1. Dismissal upon Notice by Plaintiff; Two-dismissal Rule

H. Dismissal of Actions (Rule 17)

> RULE 17 DISMISSAL OF ACTIONS 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. (1) Section 2. Dismissal upon motion of plaintiff. – Except as provided in the preceding [S]ection, 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 or her 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 or her counterclaim in a separate action unless within fifteen (15) calendar days from notice of the motion he or she manifests his or her preference to have his or her 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) 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 or her evidence in chief on the complaint, or to prosecute his or her 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 or her 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) Section 4. Dismissal of counterclaim, cross-claim, or third-party complaint. – The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party complaint. A voluntary dismissal by the claimant by notice as in [S]ection 1 of this Rule, shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing. (4)

H. Dismissal of Actions (Rule 17)

DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE

Characteristics

• A matter of right;
• Made by mere notice;
• Made by plaintiff only;
• Made before service of answer OR motion for a summary judgment;
• Confirmation of dismissal by order of court is required;
• Dismissal is without prejudice to the re-filing of the same action by the plaintiff.

Exceptions

• When otherwise stated in the notice.
• Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction. (Two-Dismissal Rule)

TWO-DISMISSAL RULE – The rule states that two dismissals of the same claim before a competent court will bar a subsequent (3rd) action on the same claim or on a claim included therein. (Handbook on Civil Procedure, Gayo)

Requirements of Two-Dismissal Rule:

• Twice dismissed actions;
• Based on or including the same claim; and
• In a court of competent jurisdiction.

If the plaintiff files a notice of dismissal providing therein a reason that prevents the refilling of the complaint, the dismissal must be deemed one with prejudice even if the notice does not state that the dismissal is with prejudice. (Riano, Civil Procedure: A Restatement for the Bar, 2nd ed., 2009)

The Supreme Court made the following clarification: Under Section 1, Rule 17 of the OLD RULES, the dismissal contemplated therein could be accomplished by the plaintiff through mere notice of dismissal, and not through a motion subject to approval by the Court. Dismissal is ipso facto upon notice and without prejudice unless otherwise stated in the notice. (OB Jovenir Construction v. Macamir Realty and Development Corporation G.R. No. 135803, 2006)

On the other hand, Rule 17, Section 1 of the Rules of Civil Procedure, as amended by A.M. No. 19-10-20-SC, now requires that upon the filing of such notice, the court MUST issue an order confirming the dismissal. The new requirement intends to qualify the right of a party to dismiss the action before the adverse party files his answer or asks for summary judgment.

If respondents resorted to a MOTION to effect what could have been effected by mere NOTICE, then such error is only indicative of a certain degree of ignorance of procedural rules on the part of respondents’ counsel and cannot be deemed a fatal consequence.

Notice of Dismissal prevails over a Motion to Dismiss

Section 1 of Rule 17 does not encompass a Motion to Dismiss. The provision specifically provides that a plaintiff may file a notice of dismissal before service of the answer or a motion for summary judgment. Thus, upon the filing of the Notice of Dismissal by the plaintiff, the Motion to Dismiss filed by respondents became moot and academic and the trial court should have dismissed the case without prejudice based on the Notice of Dismissal filed by the petitioner. (Dael vs. Spouses Beltran G.R. No. 156470, 2008)