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RULE 41
DISMISSAL OF ACTIONS; NON-SUIT
(a) Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; By Stipulation. Subject
to the provisions of Rule 23(c), of Rule 66(a), and of any statute, an
action may be dismissed by the plaintiff without order of court (A) by
filing and serving a notice of dismissal at any time before service by
the adverse party of an answer or motion for summary judgment,
whichever first occurs, or (B) 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) of this subdivision of this rule, an
action shall not be dismissed at the plaintiff's instance save upon
order of the court and upon such terms and conditions as the court
deems proper. If a counterclaim has been pleaded by a defendant prior
to the service upon him of the plaintiff's motion to dismiss, the
action shall 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: Non-suit;
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 him. After the plaintiff
in an action tried by the court without a jury has completed the
presentation of his evidence, the defendant, without waiving his right
to offer evidence in the event the motion is not granted, may move for a
dismissal on the ground that upon the facts and the law the plaintiff
has shown no right to relief.
The court as trier of the facts may then determine
them and render judgment against the plaintiff or may decline to render
any judgment until the close of all the evidence. If the court renders
judgment on the merits against the plaintiff, the court shall make
findings as provided in Rule 52(a). 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 improper venue 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 of 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.
Note:
This Rule 41 is the same as the Federal
Rule, except that it requires service as well as filing the notice of
voluntary dismissal by plaintiff if taken before answer or motion to
dismiss is served. This Rule amends present State practice as to
dismissal (non-suit); but clarifies Circuit Rules 29, 30, 59 and 76,
which this Rule 41 and Rule 50 (directed verdict) replace. It is
particularly helpful when the court tries a law action without a jury,
and specifies the court's duty on such procedure. Rule 41(b) also
makes clear when involuntary dismissal operates as an adjudication on
the merits.
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