Rule 16

Motion to Dismiss- described as Omnibus motion that attacks a pleading. A motion

to dismiss is a motion attacking a pleading with a claim (cross claim, counter-claim
etc.)
Effects: All grounds available and not invoked are deemed waived.
XPNS: NOT waivable defenses
1.
2.
3.
4.

Res judicata
Prescription
Lack of Jurisdiction over the subject matter
Statute of limitations

Rule 17
DISMISSAL BY THE PLAINTIFF
I.

Dismissal by mere notice of dismissal

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 (Sec. 1, Rule 17, Rules of Court).
2.

Upon the filing of the notice of dismissal, the court shall issue an order
confirming the dismissal (Sec. 1, Rule 17, Rules of Court).

3.

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 a notice is a matter of right. The
dismissal occurs as of the date the notice is filed by the plaintiff and
not the date the court issues the order confirming the dismissal.

4. Under the clear terms of Sec. 1 of 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.
Illustration (Bar 1989)
Before any answer or motion for summary judgment could be filed (the
appropriate term under the present rule is served) by the defendant, the plaintiff'

filed a notice of dismissal of his complaint. The trial court simply noted the
dismissal. Is the case considered dismissed?
Suggested answer.
The case is considered dismissed. No order of dismissal from the court is
required to effect the dismissal when such dismissal is a matter of right. The order
issued by the court is one which merely confirms the dismissal (Sec. 2, Rule 10,
Rules of Court).

II.

Dismissal without prejudice

1. A dismissal made by the filing of a notice of dismissal is a dismissal without

prejudice, i.e., the complaint can be refiled. This is the general rule. The
dismissal will however, be one with prejudice in any of the following
situations:
1. the notice of dismissal by the plaintiff provides that the dismissal is
with prejudice; or
2. the plaintiff has previously dismissed the same case in a court of
competent jurisdiction (Sec. 1, Rule 17, Rules of Court).
2. If the plaintiff files a notice of dismissal providing therein a reason that
prevents the refiling of the complaint, the dismissal must be deemed one
with prejudice even if the notice does not state that the dismissal is with
prejudice. This happens when for instance, the notice provides that the
plaintiff recognizes the fact of prescription or extinguishment of the obligation
of the defendant or for reasons stated in Sec. 5 of Rule 16.

III.

Two-dismissal rule

1. The `two-dismissal' rule applies when the plaintiff has

i. twice dismissed actions,
ii. based on or including the same claim,
iii. 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 refiled 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.

2. For the above rule to apply, the complaints must have been dismissed
in a court of competent jurisdiction. To illustrate: PP files in the
Regional Trial Court of Manila, an action to collect P300,000.00 from
DD. The complaint was dismissed when PP immediately filed a notice
of dismissal. The same claim was again filed in the Metropolitan Trial
Court of Manila. Before DD served either an answer or a motion for
summary judgment, PP filed a notice of dismissal. Does the twodismissal rule apply? It does not. The first court, the RTC was not a
court of competent jurisdiction because the claim was below its
jurisdictional amount.
Illustration Mar 1989)
1. XXX
2. Lawrence filed a complaint against Grace to collect a loan of P50,000.00. Later
because of their intimate relationship in the past, Lawrence filed a notice of
dismissal of his complaint. Subsequently, the two had a serious misunderstanding
so that Lawrence filed a complaint against Grace to collect another loan of
P100,000.00. Lawrence and Grace reconciled before the latter could file (serve) her
answer or a motion for summary judgment. Was the dismissal with or without
prejudice?
Suggested answer:
The dismissal is without prejudice because the 'twodismissal' rule does not apply.
The dismissal of the claim of P100,000.00 is based on a loan different from the first
claim of P50,000.00.

IV.

Dismissal by filing a motion to dismiss

Once either an answer or a 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, Rules of
Court). The dismissal under Sec. 2 of Rule 17 is no longer a matter of right on the
part of the plaintiff but a matter of discretion upon the court.
V.

Effect of dismissal upon a counterclaim already pleaded

1. If a counterclaim has already been pleaded by the defendant prior to the
service upon him of the plaintiff's motion to dismiss, and the court grants
the said motion to dismiss, the dismissal "shall be limited to the
complaint" (Sec. 2, Rule 17, Rules of Court). 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 rule provides: " * * * The dismissal shall be without

prejudice to the right of the defendant to prosecute his counterclaim * * *"

(Sec. 2, Rule 17, Rules of Court).
2. 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 notice of the plaintiff's motion to
dismiss (Sec. 2, Rule 17, Rules of Court). 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.
3. 3. A similar rule is adopted in Sec. 6, Rule 16 and Sec. 3 of Rule 17,
wherein the dismissal of the complaint 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.
VI.

