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Jul 15, 2008

  • Dismissal upon NOTICE by plaintiff (sec. 1)

- before service of answer or of a motion for summary judgment
- ministerial duty of court to issue order confirming the dismissal
- without prejudice, EXCEPT:
  1. where notice states otherwise
  2. where plaintiff has previously dismissed case in court of competent jurisdiction
  3. where the dismissal is premised on the fact that the defendant has already paid the claim
  • Dismissal upon MOTION by plaintiff (sec. 2)
- after the defendant has served his answer to the plaintiff
- Motion for Leave of Court to Withdraw the Complaint
- if defendant filed a counterclaim before service of motion for dismissal by plaintiff, the dismissal shall not affect the counterclaim and only dismiss the main complaint

2 REMEDIES OF DEFENDANT (within 15 days from notice of motion):
  1. prosecute his counterclaim in a separate action
  2. opt to have it resolved in the same action

  • Dismissal due to FAULT of plaintiff (sec. 3)
- motu propio of the court or upon motion of the defendant
- dismissal is with prejudice, UNLESS otherwise declared by court or ground is lack of jurisdiction
  1. non-appearance on the date plaintiff is to present his evidence in chief without justifiable reason - limited to the date of presentation of evidence in chief only; plaintiff’s failure to appear, not absence of lawyer, that warrants dismissal
  2. failure to prosecute for an unreasonable length of time - applies to pre-trials and appeals; if plaintiff has already presented his evidence, his failure to appear in subsequent proceedings is not failure to prosecute but a waiver of right to cross-examine and object to the admissibility of evidence
  3. non-compliance with the Rules or any court order - e.g. plaintiff fails to amend complaint even after court orders him to do so

NOTA BENE: This also applies to dismissal of any counterclaim, cross-claim, or third-party complaint.


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