60-241. Dismissal of actions. (a) Voluntary dismissal. (1) By the plaintiff. (A) Without a court order. Subject to subsection (e) of K.S.A. 60-223, K.S.A. 60-223a and K.S.A. 60-223b, and amendments thereto, and any applicable state statute, the plaintiff may dismiss an action without a court order by filing:
(i) A notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared. When the dismissal is by stipulation, the clerk of the court must enter an order of dismissal as a matter of course.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
(2) By court order; effect. Except as provided in paragraph (1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph is without prejudice.
(b) Involuntary dismissal; effect; notice. (1) If the plaintiff fails to prosecute or to comply with this chapter or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this paragraph and any dismissal not under this section, except one for lack of jurisdiction, improper venue or failure to join a party under K.S.A. 60-219, and amendments thereto, operates as an adjudication on the merits.
(2) On its own, the court may dismiss a case without prejudice for lack of prosecution, but only after notice to counsel of record, not less than 14 days prior to the intended dismissal, that an order of dismissal will be entered unless cause is shown for not doing so.
(c) Dismissing a counterclaim, crossclaim or third-party claim. This section applies to a dismissal of any counterclaim, crossclaim or third-party claim. A claimant's voluntary dismissal under subsection (a)(1)(A)(i) must be made:
(1) Before a responsive pleading is served; or
(2) if there is no responsive pleading, before evidence is introduced at a hearing or trial.
(d) Costs of a previously dismissed action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court:
(1) May order the plaintiff to pay all or part of the costs of that previous action; and
(2) may stay proceedings until the plaintiff has complied.
History: L. 1963, ch. 303, 60-241; amended by Supreme Court order dated July 17, 1969; L. 1980, ch. 171, § 2; L. 1997, ch. 173, § 22; L. 2010, ch. 135, § 110; July 1.
Source or prior law:
(a). G.S. 1868, ch. 80, § 397; L. 1909, ch. 182, § 395; R.S. 1923, 60-3105.
(b). G.S. 1868, ch. 80, § 393; L. 1909, ch. 182, § 395; R.S. 1923, 60-3105.
(c). G.S. 1868, ch. 80, § 398; L. 1909, ch. 182, § 396; R.S. 1923, 60-3106.
Cross References to Related Sections:
Dismissed counterclaim or cross-claim, separate trial and judgment, see 60-213(i).
Non-jury trial findings of fact not set aside, when, see 60-252(a).
Motion for judgment as a matter of law, see 60-250.
Motion to dismiss for lack of jurisdiction, failure to state claim or join party, improper venue, or insufficient process, see 60-212(b).
Class actions, court approval of dismissal or compromise, see 60-223(e).
Law Review and Bar Journal References:
Subsection (b); survey of civil procedure, Spencer A. Gard, 17 K.L.R. 739, 740 (1969).
Wrongful Death Act, Jeraldine B. Davis, 27 K.L.R. 141, 142, 143 (1978).
"Kansas Diversion: Defendant's Remedies and Prosecutorial Opportunities," Joseph Brian Cox, 20 W.L.J. 344, 346 (1981).
"Survey of Kansas Law: Civil Procedure," 29 K.L.R. 449, 476, 477 (1981).
"Survey of Kansas Law: Insurance Law," 29 K.L.R. 531, 533, 534 (1981).
"Pitfalls on the Road to Salvation: The Kansas Saving Statute," Steven C. Day, 59 J.K.B.A. No. 8, 19 (1990).
"Civil Procedure: The Kansas Savings Statute Revives a Timely Filed Cause of Action, Despite the Passing of the Statute of Limitations [See v. Hartley, 896 P.2d 1049 (Kan. 1995)]," Michelle M. Sehee, 35 W.L.J. 346, 349 (1996).
"What's your authority? And other issues in oral settlement agreements," Daniel E. Blegen, 69 J.K.B.A. No. 5, 26 (2000).
CASE ANNOTATIONS
Prior law cases, see G.S.1949, 60-3105, 60-3106 and the 1961 Supp. thereto.
1. Involuntary dismissal of action; rule for determining evidence. Pennsylvania National Mutual Cas. Co. v. Dennis, 195 Kan. 594, 595, 596, 408 P.2d 575. Overruled, Mackey-Woodard, Inc. v. Citizens State Bank, 197 Kan. 536, 537, 550, 551, 553, 419 P.2d 847.
2. Action dismissed by court under authority of G.S. 1949, 60-3105, fifth. Barrett v. Porter, 195 Kan. 600, 408 P.2d 574.
3. Mentioned in holding plaintiff's admissions established contributory negligence as a matter of law. Schoof v. Byrd, 197 Kan. 38, 48, 415 P.2d 384.
