Rule 17
DISMISSAL OF ACTIONS Under the clear terms of Section 1, the
Under Rule 16, the dismissal is at the instance of the
defendant.
Under this Rule the modes of dismissal are of 2 main kinds:
a.) dismissal at the instance of the plaintiff; and b.) dismissal
due to fault of the plaintiff either motu proprio or upon
motion.
Dismissal at the instance of the plaintiff is either:
a.) Dismissal as a matter of right or upon
notice (Sec. 1); or
b.) Discretionary dismissal or upon motion
(Sec.2).
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)
Dismissal by plaintiff as a matter of right-
Q: How?
A: By filing a NOTICE OF DISMISSAL, not a motion, at
ANY TIME BEFORE service of the answer or a motion for
Summary Judgment.
This is the similar to Rule 10 on amendments.
For as long as there is no responsive pleading served yet
amendment of a pleading is a matter of right.
When the dismissal as a matter of right ceases-
The dismissal will however, be with prejudice
in any of the following conditions:
dismissal as a matter of right ceases when an answer
or a motion for summary judgment is served on the 1.) When in the notice of
plaintiff and not when the answer or the motion dismissal itself, the plaintiff
is filed with the court. Thus, if a notice of himself stated that he is
dismissal is filed by the plaintiff even after an answer dismissing his own complaint
has been filed in court but before the responsive with prejudice; OR
pleading has been served on the plaintiff, the notice 2.) When a notice operates as
of dismissal is still a matter of right. an adjudication upon the
merits when filed by a
Withdrawal not automatic upon filing of notice plaintiff who has once
of dismissal in court- dismissed in a competent
court an action based on or
Take note that upon filing of the notice of including the same claim.
dismissal, the court needs to issue an order This is the TWO-DISMISSAL
confirming the dismissal. The reason is that, the RULE.
withdrawal is not automatic. Withdrawal does not
take effect until confirmed by the court. This is in
keeping with the respect due to the court. Dismissal by plaintiff deemed intended to be with
prejudice-
But dismissal retroacts to date of filing of
notice not date of confirmation order- If the plaintiff files a notice of dismissal providing
It is not the order confirming the dismissal, therein a reason that prevents the refiling of
which operates to dismiss the complaint. As the the complaint, the dismissal must be deemed
name of the order implies, said order merely one with prejudice even if the notice does not
confirms a dismissal already effected by the filing of state that the dismissal is with prejudice. This
the notice of dismissal. Since the order issued by the happens when for instance, the notice
court merely confirms the dismissal, it follows that provides that the plaintiff recognizes the fact
the court does not have to approve or grant the of prescription or extinguishment of the
dismissal because it has no discretion on the obligation of the defendant or for reasons
matter. The dismissal occurs as of the date the stated in Sec. 5 of Rule 16 as when the action
notice is filed by the plaintiff and not the date is barred by res judicata.
the court issues the order confirming the
dismissal.
Two-dismissal rule
Under the rules on civil procedure, there are
two types of dismissal relative to its effect: Requisites:
1. Dismissal with prejudice the The two-dismissal rule applies when the plaintiff
case can no longer be re-filed; has (a) twice dismissed actions, (b) based on
2. Dismissal without prejudice the or including the same claim, (c) in a court of
case can be re-filed. competent jurisdiction.
