A notice of discontinuance is a court filing a plaintiff submits to end their own civil lawsuit before a final judgment. Several states, New York most prominently, use that term in their procedural rules. Federal courts and most other states call the same filing a notice of voluntary dismissal under Rule 41 of the Federal Rules of Civil Procedure.1Legal Information Institute. Federal Rules of Civil Procedure Rule 41 – Dismissal of Actions Different label, same mechanics: file the right document at the right time, and the case ends.
When You Can File One on Your Own
The plaintiff has an absolute right to end the case by filing a notice, with no court permission required and no ability for the defendant to object, as long as the defendant has not yet served an answer or a motion for summary judgment.1Legal Information Institute. Federal Rules of Civil Procedure Rule 41 – Dismissal of Actions That is the window. Miss it, and your options narrow.
This is where plaintiffs most often go wrong. They assume they can walk away from their own lawsuit whenever they want. Once the defendant has answered or moved for summary judgment, that unilateral right is gone.
After the Defendant Has Answered
Two paths remain. The first is a stipulation of dismissal: a written agreement signed by every party who has appeared in the case (or their attorneys). A stipulation can be filed at any stage because everyone has consented, which is why settled cases are usually closed out this way.1Legal Information Institute. Federal Rules of Civil Procedure Rule 41 – Dismissal of Actions The settlement resolves the dispute; the stipulation tells the court to close the file.
The second path is a motion asking the judge to dismiss the case. The judge can grant it on terms the court considers proper, which may include requiring the plaintiff to cover some of the defendant’s costs.1Legal Information Institute. Federal Rules of Civil Procedure Rule 41 – Dismissal of Actions
With Prejudice or Without Prejudice
Every voluntary dismissal is one or the other, and the difference controls whether the lawsuit can come back.
Without prejudice is the default. Unless the notice or stipulation says otherwise, a voluntary dismissal is treated as without prejudice, and the plaintiff can refile the same claim against the same defendant later.1Legal Information Institute. Federal Rules of Civil Procedure Rule 41 – Dismissal of Actions The statute of limitations keeps running during the time the case is dismissed, so wait too long and the right to refile is gone.
With prejudice is permanent. The plaintiff is barred from ever filing another lawsuit based on the same claim. Defendants almost always insist on this language when they settle, because without it the lawsuit could resurface after they have paid to resolve it.
What the Notice Must Contain
The document itself is short, but basic errors cause delays. A proper notice includes:
- The court where the case is pending, including the specific division.
- The full case caption with every plaintiff and defendant named exactly as they appear on prior filings.
- The case or docket number.
- A statement that the plaintiff is dismissing the action.
- A clear specification of whether the dismissal is with or without prejudice.
Most courts publish standardized forms through the clerk’s office or the court website. Using the court’s own form is the simplest way to avoid formatting problems.
Filing and Serving the Notice
File the completed notice with the court. Many federal and state courts now require electronic filing through an online portal, though some still accept paper. After filing, deliver a copy to all other parties, or to their attorneys, so no one is left wondering whether the case is still live. Electronic filing systems typically handle that notification automatically.
What Happens Once It’s Filed
The clerk processes the notice and marks the case closed on the docket. Scheduled hearings, deadlines, and trial dates are canceled. The defendant’s obligation to file responses, appear in court, and spend money defending the case ends immediately. If the dismissal is without prejudice, the claim could still return before the statute of limitations runs out. A dismissal with prejudice ends the dispute for good.
Three Traps to Watch For
The Two-Dismissal Rule
If the plaintiff has previously dismissed any action in federal or state court based on the same claim, a second notice of dismissal automatically operates as an adjudication on the merits.1Legal Information Institute. Federal Rules of Civil Procedure Rule 41 – Dismissal of Actions That second dismissal is treated as with prejudice even if the notice says otherwise. There is no third chance.
Costs If You Refile
A plaintiff who previously dismissed an action and later files a case based on the same claim against the same defendant can be ordered by the court to pay all or part of the costs from the earlier action, and the court can stay the new case until those costs are paid.1Legal Information Institute. Federal Rules of Civil Procedure Rule 41 – Dismissal of Actions Costs here generally means filing fees, service expenses, and similar court costs rather than the defendant’s full legal bill.
Pending Counterclaims
If the defendant has already filed a counterclaim, the plaintiff cannot wipe it out by walking away. When the plaintiff asks the court to dismiss over the defendant’s objection, the dismissal can be granted only if the counterclaim can remain pending for independent adjudication.1Legal Information Institute. Federal Rules of Civil Procedure Rule 41 – Dismissal of Actions A defendant who has raised their own claim for damages does not lose it because the plaintiff changed course.