Sec. 2. Dismissal
upon motion of plaintiff. — Except as provided in the preceding
section, a complaint shall not be dismissed at the plaintiff's instance save
upon approval 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 plaintiffs motion for dismissal, the dismissal shall be
limited to the complaint. The dismissal shall be without prejudice to the right
of the defendant to prosecute his counterclaim in a separate action unless
within fifteen (15) days from notice of the motion he manifests his preference
to have his counterclaim resolved in the same action. Unless otherwise
specified in the order, a dismissal under this paragraph shall be without
prejudice. A class suit shall not be dismissed or compromised without the
approval of the court.
Notes:
● MOTION FOR LEAVE TO WITHDRAW THE
COMPLAINT
● AFTER SERVICE of answer or of a
motion for summary judgment to plaintiff
● APPROVAL of court and upon such
terms and conditions court deems proper
● WITHOUT PREJUDICE unless otherwise
specified
● dismissal limited to the complaint.
If defendant filed a COUNTERCLAIM, the dismissal shall not affect the
counterclaim
● Remedies of defendant:
(a) prosecute his counterclaim in a
separate action
(b) opt to have it resolved in the same
action (w/n 15 days from notice of the
motion)
● CLASS SUIT: court approval before it
can be dismissed or compromised
Q. When may a plaintiff dismiss his action with
leave of court?
A. After a responsive pleading have already been
served on the plaintiff or after a motion for summary judgment has already been
served on the plaintiff. He can no longer dismiss as a matter of right. He can
dismiss it only upon application and upon approval by the court of the motion.
But
the dismissal under Sec. 2 Rule 17 even if granted by the court, maybe subject
to certain conditions that the court may impose.
Q. What is the effect of the dismissal under Sec. 2
Rule 17?
A. It is still a dismissal without prejudice unless the
court provides otherwise.
Q. Should a compulsory counterclaim be pleaded in the
answer, what would be the effect of the dismissal under Sec. 2 Rule 17 on the
counterclaim?
A. The counterclaim is not dismissed.
Q. In what proceeding may it therefore be prosecuted?
A. It may be prosecuted in the same case provided
that within 15 days from receipt of motion to dismiss, the plaintiff manifest
to the court that he desires that the counterclaim be litigated in the same
case, otherwise, the counterclaim maybe litigated in a separate action.
A filed a case against B. B served on A
his answer or his motion for summary judgment on January 10, 2012. On January
15, 2012, A files a motion of dismissal without leave of court.
Q. Can he validly do that?
A. No.
Q. But can he still file it?
A. Yes, but with a proper motion that he be allowed to
dismiss. That motion maybe granted by the court. If the court grants it, the
court may impose a condition for the dismissal.
Q. Why is it no longer a matter of right on the part of
the plaintiff to file a notice of dismissal after he has been served the answer
or a motion for summary judgment?
A. Where B has a counterclaim, B has a right to have
that counterclaim be litigated and resolved. So, if he (B) objects, the court
may grant the motion but subject now to the dismissal of the action.
Q. What would be the effect of a motion of A to dismiss
his complaint?
A. If the motion is granted on an Answer with
counterclaim, the dismissal of the action is limited to the complaint. The
counterclaim is unaffected. B, therefore, can litigate the counterclaim either
in the same case or B may file in a separate action to enforce the counterclaim.
Q. When may B prosecute his counterclaim in the same case?
A. If within 15 days from receiving the notice of
dismissal, he manifests to the court that he desires that his counterclaim be
litigated in the same case, otherwise, the counterclaim must be litigated in a
separate action.
Dismissal
upon motion by plaintiff (Rule 17,
Sec 2)
Once
either an answer or motion for summary judgment has been served on the
plaintiff, the dismissal is no longer a matter of right and will require the
filing of a motion to dismiss, not a mere notice of dismissal. The motion to
dismiss will now be subject to the approval of the court which will decide on
the motion upon such terms and conditions as are just (Sec. 2, Rule 17). The
dismissal under Sec. 2 is no longer a matter of right on the part of the
plaintiff but a matter of discretion upon the court.
Effect
of dismissal upon existing counterclaim
If a
counterclaim has already been pleaded by the defendant prior to the service
upon him of the plaintiff‘s motion to dismiss, and the court grants said motion
to dismiss, the dismissal ―shall be limited to the complaint‖ (Sec. 2, Rule 17). The phraseology of the provision is
clear: the counterclaim is not dismissed, whether it is a compulsory or a
permissive counterclaim because the rule makes no distinction. The defendant if
he so desires may prosecute his counterclaim either in a separate
action or in the same action. Should he choose to have his counterclaim
resolved in the same action, he must notify the court of his preference within
fifteen (15) days from the notice of the plaintiff‘s motion to dismiss. Should
he opt to prosecute his counterclaim in a separate action, the court should
render the corresponding order granting and reserving his right to prosecute
his claim in a separate complaint.
A
similar rule is adopted in Sec. 6, Rule 16 and Sec. 3, Rule 17, wherein the
dismissal of the counterclaim does not carry with it the dismissal of the
counterclaim. The same provision also grants the defendant a choice in the
prosecution of his counterclaim.
