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Rule 41 – Dismissal of Actions

May 14, 2021 | Civil Procedure, Vermont

(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 of 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 of this rule, 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) Alldefendants 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 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.

V.R.C.P. 41

Amended Dec. 11, 1980, eff. Feb. 2, 1981; Nov. 4, 1994, eff. March 1, 1995; amended July 9, 2019, effective September 9, 2019.

Reporter’s Notes-2019 Amendment

Rule 41(a) and (b) are reorganized and amended at the request of the Civil Division Oversight Committee to conform to current practice and to eliminate outdated terminology.

Rule 41(a)(1) as amended retains, with some clarification of language, the provision of former Rule 41(a)(1)(i) that an action may be dismissed without order of court if a notice of voluntary dismissal is filed at any time before an answer or motion for summary judgment has been filed. The addition of “claim” makes clear that, as now provided in new paragraph (a)(5), one or more claims that have been joined in a single action may be dismissed without dismissal of the entire action.

Other provisions of former paragraph (a)(1) have been separated for clarity and set forth in new paragraphs (a)(2)-(a)(6). New paragraph (a)(2) carries forward the provision of former Rule 41(a)(1)(ii) that a stipulation of dismissal signed by all appearing parties may be filed at any time. New paragraph (a)(3) carries forward the first and final sentences of former paragraph (a)(2) concerning dismissal by order of the court with a language clarification. New paragraph (a)(4) is the second sentence of former paragraph (a)(2) concerning counterclaims, with a language clarification. New paragraph (a)(5), permitting dismissal of some or all claims, is carried forward without change from former paragraph (a)(1)(ii). New paragraph (a)(6) carries forward the final sentence of former paragraph (a)(1)(ii) concerning adjudication on the merits.

Former Rule 41(b)(1)(i), providing for involuntary dismissal of an action on a trial list that has been pending more than two years, has been deleted. Former subparagraphs (b)(ii) and (iii) have been renumbered as (i) and (ii) with language clarifications. Their time periods have been shortened and made uniform to allow more expeditious elimination of stale actions. Language has been added in (b)(ii) to make clear that the shorter time periods may be extended by the court and that dismissal may be entered against defendants who have not been served, leaving the action pending against those who have been served.