4. Motion for directed verdict considered as a motion to dismiss. State, ex rel., v. Doerschlag, 197 Kan. 302, 305, 416 P.2d 257.
5. Motions to test sufficiency of plaintiff's evidence equivalent to motions for involuntary dismissal. Brown v. Hardin, 197 Kan. 517, 521, 419 P.2d 912.
6. Plaintiff entitled to inference and if on facts relief could be granted, case should not be involuntarily dismissed. Casey v. Phillips Pipeline Co., 199 Kan. 538, 539, 552, 431 P.2d 518.
7. Provisions of section do not lend themselves to condemnation appeals; there can be no dismissal without prejudice of an appeal in condemnation proceeding. City of Wellington v. Miller, 200 Kan. 651, 652, 438 P.2d 53.
8. Trial judge has authority to evaluate evidence on motion for involuntary dismissal. Waterstradt v. Board of Commissioners, 203 Kan. 317, 319, 454 P.2d 445.
9. Mentioned in construing K.S.A. 60-260; extent of review; trial court discretion; time for motion for relief. Neagle v. Brooks, 203 Kan. 323, 329, 454 P.2d 544.
10. Action involuntarily dismissed upon plaintiff's failure to supply a "more definite statement"; reversed on appeal. Abbott Construction, Inc. v. Abilene Motors, Inc., 204 Kan. 335, 336, 461 P.2d 795.
11. In exercising judicial discretion for dismissal of an action after defendant's answer is filed, district court should follow traditional principle that dismissal will be allowed unless defendant will suffer some plain legal prejudice other than the mere prospect of a second lawsuit. Gideon v. Bo-Mar Homes, Inc., 205 Kan. 321, 322, 324, 325, 469 P.2d 272.
12. Involuntary dismissal of action; role of trial court considered. Wiley v. Board of Education, 205 Kan. 585, 586, 589, 590, 470 P.2d 792.
13. In case tried to court where defendant moves for involuntary dismissal of action pursuant to subsection (b) of this statute, trial judge has power to weigh and evaluate the evidence as if he were adjudicating the case on the merits and making findings of fact at the conclusion of the entire case. In re Estate of Ewers, 206 Kan. 623, 626, 481 P.2d 970.
14. Rules applicable to motion for involuntary dismissal, where case is being tried to a jury, are same as those applicable to motion for directed verdict under K.S.A. 60-250. Kirsch v. Dondlinger & Sons Construction Co., Inc., 206 Kan. 701, 704, 482 P.2d 10.
15. Subsection (a) cited; workmen's compensation act makes no provision concerning the subject of dismissal of claims. Drennon v. Braden Drilling Co., Inc., 207 Kan. 202, 211, 483 P.2d 1022.
16. Held not applicable to cases tried to jury. Hodges v. Lister, 207 Kan. 260, 267, 485 P.2d 165.
17. In paternity suit, evidence showing that mother had had relationships with other men at about the time of conception sufficient to support dismissal. Lawrence v. Boyd, 207 Kan. 776, 777, 486 P.2d 1394.
18. In considering motion to dismiss, trier of facts was not compelled to imply essential facts under insurance contract, absent introduction of any evidence upon which inference could be based. Burks v. Whalen, 208 Kan. 222, 223, 491 P.2d 940.
19. Subsection (b) cited; granting of motion for involuntary dismissal in garnishment proceeding upheld. Burks v. Whalen, 208 Kan. 222, 223, 491 P.2d 940.
20. Subsection (b) distinguished from K.S.A. 60-250(a); trial court may weigh and evaluate the evidence. Armstrong v. City of Salina, 211 Kan. 333, 340, 341, 507 P.2d 323.
21. Substantial evidence supported trial judge's finding; judgment sustaining motion for involuntary dismissal affirmed. Union National Bank & Trust Co. v. Acker, 213 Kan. 491, 494, 516 P.2d 999.
22. Motion for directed verdict in injunction proceeding after plaintiff's evidence denied; defense established; trial court's findings upheld. Concerned Citizens, United, Inc. v. Kansas Power and Light Co., 215 Kan. 218, 239, 523 P.2d 755.
23. Motion for summary judgment treated as motion for involuntary dismissal. Seaman Dist. Teachers' Ass'n v. Board of Education, 217 Kan. 233, 241, 535 P.2d 889.
24. Order of dismissal extended only to validity of mechanic's lien on property; nunc pro tunc order properly corrected error. Book v. Everitt Lumber Co., Inc., 218 Kan. 121, 122, 123, 126, 542 P.2d 669.
25. Notice to local counsel sufficient, no abuse of discretion in refusing to reinstate dismissed case. Frost v. Hardin, 218 Kan. 260, 263, 264, 543 P.2d 941.
26. Dismissal of action for attorney fees for failure to prosecute; no abuse of discretion. Coutts v. Crider, 219 Kan. 692, 695, 698, 699, 549 P.2d 1019.
