I. DISMISSAL OF ACTIONS

Question 1

Dismissal upon notice by plaintiff; two-dismissal rule

Answer 1

A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of

a. The answer, or
b. A motion for summary judgment

Upon such notice being filed, the court shall issue an order confirming the dismissal. [Sec. 1, Rule 17]

General rule: Dismissal is without prejudice

Exceptions:
a. Unless otherwise stated in the notice
b. A notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim
[Sec. 1, Rule 17]

Two-dismissal Rule
The notice of dismissal operates as an adjudication upon the merits [Sec. 1, Rule 17]
Applies when the plaintiff has
1. A twice dismissed action,
2. Based on or including the same claim,
3. In a court of competent jurisdiction. [1 Riano 490, 2014 Bantam Ed.]

Question 2

Dismissal upon motion by plaintiff; effect on existing counterclaim

Answer 2

A complaint shall not be dismissed at the plaintiff’s instance save upon approval of the court and upon such terms and conditions as the court deems proper [Sec. 2, Rule 17]

General rule: Dismissal is without prejudice

Exception: Otherwise specified in the order [Sec. 2, Rule 17]

Effect on counterclaim
The dismissal shall be without prejudice to the right of the defendant to prosecute his counter­claim in a separate action unless within 15 calendar days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action [Sec. 2, Rule 17]

Note: Sec. 2, Rule 17 is clear: the counterclaim is not dismissed, whether it is a compulsory or a permissive counterclaim because the rule makes no distinction [1 Riano 491, 2014 Bantam Ed.]

Question 3

Dismissal due to the fault of plaintiff

Answer 3

The complaint may be dismissed upon motion of the defendant or upon the court’s own motion if, for no justifiable cause, the plaintiff:

1. Fails to appear on the date of the presentation of his evidence in chief on the complaint
2. Fails to prosecute his action for an unreasonable length of time, also called as non-prosequitur
3. Fails to comply with the ROC or any court order. [Sec. 3, Rule 17]
   a. A case may be dismissed for failure to answer written interrogatories under Rule 25 even without an order from the court to answer. [Arellano v. CFI Sorsogon, G.R. No. L-34897 (1975)] [also see Sec. 5, Rule 29]

Question 4

Dismissal of counterclaim, cross-claim or third-party complaint

Answer 4

Provisions of Rule 17 shall apply to the dismissal of any counterclaim, cross-claim, or third-party complaint.

Voluntary dismissal by the claimant by notice as in Sec. 1, Rule 17 shall be made:

a. Before a responsive pleading or a motion for summary judgment is served; or
b. If there is none, before the introduction of evidence at trial or hearing. [Sec. 4, Rule 17]