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. (1a)
Breakdown of Provision:
A. A complaint may be dismissed by the plaintiff: 1. By filing a notice of dismissal; or
a. At any time before service of the answer 2. By filing a motion for summary judgment
B. Upon such notice, the court shall issue an order confirming the dismissal
C. Dismissal is without prejudice; except: 1. Unless otherwise stated in the notice
2. 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
Dismissal is effected not by motion but by mere notice of dismissal which is a matter of right before the service of:
1. The answer; or
2. A motion for summary judgment
The Rule allows the plaintiff to withdraw his complaint by mere notice
- The withdrawal is not automatic
- It requires an order by the court confirming the dismissal - Until confirmed, the withdrawal does not take effect - Note that the withdrawal must be before the defendant
has pleaded to the complaint
At that point, defendant has hardly been exposed to any kind of damage or prejudice
Note: The dismissal as a matter of right ceases when an answer or a motion for summary judgment is served on the plaintiff and not when the answer or the motion is filed with the court.
Thus, if a notice of dismissal is filed by the plaintiff even after an answer has been filed in court but before the responsive pleading has been served on the plaintiff, the notice of dismissal is still a matter of right.
The rule requires a court order confirming the dismissal GENERAL RULE: Such dismissal is without prejudice EXCEPTIONS:
1. Where the notice of dismissal so provides; or
2. Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction (Two Dismissal Rule) 3. Even where the notice of dismissal does not provide that it
is with prejudice but it is premised on the fact of payment by the defendant of the claim involved (Serrano v.
Cabrera)
Two Dismissal Rule – when the same complaint had twice been dismissed by the plaintiff without order of the court by simply filing a notice of dismissal, the 2nd dismissal operates as an adjudication on
the merits.
Note: If the plaintiff files a notice of dismissal proving therein a reason that prevents the refiling of the complaint, the dismissal must be deemed one with prejudice.
This happens when the notice provides that the plaintiff recognizes the fact of prescription or extinguishment of the obligation of the defendant for reasons stated in Sec. 5, Rule 16. Jurisprudence
1. To be more precise, however, what causes the loss by a plaintiff of the right to effect dismissal of the action by mere notice Is not the filing of the defendant’s answer with the court but the service on the plaintiff of said answer of a motion for summary judgment (Go v. Cruz, et al.) 2. Where the first complaint for foreclosure of a chattel
mortgage for non-payment of certain installments due thereunder was dismissed with prejudice, at the instance of plaintiff under this section, another complaint later filed by him for non-payment of installments subsequent to those involved in the first case should not be dismissed on the ground of res judicata since said 2nd case involved
different causes of action (Filinvest Credit Corp. v. Salas) Overview of Section 2 and 3
SECTION 2 SECTION 3
Dismissal is at the instance of the plaintiff
Dismissal is not procured by plaintiff though justified by
causes imputable to him Dismissal is a matter of
procedure, without prejudice unless otherwise stated in the court order or on motion to
dismiss
Dismissal is a matter of evidence, an adjudication on
the merits Dismissal is without prejudice
to the right of defendant to prosecute his counterclaim in a separation action unless within 15 days from notice of motion
he manifests his intention to have his counterclaim resolved
in the same action
Dismissal is without prejudice to the right of defendant to prosecute his counterclaim on
the same or separate action
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 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 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. (2a)
Breakdown of Provision:
A. A complaint shall not be dismissed at the plaintiff’s instance 1. Except as provided in Sec. 1
2. Save upon approval of the court
a. Upon such terms and conditions as the court deems proper
B. If counterclaim has been pleaded by defendant prior to service upon him of plaintiff’s motion for dismissal
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C. Dismissal shall be without prejudice to the right of defendant to prosecute his counterclaim in a separate action 1. Unless within 15 days from notice of motion he manifests his preference to have his counterclaim resolved in the same action
D. Dismissal under Sec. 2 shall be without prejudice 1. Unless otherwise specified in the order
E. Class suit shall not be dismissed or compromised without the approval of the court
Under this section, dismissal of the complaint is subject to the discretion of the court and upon such terms and conditions as may be just.
GENERAL RULE: Dismissal under this rule is WITHOUT prejudice EXCEPTIONS:
1. When otherwise stated in the motion to dismiss; or 2. When stated to be with prejudice in the order of the court
AS TO COUNTERCLAIMS
If a counterclaim has been pleaded by the defendant prior to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint.
Remember that if the civil case is dismissed, so also is the counterclaim filed therein
- It was held that if the court does not have jurisdiction to entertain the main action of the case and dismiss the case, then the compulsory counterclaim, being ancillary to the principal controversy must likewise be dismissed
No jurisdiction remained for any grant of relief under the counterclaim (Metals Engineering Resources v.
