DISMISSAL OF ACTIONS (Rule 17)

Dismissal upon notice by plaintiff

(1) Before the service of an answer or the service of a motion for summary judgment, a complaint may be
dismissed by the plaintiff by filing a notice of dismissal. Upon the filing of the notice of dismissal, the court
shall issue an order confirming the dismissal. (Sec. 1, Rule 17).
(2) it is not the order confirming the dismissal which operates to dismiss the complaint. As the name of the
order implies, said order merely confirms a dismissal already effected by the filing of the notice of
dismissal. The court does not have to approve the dismissal because it has no discretion on the matter.
Before an answer or a motion for summary judgment has been served upon the plaintiff, the dismissal by
the plaintiff by the filing of the notice is a matter of right. The dismissal occurs as of the date of the notice
is filed by the plaintiff and not the date the court issues the order confirming the dismissal
(3) Under the clear terms of Sec. 1, Rule 17, the dismissal as a matter of right ceases when an answer or
a motion for summary judgment is served on the plaintiff and not when the answer or the motion is filed
with the court. Thus, if a notice of dismissal is filed by the plaintiff even after an answer has been filed in
court but before the responsive pleading has been served on the plaintiff, the notice of dismissal is still a
matter of right.
Two-dismissal rule
(1) The two-dismissal rule applies when the plaintiff has (a) twice dismissed actions, (b) based on or
including the same claim, (c) in a court of competent jurisdiction. The second notice of dismissal will bar
the refiling of the action because it will operate as an adjudication of the claim upon the merits. In other
words, the claim may only be filed twice, the first being the claim embodied in the original complaint.
Since as a rule, the dismissal is without prejudice, the same claim may be filed. If the refilled claim or
complaint is dismissed again through a second notice of dismissal, that second notice triggers the
application of the two-dismissal rule and the dismissal is to be deemed one with prejudice because it is
considered as an adjudication upon the merits
Dismissal upon motion by plaintiff
(1) Once either an answer or motion for summary judgment has been served on the plaintiff, the dismissal
is no longer a matter of right and will require the filing of a motion to dismiss, not a mere notice of
dismissal. The motion to dismiss will now be subject to the approval of the court which will decide on the
motion upon such terms and conditions as are just (Sec. 2, Rule 17). The dismissal under Sec. 2 is no
longer a matter of right on the part of the plaintiff but a matter of discretion upon the court.
Effect of dismissal upon existing counterclaim
(1) If a counterclaim has already been pleaded by the defendant prior to the service upon him of the
plaintiffs motion to dismiss, and the court grants said motion to dismiss, the dismissal shall be limited to
the complaint (Sec. 2, Rule 17). The phraseology of the provision is clear: the counterclaim is not
dismissed, whether it is a compulsory or a permissive counterclaim because the rule makes no
distinction. The defendant if he so desires may prosecute his counterclaim either in a separate action or in
the same action. Should he choose to have his counterclaim resolved in the same action, he must notify
the court of his preference within fifteen (15) days from the notice of the plaintiffs motion to dismiss.
Should he opt to prosecute his counterclaim in a separate action, the court should render the
corresponding order granting and reserving his right to prosecute his claim in a separate complaint.
(2) A similar rule is adopted in Sec. 6, Rule 16 and Sec. 3, Rule 17, wherein the dismissal of the
counterclaim does not carry with it the dismissal of the counterclaim. The same provision also grants the
defendant a choice in the prosecution of his counterclaim.
Dismissal due to the fault of plaintiff
(1) A complaint may be dismissed even if the plaintiff has no desire to have the same dismissed. The
dismissal is this case will be through reasons attributed to his fault. Sec. 2, Rule 17 provides the following
grounds for dismissal:
(a) Failure of the plaintiff, without justifiable reasons, to appear on the date on the date of the presentation
of his evidence in chief;
(b) Failure of the plaintiff to prosecute his action for an unreasonable length of time;
(c) Failure of the plaintiff to comply with the Rules of Court; or

(d) Failure of the plaintiff to obey any order of the court.

