I Don’t Want To Do This Anymore and You Can’t Make Me (Can You?): Voluntary Dismissals

I love the smell of civil procedure in the morning. There is nothing so comforting as a glass of iced coffee and two rule books to keep me company. And there is nothing so exciting as a finding a civil procedure rule that differs extensively between state and federal. So, grab your coffee and your rule books and join me for this thrilling look at Rule 41. 

Case not going so well? You don’t want to do this anymore? 

nop nope nope octopus

Let’s say you are a plaintiff, things have taken a turn for the worse, and the only chance your case looks like it has to survive  is by quitting it and refiling later. Can you? 

maybe gif

Generally speaking, the Arkansas Civ Pro laws tend to track the Fed Civ Pro laws pretty closely and it’s a rare bird that differs as much as Rule 41 (voluntary dismissals). 

We like to say that a plaintiff “gets one free bite at the apple,” which is pretty much true in state court, but it really comes down when he wants that bite if he is in Federal Court. 

what do we have here gif

What do we have here?


Ark. R. Civ. P. 41 

(a) Voluntary Dismissal; Effect Thereof.
(1) Subject to the provisions of Rule 23(e) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.


(a) Voluntary Dismissal.

(1) By the Plaintiff.

(A) Without a Court Order. Subject to Rules 23(e)23.1(c)23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:

(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or

(ii) a stipulation of dismissal signed by all parties who have appeared.

(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper

Did I Get That Right, Judge Judy? 

let me look, ahh yes

That’s a big difference. If you primarily practice in state court, it something you need to be hyper aware of if you have a case in federal court, no matter which side you are on. It could literally make or break your case. 

What’s the standard? 

“We review a district court’s decision to allow a plaintiff to voluntarily dismiss an action for an abuse of discretion.” Thatcher v. Hanover Ins. Grp., Inc., 659 F.3d 1212, 1213 (8th Cir.2011).

How Does a Federal Court Decide if they Will Grant a Voluntary Motion to Dismiss under 41(a)(2)? 

It’s a factors based test. 

whether the party has presented a proper explanation for its desire to dismiss;

whether a dismissal would result in a waste of judicial time and effort;

and whether a dismissal will prejudice the defendants.

Likewise, a party is not permitted to dismiss merely to escape an adverse decision nor to seek a more favorable forum. Id. 


The court may also include terms and conditions in an order allowing a voluntary dismissal. Some examples include: 

payment of costs

payment of attorney fees

production of specific documents

making the dismissal with prejudice (must give plaintiff a chance to withdraw)

agreement not to assert specified claims in another action

etc. etc. 

Knowing your rules can be the easiest way to win the game

This is a perfect example of how knowing your playbook can win (or lose) the game. The next time you hear an attorney in a federal case tell you they can just nonsuit halfway through discovery, just make this Bill Cosby face: 

bill crosby gif


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