Rule 41 Dismissal of Actions

(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute, an action or claim may be voluntarily dismissed by the plaintiff without order of court by filing a notice of dismissal in any case in which the adverse party has not yet filed an answer or a motion for summary judgment.

(2) By Stipulation. An action or claim may be dismissed by filing a stipulation of dismissal signed by all parties who have appeared in the action.

(3) By Order of Court. Except as provided in paragraph (1) and (2) of this subdivision, an action shall not be dismissed at the plaintiff’s request except upon order of the court and upon such terms and conditions as the court deems proper. Unless otherwise specified in the order, a dismissal under this paragraph (3) is without prejudice.

(4) Effect of Counterclaim. If a counterclaim has been filed prior to the service upon the defendant 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.

(5) Scope of Dismissal. A dismissal under this rule may be as to all parties or claims, or as to only some parties or claims.

(6) Adjudication on the Merits. Unless otherwise stated in a voluntary notice of dismissal or a stipulation, the dismissal is without prejudice, except that a voluntary 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.

(b) Involuntary Dismissal: Effect Thereof.

(1) Dismissal by the Court. The court, on its own motion, after reasonable notice to all the parties, may dismiss any action, unless good cause is shown for continuance, when:

(i) All defendants have been served but have failed to plead or otherwise defend as provided by these rules and the plaintiff has failed to move for a default judgment within 60 days of the last date to answer; or

(ii) The plaintiff has not filed proof of service on the defendant against whom the claim is asserted within 90 days of the filing of the action, or within 90 days of any service deadline if it has been extended by the court. Where some defendants have been served and others have not, the court may dismiss the claims against those who have not been served.

(2) On Motion of Defendant. 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.

(3) Effect. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision (b) and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, 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.