Rule 17

DISMISSAL OF ACTIONS

Section 1. Dismissal upon notice by plaintiff. A complaint may be dismissed

by the plaintiff by filing a notice of dismissal at any time before service of
the answer or of a motion for summary judgment. Upon such notice being filed,
the court shall issue an order confirming the dismissal. Unless otherwise
stated in the notice, the dismissal is without prejudice, except that a notice
operates as an adjudication upon the merits when filed by a plaintiff who has
once dismissed in a competent court an action based on or including the same
claim. (1a)

Q: Can a plaintiff file a complaint and later change his mind and withdraw? Meaning, can he
dismiss his own complaint?
A: YES. And it is a matter of right.

Q: How?
A: By filing a NOTICE OF DISMISSAL at ANY TIME BEFORE service of the answer or a motion for
Summary Judgment. Meaning, for as long as the defendant has not yet filed his answer, the plaintiff
has the right to dismiss his own complaint by simply sending the court what is known as a notice of
dismissal.

This is similar to Rule 10 on amendments. When is amendment a matter of right? For as long as
there is no answer yet.

Take note that upon filing of the notice of dismissal, the court shall issue an order confirming the
dismissal. The reason is that, the withdrawal is not automatic. Withdrawal does not take effect until
confirmed by the court. This is keeping with the respect due to the court.

Under the rules on civil procedure, there are two types of dismissal:
1. Dismissal with prejudice – the case can no longer be re-filed;
2. Dismissal without prejudice –the case can be re-filed.

Q: Is the dismissal under Section 1 with or without prejudice?

A: GENERAL RULE: The dismissal is WITHOUT PREJUDICE. The case can be re-filed.
EXCEPTIONS:
1) When in the notice of dismissal itself, the plaintiff himself stated that he is dismissing his
own complaint with prejudice; OR
2) When a notice operates as an adjudication upon the merits when filed by a plaintiff who has
once dismissed in a competent court an action based on or including the same claim.. This
is the TWO-DISMISSAL RULE.

ILLUSTRATION (Two-Dismissal Rule): I borrowed money from Mr. Castaños and I did not pay
him. So he filed a case against me to collect the unpaid loan. Upon receipt of the summons, I approach
Mr. Castaños, “Huwag mo nalang ituloy ang kaso mo, babayaran kita. I will not file an Answer, hindi
nalang ako kukuha ng lawyer. I-dismiss mo na lang iyan, babayaran kita next month, wala lang akong
kuwarta ngayon. I will refund you for the filing fee”. Ngayon, payag siya. He will send a notice to the
court dismissing his complaint. The case is dismissed, without prejudice.
After one month, I did not pay again. So nagalit si Mr. Castaños, he re-filed the same complaint,
pangalawa na. I now receive another summons. So, lapit ako sa kanya, “Bakit mo fi-nile kaagad?” “Eh,
sabi mo, after one month magbabayad ka.” “Wala lang akong kuwarta, next month pa dadating ang
kuwarta ko. I-dismiss mo na ULI yan. Basta, promise, next month, bayad na talaga ako. Isauli ko ang
ginasta mo sa filing fee.” Tapos, naatik na naman siya. So he files a notice of dismissal again, doble.
The same case was dismissed twice. He availed of the dismissal in Section 1 twice.
After next month, hindi na naman ako nagbayad. So nagalit na naman siya. So he filed the same
case for the third time. I receive the summons. You know what I will do? I will file a motion to dismiss
the case because the second dismissal is automatically with prejudice.

This is known as the 2-dismissal rule. You cannot file it for the third time.
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 Briefly, the two-dismissal rule simply means that when the same complaint had twice been
dismissed by the plaintiff under Section 1 by simply filing a notice of dismissal, the second dismissal
shall be with prejudice. Yaann!

Q: Suppose you file a complaint against Mr. Cruz and you immediately changed your mind and
had it dismissed under Section 1. And then after having dismissed, you changed again your mind and
you want to re-file the action. Now, How do you re-file it the action? Do you file another complaint
again?
A: That was answered in the case of

ORTIGAS AND CO. LTD PARTNERSHIP vs. VELASCO

234 SCRA 455 [1994]

HELD: It DEPENDS on whether the order of dismissal has already become final.
a) If within 15 days from the time it is ordered dismissed, all that you have to do is to
ask the court to set aside the order of dismissal and re-vive the case because the order of
dismissal have not yet become final.
b) However, if the order of the court dismissing the complaint based on your own
notice has become final after 15 days, then the only way you can revive it is to file an
entirely new action.

Sec. 2. Dismissal upon motion of plaintiff. Except as provided in the

preceding section, a complaint shall not be dismissed at the plaintiff's
instance save upon approval of the court and upon such terms and conditions as
the court deems proper. If a counterclaim has been pleaded by a defendant prior
to the service upon him of the plaintiff's motion for dismissal, the dismissal
shall be limited to the complaint. The dismissal shall be without prejudice to
the right of the defendant to prosecute his counterclaim in a separate action
unless within fifteen (15) days from notice of the motion he manifests his
preference to have his counterclaim resolved in the same action. Unless
otherwise specified in the order, a dismissal under this paragraph shall be
without prejudice. A class suit shall not be dismissed or compromised without
the approval of the court. (2a)

Q: If the defendant has already filed an answer or a motion for summary judgment, may the
complaint still be dismissed by the plaintiff?
A: YES, but it is already upon the approval of the court and upon such terms and conditions as the
court deems proper. Meaning, the dismissal under Section 2 by the plaintiff is no longer a matter of
right because the defendant has already filed an answer or a motion for summary judgment.

