Header Ads

Dismissal upon Notice by Plaintiff


Section 1.  Dismissal upon notice by plaintiff. — A complaint 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 a competent court an action based on or including the same claim. (Rule 17, Rules of Court)


Can a plaintif dismiss his own complaint?

Yes. And it is a matter of right. (the court has no discretion on whether or not to dismiss the case)


How?

By filing a notice of dismissal.


When must he do this?

He must file the notice of dismissal before the defendant serves his Answer or Motion for Summary Judgment.


What must the court do upon filing of the notice of dismissal?

The court must issue an order confirming the dismissal. (Withdrawal is not automatic.)


Can the plaintiff re-file the case after the court confirmed the dismissal?

As a general rule, yes. The dismissal under Section 1 is without prejudice. Plaintiff is not precluded from bringing another action against the same defendant on the same subject matter. 


When is the plaintiff precluded from refiling the case by reason of his having filed a notice of dismissal?

1. When in his notice of dismissal he stated that the dismissal is with prejudice.

2. Where he has previously dismissed an action based on or including the same claim. Simply put, where plaintiff has filed a notice of dismissal for the second time. This is known as the TWO-DISMISSAL RULE. Plaintiff cannot re-file the action for the third time. The dismissal filed for the second time produces a dismissal with prejudice.

Note:

For the TWO-DISMISSAL RULE to apply, the complaints must have been dismissed in a court of competent jurisdiction. To illustrate: PP files in the Regional Trial Court of Manila, an action to collect P300,000.00 from DD. The complaint was dismissed when PP immediately filed a notice of dismissal. The same claim was again filed in the Metropolitan Trial Court of Manila. Before DD served either an answer or a motion for summary judgment, PP filed a notice of dismissal. Does the two-dismissal rule apply? It does not. The first court, the RTC was not a court of competent jurisdiction because the claim was below its jurisdictional amount. (Dean Riano)


Supposing in the second notice of dismissal, plaintiff said it is without prejudice, will the resulting dismissal be also without prejudice?

No, because it is not for the plaintiff to characterize the effect of the dismissal as provided by law. The rule states that a dismissal produces a dismissal with prejudice if filed by a person who previously filed a notice of dismissal. This is now a dismissal with prejudice regardless of what A stated in the notice of dismissal.


Supposing the court issued the order saying that the second dismissal is without prejudice, is that order valid?

No, because the court cannot characterize the effect of the second dismissal. The law provides the effect. It is always a dismissal with prejudice.


If the plaintiff re-files the case he previously dismissed, how would he do it? Does he need to file another complaint again?

It DEPENDS on whether the order of dismissal has already become final.

1. Order not yet final - If the order has not yet become final (meaning, it is still within 15 days from the time the complaint was ordered dismissed), the plaintiff may move to withdraw and set aside his notice of dismissal and revive his action, before that period lapses since theoretically every final disposition of an action does not attain finality until after fifteen (15) days therefrom, and consequently within that time the action still remains within the control of the Court.

2. Order has become final - But after the dismissal has become final through the lapse of the 15-day reglementary period, the only way by which the action may be resuscitated or "revived," is by the institution of a subsequent action through the filing of another complaint and the payment of the fees prescribed by law. This is so because upon attainment of finality of the dismissal through the lapse of said reglementary period, the Court loses jurisdiction and control over it and can no longer make any disposition in respect thereof inconsistent with such dismissal. (Ortigas and Company Limited Partnership vs Judge Velasco, G. R. No. 109645, July 25, 1994)

Powered by Blogger.