Dismissals

Question 1

Voluntary Dismissals (nonsuit) Generally

Answer 1

Can only dismiss an action (not individual claims). Use amendments for individual claims.

Does not toll statute of limitations (i.e. the time keeps going)

Reasons to Dismiss:
Want to avoid challenge to a case by fixing a problem and then refiling
Want a different judge
Want a different court location
Made a settlement
Rule 11 motion filed against you, want to get out of sanctions

Question 2

Voluntary Dismissal By P w/o a Court Order

Answer 2

Timing: must be done before other party serves an answer or motion for summary judgment (or other responsive pleading)
–Remember that 12(b)(6) can be converted in to a summary judgment motion!

Effect: dismissal w/o prejudice (unless this is your 2nd time, then it’s an adjudication on the merits.

Class Actions: can’t dismiss on your own - have to have court approval.

Question 3

Voluntary Dismissal By P w/Stipulation of Parties

Answer 3

Requirements: need agreement of all parties that have appeared

Timing: no requirement

Effect: dismissal w/o prejudice (but it it’s your second time, then it’s an adjudication on the merits)

Class Actions: can’t dismiss on your own, have to have court approval

Question 4

Voluntary Dismissal By P w/Court Order

Answer 4

If there has been a counterclaim, then court can only order dismissal if the counterclaim can stand on its own.

Effect: dismissal w/o prejudice (no “second time” rule here).

Question 5

Involuntary Dismissal

Answer 5

Standard:

(1) Missed a deadline
(2) Imposed as a sanction for violating Rule 11, or
(3) Failed to name a successor for dead P

Does not toll statute of limitations (i.e. the time keeps running)

Effect: dismissal w/prejudice on the merits
-Exception: dismissal for 4(m) violation, PJ, venue, and failure to join a party under Rule 19.