Rule 41 DISMISSAL OF ACTIONS.

• Jurisdiction: Colorado

Rule 41. Dismissal of Actions.

(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; By Stipulation. Subject to the provisions of Rule 23 (e), of Rule 66, and of any statute, an action may be dismissed by the plaintiff without order of court upon payment of costs: (A) By filing a notice of dismissal at any time before filing or service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs; or (B) by filing a stipulation of dismissal signed by all parties who have appeared in the action or by their attorneys. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once previously dismissed in any court an action based on or including the same claim.

(2) By Order of Court. Except as provided in subsection (a)(1) of this subdivision of this Rule, an action shall not be dismissed at the plaintiffs instance save upon order 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 to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this subsection (2) is without prejudice.

(b) Involuntary Dismissal: Effect Thereof.

(1) By Defendant. For failure of a plaintiff to prosecute or to comply with these Rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52. Unless the court in its order for dismissal otherwise specifies, a dismissal under this section (b) and any dismissal not provided for in this Rule, other than a dismissal for failure to prosecute, for lack of jurisdiction, for failure to file a complaint under Rule 3, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

(2) By the Court. Actions not prosecuted or brought to trial with due diligence may be dismissed by the court with prejudice after reasonable notice by the court and in accordance with Rule 121, section 1-10.

(3) All motions for dismissal for failure to prosecute shall be presented in accordance with Rule 121, section 1-10 and shall specify whether the movant requests dismissal with or without prejudice. All orders dismissing for failure to prosecute shall specify whether the dismissal is with or without prejudice. Motions or orders that do not so specify shall be deemed motions for dismissal without prejudice or orders for dismissal without prejudice as appropriate.

(c) Dismissal of Counterclaim, Cross Claim, or Third-Party Claim. The provisions of this Rule apply to the dismissal of any counterclaim, cross claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to subsection (a)(1) of this Rule shall be made before a responsive pleading is filed or served or, if there is none, before the introduction of evidence at the trial or hearing.

(d) Costs of Previously Dismissed Action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

Source: (b)(1) amended and effective January 12, 2017.

Cross references: For dismissal of class actions, see C.R.C.P. 23(e); for dismissal of receivership action, see C.R.C.P. 66(c); for findings by the court, see C.R.C.P. 52; for commencement of action, see C.R.C.P. 3; for joinder of persons needed for just adjudication, see C.R.C.P. 19.

ANNOTATION

I. General Consideration.

II. Voluntary Dismissal.

A. By Plaintiff.
B. By Court.

III. Involuntary Dismissal by Defendant.

A. Failure to Prosecute.
B. No Right to Relief.
C. Adjudication on Merits.

IV. Involuntary Dismissal by Court.

V. Dismissal of Counterclaim, Cross Claim, or Third-Party Claim.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Notes on Proposed Amendments to Colorado Rules of Civil Procedure", see 27 Dicta 165 (1950). For article, "Trials: Rules 38-53", see 23 Rocky Mt. L. Rev. 571 (1951). For article, "Amendments to the Colorado Rules of Civil Procedure", see 28 Dicta 242 (1951). For note, "Comments on Last Clear Chance — Procedure and Substance", see 32 Dicta 275 (1955). For article, "One Year Review of Civil Procedure and Appeals", see 39 Dicta 133 (1962). For note, "One Year Review of Civil Procedure", see 41 Den. L. Ctr. J. 67 (1964). For article, "Federal Practice and Procedure", which discusses a Tenth Circuit decision dealing with conversion of a motion to dismiss into a motion for summary judgment, see 62 Den. U. L. Rev. 220 (1985).

Annotator's note. Since sections (a) and (b) of this rule are similar to § 184 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.

Under section 184 of the former Code of Civil Procedure, which was supplanted by this rule, the plaintiff, where no counterclaim had been set up in the answer, was entitled to dismiss his action. Tabor v. Sullivan, 12 Colo. 136, 20 P. 437 (1888); Long v. McGowan, 16 Colo. App. 540, 66 P. 1076 (1901); Doll v. Slaughter, 39 Colo. 51, 88 P. 848 (1907); Colo. Util. Corp. v. Pizor, 99 Colo. 294, 62 P.2d 570 (1936).