27. Plaintiff's evidence considered on motion for directed verdict; not involuntary dismissal. Gerchberg v. Loney, 1 Kan. App. 2d 84, 90, 562 P.2d 664.
28. Action dismissed without prejudice for lack of prosecution; no res judicata or collateral estoppel effect. Frost v. Hardin, 1 Kan. App. 2d 464, 466, 571 P.2d 11.
29. Action dismissed on motion by plaintiff; motion contained no statement that dismissal was with prejudice; action not barred by res judicata. Greenlee v. Goodyear Tire & Rubber Co., 572 F.2d 273, 275.
30. Question raised as to whether entry on docket sufficient proof of notice requirements. Brown v. Fitzpatrick, 224 Kan. 636, 637, 595 P.2d 987.
31. Section construed; special statute; no abuse of discretion in allowing attorney fees upon dismissal of action without prejudice. Peterson v. Garney Constr. Co., 2 Kan. App. 2d 587, 588, 589, 590, 584 P.2d 1269.
32. Subsection (a)(2) cited; no abuse of discretion to dismiss case on plaintiff's motion when intervenor has not sought affirmative relief. Burke v. Schroth, 4 Kan. App. 2d 13, 15, 601 P.2d 1172.
33. Under rules of Supreme Court (Rule 211), only rules of evidence in code of civil procedure applicable to hearings before panel of board for discipline of attorneys. State v. Russell, 227 Kan. 897, 906, 610 P.2d 1122.
34. Trial court did not abuse its discretion in sustaining defendant's motion to dismiss under facts of case. Independent Mfg. Co. v. McGraw-Edison Co., 6 Kan. App. 2d 982, 984, 988, 989, 637 P.2d 431 (1981).
35. Involuntary dismissal of case reversed; trial courts' conclusion of law erroneous. Baker v. R. D. Andersen Constr. Co., 7 Kan. App. 2d 568, 579, 580, 644 P.2d 1354 (1982).
36. Dismissal for failure to prosecute improper; delay in case attributed to trial court, not KCCR or original complainant. Flanigan v. City of Leavenworth, 232 Kan. 522, 526, 527, 657 P.2d 555 (1983).
37. Trial court did not abuse its discretion in sustaining defendant's motion to dismiss; judgment was "on the merits" with res judicata effect. Wirt v. Esrey, 233 Kan. 300, 306, 309, 310, 322, 662 P.2d 1238 (1983).
38. Dismissal for failure to substitute parties within reasonable time after death operates as adjudication on merits unless otherwise specified. Livingston v. Estate of Bias, 9 Kan. App. 2d 146, 147, 150, 673 P.2d 1197 (1984).
39. To prevent any harm to defendant resulting from dismissal without prejudice, court may impose such terms and conditions deemed proper. Cheek v. Hird, 9 Kan. App. 2d 248, 251, 675 P.2d 935 (1984).
40. Where counterclaim filed and parties attempting to elect forums, court should allow both to exercise choice. Caplinger v. Carter, 9 Kan. App. 2d 287, 291, 676 P.2d 1300 (1984).
41. Release ineffectual to unnamed defendants failing to sign general release dismissal order. McCullough v. Bethany Med. Center, 235 Kan. 732, 743, 683 P.2d 1258 (1984).
42. Cited; with court approval, suit against health care provider may be dismissed over objection and refiled to comply with K.S.A. 40-3409. Smith v. Orthopaedic Surgery Assocs., 237 Kan. 546, 547, 701 P.2d 331 (1985).
43. Cited; where defendant did not appeal from involuntary dismissal in earlier case he cannot raise issue in subsequent case. Morris v. Francisco, 238 Kan. 71, 73, 74, 708 P.2d 498 (1985).
44. Proper exercise of discretion under (a)(2) requires inquiry whether any expenses have future use for defendant. Brown v. Zackert, 10 Kan. App. 2d 466, 469, 701 P.2d 711 (1985).
45. Defendant has no absolute right to prevent a voluntary dismissal of plaintiff's action unless defendant asserts a counterclaim against plaintiff. Harrison v. Long, 241 Kan. 174, 179, 734 P.2d 1155 (1987).
46. Defendant moving for judgment following plaintiff's case in nonjury trial seeks involuntary dismissal rather than directed verdict (K.S.A. 60-250). Nutt v. Knutson, 13 Kan. App. 2d 169, 170, 766 P.2d 823 (1989).
47. Error to dismiss for lack of prosecution based on plaintiff's absence; no requirement in code for plaintiff's presence at trial. Eferakeya v. Twin City State Bank, 13 Kan. App. 2d 197, 207, 766 P.2d 837 (1989).
