Rule 28. Dismissal of Actions

By Plaintiff. Subject to the provisions of these rules and of any statute of this State, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time with the court. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice.

By Order of Court. Except as provided in paragraph (a) of this subdivision, 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.

After Trial Has Commenced. A notice of dismissal filed after the court has convened the trial under Rule 27(8)(a) is of no effect. After the trial has commenced, an action may be dismissed at the plaintiff’s instance only by order of the court under paragraph (b).

Effect of a Second Dismissal. Where the plaintiff has previously dismissed, in any court of this State, an action based on or including the same claim, a notice of dismissal under paragraph (a) operates as an adjudication upon the merits.

Costs of a Previously Dismissed Action. Where a plaintiff who previously dismissed an action files an action based on or including the same claim against the same defendant, the court may order the plaintiff to pay all or part of the costs of the previous action, taxed as Rule 41 and 7 R. Stat. §§ 132.201 and 132.203 provide, and may stay the proceedings until the plaintiff has complied.

Mechanics. A notice of dismissal or a stipulation of dismissal is filed through the electronic filing system and takes effect when it is accepted for filing, at which time it is served upon every other participant by the system. If the Clerk rejects the filing, the action continues, and the cure is a corrected refiling bearing its own later filing date. The dismissal does not remove any filing from the record.

Fees Unaffected. A dismissal under this subdivision does not void a fee already assessed. A fee assessed upon a filing is a debt collected as Rule 6.1 provides, and its non-payment is not a ground to refuse or to undo a dismissal.

On Court’s Own Motion. The court may on notice as hereinafter provided at any time, in its discretion, dismiss for lack of prosecution any action which has remained upon the docket for two weeks preceding said notice without activity shown other than scheduling for trial, the filing or withdrawal of an appearance, or the filing of any paper pertaining to discovery. Notice under this paragraph is given by an order entered upon the docket and stated in the proceeding communications, and shall allow the plaintiff not less than forty-eight (48) hours to show cause why the action should not be dismissed.

On Motion of the Defendant. On motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute or to comply with these rules or any order of court. After the plaintiff, in an action tried by the court without a jury, 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 shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. A motion made under the second and third sentences of this paragraph is governed by Rule 33(3), which prescribes the standard the court applies and the findings the court must make; a motion for judgment as a matter of law under Rule 33(1) is available only in an action tried to a jury.

Effect. Unless the order of dismissal states otherwise, a dismissal under this subdivision, and any dismissal not provided for in this rule, operates as an adjudication upon the merits, except a dismissal for lack of subject-matter jurisdiction, for improper venue, for insufficiency of process or of service of process, or for failure to join a party required to be joined under Rule 17.1.

Failure to Appear at Trial. A dismissal for the plaintiff’s failure to appear at trial is governed by Rule 27(11)(b) and by this subdivision.

Failure to Effect Service. A dismissal for failure to serve the summons and complaint within the period fixed by Rule 4(7) is governed by that rule and is without prejudice.

Discovery. A dismissal as a sanction for failure to cooperate in discovery is governed by Rule 26.3 and not by this subdivision.

Notice; Opportunity to Be Heard. The court shall not dismiss under this subdivision without notice to the plaintiff and an opportunity to be heard, except where the plaintiff has failed to appear at a trial or hearing of which the plaintiff had notice.