Civil Procedure: Dismissal of Actions

Dismissal of Actions (Rule 17)

Dismissal of Action
Notice of Dismissal Motion to Dismiss Dismissed due to fault
Reference Sec. 1 Sec. 2 Sec. 3
When to file At anytime before service of the answer or of a motion for summary judgment After the serve upon the plaintiff of the answer or of a summary judgment when plaintiff fails:

a.)  to appear on the date of the presentation of his evidence in chief on the complaint;

b.) prosecute his action for an unreasonable length of time;

c.) To comply with the rules or any order of the court

(Upon the motion of the Defendant or moto propio)

Action from the Court The court shall issue an order confirming the dismissal Subject to the approval of the court may be dismissed upon the motion of the defendant or upon the court’s own motion (Moto propio)
Is such a dismissal without Prejudice

Yes. The exception would be:

1.) Otherwise Stated in the Notice of Dismissal, and

2.) under the two-dismissal Rule

Yes, unless otherwise specified in the order, a dismissal under this rule shall be without prejudice No, unqualified order of dismissal is a dismissal with prejudice
  1. Notice of Dismissal
    1. “Sec 1. Dismissal upon notice of plaintiff. – A compliant may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in competent court an action based on or including the same claim.”
    2. Manner of Dismissal – Rule 17 provides for the dismissal of the action upon the intance of the plaintiff in the following m
    3. anner, to wit:
      1. Dismissal upon notice of the plaintiff (Sec 1) –
        1. “Sec 1. Dismissal upon notice of plaintiff. – A compliant may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in competent court an action based on or including the same claim.”
      2. Dismissal upon motion of the plaintiff (Sec 2)
        1. Sec 2. Dismissal upon motion of plaintiff. – Except as provided in the preceding section, 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. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of motion be manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court.
      3. Dismissal due to the fault of the plaintiff (Sec 3)
        1. “Sec 3. Dismissal due to the fault of the plaintiff. – If, for no justifiable reason, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon the motion of the defendant or upon the court’s own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in separate action. This dismissal shall have the effect of an adjudication upon merits, unless otherwise declared by the court.”
        2.  Instances of dismissal due to the fault of the plaintiff – If for no justifiable cause, the complaint may be dismissed upon motion of the defendant or upon the court’s own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action.
          1. The plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint; or
          2. to prosecute his action for an unreasonable length of time; or
          3. To comply with these Rules or any order of the court.
        3. Remedy of Plaintiff upon the Dismissal of the Complaint by way of Sec 3. – The dismissal of the complaint by way of Sec 3 shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. The order dismissing the case for failure to prosecute are Final Order and not Interlocutory Order. Therefore, the remedy of the plaintiff is Appeal.
  2. Dismissal After Answer
    1. After the service upon the plaintiff of the answer(responsive pleading of the defendant) or a motion for summary judgment. In such case, the complaint shall not be dismissed save upon approval of the court and upon such terms and conditions as the court deems proper.
  3. Two-Dismissal Rule
    Two Dismissal Rule
    Case 1 Case 2 Case 3
    Senario 1 Notice to Dismiss

    (Same Cause of Action)
    (Same Jurisdiction)
    (Same Subject Matter)
    Notice to Dismiss

    (Same Cause of Action)
    (Same Jurisdiction)
    (Same Subject Matter)
    Barred to file complaint
    Senario 2 Notice to Dismiss

    (Same Cause of Action)
    (Same Jurisdiction)
    (Same Subject Matter)
    Notice to Dismiss

    (Differ Cause of Action)(Differ Jurisdiction)
    (Differ Subject Matter)
    Not barred to file complaint
    Senario 3 Notice to Dismiss Not Notice to Dismiss Not barred to file complaint
    1. The rule that the notice of dismissal would operate as an adjudication on the merits if the plaintiff had once dismissed in a competent court an action based on or including the same claim. Hence if the plaintiff files a complaint based on the claim subject of the second dismissal, the defendant may move to dismiss on the ground of res judicata. Note that the second dismissal is by notice while the first may be by notice of by motion of the plaintiff.
  4. Failure to Prosecute
    1. Fundamental test for non prosequitur.
      1. The fundamental test for non prosequitur is whether under the circumstances, the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. There must be willingness on the part of the plaintiff to prosecute.
    2. What constitute Unreasonable length of time
      1. The court held that it depends on the circumstances of each particular case and that ” the sound discretion of the court” in the determination of that said question will not be disturb, in the absence of patent abuse.
    3. Limitation to dismiss action for non prosequitur.
      1. If a pattern or scheme to delay the disposition of the case or wanton failure to observe the mandatory requirement of the rules on the part of the plaintiff is not present, the court should not wield their authority to dismiss. Indeed, while the dismissal rest on the prerogative of the trial court, it must soundly be exercised and not be abused, as there must be sufficient reason to justify its extinctive effect on the plaintiff’s cause of action. Deferment of proceedings may be tolerated so that the court, aimed at a just and inexpensive determination of the action, may adjudge cases only after a full and free presentation pf all evidence by both parties. In this regard, courts are reminded to exert earnest efforts to resolve the matters before them on the merits, and adjudicate the case in accord with the relief sought by the parties so that appeals may be discouraged; otherwise, in hastening the proceedings, they further delay the final settlement of the case. (Soliman vs Fernandez, GR No. 176652, June 4, 2014)

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