The Dismissal Power

Involuntary Dismissal Under Rule 41(b)

The Dismissal Power

Rule 41(b) of the Federal Rules of Civil Procedure lets a defendant end a lawsuit that the plaintiff has stopped moving forward. If the plaintiff fails to prosecute or to comply with the rules or a court order, the defendant may move to dismiss the action or any claim against it.¹ A failure to prosecute usually looks like this: the plaintiff has not taken appropriate steps to bring the case to trial, has missed scheduled hearings or conferences, or has delayed by seeking one continuance after another.²

Courts have exercised this power for centuries. In Link v. Wabash R.R. Co., the Supreme Court said that a federal trial court's authority to dismiss a plaintiff's action with prejudice for failure to prosecute cannot seriously be doubted. The Court called the power necessary to prevent undue delay in disposing of pending cases and to avoid congestion in the district courts' calendars, and it traced the power to the common-law judgments of nonsuit and non prosequitur and to equity's dismissals for want of prosecution.³ Rule 41(b) now recognizes the power expressly.⁴

The rule does two jobs, and this chapter takes them in order. Its first sentence supplies the grounds for dismissal. Its second sentence fixes what a dismissal does to a later suit: unless the order states otherwise, a dismissal under Rule 41(b), and any dismissal not under the rule, operates as an adjudication on the merits, except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19.⁵ A dismissal with prejudice, which usually follows an adjudication on the merits, bars the plaintiff from prosecuting any later lawsuit on the same claim, and a defendant sued again on that claim can assert res judicata.⁶ In practice, a court that grants a Rule 41(b) motion dismisses with prejudice on the merits, with preclusive effect, unless it specifically orders otherwise, which is very rare.⁷ The default thus turns a dismissal for neglect into a loss that refiling cannot repair.

Rule 41(b) differs from Rule 41(a) in who sets the dismissal in motion. Under Rule 41(a), the plaintiff chooses to leave. The plaintiff may file a notice of dismissal before the opposing party serves an answer or a motion for summary judgment, may obtain a stipulation of dismissal signed by all parties who have appeared, or may ask the court for an order on terms the court considers proper.⁸ Under Rule 41(b), the defendant moves and the plaintiff has not consented. The plaintiff usually contests the motion hotly, which is why the result is called involuntary. A court's grant of a Rule 12(b) motion is involuntary in the same sense, and Rule 41(b) adds two further grounds: failure to prosecute and failure to comply with the rules.⁹

The two routes also differ in timing and in default effect. A plaintiff's notice, taken as of right and without prejudice, must come before the defendant answers or moves for summary judgment.¹⁰ The text of Rule 41(b) sets no comparable cutoff; it turns on the plaintiff's default. As for effect, a Rule 41(a)(2) order is without prejudice unless it states otherwise,¹¹ while a Rule 41(b) dismissal is on the merits unless it states otherwise.¹²

3 Penny Theater v. Plitt Theatres shows the motion in its ordinary form. The plaintiff's lawyer missed court-ordered status hearings, ignored a magistrate's deadline to inspect documents, and asked for yet another extension of the final pretrial deadline, and the defendants moved to dismiss for failure to prosecute. Missed appearances and repeated requests for more time are the conduct that typically prompts such a motion.¹³

Rule 41 applies as well to the dismissal of any counterclaim, crossclaim, or third-party claim.¹⁴ The party asserting such a claim therefore stands where a plaintiff stands: if that party neglects the claim, the party it targets may move to dismiss it. The reason tracks the purpose of the remedy, since a neglected claim causes the same delay whatever label its pleading carries.