(a) Voluntary dismissal: Effect thereof. (1) BY NOTICE OF DISMISSAL; BY STIPULATION. Subject to the provisions of Rule 66 of these rules, and of any statute, an action may by dismissed by notice of dismissal or by stipulation as set out respectively in paragraphs (a)(1)(A) and (a)(1)(B) of this rule. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice. The notice of dismissal or stipulation shall state the Hawai’i Family Court Rule and subsections pursuant to which the dismissal is filed.
(A) The initiating party, without approval of the court, may file a notice of dismissal at any time prior to service of process, unless an adverse party has already filed a document or appeared in court. Although approval of the court is not necessary for a dismissal under this paragraph (a)(1)(A), any such dismissal shall first be submitted for processing to the family court and shall not be effective until filed by the clerk of court. (B) After the service of process, or if an adverse party has already filed a document or appeared in court prior to the service of process, a stipulation of dismissal may be submitted to the court. The stipulation shall be signed by all parties unless the signature of a party is waived by the court. The stipulation shall be effective only if approved by the court. (2) BY ORDER OF COURT ON INITIATING PARTY’S MOTION TO DISMISS. Except as provided in paragraphs (a)(1)(A) and (a)(1)(B) of this rule, an action shall not be dismissed at the instance of the initiating party save upon order of the court after notice and hearing on a motion to dismiss. The dismissal shall include such terms and conditions as the court deems proper. If a cross-action has been pleaded by an adverse party prior to the service upon the adverse party of the motion to dismiss, the action shall not be dismissed against the objection of the adverse party unless the cross-action 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 has completed the presentation of evidence, the defendant, without waiving the 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 claimant has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff or may decline to render any decree until the close of all the evidence. 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 improper venue, operates as an adjudication upon the merits. (c) Dismissal of cross-action. The provisions of this rule apply to the dismissal of any cross-action. 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) Reserved. (e) Dismissal for want of prosecution or service.(1) A diligent effort to effect service shall be made in all actions and if no service be made within 6 months after an action or post-judgment motion has been filed then, after notice of not less than 10 days to the filing party at the last known address, the same may be dismissed. Such a dismissal may be set aside and the action reinstated by order of court for good cause shown on ex parte motion duly filed in said action within 30 days after mailing of the order of dismissal and notice to the last known address of the parties or parties’ counsel. (2) In any case in which a final decree or order has not been made and filed prior to the expiration of 1 year from the date of the filing of the complaint or post-decree motion in said action, the same may be dismissed unless a trial date has been set or an order filed enlarging time upon motion and good cause shown. Such a dismissal may be set aside and the action or motion reinstated by order of court for good cause shown on ex parte motion duly filed in said action within 30 days after mailing of the order of dismissal and notice to the last known address of the parties or parties’ counsel. (3) Deleted. (4) An order of any dismissal and notice pursuant to subsections (e)(1) or (2) shall be filed in the record of the case.
Haw. Fam. Ct. R. 41
Amended July 1, 1982, effective July 1, 1982; further amended October 11, 1999, effective January 1, 2000; further amended November 20, 2014, effective January 1, 2015.