Dismissal without prejudice

The dismissal authorized under Sec. 2 of Rule 17 is a dismissal without

prejudice except if the order of dismissal specifies that it is without prejudice
(Sec. 2, Rule 17, Rules of Court).
VII.

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 in this case will be through reasons attributed
to his fault. Sec. 3 of Rule 17 provides the following grounds for dismissal:
a. the failure of plaintiff, without justifiable reasons, to appear on the
date of the presentation of his evidence in chief;
b. the failure of the plaintiff to prosecute his action for an unreasonable
length of time;
c. the failure of the plaintiff to comply with the Rules of Court; or
d. the failure of the plaintiff to obey any order of the court.

NOTE: Ground letter b. is no longer available since the new rule

provides if the plaintiff fails to file said motion within the given
period, the branch clerk of court shall issue a notice of pre-trial
(A.M. No. 03-109-SC, July 13, 2004).

2. The dismissal due to the fault of the plaintiff may be done by the court on its
own motion (motu proprio) or upon a motion filed by the defendant (Sec. 2,
Rule 17, Rules of Court).

VIII.

Effect of dismissal on the counterclaim under Sec. 3 1.

1. The dismissal of the complaint under Sec. 3 of Rule 17, i.e., because of the
fault of the plaintiff, is without prejudice to the right of the defendant to
prosecute his counterclaim in the same action or in a separate action.
2.

A recent case, Pinga vs. Heirs of Santiago confirms the above rule: "Under
Section 3, Rule 17 of the 1997 Rules of Civil Procedure, the dismissal of the
complaint due to the fault of plaintiff does not necessarily carry with it the
dismissal of the counterclaim. The rule makes no distinction between a
compulsory and a permissive counterclaim and hence, covers both types. By
the very tenor of Sec. 3 of Rule 17 of the Rules of Court, the dismissal of the
complaint is without prejudice to the right of defendants to prosecute the
counterclaim. xxx "In contrast, Sec. 3, Rule 17 of the 1964 Rules was silent on
the effect of the dismissal of the complaint on existing counterclaims. xxx
"Despite the silence of Sec. 3 of the then Rule 17 of the old Rules of Court
previous jurisprudence laid emphasis on whether the counterclaim was
compulsory or permissive in character. Such distinction was provided by
another provision of the 1964 Rules particularly Section 2 of Rule 17, which
stated that in instances wherein the plaintiff seeks the dismissal of the
complaint, "if a counterclaim has been pleaded by a defendant prior to the
service upon him of the plaintiff's motion to dismiss, the action shall not be
dismissed against the defendant's objection unless the counterclaim can
remain pending for independent adjudication." xxx "Of the cases before the
adoption of the 1997 Rules of Civil Procedure, BA Finance Corp. vs. Co., G.R.
No. 105751, 30 June 1993, 224 SCRA 163, particularly stands out among
previous cases dealing with the effect of the dismissal of an action on the
counterclaims already pleaded before the dismissal. BA Finance Corporation
held that the dismissal of the complaint for nonappearance of plaintiff at the
pre-trial, upon motion of the defendants, carried with it the dismissal of their
compulsory counterclaim. The Court reiterated the rule that "a compulsory
counterclaim cannot remain pending for independent adjudication by the
court... as it is auxiliary to the proceeding in the original suit and merely
derives its jurisdictional support therefrom. xxx "Under this revised section
[21, where the plaintiff moves for the dismissal of his complaint to which a
counterclaim has been interposed, the dismissal shall be limited to the
complaint. Such dismissal shall be without prejudice to the right of the
defendant to either prosecute his counterclaim in a separate action or to
have the same resolved in the same action. Should he opt for the first
alternative, the court should render the corresponding order granting and
reserving his right to prosecute his claim in a separate complaint. Should he
choose to have his counterclaim disposed of in the same action wherein the
complaint had been dismissed, he must manifest such preference to the trial
court within 15 days from notice to him of plaintiff's motion to dismiss xxx.
"With the aforestated amendments in Secs. 2 and 3 laying down specific rules
on the disposition of counterclaims involved in the dismissal actions, the
controversial doctrine in BA Finance Corporation vs. Co, et al. (G.R. No.

