Concept
State Counterparts
Involuntary dismissal
State Counterparts
Federal Rule 41(b) has two sentences. The first lets a defendant move to dismiss when the plaintiff fails to prosecute or to comply with the rules or a court order. The second makes a dismissal under the subdivision, and any dismissal not under the rule other than three excepted kinds, operate as an adjudication on the merits unless the order says otherwise.1 Each state writes its own rules of procedure, and several state versions of Rule 41(b) track that text closely. Where a state departs from it, the departure can change the outcome on familiar facts, so a state-court problem calls for the state's own text before any federal answer is borrowed.
Two departures matter most. Arkansas conditions a want-of-prosecution dismissal on notice and limits how many times a claim may be dismissed. Several states keep a bench-trial motion, made when the plaintiff finishes presenting evidence, that the current federal text does not contain. The first departure concerns what a dismissal costs the plaintiff. The second concerns when a judge sitting without a jury may end the case.
Two-Dismissal and Notice Rules
Arkansas Rule 41(b) adds a warning and a limit that the federal text lacks. When the plaintiff fails to comply with the rules or an order, or the record shows no action for the past twelve months, the court must cause notice to be mailed to the attorneys of record, and to any party without a lawyer. The notice states that the case will be dismissed for want of prosecution unless, on a stated day, an application showing good cause is made to continue the case on the docket. The dismissal is without prejudice to a future action unless the action was previously dismissed, "whether voluntarily or involuntarily," in which event it operates as an adjudication on the merits.2 The notice component governs how a court reaches a neglect dismissal. The two-dismissal component governs what that dismissal costs.
The notice component guards against surprise. A plaintiff whose case has sat idle may not realize that the court's patience is ending, and the Arkansas rule turns that risk into a deadline: the notice names a day, and a showing of good cause by then keeps the case on the docket. The federal text has no comparable step, because it speaks only of the defendant's motion.3 Because the notice also goes to a party without a lawyer, that litigant receives the warning directly. A plaintiff with no earlier dismissal who misses the stated day may still sue again, since a first dismissal is without prejudice.4
The two-dismissal component rests on a principle the Arkansas Supreme Court called well settled: there is a limit to the number of times a case can be dismissed, regardless of whether the dismissals are voluntary or involuntary.5 Federal Rule 41(a)(1)(B) contains a related limit. A plaintiff's notice of dismissal operates as an adjudication on the merits if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim.6 The two rules count differently. The federal limit looks to the plaintiff's own earlier dismissals, while Arkansas counts a dismissal the plaintiff resisted, an involuntary one, as a strike.
The Arkansas court applied that limit to a pleading dismissal in Brown. There it applied Rule 41(b) and the principle announced in Bakker and modified a Rule 12(b)(6) dismissal to one with prejudice, because the dismissal followed a prior voluntary nonsuit.7 The step matters. A student who counts only the plaintiff's own nonsuits will miss how a pleading dismissal can serve as one of the two.
Ballard Group, Inc. v. BP Lubricants USA, Inc. shows the two-dismissal component at work. The circuit court dismissed Ballard's first amended complaint under Rule 12(b)(6). After Ballard moved to clarify, the court ordered that dismissal without prejudice, with leave to plead further by August 12, 2013.8 A second Rule 12(b)(6) dismissal followed on the same claims after Ballard's further pleading. The Arkansas Supreme Court began from the principle that a Rule 12(b)(6) dismissal for factual insufficiency should be without prejudice, so that the plaintiff may elect to plead further or appeal.9 It then held, applying the plain language of Rule 41(b), that when a first Rule 12(b)(6) dismissal comes with an opportunity to plead further under Rule 12(j), and a second Rule 12(b)(6) dismissal is suffered on the same claims after that attempt, the second dismissal is with prejudice and operates as an adjudication on the merits.10 On that basis it affirmed the with-prejudice dismissal of the contract claim, which failed to plead a valid and enforceable contract.11
The court reasoned that this reading serves both rules at once. Rule 12(j) lets a trial court allow a plaintiff to plead further "if appropriate," and Rule 41(b) limits how many times a case can be dismissed "whether voluntarily or involuntarily."12 The plaintiff therefore receives the chance to amend, but a claim can be dismissed only twice however many times the complaint is amended.
The cap does not reach every pair of dismissals. In Middleton v. Lockhart, the court declined to extend Brown to a case with two Rule 12(b)(6) dismissals and no voluntary nonsuit. It noted that Rule 41(b) did not apply because not all the causes of action alleged had been dismissed twice.13 Ballard distinguished Middleton on exactly that fact, because its two dismissals fell on the same four causes of action against the same defendants.14 The count therefore follows the claim, and a claim dismissed only once has not reached the bar.
The two components work in sequence. The notice gives the plaintiff a last chance to avoid dismissal, and the plaintiff's dismissal history decides what a dismissal means if it comes.
Idaho follows the federal structure. Its Rule 41(b), as quoted in Taylor v. Riley, provides that unless the court's order specifies otherwise, a dismissal under the subdivision and any dismissal not provided for in the rule operates as an adjudication upon the merits, other than one for lack of jurisdiction or for failure to join a party under Rule 19. The quoted text names no venue exception.15 The Idaho court quoted its settled principle that an involuntary dismissal under that rule is a judgment on the merits against the plaintiff, and it set the principle beside an earlier judgment in Taylor v. Babbitt that dismissed an amended complaint in its entirety.16
Delaware's Court of Chancery Rule 41(b)(2) works the same way. In Tooley v. Donaldson, Lufkin & Jenrette, Inc., the Delaware Supreme Court noted in a footnote that an order of dismissal that did not state it was without prejudice is deemed to operate as an adjudication upon the merits.17 A reviewing court can still adjust that default. In Brehm v. Eisner, the Delaware Supreme Court held that, because of the unusual nature of the case and its rulings, the interests of justice required the Chancery dismissal to be without prejudice, and it remanded so that the plaintiffs could file an amended complaint.18 The adjustment resembles the trial-court discretion taught earlier, exercised here on review.
