Voluntary dismissal
Encyclopedia
Voluntary dismissal is when a lawsuit
is terminated by voluntary request of the plaintiff
(the party who originally filed the lawsuit). A voluntary dismissal with prejudice (meaning the plaintiff is permanently barred from further litigating the same subject matter) is the modern descendant of the common law
procedure known as retraxit.
In the United States, voluntary dismissal in Federal court
is subject to Rule 41(a) of the Federal Rules of Civil Procedure
. Rule 41(a)'s full text can be found below. Simply, Rule 41(a) allows the plaintiff to make a dismissal as long as the defendant
has not yet taken any formal court action on the case (e.g., made a motion
or filed an answer
).
If the defendant has taken such action, dismissal is only proper under two circumstances:
a. the defendant signs an agreement with the plaintiff to dismiss the case
b. the judge overseeing the case rules for the case to be dismissed
Once the case has been voluntarily dismissed, if it is brought to court again a dismissal in this second case will mean the case can never again be brought back to court.
If the defendant has a counterclaim
, the case can only be dismissed if the counterclaim can still stand as its own case.
Full text of Rule 41 (a) of the Federal Rules of Civil Procedure:
(a) Voluntary Dismissal: Effect Thereof
By Plaintiff; By Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing 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.
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 the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objections 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.
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
is terminated by voluntary request of the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
(the party who originally filed the lawsuit). A voluntary dismissal with prejudice (meaning the plaintiff is permanently barred from further litigating the same subject matter) is the modern descendant of the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
procedure known as retraxit.
In the United States, voluntary dismissal in Federal court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
is subject to Rule 41(a) of the Federal Rules of Civil Procedure
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
. Rule 41(a)'s full text can be found below. Simply, Rule 41(a) allows the plaintiff to make a dismissal as long as the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
has not yet taken any formal court action on the case (e.g., made a motion
Motion (legal)
In law, a motion is a procedural device to bring a limited, contested issue before a court for decision. A motion may be thought of as a request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is...
or filed an answer
Answer
Generally, an answer is a reply to a question or is a solution, a retaliation, or a response that is relevant to the said question.In law, an answer was originally a solemn assertion in opposition to some one or something, and thus generally any counter-statement or defense, a reply to a question...
).
If the defendant has taken such action, dismissal is only proper under two circumstances:
a. the defendant signs an agreement with the plaintiff to dismiss the case
b. the judge overseeing the case rules for the case to be dismissed
Once the case has been voluntarily dismissed, if it is brought to court again a dismissal in this second case will mean the case can never again be brought back to court.
If the defendant has a counterclaim
Counterclaim
In civil procedure, a party's claim is a counterclaim if the defending party has previously made a claim against the claiming party.Examples of counterclaims include:...
, the case can only be dismissed if the counterclaim can still stand as its own case.
Full text of Rule 41 (a) of the Federal Rules of Civil Procedure:
(a) Voluntary Dismissal: Effect Thereof
By Plaintiff; By Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing 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.
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 the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objections 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.