CA)
However, under this section, 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.
Such dismissal shall be without prejudice to the right of the defendant to either:
1. Prosecute his counterclaim in a separate action; or In this case, the court should render the
corresponding order granting and reserving his right to prosecute his claim in a separate complaint 2. To have the same resolved in the same action
In this case, defendant must manifest such preference to the trial court within 15 days from notice to him of plaintiff’s motion to dismiss
Note: These alternative remedies of the defendant are available to him regardless of whether his counterclaim is compulsory or permissive
EFFECT OF DISMISSAL The dismissal is without prejudice
- Only instance when dismissal of an action under the rule is with prejudice is when the order or motion itself states - When a court issues upon plaintiff’s instance a dismissal
order that is silent as to whether it is with or without prejudice, the presumption is that, it is without prejudice (Vallangca v. CA)
Note: This rule does not apply to dismissal of expropriation cases which is governed by Rule 67 which specifically governs eminent domain cases.
COMPARED TO OTHER PROVISIONS Sec. 1 and Sec. 2
- Both sections refer to the dismissal of the ENTIRE case at the instance of the plaintiff, provided that under:
1. Sec. 1 – there has been no service of an answer or a motion for summary judgment
2. Sec. 2 – defendant has not filed a counterclaim and the court deems the dismissal proper
- Absent such contingent considerations, the plaintiff has the virtual freedom to desist from further prosecuting any defendant by causing the dismissal of the complaint As distinguished from Sec. 11, Rule 3
- Said provision allows parties to be dropped or added by order of the court, on motion, or motu proprio at any stage of the action and on such terms as are just
- This refers to maintenance of the case against all parties Except that one or more defendant may be excluded - Remember that this does not comprehend whimsical or
irrational dropping of parties
- It contemplates the situation where there has been an erroneous inclusion or misjoinder of parties
Presupposes that the original inclusion of defendant was made in honest conviction that it was proper But subsequent dropping is requested because it has
turned out to be incorrect
SECTION 3 - Dismissal due to fault of plaintiff.—If, for no
justifiable cause, 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 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. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (3a)
Breakdown of Provision:
A. The complaint may be dismissed, if for no justifiable cause, the plaintiff fails:
1. 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 the Rules or any order of the court B. The dismissal may be upon:
1. Motion of the defendant; or 2. Court’s own motion C. The dismissal shall:
1. Be without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action
2. Have the effect of an adjudication upon the merits a. Unless otherwise declared by the court
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Under this section: - Like in Sec. 2:
Only the complaint is dismissed
Its dismissal does not necessarily carry with it the dismissal of the counterclaim
Defendant is granted an option to prosecute his counterclaim in the same or separate action
- The rule contemplates a situation which an answer with counterclaim have already been filed
But as to Counterclaims:
- Defendant is granted the choice to prosecute that counterclaim in either the same or a separate action, just like the grant of that remedy in Sec. 6, Rule 16
- In this section (as well as in Sec. 6, Rule 16), defendant is not required to manifest his preference within a 15-day period as in Sec. 2
- Reason:
The motions to dismiss in this section and in Sec. 6, Rule 16, are filed by defendant who perforce has already deliberated upon the course of action he intends to take on his counterclaim and which he may even manifest right in his motion to dismiss
The dismissal in Sec. 2 is at the instance of plaintiff, hence, defendant is granted the time and duty to manifest preference within 15 days from notice, after an opportunity to study the situation
Complaint May be Dismissed:
1. Upon motion of defendant; or 2. Upon the court’s own initiative
Note: The court cannot issue an order of dismissal motu proprio except for the grounds mentioned in this rule and those in Sec. 1, Rule 9
Grounds for Dismissal
1. Plaintiff fails to appear for no justifiable cause on the date of the presentation of his evidence in chief on the complaint;
2. Plaintiff fails to prosecute his action for an unreasonable length of time (nolle prosequi); and
3. Plaintiff fails to comply with these Rules or any order of the court
The dismissal shall have the effect of an adjudication upon the merits (Res judicata); UNLESS:
1. Otherwise declare by court; or
2. If the court has not yet acquired jurisdiction over the person of the defendant
FAILURE TO APPEAR AND FAILURE TO PROSECUTE While a court can dismiss a case on the ground of non-prosequitur, the real test for the exercise of such power is whether, under the circumstances, plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. (Producers Bank v.
CA)
There must be unwillingness on the part of the plaintiff to prosecute (Gapoy v. Adil)
The dismissal of the case for failure of plaintiff to appear at trial, to be valid, now requires that:
1. His non-appearance is without justifiable cause; and
2. Such prejudicious absence is limited to the date or dates when presentation of his evidence in chief on the complaint was scheduled or expected
Since plaintiff’s presence is now required only during the presentation of his evidence in chief, his absence during the presentation of defendant or other parties’ evidence, or even at rebuttal or subsequent stages, is not a ground for dismissal.