It was within the discretion of the court to dismiss the plaintiff's suit without prejudice, where motion for dismissal was made before trial and no counterclaim had been filed. Denver & Rio Grande Ry. v. Cobley, 9 Colo. 152, 10 P. 669 (1886); Schechter v. Denver, L. & G. R. R., 8 Colo. App. 25, 44 P. 761 (1896); Teller v. Sievers, 20 Colo. App. 109, 77 P. 261 (1904); Miller v. East Denver Mun. Irrigation Dist., 83 Colo. 406, 266 P. 211 (1928).

Court order granting voluntary dismissal under section (a)(2) is reviewed for an abuse of discretion. And the court did not abuse its discretion in granting plaintiff's request to voluntarily abandon its condemnation proceeding because the defendants could assert their counterclaims in a separate pending declaratory judgment action and therefore were not prejudiced by the dismissal. Sinclair Transp. Co. v. Sandberg, 2014 COA 75M, 350 P.3d 915.

A dismissal without prejudice is not a final order for purposes of appellate review. Bock v. Brody, 8870 P.2d 530 (Colo. App. 1993).

The court may dismiss a claim without prejudice at the close of plaintiff's evidence if it concluded that indispensable parties have not been included. Bock v. Brody, 870 P.2d 530 (Colo. App. 1993).

Standard in ruling on motion to dismiss shall be considered. In ruling on a motion to dismiss, the standard is not whether the plaintiff established a prima facie case, but whether judgment in favor of defendant is justified on the evidence presented. Campbell v. Commercial Credit Plan, Inc., 670 P.2d 813 (Colo. App. 1983); Gapter v. Kocjancic, 703 P.2d 660 (Colo. App. 1985); Pub. Serv. Co. v. Bd. of Water Works, 831 P.2d 470 (Colo. 1992).

Water court did not err in requiring applicants for conditional rights of exchange to establish more than a prima facie case at mid-trial to avoid judicial fact finding and dismissal pursuant to section (b) when no other rule or statute alters the application of said section in regard to this matter. Pub. Serv. Co. v. Bd. of Water Works, 831 P.2d 470 (Colo. 1992).

"Motion for directed verdict" is motion to dismiss. When the court is the trier of fact, a motion denominated a "motion for directed verdict" is actually a motion to dismiss pursuant to section (b) of this rule. Campbell v. Commercial Credit Plan, Inc., 670 P.2d 813 (Colo. App. 1983); Gapter v. Kocjancic, 703 P.2d 660 (Colo. App. 1985).

Rule as basis for jurisdiction. See Lurvey v. Phil Long Ford, Inc., 37 Colo. App. 11, 541 P.2d 114 (1975); Bd. of County Comm'rs v. City & County of Denver, 190 Colo. 347, 547 P.2d 249 (1976).

Applied in Lehman v. Williamson, 35 Colo. App. 372, 533 P.2d 63 (1975); Webermeier v. Pace, 37 Colo. App. 546, 552 P.2d 1021 (1976); People v. In Interest of D.A.K., 198 Colo. 11, 596 P.2d 747 (1979); Romero v. Rossmiller, 43 Colo. App. 215, 603 P.2d 964 (1979); Hanks v. Green, 44 Colo. 80, 607 P.2d 1034 (1980); Trustees of Mtg. Trust of Am. v. District Court, 621 P.2d 310 (Colo. 1980); People ex rel. MacFarlane v. Delaware Corp., 626 P.2d 1144 (Colo. App. 1980); Rossmiller v. Romero, 625 P.2d 1029 (Colo. 1981); Fish v. Charnes, 652 P.2d 598 (Colo. 1982); Crocker v. Colo. Dept. of Rev., 652 P.2d 1067 (Colo. 1982); Conrad v. City & County of Denver, 656 P.2d 662 (Colo. 1982); Lucero v. Martin, 660 P.2d 902 (Colo. 1983); Foothills Meadow v. Myers, 832 P.2d 1097 (Colo. App. 1992).

II. VOLUNTARY DISMISSAL.

A. By Plaintiff.

Law reviews. For article, "What Divorce Statutes Are Now in Effect in Colorado?", see 21 Dicta 68 (1944).

By the salutary provisions of this rule, a plaintiff is given the right to dismiss a first suit at an early stage. Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 444 P.2d 397 (1968), cert. denied, 393...