Sec. 1. Dismissal upon notice by plaintiff. — A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (Rule 17, Rules of Court)
Notes:
● NOTICE OF DISMISSAL
● BEFORE SERVICE of answer or of a
motion for summary judgment
● Ministerial duty of court to
issue order CONFIRMING the dismissal
● WITHOUT PREJUDICE, except:
- where notice states otherwise
- where plaintiff has previously dismissed case in
court of competent jurisdiction
- where the dismissal is premised on the fact that
the defendant has already paid the claim
● TWO-DISMISSAL RULE APPLIES when the plaintiff has:
(a) twice dismissed
actions,
(b) based on or
including the same claim,
(c) in a court of
competent jurisdiction.
Example:
A filed a case against B. B received the summons on December 5, 2011.
Under Sec. 1 Rule 11, B has until December 20, 2011 within which to file his
answer.
Q. Could A dismiss the
case before B could file his Answer?
A. Yes. A complaint may be dismissed by the plaintiff at any time before service
of the answer or of a motion for summary judgment.
Q. How can A dismiss the
case?
A. By filing a NOTICE OF
DISMISSAL.
Q. What is the action
that the court must take when a notice of dismissal is filed? Will it order the
dismissal of the complaint?
A. No. All that
the court has to do is to confirm the dismissal. But there will be no legal
objection if the court issues an order not only confirming the dismissal but
also an order of dismissal.
Q. When does the withdrawal
take effect?
A. Upon order of the
court confirming the dismissal. The requirement requiring an order confirming
the dismiss is in keeping with the respect due the court.
Q. What is the effect of
this dismissal of A?
A. It is a dismissal
without prejudice except when the notice of dismissal stated that it is with
prejudice.
On January 5, 2012, A re-filed the same case. B was summoned on Jan. 15,
2012. On January 20, 2012 and before B could file his Answer, A again dismissed
the case by filing a second Notice of Dismissal.
Q. What is the effect
of the second notice of dismissal?
A. It is a dismissal
with prejudice.
Q. Supposing in the
notice of dismissal filed on Jan. 20, A said it is without prejudice, will the
resulting dismissal be also without prejudice?
A. NO, because it is
not for the plaintiff to characterize the effect of the dismissal as provided
by law.
Q. Why is the dismissal
with prejudice now?
A. Because Sec. 1 says,
a dismissal produces a dismissal with prejudice if filed by a person who
previously filed a notice of dismissal.
This is now a dismissal with prejudice regardless of what A stated in
the notice of dismissal.
Q. Supposing the court
issued the order saying that the dismissal is without prejudice, is that order
valid?
A. No, because the court
cannot characterize the effect of the second dismissal. The law provides the
effect. It is always a dismissal with prejudice.
March 10, 2012, A filed a case against B. B now files a motion to
dismiss on the ground of res judicata. He now says “this third complaint is
barred by res judicata. The second dismissal produced by the filing on Jan. 20,
2012 is a dismissal with prejudice.
Q. Is the contention of
B correct?
A. Yes. This must be
now dismissed because this is barred by the second dismissal.
●
It is not the order confirming the dismissal which operates to dismiss the
complaint. As the name of the order implies, said order merely confirms a
dismissal already effected by the filing of the notice of dismissal. The court
does not have to approve the dismissal because it has no discretion on the
matter. Before an answer or a motion for summary judgment has been served upon
the plaintiff, the dismissal by the plaintiff by the filing of the notice is a matter
of right. The dismissal occurs as of the date of the notice is filed by the
plaintiff and not the date the court issues the order confirming the dismissal.
●
Under the clear terms of Sec. 1, Rule 17, the dismissal as a matter of right
ceases when an answer or a motion for summary judgment is served on the
plaintiff and not when the answer or the motion is filed with the court. Thus,
if a notice of dismissal is filed by the plaintiff even after an answer has
been filed in court but before the responsive pleading has been served on the
plaintiff, the notice of dismissal is still a matter of right.
● The
second notice of dismissal will bar the refiling of the action because it will
operate as an adjudication of the claim upon the merits. In other words, the
claim may only be filed twice, the first being the claim embodied in the
original complaint. Since as a rule, the dismissal is without prejudice, the
same claim may be filed. If the refilled claim or complaint is dismissed again
through a second notice of dismissal, that second notice triggers the
application of the two-dismissal rule and the dismissal is to be deemed one
with prejudice because it is considered as an adjudication upon the merits.
0
Comments
