Deregulating Voluntary Dismissals

Federal Rule of Civil Procedure 41(a) and its state law counterparts permit, under certain circumstances, a plaintiff to voluntarily dismiss her lawsuit without prejudice. Within certain windows of opportunity, plaintiffs can take this unilateral action without the permission of the defendant or of the court, and without any conditions attached. When those windows are closed, plaintiffs can still seek dismissal with the approval of the defendant or of the court. This regime is problematic: giving plaintiffs this unilateral power is an anachronism in an age of managerial judging, and can be considerably inconvenient for defendants. Likewise, the case law has developed an unwieldy set of factors to guide trial courts in attaching conditions to the plaintiff seeking dismissal of a case.

This article advances several ways to rationalize voluntary dismissals. While Federal Rule 41(a) and its state law counterparts need some refinement, this article endorses their allowing a small window of opportunity at the beginning of a suit for plaintiff to dismiss without prejudice, with no conditions attached. When that window closes, plaintiff can still obtain dismissal of her suit, either by obtaining the defendant’s or the court’s permission. With regard to the latter, the presumptive sole condition should be an award of reasonable attorneys’ fees from plaintiff to defendant. Among the advantages of this condition is that it is much easier to administer than the current standards, fits comfortably within the language of Rule 41(a), avoids some of the pitfalls of loser pay proposals, and in part codifies the existing practice of many courts.