§ 9-11-41.Dismissal of actions; effect
Chapter 11. Civil Practice Act · Article 6. Trials · Last amended 2025 · Last verified July 17, 2026
Full Text of § 9-11-41
Plain-English Summary
Subsection (a) covers dismissal the plaintiff controls. Before the 60th day following the defendant’s answer, the plaintiff can dismiss by filing a written notice, no court order needed; a stipulation signed by every party who has appeared works at any time. That kind of dismissal is without prejudice — with one exception. Under the two-dismissal rule, if the plaintiff already dismissed a federal or state court action based on the same claim, the second notice or stipulation operates as an adjudication on the merits, closing the door on a third attempt. Once that window closes, the plaintiff needs a court order to dismiss, and if a defendant has already pleaded a counterclaim, the court can’t dismiss over that defendant’s objection unless the counterclaim can proceed on its own.
Subsection (b) covers dismissal a defendant seeks — for the plaintiff’s failure to prosecute or to follow the chapter or a court order. In a bench trial, after the plaintiff rests, the defendant may move to dismiss on the ground that the plaintiff hasn’t shown a right to relief, without giving up the right to put on evidence if the motion fails. A dismissal for failure to prosecute doesn’t count as an adjudication on the merits; almost every other involuntary dismissal does, unless the court says otherwise or the dismissal rests on jurisdiction, venue, or a missing indispensable party.
The remaining subsections round out the section. Subsection (c) applies the same rules to a dismissed counterclaim, cross-claim, or third-party claim. Subsection (d) requires a plaintiff who dismissed a claim once to pay the costs of that earlier action before commencing the same claim against the same defendant again. And subsection (e) automatically dismisses any action that sits five years without a written order — a continuance order counts as an order and keeps the case alive — while giving the plaintiff six months after that automatic dismissal to recommence the action on the same footing, as to limitations, as the original.
Frequently Asked Questions
How can a plaintiff voluntarily dismiss a case without a court order?
By filing a written notice of dismissal before the 60th day after the defendant serves an answer, or by filing a stipulation of dismissal signed by every party who has appeared in the action.
Does a second voluntary dismissal of the same claim always leave the plaintiff free to sue again?
No. Under the two-dismissal rule, if the plaintiff already dismissed a federal or state court action based on or including the same claim, the second dismissal operates as an adjudication upon the merits.
What happens if a civil action sits without a written order for five years?
It automatically stands dismissed for want of prosecution, with costs taxed against the plaintiff. An order of continuance counts as an order for this purpose and prevents the automatic dismissal.
Can a plaintiff bring back a case that was automatically dismissed after five years of inactivity?
Yes, if the plaintiff recommences the action within six months of the dismissal; the renewed action then stands on the same footing, as to limitation, as the original one.
Does dismissal for failure to prosecute count against the plaintiff as a ruling on the merits?
No. Paragraph (b)(1) specifically excludes dismissal for failure to prosecute from operating as an adjudication upon the merits, unlike most other involuntary dismissals under that subsection.
Amendment History
Ga. L. 1966, p. 609, § 41; Ga. L. 1982, p. 784, §§ 1, 2; Ga. L. 1984, p. 597, § 2; Ga. L. 1985, p. 546, § 1; Ga. L. 1986, p. 816, § 1; Ga. L. 2003, p. 820, § 4; Ga. L. 2025, p. 19, § 3/SB 68, effective April 21, 2025.