GENERAL RULE: The dismissal by notice is The second notice of dismissal will bar the
WITHOUT PREJUDICE. The case can be re- refiling of the action because it will operate
filed. as an adjudication of the claim upon the
merits. In other words, the claim may only be filed
Exceptions: twice, the first being the claim embodied in the
original complaint. If the refiled claim or complaint
is dismissed again through a second notice of dismissal, that How to refile- complaint. The
second notice triggers the application of the two-dismissal dismissal shall be
rule and the dismissal is to be deemed one with prejudice Q: How do you re-file the action? Do you file without prejudice to
because it is considered as an adjudication upon the merits. another complaint again? the right of the
defendant to prosecute
ORTIGAS AND CO. LTD his counterclaim in a
ILLUSTRATION (Two-Dismissal Rule): I borrowed PARTNERSHIP vs. VELASCO separate action unless
money from Mr. Castaos and I did not pay him. So he filed 234 SCRA 455 [1994] within fifteen (15) days
a case against me to collect the unpaid loan. Upon receipt from notice of the
of the summons, I approach Mr. Castaos, Huwag mo HELD: It DEPENDS on motion he manifests
nalang ituloy ang kaso mo, babayaran kita. I will not file an whether the order confirming his preference to have
Answer, hindi nalang ako kukuha ng lawyer. I-dismiss mo the dismissal has already his counterclaim
na lang iyan, babayaran kita next month, wala lang akong become final. resolved in the same
kuwarta ngayon. I will refund you for the filing fee. a.) If within 15 days from action. Unless
Ngayon, payag siya. He will send a notice to the court the time the confirmation of the otherwise specified in
dismissing his complaint. The case is dismissed, without dismissal or before said order of the order, a dismissal
prejudice. confirmation becomes final, all under this paragraph
After one month, I did not pay again. So nagalit si Mr. that you have to do is to ask the shall be without
Castaos, he re-filed the same complaint, pangalawa na. I court to set aside the order of prejudice. A class suit
now receive another summons. So, lapit ako sa kanya, dismissal and revive the case shall not be dismissed
Bakit mo fi-nile kaagad? Eh, sabi mo, after one month because the order of dismissal or compromised
magbabayad ka. Wala lang akong kuwarta, next month pa have not yet become final. without the approval of
dadating ang kuwarta ko. I-dismiss mo na ULI yan. Basta, b.) However, if the order the court. (2a)
promise, next month, bayad na talaga ako. Isauli ko ang of the court confirming the
ginasta mo sa filing fee. Tapos, naatik na naman siya. So dismissal of the complaint based Dismissal upon motion/Discretionary
he files a notice of dismissal again, doble. The same case on your own notice has become dismissal
was dismissed twice. He availed of the dismissal in Section 1 final after 15 days, then the only
twice. way you can revive it is to file an If the defendant has already filed an answer or a
After next month, hindi na naman ako nagbayad. So entirely new action. motion for summary judgment, the complaint may
nagalit na naman siya. So he filed the same case for the still be dismissed upon motion by the plaintiff,
third time. I receive the summons. You know what I will do? at the discretion of the court and upon such
I will file a motion to dismiss the case because the second Sec. 2. Dismissal terms and conditions as the it deems proper.
dismissal is automatically with prejudice. upon motion of plaintiff.
Except as provided in Effect of dismissal upon a counterclaim
the preceding section, a already pleaded-
Illustration of requisite that the complaints must have been complaint shall not be
dismissed in a court of competent jurisdiction. dismissed at the Note that a counterclaim is possible here
plaintiff's instance save because the rule applies if the defendant has
PP files in the RTC an action to collect P300,000.00 upon approval of the already filed an answer.
from DD. The complaint was dismissed when PP immediately court and upon such
filed a notice of dismissal. The same claim was again filed in terms and conditions as If a counterclaim, whether compulsory or
the MTC. Before DD served either an answer or a motion for the court deems proper. permissive, has been pleaded by the defendant in
summary judgment, PP filed a notice of dismissal. Does the If a counterclaim has his answer, which was served upon the plaintiff
two-dismissal rule apply? been pleaded by a prior to the service upon him of the plaintiff's
defendant prior to the motion for dismissal, the dismissal shall be
It does not. The first court, the RTC was not a court of service upon him of the limited to the complaint.
