(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.
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.
A. Dismissal of Actions
Rule 41 sets forth the conditions under which a party may dismiss its claims, counterclaims or cross-claims.2 The rule speaks of the dismissal of actions but it is settled that some but not all claims may be dismissed under the rule.3 Parties have an absolute right to dismiss before the pleadings are closed and, of course, at any time by agreement of all parties. This right does not apply to all claims. Rule 23(c), "Class Actions," and Rule 66(a), "Receivers," require a court order to dismiss those actions. Except as provided in Rule 41(a), all other dismissals require the approval of the court. Rule 41 also provides guidance on when the dismissal bars a subsequent action.
B. Voluntary Dismissal as of Right
1. Notice of Dismissal
Rule 41(a)(1)(A) provides that a plaintiff may dismiss the case as a matter of right and without an order of court by filing and serving a notice of dismissal any time before the opposing party files an answer or motion for summary judgment. The notice of dismissal is effective upon its filing, and no action is required by the court.4
The dismissal under this portion of the rule applies only to parties who have not answered the complaint.5 Defendants who answered or moved for summary judgment are unaffected by the notice of dismissal.6
Other motions do not deprive the plaintiff of the right to dismiss the case without a court order. A Rule 12(b)(6) motion or another motion that does not raise the merits of the complaint does not affect the plaintiff's right to dismiss the case.7 Likewise, the taking of evidence in the absence of an answer or motion for summary judgment does not preclude the plaintiff from voluntarily dismissing the case, although it does bar dismissal by a counter-claimant, cross-claimant or third party claimant.8
Under Rule 41(c), the same provisions for voluntary dismissal as of right apply to cross-claims, counterclaims, and third party claims, except that such claims may be dismissed any time before a responsive pleading is served, or if there is none, any time before the introduction of evidence at the trial or hearing. The filing of motion for summary judgment directed to a counterclaim, cross-claim, or third party claim does not terminate the absolute right to dismiss any of those pleadings unless a response to the pleading has been filed.9
2. Dismissal by Stipulation
The second type of voluntary dismissal as of right is by stipulation. Rule 41(a)(l)(B) authorizes a plaintiff to dismiss all parties who stipulate to the dismissal in writing.10 Dismissal by stipulation may occur at any time and is not barred by the filing of an answer or motion to dismiss. This dismissal is not on the merits.11
3. Effect of a Dismissal as a Matter of Right
A voluntary dismissal is without prejudice to refiling the action, unless the order or stipulation states otherwise.12 A voluntary dismissal without prejudice leaves the situation as if no suit has been brought,13 but if the statute of limitations has expired prior to refiling, a later action may be barred.14
The last sentence of Rule 41(a)(1) contains the "two dismissal" rule. A notice of dismissal under Rule 41(a)(1) is a dismissal on the merits if the plaintiff previously dismissed an action in any court in the United States based on or included in the same claim; however, the second dismissal must be by notice and not by stipulation or order of the court.15 Accordingly, because a second dismissal by notice serves as an adjudication upon the merits, the doctrine of res judicata applies.16 The federal courts enforce the two dismissal rule when the first dismissal was in a South Carolina court and the second by notice under Fed. R. Civ. P. 41(a)(1).17
C. Voluntary Dismissal on Order of the Court
1. Legal Prejudice
All motions for voluntary dismissal, other than those mentioned in Rule 41(a)(1), are by order of the court and upon the terms and conditions the court deems proper.18 Pursuant to Rule 41(a)(2), the action may be dismissed "at the plaintiff's instance.. .upon order of the court and upon such terms and conditions as the court deems proper." Trial courts frequently use this option to maintain an accurate and current docket, and when a party notifies the court a case has settled, a Rule 41(a)(2) order of dismissal may be entered to take the case off the docket while the parties consummate the settlement.19
Our Supreme Court has held that the plaintiff is entitled to a voluntary dismissal without prejudice as a matter of right unless the defendant shows legal prejudice.20 If legal prejudice is not established, the court must grant the voluntary dismissal.21 Voluntary dismissals have been granted during the trial.22
Neither the possibility that the action may be refiled,23 nor that the plaintiff may add a party to avoid removal to federal court and increase the prayer for damages24 is sufficient to establish legal prejudice. Further, the dismissal will not be denied simply because the defendant is prepared for trial.25
Legal prejudice has been found, however, when the voluntary dismissal deprived the defendant of a favorable venue for a counterclaim.26 In one unusual case, legal prejudice prevented the voluntary dismissal of a divorce suit brought by the second wife alleging her husband's adultery with his first wife.27 The first wife intervened to challenge the allegation of adultery by asserting the first divorce was invalid.28 The court found the dismissal would harm the first wife by depriving her of the opportunity to contest the allegations.29 The denial of a motion to dismiss has been upheld when the case was well advanced, summary judgment motions had been ruled upon and appealed, and the parties had announced readiness for trial.30
Once legal prejudice is established, denial of the motion for a dismissal is not automatic. The court has discretion to grant or deny the voluntary dismissal.31 Courts have granted dismissals even...
