Note the similarities between voluntary dismissals and amendments of pleadings.
| What plaintiff seeks | FRCP 15 | Rule 41 |
| Voluntary dismissal:
Plaintiff wants to exercise a unilateral right |
Amendment as a matter of course:
Limited in time. FRCP 15(a)(1). |
Notice of dismissal:
Plaintiff’s right to do NOD is cut off by service of an answer or motion for summary judgment. FRCP 41(a)(1). |
| Voluntary dismissal:
Plaintiff asks other parties to agree |
Written consent of opposing party.
FRCP 15(a)(2). |
Stipulation of dismissal:
Signed by all parties who have appeared. FRCP 41(a)(2). |
| Voluntary dismissal:
Plaintiff makes a motion with the court |
By leave of court:
At court’s discretion, to be freely given when justice so requires. FRCP 15(1)(2). |
By court order:
At court’s discretion, on terms that the court considers proper. FRCP 41(a)(2). |
| Involuntary dismissal:
Plaintiff has not asked for anything; instead, defendant seeks dismissal |
During or after trial:
Court has discretion and sometimes must amend the pleadings based on what is presented at trial, even if the claimant objects. FRCP 15(b). |
Involuntary dismissal:
If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. FRCP 41(b). |
Posted Nov. 2, 2016