Rule 41. Dismissal of actions. - North Carolina Statutes

Rule 41. Dismissal of actions.

(a)        Voluntarydismissal; effect thereof. –

(1)        By Plaintiff; byStipulation. – Subject to the provisions of Rule 23(c) and of any statute ofthis State, an action or any claim therein may be dismissed by the plaintiffwithout order of court (i) by filing a notice of dismissal at any time beforethe plaintiff rests his case, or; (ii) by filing a stipulation of dismissalsigned by all parties who have appeared in the action. Unless otherwise statedin the notice of dismissal or stipulation, the dismissal is without prejudice,except that a notice of dismissal operates as an adjudication upon the meritswhen filed by a plaintiff who has once dismissed in any court of this or anyother state or of the United States, an action based on or including the sameclaim. If an action commenced within the time prescribed therefor, or any claimtherein, is dismissed without prejudice under this subsection, a new actionbased on the same claim may be commenced within one year after such dismissalunless a stipulation filed under (ii) of this subsection shall specify ashorter time.

(2)        By Order of Judge. –Except as provided in subsection (1) of this section, an action or any claimtherein shall not be dismissed at the plaintiff's instance save upon order ofthe  judge and upon such terms and conditions as justice requires. Unlessotherwise specified in the order, a dismissal under this subsection is withoutprejudice. If an action commenced within the time prescribed therefor, or anyclaim therein, is dismissed without prejudice under this subsection, a newaction based on the same claim may be commenced within one year after suchdismissal unless the judge shall specify in his order a shorter time.

(b)        Involuntarydismissal; effect thereof. – For failure of the plaintiff to prosecute or tocomply with these rules or any order of court, a defendant may move fordismissal of an action or of any claim therein against him. After theplaintiff, in an action tried by the court without a jury, has completed thepresentation of his evidence, the defendant, without waiving his right to offerevidence in the event the motion is not granted, may move for a dismissal onthe ground that upon the facts and the law the plaintiff has shown no right torelief. The court as trier of the facts may then determine them and renderjudgment against the plaintiff or may decline to render any judgment until theclose of all the evidence. If the court  renders judgment on the merits againstthe plaintiff, the court shall  make findings as provided in Rule 52(a). Unlessthe court in its order for dismissal otherwise specifies, a dismissal underthis section and  any dismissal not provided for in this rule, other than adismissal for lack of jurisdiction, for improper venue, or for failure to joina necessary party, operates as an adjudication upon the merits. If the courtspecifies that the dismissal of an action commenced within the time prescribedtherefor, or any claim therein, is without prejudice, it may also specify in itsorder that a new action based on the same claim may be commenced within oneyear or less after such dismissal.

(c)        Dismissal ofcounterclaim; crossclaim, or third‑party claim. – The provisions of thisrule apply to the dismissal of any counterclaim, crossclaim, or third‑partyclaim.

(d)        Costs. – Aplaintiff who dismisses an action or claim under section (a) of this rule shallbe taxed with the costs of the action unless the action was brought in formapauperis. If a plaintiff who has once dismissed an action in any courtcommences an action based upon or including the same claim against the samedefendant before the payment of the costs of the action previously dismissed,unless such previous action was brought in forma pauperis, the court, uponmotion of the defendant, shall make an order for the payment of such costs bythe plaintiff within 30 days and shall stay the proceedings in the action untilthe plaintiff has complied with the order. If the plaintiff does not complywith the order, the court shall dismiss the action. (1967, c. 954, s. 1; 1969, c.895, s. 10; 1977, c. 290.)