Alaska

Civil Procedure

Civil Procedure

Rule 41 – Dismissal of Actions

(a)Voluntary Dismissal – Effect Thereof.

(1)By Plaintiff – By Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the state, an action may be dismissed by the plaintiff without an order of the court: (A) 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 (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 this state, or of any other state, or in any court of the United States, 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 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. 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 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. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff’s evidence, the defendant, without waiving the right to offer evidence in the event that a 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 weigh the evidence, evaluate the credibility of witnesses and render judgment against the plaintiff even if the plaintiff has made out a prima facie case. Alternately, the court 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, 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.
(e)Dismissal for Want of Prosecution.

(1) The court on its own motion or on motion of a party to the action may dismiss a case for want of prosecution if

(A) the case has been pending for more than one year without any proceedings having been taken, or
(B) the case has been pending for more than one year, and no trial or mandatory pretrial scheduling conference has been scheduled or held.
(2) The clerk shall review all pending cases semi-annually and in all cases that are subject to dismissal under (e)(1), the court shall hold a call of the calendar or the clerk shall send notice to the parties to show cause in writing why the action should not be dismissed.
(3) If good cause to the contrary is not shown at a call of the calendar or within sixty days after distribution of the notice, the court shall dismiss the action. The clerk may dismiss actions under this paragraph if a party has not opposed dismissal.
(4) A dismissal for want of prosecution is without prejudice unless the court states in the order that the case is dismissed with prejudice.
(5) If a case dismissed under this paragraph is filed again, the court may make such order for the payment of costs of the case previously dismissed as it may deem proper, and may stay the proceedings in the case until the party has complied with the order.

Alaska R. Civ. P. 41

Adopted by SCO 5 October 9, 1959; amended by SCO 239 effective March 1, 1976; by SCO 258 effective November 15, 1976; by SCO 465 effective June 1, 1981; by SCO 798 effective March 15, 1987; by SCO 834 effective August 1, 1987; by SCO 1153 effective July 15, 1994; by SCO 1266 effective July 15, 1997; by SCO 1283 effective September 2, 1997; by SCO 1361 effective October 15, 1999; and by SCO 1908 effective nunc pro tunc May 11, 2017.

Chapter 6, SLA 2017 (HB 104) repeals AS 09.68.130 and its requirements that the Alaska Judicial Council collect information about certain civil litigation from parties. Section 1 of the act repeals Civil Rule 41(a)(3) and Appellate Rule 511(c) and (e), effective May 11, 2017. Those rule provisions had required compliance with AS 09.68.130. This rule change is adopted for the sole reason that the legislature has mandated the amendment. The added revision to paragraph (a)(1) of Rule 41 is to eliminate its reference to the now rescinded paragraph (a)(3).