(2) The dismissal due to the fault of the plaintiff may be done by the court motu propio or upon a motion
filed by the defendant (Sec. 2, Rule 17). The court may dismiss an action motu propio:
(a) Failure to prosecute for unreasonable length of time;
(b) Failure to appear at the trial;
(c) Failure to comply with the rules;
(d) Failure to comply with the order of the court; and
(e) Lack of jurisdiction.
Dismissal of counterclaim, cross-claim or third-part complaint
(1) The rule on the dismissal of a complaint applies to the dismissal of any counterclaim, cross-claim, or
third-party claim. A voluntary dismissal by the claimant alone by notice pursuant to Sec. 1, Rule 17 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 (Sec. 4).
Shimizu vs. Magsalin, FGU Corp et.al 674 SCRA 65 (2012)
Facts:
Petitioner claims that Magsalin had breached their subcontract agreement for the supply, delivery,
installation and finishing of the tiles in certain floors in petitioners condominium project.
The agreement was terminated.
Due to Magsalins refusal to return unliquidated advance payment and other monetary liabilities,
petitioner sent a notice to respondent FGU Insurance demanding damages pursuant to the bonds the
former had issued for the subcontract.
Petitioner filed a complaint for actual damages for breach of contract against Magsalin and FGU
FGU was duly served with summons. With respect to Magsalin, despite efforts, their new addresses
could not be determined.
FGU filed a motion to dismiss but was denied. Likewise, MR was denied. FGU was obliged to file an
answer.
Petitioner filed a motion for leave to serve summons on respondent Magsalin by way of publication.
Then, the petitioner filed its reply to FGU Insurances answer.
FGU filed a motion for leave of court to file a third-party complaint. Baetiong, G. Garcia and C. Garcia
were named as third-party defendants.
FGU claims that the three had executed counter-guaranties over bonds it executed for the subcontract
w/ Magsalin and, hence, should be held jointly and severally liable
RTC admitted the third-party complaint and denied the motion to serve summons by publication on the
ground that the action against respondent Magsalin was in personam.
RTC issued a notice setting the case for hearing. FGU filed a motion to cancel the hearing on the
ground that the third-party defendants had not yet filed their answer. The motion was granted.
Of the three third-party defendants, only Baetiong filed an answer, the officers returns on the summons
to the Garcias state that both could not be located at their given addresses. Petitioner was not served w/
Baetiongs answer.
For failure of petitioner to prosecute, RTC dismissed the case. RTC denied the petitioners MR
prompting the latter to elevate its case to the CA via a Rule 41 petition for review.

 CA dismissed the appeal on the ground of lack of jurisdiction. The appeal raised a pure question of law
as it did not dispute the proceedings before the issuance of the December 16, 2003 dismissal order.
Petitioner thus filed the present petition for review on certiorari.
Issues:
W/N THE LOWER COURT ERRED IN DECLARING THAT PETITIONER FAILED TO PROSECUTE
THE CASE
W/N THE APPELLATE COURT HAS JURISDICTION TO DETERMINE THE MERITS OF THE APPEAL
AS THE MATTERS THEREIN INVOLVE BOTH QUESTIONS OF LAW AND FACT.
W/N IT IS EVIDENT THAT THE LOWER COURTS DISMISSAL OF THE CASE IS A CLEAR DENIAL
OF DUE PROCESS.
RULING:
The petition is granted.
The Dismissal Order is Void
The December 16, 2003 dismissal order shows that it is an unqualified order and, as such, is deemed to
be a dismissal with prejudice.
Dismissals of actions for failure of the plaintiff to prosecute is authorized under Section 3, Rule 17 of the
Rules of Court. Dismissal with prejudice means dismissal on adjudication of merits.
It is imperative that the dismissal order conform with Section 1, Rule 36 of the Rules of Court on the
writing of valid judgments and final orders.
(Section 1. Rendition of judgments and final orders. A judgment or final order determining the merits of
the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the
facts and the law on which it is based, signed by him, and filed with the clerk of the court.)
The December 16, 2003 dismissal order clearly violates this rule for its failure to disclose how and why
the petitioner failed to prosecute its complaint. A trial court should always specify the reasons for a
complaints dismissal so that on appeal, the reviewing court can readily determine the prima facie
justification for the dismissal
There was a denial of due process. Elementary due process demands that the parties to a litigation be
given information on how the case was decided, as well as an explanation of the factual and legal
reasons that led to the conclusions of the court. Where the reasons are absent, a decision has absolutely
nothing to support it and is thus a nullity.
The appeal was properly filed under Rule 41 of the Rules of Court
In Olave vs. Mistas, among the critical factual questions was whether, based on the records, there had
been factual basis for the dismissal of the subject complaint. This same question is particularly significant
in the present case given that the order appealed does not even indicate the factual basis for the
dismissal of the case.
Due to the absence of any stated factual basis, and despite the admissions of the parties, the CA still had
to delve into the records to check whether facts to justify the prejudicial dismissal even exist. Since the
dismissal of the case appears to have been rendered motu proprio (as the December 16, 2003 dismissal
order does not state if it was issued upon the respondents or the trial courts motion), the facts to be
determined by the CA should include the grounds specified under Section 3, Rule 17 of the Rules of
Court. A court could only issue a motu proprio dismissal pursuant to the grounds mentioned in this rule
and for lack of jurisdiction over the subject matter.[32] These grounds are matters of facts. Thus, given that
the dismissal order does not disclose its factual basis, we are thus persuaded that the petitioner had
properly filed its appeal from the dismissal order under Rule 41 of the Rules of Court.

