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Rule 41.Dismissal of Actions

41.01Voluntary Dismissal; Effect Thereof

(a)By Plaintiff by Stipulation.

Subject to the provisions of Rules 23.05, 23.09 and 66, an action may be dismissed by the plaintiff without order of court (1) 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 (2) 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 the United States or of any state an action based on or including the same claim.

(b)By Order of Court.

Except as provided in clause (a) of this rule, an action shall not be dismissed at the plaintiff's instance except 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 may remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal herein is without prejudice.

(Amended effective March 1, 1994; amended effective January 1, 2006.)

Advisory Committee Comment - 1993 Amendment

The amendment to this rule is made to conform the rule to its counterpart in the Federal Rules of Civil Procedure, Fed. R. Civ. P. 41(a)(1). The existing rule in Minnesota seems to the committee archaic, establishing time requirements on the commencement of terms of court. Since 1977, Minnesota trial courts have had continuous terms. Minnesota Statutes, section 484.08 (1992).

The former rule has permitted parties to dismiss claims without prejudice even after extensive discovery or other pretrial proceedings have taken place. Dismissal without prejudice has also been possible after the trial court has issued orders on preliminary matters. The right to dismiss on the eve of trial has prejudiced defendants or has required courts to consider motions to deny a plaintiff the right to dismiss without prejudice. The committee is of the opinion that the right to dismiss without prejudice ought to be limited to a fairly short period after commencement of the action when prejudice to opponents is likely to be minimal.

The Advisory Committee considered recommending a change to Rule 53 to make express provision for the use of referees in alternative dispute resolution and settlement proceedings, but has concluded that amendment of the rule is not necessary inasmuch as the rule now permits use of referees for this purpose in limited appropriate circumstances.

The Advisory Committee is also mindful that the Minnesota Supreme Court Alternative Dispute Resolution Implementation Committee has recently submitted its Final Report dated August 25, 1993. The Advisory Committee is of the opinion that that Report can be considered independently of the recommendations of this committee. The committee also believes that if more specific and comprehensive rules on the use of referees in alternative dispute resolution are advisable, such rules might better be incorporated in Rules for Alternative Dispute Resolution.

Advisory Committee Comment - 2006 Amendment

Rule 41.01(a) is amended to renumber one of the rule cross-references to reflect the amendment and renumbering of Rule 23 as part of the amendments effective January 1, 2006.

41.02Involuntary Dismissal; Effect Thereof

(a) The court may upon its own initiative, or upon motion of a party, and upon such notice as it may prescribe, dismiss an action or claim for failure to prosecute or to comply with these rules or any order of the court.

(b) 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 plaintiff has shown no right to relief. In an action tried by the court without a jury, the court as trier of the fact may then determine the facts and render judgment against the plaintiff or 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 52.01.

(c) Unless the court specifies otherwise in its order, a dismissal pursuant to this rule and any dismissal not provided for in this rule or in Rule 41.01, other than a dismissal for lack of jurisdiction, for forum non conveniens, or for failure to join a party indispensable pursuant to Rule 19, operates as an adjudication upon the merits.

41.03Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim

The provisions of Rules 41.01 and 41.02 apply to the dismissal of any counterclaim, cross-claim, or third-party claim.

41.04Costs 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.