Rule 41.Dismissal of Actions

(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, s. 3 or in the District Court as set forth in G.L. c. 218, s. 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, 126 N.E. 519, 520 (1920); Alpert v. Mercury Publishing Co., 272 Mass. 39, 40 41, 172 N.E. 221, 222 (1930); Burnham v. MacWhinnie, 350 Mass. 17, 18 19, 213 N.E.2d 385, 386 (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, 121 N.E. 153, 154 155 (1918); Nicolai v. Nicolai, 283 Mass. 241, 246, 186 N.E. 240, 241 242 (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, 70 N.E.2d 5, 6 (1946), the statute of limitations eventually terminated the right of action. Cf. Farnum v. Brady, 269 Mass. 53, 54, 168 N.E. 165 (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, 187 N.E.2d 853, 854 (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, s. 10.

Boyajian v. Hart, 312 Mass. 264, 267, 44 N.E.2d 964, 966 (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."