Determine whether his dismissal is appropriate for remedy under Rule 65 or an appeal.
Any dismissal by a court is a final order. But what matters is to find out if the dismissal is with or without prejudice so as to ascertain the remedy available. In dismissals under Rule 16, if the grounds are letter f, h or i, then the dismissal is with prejudice. The remedy of the plaintiff is to appeal from the judgment.
Supposing the plaintiff commits an error in ascertaining the dismissal, the dismissal actually being that with prejudice, and plaintiff opts for Rule 65. The judgment became final after 15 days. 40 days after the judgment for dismissal was made, he files a petition for certiorari. The petition for certiorari will be dismissed as the proper remedy was to appeal. At this time, he cannot appeal anymore as the time to appeal was 15 days from receipt of the order of dismissal, it has long expired, and the judgment has been entered and had become final. Also, he cannot file another complaint, as the dismissal is with prejudice.
If a dismissal is found under Rule 17, we follow the same principle. Rule 17 also states about a dismissal with and without prejudice. We follow the principle of dismissal under Rule 41 in relation to Rule 16.
A dismissal under Rule 18 (failure to attend pre-trial or to file pre-trial brief, tantamount to disobedience of court orders) is with prejudice, and thus plaintiff must appeal.
A dismissal under Rule 33 (judgment on demurrer to evidence) is a dismissal with prejudice as this is an adjudication on the merits, and the remedy is to file an appeal from the order of dismissal.
But if the dismissal is without prejudice, the plaintiff has not much to worry. He can forget about Rule 41. He can file a second complaint, but he must make sure it is properly crafted. If the plaintiff files a second complaint, but it was again dismissed, there is the probability under Rule 17 Section 1 that it will be a dismissal with prejudice under the two-dismissal rule. Thus, if a complaint has been dismissed twice, the second dismissal may operate as an adjudication of the merits.
Rule 17 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.
Does it mean that a second dismissal is ALWAYS a dismissal with prejudice?
No. The second dismissal will still be without prejudice as provided for in Rule 17, unless there is a statement of such dismissal being with prejudice in the notice of dismissal.
Indispensable party has not been impleaded = Dismissal for failure to state a cause of action.
The theory behind is that a complaint must implead an indispensable party at all times so as the court can have a final determination of the case. This will be resolved by the court under Rule 16, but availing of other modes of curing the defect aside from dismissing the case. In the resolution of a motion to dismiss, Rule 16 gives to the court three choices: grant the motion, deny the motion, or order an amendment to the pleading.
If an indispensable party has not been impleaded, the court may simply order the plaintiff to amend his complaint to include the indispensable party. The plaintiff can then just file an amended complaint, and then the case can proceed until the final determination of the case.
If the court ordered the amendment of the complaint to include the indispensible party, the plaintiff failed to do so, can the court dismiss the case?
Yes, the court may do so under Rule 17, and the dismissal is with
prejudice, under Section 3 of Rule 17, for failure to obey a lawful order of the court. The remedy is to appeal.
Generally, the court is given discretion to state whether a dismissal is with or without prejudice. But if the dismissal is not qualified at all, Section 3 of Rule 17 is very clear, that dismissal is with prejudice. Therefore, the
remedy is to appeal not to file a petition under Rule 65. Note: Grounds for dismissal under Section 3 of Rule 17:
1. the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint,
2. failure to prosecute his action for an unreasonable length of time, 3. failure to comply with these Rules,
4. failure to comply with any order of the court
Sections 1, 2 and 3 of Rule 17 provides grounds for dismissal, and these sections also provides for the consequences of the grounds of dismissal. Section 1 Rule 17 provides for a plaintiff to dismiss his own complaint.
Rule 17 SECTION 1. Dismissal upon notice by plaintiff.—A