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Dismissal Upon Motion of Plaintiff


Section 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 plaintiffs 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 the motion he 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. (Rule 17, Rules of Court)


If the defendant has already filed an answer or a motion for summary judgment, may the complaint still be dismissed by the plaintiff?

Yes, but it will be upon approval of the court and upon such terms and conditions as the court deems proper. Plaintiff can no longer dismiss the complaint as a matter of right. He has to file a motion that he be allowed to dismiss (motion to dismiss with leave of court) and the court has to approve it. Certain conditions may also be imposed by the court.


Why is it no longer a matter of right on the part of the plaintiff to file a notice of dismissal after he has been served the answer or a motion for summary judgment?

Where defendant has a counterclaim, defendant has a right to have that counterclaim be litigated and resolved.


What is the effect of the dismissal under Sec. 2 Rule 17?

It is still a dismissal without prejudice unless the court provides otherwise.


Should a compulsory counterclaim be pleaded in the answer, what would be the effect of the dismissal under Sec. 2 Rule 17 on the counterclaim?

The counterclaim is not dismissed. The dismissal shall be limited to the complaint.


In what proceeding may the counterclaim therefore be prosecuted?

It may be prosecuted in the same case provided that within 15 days from receipt of the motion to dismiss, the plaintiff manifest to the court that he desires that the counterclaim be litigated in the same case; otherwise, the counterclaim maybe litigated in a separate action.


Can a class suit be dismissed or compromised without the approval of the court?

No. When you file a class suit, you are not only fighting for yourself - you are fighting for the others. So, you cannot just withdraw it on your own or else, you will cause prejudice to everybody. So, to prevent the person who filed it prejudicing the members of the class suit, it cannot be dismissed or compromised without the approval of the court.

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