48. Proper standard of review for involuntary dismissal examined. Mohr v. State Bank of Stanley, 244 Kan. 555, 567, 770 P.2d 466 (1989).
49. Involuntary dismissal of plaintiff's defamation and breach of employment contract claims examined. Batt v. Globe Engineering Co., 13 Kan. App. 2d 500, 504, 774 P.2d 371 (1989).
50. Absence from trial (K.S.A. 60-232(a)(3)(B)) as ground to dismiss with prejudice examined. Eferakeya v. Twin City State Bank, 245 Kan. 154, 156, 777 P.2d 759 (1989).
51. Involuntary dismissal rather than directed verdict (K.S.A. 60-250) in disposing of contract under statute of frauds (K.S.A. 33-106) noted. Nutt v. Knutson, 245 Kan. 162, 163, 776 P.2d 475 (1989).
52. Evidence of witness' drug involvement as inadmissible to impeach credibility examined. State v. Jarmon, 245 Kan. 634, 635, 783 P.2d 1267 (1989).
53. Plaintiff's dismissal of suit does not imply settlement agreement must be in writing. Lewis v. Gilbert, 14 Kan. App. 2d 201, 204, 785 P.2d 1367 (1990).
54. Procedure for plaintiff to dismiss limited action incorporated into limited action code by reference to K.S.A. 61-1725. Patterson v. Brouhard, 246 Kan. 700, 704, 792 P.2d 983 (1990).
55. The "two-dismissal" rule does not apply to involuntary dismissals. Crockett v. Medicalodges, Inc., 247 Kan. 433, 437, 799 P.2d 1022 (1990).
56. Declaratory judgment action (K.S.A. 60-1701) determined as improper avenue in dispute between bank and depositor over unauthorized drawer's signature (K.S.A. 84-3-406). Wichita Computer & Supply, Inc. v. Mulvane State Bank, 15 Kan. App. 2d 258, 259, 805 P.2d 1255 (1991).
57. Dismissal with prejudice for failing to comply with order of continuance within court's discretion. McKissick v. Jackson, 15 Kan. App. 2d 508, 809 P.2d 1249 (1991).
58. Whether court erred by dismissing case because out-of-state attorney violated statutory appearance requirements examined. Architectural & Engineered Products Co. v. Whitehead, 19 Kan. App. 2d 378, 380, 869 P.2d 766 (1994).
59. Whether the two dismissal rule is inapplicable where the second dismissal is by stipulation or by court order examined. Sumner v. Law Offices of Jerry Berg, P.A., 20 Kan. App. 2d 572, 573, 890 P.2d 742 (1995).
60. Failure of party to affirmatively assert counterclaim in journal entry of dismissal precluded preservation of counterclaim. United States Fidelity & Guaranty Co. v. Maish, 21 Kan. App. 2d 885, 891, 908 P.2d 1329 (1995).
61. No error in court's directing verdict for defendant in malicious prosecution action. Knight v. Cordry, 22 Kan. App. 2d 9, 11, 913 P.2d 1206 (1995).
62. Motion filed pursuant to K.S.A. 60-1507 may be voluntarily dismissed under subsection (a)(1). Smith v. State, 22 Kan. App. 2d 922, 924 P.2d 662 (1996).
63. Under facts, condemnor may amend eminent domain petition to correct incorrect legal description of landowner's easements. Landau Investment Co. v. City of Overland Park, 261 Kan. 394, 408, 930 P.2d 1065 (1997).
64. Time barred defamation claim was not saved by savings statute. Taylor v. International Union of Electronic Workers, et al., 25 Kan. App. 2d 671, 675, 968 P.2d 685 (1998).
65. Plaintiff may assert saving provision after statute of limitations has run only once. Clanton v. Estivo, 26 Kan. App. 2d 340, 341, 988 P.2d 254 (1999).
66. Dismissal of claim on limitations grounds constituted final judgment on merits to which res judicata applied. Netwig v. Georgia-Pacific Corp., 266 F. Supp. 2d 1279, 1284 (2003).
67. No abuse of discretion in dismissing action for failure to prosecute. Namelo v. Broyles, 33 Kan. App. 2d 349, 103 P.3d 486 (2004).
68. No abuse of discretion in court's dismissal of action; plaintiff must comply with rules of district court. Fischer v. Roberge, 34 Kan. App. 2d 312, 120 P.3d 796 (2005).
69. A K.S.A. 60-1507 motion may be voluntarily dismissed under K.S.A. 60-241(a)(1). LaPointe v. State, 42 Kan. App. 2d 522, 214 P.3d 684 (2009).
70. Voluntary dismissal of action shall be made by the court after balancing the interests of parties in order to obtain fair and equitable result. Estate of Nilges v. Shawnee Gun Shop, Inc., 44 Kan. App. 2d 905, 242 P.3d 1211 (2010).
|
|