§ Rule 41(a) Voluntary dismissal; by plaintiff or by order of court; effect

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Rule 41(a). Voluntary dismissal; by plaintiff or by order of court; effect

    1. Subject to the provisions of Rule 23(c), or Rule 66(c), or of any statute, an action may be dismissed (A) by the plaintiff without order of court by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (B) by order of the court pursuant to a stipulation of dismissal signed by all parties who have appeared in the action. Such an order may be signed by a judge, a duly authorized court commissioner, the clerk of court or a deputy clerk. Unless otherwise stated in the notice or order of dismissal, 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 dismissed in any court of the United States or of any state an action based on or including the same claim.

    2. Except as provided in paragraph 1 of this subdivision of this Rule, an action shall not be dismissed at the plaintiff's 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 the defendant of the plaintiff's 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 paragraph is without prejudice.