The dismissal of the case is not supported by the facts of the case

The following events were chronologically proximate to the dismissal of Civil Case No. 02-488: (a) the
court admitted FGU Insurances third-party complaint; (b) the trial court cancelled hearing upon FGU
Insurances motion; and (c) Baetiong filed his Answer to the third-party complaint but did not serve it upon
the petitioner.
None of these events square with the grounds specified by Section 3, Rule 17 of the Rules of Court for
the motu proprio dismissal of a case for failure to prosecute.
This does not satisfy the standards of non prosequitur. The fundamental test for non prosequitur is
whether, under the circumstances, the plaintiff is chargeable with want of due diligence in failing to
proceed with reasonable promptitude. There must be unwillingness on the part of the plaintiff to
prosecute.
In this case, the parties own narrations of facts demonstrate the petitioners willingness to prosecute its
complaint. Indeed, neither respondents FGU Insurance nor Baetiong was able to point to any specific act
committed by the petitioner to justify the dismissal of their case.
While it is discretionary on the trial court to dismiss cases, dismissals of actions should be made with
care. The sound discretion demands vigilance in duly recognizing the circumstances surrounding the
case to the end that technicality shall not prevail over substantial justice.
QUESTIONS:
1.What are the ways by which an action may be dismissed upon the instance of the plaintiff?
Explain.
Ans:There are two ways by which an action may be dismissed upon the instance of the plaintiff. First,
dismissal is a matter of right when a notice of dismissal is filed by the plaintiff before an answer or a
motion for summary judgment has been served on him by the defendant.Second, dismissal is
discretionary on the court when the motion for the dismissal of the action is filed by the plaintiff at any
stage of the proceedings other than before service of an answer or a motion for summary judgment.While
the dismissal in the first mode takes effect upon the mere notice of the plaintiff without need of a judicial
order, the second mode requires the authority of the court before dismissal of the case may be effected.
This is so because in the dismissal of an action, the effect of the dismissal upon the rights of the
defendant should always be taken into consideration. (City of Manila v Ruymarin, 37 Phil. 412 [1918];
Limaco, et al. v. Shonan Gakuen Childrens House Phils., Inc., GR No.158245, June 30,2005)
2.What is the nature of the dismissal of a complaint if the order is silent as to its nature?
Ans:If the order of dismissal by the court has no statement as to its nature, it is without prejudice, for
under the Rules, unless otherwise specified in the order, a dismissal shall be without prejudice. (Sec 2,
Rule 17). In the earlier case of Vallangca v CA, 173 SCRA 42, it was said that a dismissal order is
generally deemed to be without prejudice to the filing of another action. The only instance when dismissal
of action is with prejudice is, when the order itself so states. Stated differently, when the court issues upon
the plaintiffs instance, a dismissal order that is silent as to whether it is with or without prejudice, the
presumption is without prejudice. (Vergara v Ocumen, 114 SCRA 446, Delgado, et. Al. v. CA, et al., GR
No.137881, December 21,2004)
3.Give some instances where dismissal of action by the court is improper.
Ans:In the following instances, the dismissal was considered improper:
1. Where a third party complaint has been admitted and third-party defendant has not yet been
summoned. (Sotto v Valenzuela, 105 Phil. 589)
2. Failure to submit stipulations of facts and memoranda. (Buenaventura v Buenaventura, 94 Phil.
193)
3. Failure to comply with a notice of case status by a court personnel. (Koh v IAC, 144 SCRA 259).
The failure of the parties to heed the order is not disobedience of lawful order of the court. The
order has no effect on the adjudication on the merits. It is not also a ground for failure to
prosecute.

4.If a case is dismissed without prejudice, dose res judicata lie?Why?

Ans:No. The principle of res judicata does not apply when the dismissal of the earlier complaint, involving
the same plaintiffs, same subject matter, same theory and the same defendants, was made without
prejudice to its refilling at a future date, or in a different venue. The dismissal of the case without prejudice
indicates the absence of a decision on the merits and leaves the parties free to litigate the matter in a
subsequent action as though the dismissed action had not been commenced. In other words, the
discontinuance of a case not on the merits does not bar another action on the same subject matter.
(Delgado, et al. v CA, et al., GR No.137881, December 21,2004 citing Meliton v CA, 216 SCRA 485).