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NRCP Rule 41
RULE 41. DISMISSAL OF ACTIONS
(a) Voluntary Dismissal: Effect Thereof.
Rule 41
(1) By Plaintiff; by Stipulation. Subject to
the provisions of Rule 23(e), of Rule 66, and of any statute, an action may be
dismissed by the plaintiff upon repayment of defendants’ filing fees, without
order of court (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) 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: Effect Thereof. For
failure of the plaintiff 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 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 failed to prove a sufficient case for the court or
jury. 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 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.
(e) Want of Prosecution. The court may in its
discretion dismiss any action for want of prosecution on motion of any party or
on the court’s own motion and after due notice to the parties, whenever
plaintiff has failed for two years after action is filed to bring such action
to trial. Any action heretofore or hereafter commenced shall be dismissed by
the court in which the same shall have been commenced or to which it may be
transferred on motion of any party, or on the court’s own motion, after due
notice to the parties, unless such action is brought to trial within five years
after the plaintiff has filed his action, except where the parties have
stipulated in writing that the time may be extended. When, in any action after
judgment, a motion for a new trial has been made and a new trial granted, such
action shall be dismissed on motion of any party after due notice to the parties,
or by the court of its own motion, if no appeal has been taken, unless such
action is brought to trial within three years after the entry of the order
granting a new trial, except when the parties have stipulated in writing that
the time may be extended. When in an action after judgment, an appeal has been
taken and judgment reversed with cause remanded for a new trial (or when an
appeal has been taken from an order granting a new trial and such order is
affirmed on appeal), the action must be dismissed by the trial court on motion
of any party after due notice to the parties, or of its own motion, unless
brought to trial within three years from the date upon which remittitur is
filed by the clerk of the trial court. A dismissal under this subdivision (e)
is a bar to another action upon the same claim for relief against the same
defendants unless the court otherwise provides.
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