competent jurisdiction because the claim was below its plaintiff's motion for
jurisdictional amount. dismissal, the dismissal Options or alternative procedures of the
shall be limited to the defendant on prosecuting the counterclaim-
 1. prosecute his counterclaim in a separate
action or Sec. 3. Dismissal due
2. in the same action. to fault of plaintiff. If, for
no justifiable cause, the
Should he opt to prosecute his counterclaim in a plaintiff fails to appear
separate action, the court should render the on the date of the
corresponding order granting and reserving his right presentation of his
to prosecute his claim in a separate complaint. evidence in chief on the
complaint, or to
Should he choose to have his counterclaim resolved prosecute his action for
in the same action, he must notify the court of his an unreasonable length
preference within fifteen (15) days from notice of the of time, or to comply
plaintiffs motion to dismiss. with these Rules or any
order of the court, the
A similar rule is adopted in Sec. 6 Rule 16 and Sec. 3 complaint may be
of Rule 17, wherein the dismissal of the complaint does not dismissed upon motion
carry with it the dismissal of the counterclaim/. The same of the defendant or upon
provision also grants the defendant a choice in the the court's own motion,
prosecution of his counterclaim. without prejudice to the
right of the defendant to
Nature of the dismissal prosecute his
counterclaim in the
Gen. Rule- same or in a separate
The dismissal of the complaint under Section 2 shall be action. This dismissal
without prejudice. shall have the effect of
an adjudication upon the
Except: merits, unless otherwise
1. when otherwise stated in the motion to declared by the court.
dismiss, or (3a)
2. unless otherwise specified in the order of
dismissal.
Grounds for the dismissal of the case due to
Dismissal of a class suit- the fault of the plaintiff under Section-
A court approval is always required in the dismissal Without justifiable reason or cause-
or compromise of a class suit even if no answer has 1.) The plaintiff fails to appear,
yet been served. on the date of the
presentation of his evidence-
Reason: in-chief on the complaint;
The last sentence says, A class suit shall not be dismissed 2.) The plaintiff fails to prosecute
or compromised without the approval of the court. When his action for an unreasonable
you file a class suit, you are not only fighting for yourself length of time (Nolle
you are fighting for the others. So, you cannot just Prosequi);
withdraw it on your own or else, you will cause prejudice to 3.) The plaintiff fails to comply
everybody. So, in order to prevent the person who filed it with the Rules of Court or
from prejudicing the right of the members of the class suit, it 4.) The plaintiff fails to comply
cannot be dismissed or compromised without the approval of with any order of the court.
the court.
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 evidence of the plaintiff to
prove his cause of action. In other words, it is
plaintiffs main evidence.
Note that it is the plaintiffs failure to appear on the
date of the presentation of his evidence-in-chief on
the complaint, not on the date of the defendants
presentation of evidence on his defense/s, that is a
ground for dismissal of the case.
Thus, there can be no dismissal due to fault
of the plaintiff under this ground if the
plaintiff had already presented his evidence
in chief and rested his case but failed to
appear during the presentation of the
defendants evidence.
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
defendants 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.
Procedure when plaintiff fails to appear
during the defendants presentation in
chief-
The court should proceed with the
presentation of the defendants
evidence without the plaintiff. In other words,
the court should merely consider the plaintiff as
having waived his right to cross-examine the
defendants 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 want to avoid the word non-suited because it
carries a different meaning.
The plaintiffs failure to appear must be without
justifiable cause to constitute intentional failure to
appear or fault-
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 proceed ex-parte. But definitely, the defendant
cannot be declared in default because he already
filed an answer.
ANY ORDER OF THE COURT.
EXAMPLE: The court says, Plaintiff, you are
hereby directed to amend the complaint. Plaintiff
refuses to amend. The court will dismiss the case.
A 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.
So the court directs the plaintiff to amend but the
plaintiff refused to comply.
Other Examples: Refusal of plaintiff to comply with
the courts order to submit a bill of particulars or
certification of non-forum shopping.
Section 3 says, may be dismissed upon
motion of the defendant or upon the courts
own motion (motu propio).
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.
Dismissal is adjudication upon the merits or
with prejudice/exception
GENERAL RULE: Dismissal due to the fault of the
plaintiff is with prejudice.
