Civ Pro - Voluntary and Involuntary Dismissals

Question 1

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Answer 1

A plaintiff may chose to voluntarily dismiss a party or a case to head off a FRCP 12b6 dismissal for failure to state a claim. p. 974
A plaintiff may voluntarily dismiss without a court order (1) by stipulating or (2) by filing a notice of dismissal before the opposing party serves either an answer or a motion for Summary Judgment (not just any motion).
The first “notice dismissal” (without court order) is without prejudice, but the second operates as an adjudication on the merits (claim preclusion).
A voluntary dismissal with court order is without prejudice unless the court orders otherwise.

Question 2

When is voluntary dismissal occur with/without prejudice?

Answer 2

The first “notice dismissal” (without court order) is without prejudice, but the second operates as an adjudication on the merits (claim preclusion).

Question 3

Rule 41

Answer 3

R. 41b Involuntary Dismissal: For the failures above, a Def. may file a motion to dismiss any claim or the entire action. This dismissal is “an adjudication on the merits,” unless the dismissal is under 12b1-5 & 12b7 or if the ct order states otherwise

Question 4

Involuntary dismissal rule

Answer 4

Rule 41

Question 5

Default vs Involuntary Dismissal

Answer 5

DEFAULT
– RULE 55
“FAILURE TO DEFEND OR APPEAR”