Q: Suppose I file a case against you and you file an answer with counterclaim, and I filed a notice
dismissing my own complaint. Can it be done? What happens to the counterclaim?
A: The dismissal of the complaint DOES NOT necessarily mean the dismissal of the counterclaim.
So a compulsory counterclaim remains despite the dismissal of the complaint. The dismissal shall be
limited to the complaint.

Of course, generally, if we follow the language of the law, when you dismiss the complaint, the
counterclaim is also dismissed unless within 15 days, the defendant manifest his preference to have his
counterclaim resolve in the same action.

GENERAL PULE: If you dismiss the complaint, the compulsory counterclaim is also dismissed.
EXCEPTION: The defendant can revive the compulsory counterclaim within 15 days. That is the
radical change. The cases that we cited before are now bahaw.

Q: Now, suppose the complaint is dismissed under Section 2 upon initiative of the plaintiff, can he
re-file the case?
A: The rule is the same as Section 1 – the dismissal of the complaint under Section 2 shall be
without prejudice unless otherwise specified in the order of dismissal. So, the dismissal under Sections
1 and 2 is generally without prejudice.
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 The last sentence, “A class suit shall not be dismissed or compromised without the approval of the
court.” When you file a class suit, you are not only fighting for yourself – you are fighting for the
others. So, you cannot just withdraw it on your own or else, you will cause prejudice to everybody. So,
in order to prevent the person who filed it from prejudicing the right of the members of the class suit, it
cannot be dismissed or compromised without the approval of the court.

Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause,

the plaintiff fails to appear on the date of the presentation of his evidence
in chief on the complaint, or to prosecute his action for an unreasonable
length of time, or to comply with these Rules or any order of the court, the
complaint may be dismissed upon motion of the defendant or upon the court's own
motion, without prejudice to the right of the defendant to prosecute his
counterclaim in the same or in a separate action. This dismissal shall have the
effect of an adjudication upon the merits, unless otherwise declared by the
court. (3a)

Q: What are the grounds for the dismissal of the case under Section 3?
A: The following are the grounds for the dismissal of a case under Section 3:
1) The plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the
complaint;
2) The plaintiff fails to prosecute his action for an unreasonable length of time;
3) The plaintiff fails to comply with the Rules of Court or any order of the court for no
justifiable reason or cause.

First Ground: THE PLAINTIFF FAILS TO APPEAR ON THE DATE OF THE PRESENTATION OF
HIS EVIDENCE-IN-CHIEF ON THE COMPLAINT

Evidence-in-chief is the main evidence of the plaintiff to prove his cause of action.

So if the plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the
complaint, the case can be dismissed. This has been taken from the ruling of the SC in the case of:

JALOVER vs. YTORIAGA

80 SCRA 100 [1977]

FACTS: Plaintiff appeared during the trial and presented his evidence and then he
rested. And then during the hearing of the presentation of the defendant’s evidence, plaintiff
failed to appear. And since he failed to appear during trial, the court dismissed the case.

HELD: The dismissal is WRONG. Why dismiss the case when he has already presented
his evidence? It is tantamount to deciding the case against the plaintiff without considering
the evidence that he has presented. What is the remedy then?
What the court should do is to proceed with the presentation of the defendant’s
evidence without the plaintiff. Do not dismiss the case the plaintiff has already presented his
evidence.

That is why the language in the old rule is ‘failure to prosecute’ or another term is ‘non-suited’. But
the rules of court now wants to avoid the word ‘non-suited’ because it carries a different meaning.
If plaintiff fails to appear on the date of the presentation of his evidence-in-chief, but he arrived a
little bit late, or he failed to appear because he failed to receive the notice setting it, that is different
because the law says, “for no justifiable cause.” If I am late but a few minutes only, that is not a good
basis to dismiss the case forever. There is no intentional failure not to appear. In which case, if there is
an order of dismissal, it should be set aside because the condition is “for no justifiable cause.”

If it was the defendant who failed to appear without justifiable cause, the plaintiff should move that
the trial shall proceed ex-parte. But definitely, the defendant cannot be declared in default because he
already filed an answer.

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 Second Ground: FAILURE OF PLAINTIFF TO PROSECUTE HIS ACTION
FOR UNREASONABLE LENGTH OF TIME.

EXAMPLE: Maybe every time his case is called to trial, he appears but he is not ready and so he
postpones. The next hearing, he postpones again. That’s one interpretation.

Another interpretation of “failure to prosecute” the complaint is filed, answer if filed, the case has
not been set for pretrial, the plaintiff did not take the initiative to have the case set for pretrial. For more
than one year, the case has not been set for pretrial and the plaintiff is not moving. Ikaw ang plaintiff,
ikaw ang kumilos!

