Obsolete Date: 3/1/2011
(a) Voluntary Dismissal-Effect Thereof.
(1) By Plaintiff-By 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.
(2) By Order of Court. 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 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 merits.
(c) Dismissal of Counterclaim, Cross-Claim, 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.
(d) Costs of 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 order.
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).