without a Court Order. Except when a provisional remedy has been allowed, and subject to Rules 23 and 66 and any applicable statute, the plaintiff may dismiss an action 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 any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
(2) By Court Order;
court Effect. Except as provided in paragraph (1), an action may not be
dismissed at the plaintiff's
instance save upon order of the court and upon such terms and conditions as the court
considers proper. If a counterclaim has been pleaded by a defendant before service of the
plaintiff's motion to dismiss, the action may not be dismissed against the defendant's
objection unless the counterclaim can remain pending for independent adjudication by the
court. Unless otherwise specified in the order, a dismissal under this paragraph is without
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 thereof. For 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.
Unless the court in its order for dismissal otherwise specifies, a dismissal under this
subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of
jurisdiction, or for failure to join a party under Rule 19, operates as an adjudication upon the
If the plaintiff fails to prosecute or to comply with these rules or a court order, 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.
Dismissal of Dismissing a
Counterclaim, Crossclaim, or Third-Party Claim. The provisions of this rule apply to the dismissal of any
counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone
pursuant to paragraph (1) of
subdivision (a) of this rule shall be made before a responsive pleading is served or, if there
is none, before the introduction of evidence at the trial or hearing.
This rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimant's voluntary dismissal under Rule 41(a)(1)(A)(i) must be made:
(1) before a responsive pleading is served; or
(2) if there is no responsive pleading, before evidence is introduced at a hearing or trial.
(d) Costs of a 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 assessed in the action previously dismissed as it may deem proper
and may stay the proceedings in the action until the plaintiff has complied with the
If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court:
(1) may order the plaintiff to pay all or part of the costs of that previous action; and
(2) may stay the proceedings until the plaintiff has complied.
Rule 41 was amended March 1, 1990; March 1, 1994; March 1, 2011.
Rule 41 is
identical to Rule 41, FRCivP, except
for style changes and minor changes to
conform to state practice and to prohibit derived from Fed.R.Civ.P.
Rule 41 prohibits dismissal by stipulation under subdivision (a) when a provisional remedy has been allowed. A directed verdict should be moved for under Rule 50 in a trial by jury, instead of asking for a dismissal.
Rule 41 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Subdivision (b) was amended, effective March 1, 1994, to track the 1991 federal amendment. Language was deleted that authorized the use of this rule to terminate a non-jury action on the merits when the plaintiff failed to meet a burden of proof. A motion to dismiss under Rule 41 on the ground that a plaintiff's evidence is legally insufficient should now be treated as a motion for judgment on partial findings as provided in Rule 52(c).
Rule 41 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Sources: Joint Procedure Committee
Minutes of January 29-30, 2009, pages 33-34; January
28-29, 1993, page 8; April 20, 1989, page 2; December 3, 1987, page 11; November 29-30,
1979, page 10;
Rule Fed.R.Civ.P. 41 ,
Affected: Superseded: N.D.R.C. 1943
§§ 28-0801, 28-0802, 28-0803, 28-0804, 28-0805, 28-0806,
Cross Reference: N.D.R.Civ.P. 12 (Defenses and Objections - When and How Presented - By Pleading or Motion - Motion for Judgment on Pleadings), N.D.R.Civ.P. 19 (Joinder of Persons Needed for Just Adjudication), N.D.R.Civ.P. 21 (Misjoinder and Nonjoinder of Parties), N.D.R.Civ.P. 23 (Uniform Class Actions Rule), N.D.R.Civ.P. 40 (Assignment of Cases for Trial), N.D.R.Civ.P. 52 (Findings by the Court), and N.D.R.Civ.P. 66 (Receivers Appointed by District Courts).