105751, June 30,1993) has been abandoned, together with the apparent
confusion on the proper application of said Secs. 2 and 3. x x x "Previous
rulings contrary to Secs. 2 and 3 of Rule 17 should be deemed no longer
controlling and abandoned. Pinga further holds: " To be certain, when the
Court promulgated the 1997 Rules of Civil Procedure, including the amended
Rule 17, those previous jural doctrines that were inconsistent with the new
rules incorporated in the 1997 Rules of Civil
Procedure were implicitly abandoned insofar as incidents arising after the effectivity
of the new procedural rules on 1 July 1997. BA Finance, or even the doctrine that a
counterclaim may be necessarily dismissed along with the complaint, clearly
conflicts with the 1997 Rules of Civil Procedure. The abandonment of BA Finance as
doctrine extends as far back as 1997, when the Court adopted the new Rules of Civil
Procedure. If, since then, such abandonment has not been affirmed in jurisprudence,
it is only because no proper case has arisen that would warrant express
confirmation of the new rule. That opportunity is here and now, and we thus rule
that the dismissal of a complaint due to the fault of the plaintiff is without prejudice
to the right of the defendant to prosecute any pending counterclaims of whatever
nature in the same or separate action. We confirm that BA Finance and all previous
rulings of the Court that are inconsistent with this present holding are now
abandoned"
IX.

Dismissal with prejudice

The dismissal under Sec. 3 of Rule 17 shall have the effect of an adjudication
on the merits, unless otherwise declared by the court. Hence, as a rule, it is a
dismissal with prejudice.

NOTES:
1.
2.
3.
4.
5.
6.
7.
8.
9.

Answer is a pleading containing defenses.

Negative Defenses must contain specific denial.
3 kinds of specific denial (Rule 8 Sec. 10)
Affirmative Defenses can also be filed as ground for motion defenses
(Rule 6)
Answer with a counter claim is allowed
Motion to dismiss with a counterclaim is not allowed. Because a
counterclaim is not a responsive pleading.
Third party complaint must be with leave of court.
A reply is a response to an answer.
Even if a reply is not filed, new matters alleged in the answer is
deemed controverted.

10.
There are instances where filing of reply is advisable if there
are actionable document used as a defense in an answer. The reply
must be under oath, otherwise the genuineness and due execution
of such actionable document is impliedly admitted
11.
There is a possibility that a counterclaim could be dismissed
even if it is related to the subject matter of the original complaint
because the court has no jurisdiction over the counterclaim.
REMINDER:
A permissive counterclaim is treated as like an original compliant.
Thus, you have to file a docket fee. Because the subject matter of the
Permissive counter claim is not related to the original complaint.
Certification against forum shopping is also required in filing a
permissive counter claim.
A permissive counterclaim is categorized as an initiatory pleading. The
plaintiff must file an answer to such Permissive counterclaim otherwise
he would be the subject of order of default as to such PCC.
-

DOCKET FEE IS REQUIRED in COMPULSORY COUNTERCLAIM EVEN IN

CROSSCLAIM. (Sec.7 Rule 141)

Rule 18
PRE TRIAL

Once the possible last pleading has been filed or that the period of filing the
pleading has lapsed as the case may be. The plaintiff has the duty to file a
motion ex parte to set the pre- trial.
The court cannot motu propio set the case for trial.
BEFORE THE AMENDMENT, the plaintiff has the duty to set the case for pretrial otherwise the case would be dismissed on the ground of failure to
prosecute for an unreasonable length of time. The new rule provides that if
the plaintiff fails to file said motion within the given period, the branch clerk
of court shall issue a notice of pre-trial (A.M. No. 03-109-SC, July 13,
2004).

PRE-TRIAL in civil cases is mandatory! (Sec. 2, Rule 18)

PRE- TRIAL in criminal cases is mandatory. (Rule 118)
-

In a criminal case the motion of the plaintiff is not necessary. The court has
the duty to set the case for trial.
There is no amicable settlement in criminal cases. Only the civil aspect of
such criminal case.

NOTE: SEC 27, RULE 130 (second paragraph)

An offer of compromise is an implied admission of guilt.

DISTINCTION BET CRIMINAL AND CIVIL PRE TRIAL
1.

CIVIL- plaintiff is required to file a motion to set the case for trial. (5 days
after the reply has been filed and served.)
CRIMINAL- the court has the duty to set the case for pre- trial

NOTE: If the plaintiff fails to set the case for pre-trial. The clerk of court has
the duty to issue a notice of pre trial to the parties counsel. (Notice to the counsel
is notice to the parties)
2. CIVIL- Purpose is amicable settlement
CRIMINAL- no amicable settlement
3. CIVIL Pre -trial brief is required
CRIMINAL no pre- trial brief is required
4. CIVIL- admissions and stipulations is not required to be in writing and signed
by the counsel.
CRIMINAL- admissions and stipulations must be in writing and signed by the
counsel and the accused otherwise such admissions cannot be admitted
against the accused.

Purposes of Pre- trial in civil cases

1. Limit the number of witnesses ( most important witness rule)
2. Evidence must be marked otherwise it would not be admitted during the
trial. It could be objected to during the presentation of evidence in chief
because there should be no surprises during the trial.
XPN: if such a rule would result to miscarriage of justice
11:36