Black-letter propositions
- 01
A plaintiff may dismiss without a court order by filing a notice of dismissal before the opposing party serves an answer or a motion for summary judgment, or by a stipulation signed by all parties who have appeared; unless it says otherwise the dismissal is without prejudice.
- 02
If a plaintiff previously dismissed any federal or state action based on or including the same claim, a second notice of dismissal operates as an adjudication on the merits (the two-dismissal rule).
- 03
After the defendant has answered or moved for summary judgment, the plaintiff may dismiss only by stipulation or by court order on terms the court considers proper, and unless the order says otherwise the dismissal is without prejudice.
- 04
If the plaintiff fails to prosecute or to comply with the rules or a court order, the defendant may move to dismiss; unless the order says otherwise, that dismissal, and any dismissal not under Rule 41, operates as an adjudication on the merits, except a dismissal for lack of jurisdiction, improper venue, or failure to join a party under Rule 19.
- 05
When a party against whom affirmative relief is sought has failed to plead or otherwise defend, the clerk must enter the default; the clerk may enter judgment for a sum certain, and in other cases the party must apply to the court, with written notice at least 7 days before the hearing to a defaulting party that has appeared.
- 06
The court may set aside an entry of default for good cause, but it may set aside a final default judgment only under Rule 60(b).
- 07
Summary judgment must be granted if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
- 08
A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury and must specify the judgment sought and the law and facts that support it; it is proper when a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on the issue.
- 09
A renewed motion for judgment as a matter of law, with an alternative request for a new trial, must be filed within 28 days after entry of judgment; a motion for a new trial or to alter or amend a judgment must also be filed within 28 days after entry of judgment.
- 10
Rule 60(b) allows relief from a final judgment for mistake, inadvertence, surprise or excusable neglect; newly discovered evidence that could not have been found in time to move for a new trial; fraud, misrepresentation or misconduct by an opposing party; a void judgment; a satisfied or discharged judgment; or any other reason that justifies relief.
- 11
A Rule 60(b) motion must be made within a reasonable time, and no more than a year after entry of the judgment for mistake, newly discovered evidence, or fraud; the motion does not affect the finality of the judgment or suspend its operation.
- 12
At least 14 days before trial a defending party may serve an offer of judgment; the opposing party has 14 days to accept, and if the judgment finally obtained is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.
Use this attack sequence under time
Frame the issue
Identify how the case ended and when it ended relative to the answer or a summary judgment motion.
Resolve the next checkpoint
For dismissals, decide whether the dismissal is with or without prejudice, and apply the two-dismissal rule.
Resolve the next checkpoint
For post-judgment attacks, match the motion to its deadline: 28 days for Rule 50(b), 59(b), 59(e), and a year for the first three Rule 60(b) grounds.
Finish the conclusion
For an offer of judgment, check the 14-day window and what the unaccepted offer shifts.
Common wrong turns
- Rule 68 shifts costs only, and it does not shift attorney's fees unless the underlying statute defines fees as costs.
- A dismissal for lack of jurisdiction, improper venue or failure to join a party is not on the merits, while most other involuntary dismissals are.
- A Rule 60(b) motion is not a substitute for an appeal, and it does not suspend the judgment.
Worked example
A plaintiff sues in federal court and dismisses by notice a month later, before any answer. She then refiles the same claim in state court and dismisses that case by notice as well.
The first dismissal was without prejudice. When she dismisses a second time by notice, having previously dismissed an action on the same claim, the second dismissal operates as an adjudication on the merits and bars a third suit.
Practice this topic
Dismissals
Federal Rule of Civil Procedure 41(a)(1)(A) lets a plaintiff dismiss without a court order by filing a notice of dismissal before the opposing party serves an answer or a motion for summary judgment, or by a stipulation of dismissal signed by all parties who have appeared. Under Rule 41(a)(1)(B), the dismissal is without prejudice unless the notice or stipulation says otherwise, but if the plaintiff previously dismissed any federal or state action based on or including the same claim, the notice operates as an adjudication on the merits.
Under Rule 41(a)(2), after that point an action may be dismissed at the plaintiff's request only by court order on terms the court considers proper, and if a defendant has pleaded a counterclaim before service of the motion, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Rule 41(b) allows a defendant to move to dismiss for failure to prosecute or to comply with the rules or a court order, and unless the order states otherwise that dismissal operates as an adjudication on the merits, except for lack of jurisdiction, improper venue or failure to join a party under Rule 19.
Default, summary judgment, and judgment as a matter of law
Under Rule 55(a), when a party against whom affirmative relief is sought has failed to plead or otherwise defend, the clerk must enter its default. Rule 55(b)(1) lets the clerk enter judgment for a sum certain, and Rule 55(b)(2) requires other applications to go to the court, with written notice at least 7 days before the hearing to a party that has appeared; Rule 55(c) allows the court to set aside an entry of default for good cause and a final default judgment under Rule 60(b).
Rule 56(a) directs the court to grant summary judgment if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Rule 50(a) allows judgment as a matter of law once a party has been fully heard and a reasonable jury would not have a legally sufficient evidentiary basis to find for that party, and the motion may be made at any time before the case is submitted to the jury; Rule 50(b) requires the renewed motion within 28 days after entry of judgment.
Post-judgment motions and offers of judgment
Rule 59(b) requires a motion for a new trial to be filed no later than 28 days after entry of judgment, and Rule 59(e) sets the same 28 days for a motion to alter or amend a judgment. Rule 60(b) allows relief from a final judgment for mistake, inadvertence, surprise or excusable neglect; newly discovered evidence; fraud, misrepresentation or misconduct; a void judgment; a judgment satisfied or discharged; or any other reason justifying relief.
Rule 60(c)(1) requires the motion within a reasonable time, and for the first three grounds no more than a year after entry of the judgment, and Rule 60(c)(2) says the motion does not affect the judgment's finality or suspend its operation. Rule 68(a) allows a defending party to serve an offer of judgment at least 14 days before trial, and Rule 68(d) requires an offeree who finally obtains a judgment not more favorable than the unaccepted offer to pay the costs incurred after the offer was made.
Frequently asked questions
What is the controlling rule for dismissals, default, summary judgment, judgment as a matter of law, and relief from judgment?+
Name the route to final judgment, apply the timing and prejudice rules for it, then address any post-judgment motion by its deadline and standard.
Can a plaintiff dismiss a case without permission?+
Yes, by notice before the defendant serves an answer or summary judgment motion, or by stipulation signed by all parties who appeared, under Rule 41(a)(1)(A).
What is the two-dismissal rule?+
A second notice of dismissal of an action on the same claim operates as an adjudication on the merits if the plaintiff previously dismissed a federal or state action on that claim, under Rule 41(a)(1)(B).
How long does a party have to move for a new trial?+
No later than 28 days after entry of judgment, under Rule 59(b).
What is the deadline for a Rule 60(b) motion for mistake or fraud?+
A reasonable time and no more than one year after entry of the judgment, under Rule 60(c)(1).
What does an unaccepted Rule 68 offer do?+
If the final judgment is not more favorable than the offer, the offeree must pay the costs incurred after the offer was made, under Rule 68(d).