What Constitutes Unreasonable Length of Time
- The dismissal of an action pursuant to this rule rests upon the sound discretion of the court ( Smith Bell and Co. v.
American President Lines Ltd.)
- What constitutes unreasonable length of time depends on the circumstances of each particular case
The sound discretion of the court in the determination of said question will not be disturbed in the absence of patent abuse
The burden of showing abuse of judicial discretion is upon the appellant since every presumption is in favor of the correctness of court action
Duty of the Plaintiff To Prosecute
- Under the rules, it is the duty of a plaintiff to always take the initiative in keeping the proceedings active and going until it is terminated
Otherwise, the case may be dismissed either upon motion of his adversary or the court itself
- Upon issuance of summons, plaintiff or counsel should see to it that the sheriff or process server immediately cause its service
If plaintiff is not furnished with a return of service, plaintiff should inquire from the court as to the status of the summons, not only to take appropriate action if unserved, but to know if period to answer has expired If summons is unserved, plaintiff should make verifications and ask for alias summons and/or summons by publication
Jurisprudence:
1. Plaintiff’s failure to appear, not absence of lawyer is ground for dismissal (Calalang v. CA)
But the unwillingness of the party to proceed to trial because of absence of counsel after being given time to secure services of counsel if ground for dismissal for failure to prosecute (Rodillas v. Farmacia
Central)
2. Where plaintiffs were not again ready to present their evidence on the date of trial but instead moved for another postponement, the dismissal is justified (EE Elser, Inc. v.
Dela Rama Steamship, Co.)
Where trial had previously been postponed 9 times at plaintiff’s request and the case had been pending for more than 4 years, action may be dismissed for failure to prosecute (Jordas v. Vedad)
3. The plaintiff’s failure to appear at trial after he has presented his evidence and rested his case does not warrant the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to cross- examine and to object to the admissibility of evidence (Jalover v. Ytoriaga)
4. The action should never be dismissed on a non-suit for want of prosecution when the delay was caused by the parties looking towards a settlement. (Goldloop
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FAILURE TO COMPLY WITH RULES AND COURT ORDER Note: The order must be valid.
It is still within the discretion of the court to dismiss
- It may not be reversed on appeal in the absence of abuse - Burden is upon the party showing abuse of judicial
discretion
Jurisprudence on Failure to Comply with Court Order
1. Dismissal for failure to comply with order to amend complaint to make claims asserted more definite is ground for dismissal (Santos v. General Wood Craft)
2. Failure to comply with an order to include indispensable parties is ground for dismissal (Aranico-Rubino v.
Aquino)
3. An order to amend the complaint before the proper substitution of parties after the death of a party as directed by Sec. 17, Rule 3 has been effected is void
It imposes no duty upon plaintiff to comply with said order to the end that an order dismissing the said complaint, for such non-compliance, would similarly be void (Barrameda v. Barbara)
4. The failure to comply with order of new judge to recall witness so he may observe demeanor is sufficient ground for dismissal (Castillo v. Torres)
5. Failure to submit stipulation of facts and memoranda is not a ground for dismissal (Buenaventura v.
Buenaventura)
Jurisprudence on Failure to Comply with Rules
1. The court may dismiss the complaint motu proprio for failure to comply with the rule on actionable documents (Rosales v. CA)
2. The failure of the parties to submit a compromise agreement within period granted to them by court is not a ground for dismissal (Goldloop Properties Inc. v. CA) 3. Dismissal is improper where a 3rd party complaint has
been admitted and the 3rd party defendant had not yet
been summoned (Sotto v. Valenzuela)
4. A case may be dismissed for failure to answer written interrogatories under Rule 25 even without an order from the court to answer. (Arellano v. CFI- Sorsogon)
LIMITATIONS ON POWER TO DISMISS
Notwithstanding the accepted basic principle, it is imperative to note that the dismissal of actions under Sec. 3, Rule 17 should be applied with extra care.
Hence, it becomes necessary that the sound discretion of the court must extend to the vigilance of duly recognizing the circumstances surrounding the particular case to the end that technicality shall not lord over substantial justice.
As held in Dayo, et al. v. Dayo, et al. “dismissals should be ordered not as penalty for neglect, but only in the extreme cases where the termination of the proceeding by dismissal is the only remedy consistent with equity and justice.”
DISMISSAL WITH PREJUDICE
Dismissal of actions under Sec. 3 which do not expressly state whether they are with or without prejudice are held to be with prejudice on the merits