(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; By Stipulation. Subject to the provisions of these rules and of any statute of this Commonwealth, an action may be dismissed by the plaintiff without order of court (i) 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 (ii) 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 this or any other state an action based on or including the same claim.

(2) By Order of Court. Except as provided in paragraph (1) of this subdivision (a). 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.

(b) Involuntary Dismissal: Effect Thereof

(1) 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 three years preceding said notice without activity shown other than placing upon the trial list, marking for trial, being set down for trial, the filing or withdrawal of an appearance, or the filing of any paper pertaining to discovery. The notice shall state that the action will be dismissed on a day certain, (not less than one year from the date of the notice) unless before that day the case has been tried, heard on the merits, otherwise disposed of, or unless the court on motion with or without notice shall otherwise order. The notice shall be mailed to the plaintiff's attorney of record, or, if there be none, to the plaintiff if his address be known. Otherwise such notice shall be published as directed by the court. Dismissal under this paragraph shall be without prejudice.

(2) 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. If the court renders judgment on the merits against the plaintiff the court shall make findings as provided in Rule 52(a) .

(3) Effect. (Effective August 1, 2009). Unless the dismissal is pursuant to paragraph (1) of this subdivision (b), or unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision (b) and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, or for improper amount of damages in the Superior Court as set forth in G.L. c.212, § 3 or in the District Court as set forth in G. L. c. 218, § 19 , operates as an adjudication upon the merits.

(c) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to paragraph (1) of subdivision (a) of this rule shall be made before a responsive pleading or a motion for summary judgment is served, whichever first occurs, or, if there is none, before the introduction of evidence at the trial or hearing.

(d) Costs 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.

Effective July 1, 1974. Amended June 24, 2009, effective August 1, 2009.

Reporter’s Notes

(2009) An amendment to Rule 12(b), effective March 1, 2008 added a new numbered defense, 12(b)(10), dismissal for improper amount of damages in the Superior Court as set forth in  G.L. c.212, § 3 or in the District Court as set forth in G. L. c. 218, § 19 . The 2009 amendment to Rule 41(b)(3) makes clear that such a dismissal does not operate as an adjudication upon the merits unless the court orders otherwise.

(1996) Prior to the merger of the District Court Rules into the Mass.R.Civ.P., the District Court version of Rule 41(b)(1) provided for dismissal for lack of prosecution after two years. As result of the merger, the three year provision of the Mass.R.Civ.P. now applies in the District Court.

(1973) Rule 41(a) provides for voluntary dismissal. Under Rule 41(a)(1), the plaintiff may dismiss without order of court merely by filing a notice of dismissal prior to an answer or a motion for summary judgment. Thereafter dismissal by the plaintiff, without court order, requires the filing of a stipulation signed by all parties. Unless otherwise provided in the notice or stipulation, such dismissal is without prejudice. If, however, the plaintiff has previously dismissed the same claim in any state or federal court, a notice of dismissal operates as an adjudication on the merits. The two dismissal rule applies automatically only to a notice of dismissal. It does not so apply if the second dismissal is (a) by stipulation (Cornell v. Chase Brass & Copper Co., 49 F.Supp. 979, 981 (S.D.N.Y.1943)); or (b) by order of court under Rule 41(a)(2).

Rule 41(a) alters prior Massachusetts practice, which allowed a plaintiff to dismiss (discontinue) an action at law as of right at any time before trial. Marsch v. Southern New England R. Corp., 235 Mass. 304 , 307 (1920); Alpert v. Mercury Publishing Co., 272 Mass. 39 , 40-41 (1930); Burnham v. MacWhinnie, 350 Mass. 17 , 18-19 (1965). Leave to dismiss a suit in equity without prejudice had to be obtained from the court once the defendant's situation materially changed. Keown v. Keown, 231 Mass. 404 , 406-407 (1918); Nicolai v. Nicolai, 283 Mass. 241 , 246 (1933).

The two dismissal rule will effect only a slight change in Massachusetts practice. While a discontinuance would not operate as res judicata unless a judgment had been rendered on the merits, Pontiff v. Alexander, 320 Mass. 514 , 516 (1946), the statute of limitations eventually terminated the right of action. Cf. Farnum v. Brady, 269 Mass. 53 , 54 (1929).

Rule 41(a)(2) requires that an order of court precede any dismissal not covered by Rule 41(a)(1). Dismissals under Rule 41(a)(2) are without prejudice unless otherwise stated. If the defendant has counterclaimed prior to service of the motion to dismiss, the action may not be dismissed over defendant's objection unless the counterclaim can remain pending for independent adjudication. This latter point changes prior practice. Verdone v. Verdone, 345 Mass. 773 , 774 (1963).

Rule 41(b)(1) does not appear in Federal Rule 41(b). It has been adopted to follow salutory Massachusetts practice.

Rule 41(b)(2) provides for involuntary dismissal upon motion of the defendant on one of two grounds: (1) failure to comply with the rules or any order of the court; or (2) in an action tried without a jury, if, upon the facts and the law, the plaintiff has shown no right to relief.

No pre-rule procedure existed in Massachusetts for dismissal of a jury waived or equity case, after the plaintiff has rested, on the ground that upon the facts and the law the plaintiff had shown no right to relief. Under Rule 41(b)(2) this procedure applies to all non jury cases, whether the relief sought is legal or equitable.

Rule 41(b)(3) provides that involuntary dismissal under Rule 41(b)(2) operates as an adjudication on the merits unless the court otherwise orders.

Rule 41(c) makes the provisions of Rule 41 applicable to counterclaims, cross claims and third party claims.

Rule 41(d), pertaining to allowing first action costs as precondition for a second action, does not alter existing Massachusetts law. G.L. c. 261, § 10 . Boyajian v. Hart, 312 Mass. 264 , 267 (1942), held that even apart from statute:

"... whenever the prevention of vexatious litigation and the interests of justice require, a court has power, both in actions at law and in suits in equity, to stay a new proceeding for substantially the same cause as a former one until costs for which the plaintiff has become liable in the former proceeding have been paid ... and ... the court has the power in appropriate cases to dismiss the second proceeding altogether."

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