RULE 41. DISMISSAL OF ACTIONS

Effective Date: 3/1/2011

(a) Voluntary Dismissal.

(1) By the Plaintiff.

(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; 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, 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.

(c) 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)(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 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 derived from Fed.R.Civ.P. 41.

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; Fed.R.Civ.P. 41.

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).

Effective Date Obsolete Date
03/01/2011 View
03/01/1994 03/01/2011 View