Or, the case cannot be tried because the defendant cannot be summoned. The court keeps asking the
plaintiff for the correct address of the defendant. And for more than one year, the plaintiff cannot
supply the court of the correct address of the defendant. The judge cannot have the case docketed in
court forever.

Third Ground: FAILURE TO COMPLY WITH THE RULES OF COURT OR

ANY ORDER OF THE COURT.

EXAMPLE: The court says, “Plaintiff, you are hereby directed to amend the complaint.” Plaintiff
refuse to amend. The court will dismiss the case.

Remember that case I cited where the complaint was filed in the name of for example,
“PANINGKAMOT STORE vs. SO and SO.” The SC said that PANINGKAMOT STORE cannot be the
plaintiff; it is not a person. It is only the name of the business establishment. Only natural person or
juridical persons may be subject of the suit.

Sabi naman ng SC, but do not dismiss. Give the plaintiff a chance to amend in order to reflect the
owner of the store. So the court directs the plaintiff to amend. Ayaw mo iamend ha? This time idismiss
ko for failure to comply with the court’s order.

Other Examples: Amend the pleading, submit a bill of particulars or certification of non-forum
shopping.

Now, Section 3 says, “…may be dismissed upon motion of the defendant or upon the court’s own
motion (motu propio).”

Q: As a general rule, can a court dismiss a complaint without any motion made by the defendant?
A: GENERAL RULE: The court should not dismiss the case upon its own initiative, because the
grounds for dismissal are waivable. If the defendant fails to move for dismissal, he is waiving the
defect.

Q: Give the EXCEPTIONS (When may the court dismiss the complaint motu propio?).
A: The following
1. Section 3, Rule 17 (Plaintiff’s fault);
2. When on its face, the complaint shows that the court has no jurisdiction over the subject
matter;
3. When there is litis pendentia; or res adjudicata; or when the action has prescribed;
4. Under the Summary Rules, the court is empowered to dismiss immediately without any
motion.

Take note of what the law says, if the complaint is dismissed under Section 3, it is without prejudice
to the right of the defendant to prosecute his counterclaim in the same or separate action. Again, the
dismissal of the main action or compliant does not mean the dismissal of the counterclaim. This is the
same with Section 2.

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 Q: If the complaint is dismissed under Section 3, can it still be re-filed?
A: NO, the dismissal this time shall have the effect of adjudication upon the merits. Meaning, res
adjudicata applies, as if the case has already been decided. Therefore the elements of res adjudicata
should also be present. The dismissal is with prejudice unless otherwise declared by the court.

GENERAL RULE: Dismissal due to the fault of the plaintiff is with prejudice.
EXCEPTION: Unless the court provides otherwise.

EXAMPLE: When the case was called for trial, plaintiff did not appear. Defendant moved to
dismiss under Section 3. The court dismissed the case. Can the case be re-filed? NO, the dismissal is
with prejudice. (General Rule)

Suppose the court will say, “For non-appearance of the plaintiff, the complaint is dismissed without
prejudice.” Can the case be re-filed? YES. (Exception)

On the other hand, one of the interesting cases on this (the effect of res adjudicata – because when
we say res adjudicata, it had to be correlated with the elements of res adjudicata in Rule 39) is the case
of
REPUBLIC PLANTERS BANK (RBP) vs. MOLINA
166 SCRA 39 [1988]

FACTS: The RPB filed a case against the defendant for a sum of money. Defendant
cannot be summoned because his whereabouts is now unknown. Several attempts made by
the plaintiff to look for him failed. After a while the court dismissed the complaint for RBP’s
failure to prosecute. And the order of dismissal was silent. So, following Section 3, the
dismissal is with prejudice.
Then later on, the plaintiff (RPB) discovered the whereabouts of the defendant. The RPB
re-filed the compliant. Defendant moved to dismiss because when the first complaint was
dismissed and the order of dismissal was silent then the dismissal has the effect of an
adjudication on the merits.

HELD: Since We are talking of res adjudicata, let us correlate it with the elements of res
adjudicata under Rule 39.
One of the elements of res adjudicata is: When the case is terminated, the court has
jurisdiction over the case both as to the person and the subject matter;
In the case of RPB, the court never acquired jurisdiction over the person of the defendant
because he was never served with summons. Therefore, such dismissal did not have the
effect of res adjudicata.

Meaning, Section 3 presupposes that the court acquired jurisdiction over the subject matter of the
case, and the parties in the previous case in order that the dismissal be with prejudice.

Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint.

The provisions of this Rule shall apply to the dismissal of any counterclaim,
cross-claim, or third-party complaint. A voluntary dismissal by the claimant by
notice as in section 1 of this Rule, shall be made before a responsive pleading
or a motion for summary judgment is served or, if there is none, before the
introduction of evidence at the trial or hearing. (4a)

It means that the rules apply to dismissal of cross-claim, counterclaim, or third-party complaint – at
any time before an answer is filed against a counterclaim, cross-claim or third-party complaint, plaintiff
may dismiss his claim under Section 1, Rule 17.

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