Federal courts apply their own default in the same way. A footnote in Henson v. City of Dundee observed that the defendants did not dispute the finality of an order that never said "with prejudice," and it relied on Shane v. Fauver for the rule that an order not specifying a without-prejudice dismissal operates as an adjudication upon the merits under Rule 41(b).19 Arkansas thus stands apart in treating a first want-of-prosecution dismissal as leaving the claim open. Idaho and Delaware Chancery begin, as the federal rule does, from merits effect.
Close-of-Evidence Motions
Some state rules give a defendant in a bench trial a second kind of motion. Once the plaintiff finishes presenting evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The defendant does not waive the right to offer evidence if the motion is denied. The court, as trier of the facts, may determine the facts and render judgment against the plaintiff, or may decline to render any judgment until the close of all the evidence.22 Idaho's version adds that a judgment on the merits against the plaintiff requires findings under Rule 52(a).23
The current federal Rule 41(b) has no such sentence. Its two sentences address the plaintiff's neglect or disobedience and the merits effect of dismissal.24 A federal judge in a nonjury trial reaches the same end through a judgment on partial findings, which permits judgment as a matter of law once the judge has heard enough evidence to make dispositive findings and all parties have been fully heard on the issue.25 An answer that attributes the close-of-evidence motion to the current federal rule has therefore misstated the text.
The motion belongs to bench trials because of who decides the facts. A judge who ends a jury trial early may ask only whether the evidence permits a verdict for the plaintiff, since weighing credibility is the jury's work. A judge in a bench trial is the fact-finder, so no jury needs protection from an early ruling, and the judge can decide whether the plaintiff has proved a right to relief without first requiring a defense. Two features keep the device fair to the plaintiff and costless to the defendant. The defendant keeps the right to offer evidence if the motion fails, and the court may hold its ruling until all the evidence is in.26
The close-of-evidence motion shares a subdivision with the failure-to-prosecute motion but asks a different question. The rule quoted in Buettner v. Nostdahl places both in one place: its first sentence lets a defendant move for dismissal when the plaintiff fails to prosecute or to comply with the rules or an order, and a later sentence adds the motion available after the plaintiff finishes presenting evidence in a nonjury action.27 The first motion asks whether the plaintiff's neglect or disobedience justifies ending the case, and it can be made at any time.28 The second asks whether the evidence the plaintiff presented proves a right to relief, so it cannot be made until that evidence is in. A plaintiff who met every deadline can lose on the second, and a plaintiff who ignored every deadline can lose on the first before any witness testifies. Idaho's text gives the later dismissal the same default effect as any other: unless the order otherwise specifies, a dismissal under the subdivision operates as an adjudication upon the merits.29
The common slip in practice is to call the motion by its jury-trial name. In Spirit Ridge Mineral Springs, LLC v. Franklin County, the Idaho Supreme Court paused to note that a judge does not render a verdict in a bench trial, so a directed verdict at the close of the plaintiff's evidence is inappropriate. It treated the ruling as an involuntary dismissal under Idaho's Rule 41(b) and applied that rule's standard of review.30 The reasoning follows from the definition of a directed verdict, a ruling that takes a case from the jury because the evidence permits only one reasonable verdict. Where no jury exists, there is nothing to take away.
North Carolina's Court of Appeals made the same correction in Dean v. Hill, treating an order that dismissed counterclaims by directed verdict in a nonjury trial as an involuntary dismissal under Rule 41(b). Both courts left the order standing and corrected only the label, so the wrong name is an error of form. The substance, a test of whether the plaintiff's evidence proves a right to relief, is the same under either name.
States differ on what the judge may do with the plaintiff's evidence once the motion is made. Idaho holds that the court sits as trier of fact and need not construe all the evidence and inferences in the plaintiff's favor, so the judge may weigh the evidence.31 A dissenting opinion in D.A. v. D.R.L. describes Alaska's Civil Rule 41(b) decisions the other way. Under them the motion is denied if the petitioner has made out a prima facie case on unimpeached evidence, the evidence is viewed in its most favorable light, and the motion is not granted even though the trier of fact may doubt that the petitioner has sustained the ultimate burden of proof.32 The court in Buettner, reviewing a ruling that granted a dismissal at this stage, considered the evidence in the light most favorable to the party against whom the motion was made.33 A student answering a state-law question must therefore identify which approach the state follows.
Each approach rests on a reason. Weighing the evidence makes sense because the judge will be the only fact-finder in the end, so hearing a defense adds cost without sparing any jury from a premature ruling. The prima facie approach treats the plaintiff's unimpeached case as enough to require a response, and it postpones credibility judgments until the judge has the whole record.
Even the wording of the motion varies. Nevada's text asks whether upon the facts and the law the plaintiff "has failed to prove a sufficient case for the court or jury," and its merits default, as quoted, excepts only a dismissal for lack of jurisdiction or for failure to join a party under Rule 19.34 Idaho's text likewise lists no exception for improper venue, so the federal list of three exceptions cannot be assumed when a state version is in play.35 The state's own rule and decisions supply both the standard for the motion and the scope of the merits default.