EXCEPTIONS:
a.)when the court provides otherwise or
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)
b.) if the court has not yet acquired jurisdiction over
the person of the defendant as res judicata will not
apply. (Herrera vol. 1 p. 798)
Illustration of second exception-
REPUBLIC PLANTERS
BANK (RBP) vs. MOLINA
166 SCRA 39 [1988]

EXCEPTIONS or instances when the court may FACTS: The RPB filed a
Second Ground: FAILURE OF PLAINTIFF TO PROSECUTE HIS dismiss the complaint motu propio: case against the defendant for a
ACTION sum of money. Defendant cannot
FOR UNREASONABLE LENGTH OF TIME. 1. Section 3, Rule 17 (Plaintiffs fault); be summoned because his
2. When on its face, the complaint whereabouts is now unknown.
EXAMPLE: Maybe every time his case is called to trial, shows that the court has no Several attempts made by the
he appears but he is not ready and so he postpones. The jurisdiction over the subject plaintiff to look for him failed.
next hearing, he postpones again. Thats one interpretation. matter; After a while the court dismissed
3. When there is litis pendentia; or the complaint for RBPs failure to
Or, the case cannot be tried because the defendant cannot res adjudicata; or when the action prosecute. And the order of
be summoned. The court keeps asking the plaintiff for the has prescribed; dismissal was silent. So,
correct address of the defendant but for more than one year, 4. Under the Summary Rules, the following Section 3, the dismissal
the plaintiff did not supply the court the correct address of court is empowered to dismiss is with prejudice.
the defendant. The judge cannot have the case pending in immediately without any motion.
court forever. Then later on, the plaintiff
Effect of dismissal under Sec. 3 on the (RPB) discovered the
counterclaim is the same as in Section 2. whereabouts of the defendant.
Third Ground: FAILURE TO COMPLY WITH THE RULES OF The RPB re-filed the compliant.
COURT OR 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: 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.
DISMISSALS in summary-
What dismissals are WITH prejudice?
a. Dismissal upon mere NOTICE without order of the court
when filed by a party who has once dismissed in a
competent court an action based on or including the same
claim
(Rule 17, Sec. 1).
b. Dismissal by order of the court upon a partys MOTION
which specifies that the same shall be with prejudice to the
filing of a subsequent action based on or including the
same claim (Rule 17, Sec. 2).
c. Dismissal upon motion of a defendant or on the courts
motion upon plaintiffs
FAILURE TO PROSECUTE his claim (Rule 17, Sec. 3).
d. Dismissal as a result of plaintiffs FAILURE TO APPEAR
during the pre -trial, unless
otherwise ordered by the court (Rule 18, Sec. 5).
What dismissals are WITHOUT prejudice?
a. Dismissal for the first time by plaintiff upon mere NOTICE
without order of the court
(Rule 17, Sec. 1).
b. Dismissal by order of the court upon plaintiffs own
MOTION (Rule 17, Sec. 2).
c. Dismissal upon motion of defendant or upon the
courts own motion upon FAILURE TO PROSECUTE
by plaintiff and the court SPECIFIES that the same
shall be without prejudice (Rule 17, Sec. 3).
When is an action dismissed for failure to
prosecute?
a. If the plaintiff fails to appear at the time of trial;
b. If he fails to prosecute his action for an
unreasonable length of time;
c. If he fails to comply with the Rules of Court or any
order of the court (Rule 17, Sec. 3)
NOTE:
Effect of dismissal for failure to prosecute - Once a
case is dismissed for failure to
prosecute, this has the effect of an ADJUDICATION
ON THE MERITS and is understood to be WITH
PREJUDICE to the filing of another action unless
otherwise provided for in the order of dismissal (De
Knecht vs. CA , May 20, 1998).
Dismissal for failure to prosecute is an adjudication
on the merits. Therefore, such
dismissal should be challenged by APPEAL within the
reglementary period. (3A Apparel
Corporation vs. Metropolitan Bank and Trust Co .,
G.R. No. 186175, Aug. 25, 2010)
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 procedures under Sections
1, 2 and 3 of this Rule 17 apply also to dismissal of
cross-claim, counterclaim, or third-party complaint.
A dismissal or discontinuance of an action operates
to annul orders, rulings or judgments previously
made in the case, as well as all proceedings had in
connection therewith and renders all pleading
ineffective. (Servicewide Specialist, Inc. vs. CA GR
No. 110597, May 8, 1996)
Reviewer
Dismissal of Actions (Rule 17)
1. Dismissal upon notice by plaintiff; Two-
dismissal rule
1. NOTICE OF DISMISSAL OF COMPLAINT
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. (Rule 17, Sec. 1).
General rule: the dismissal of the complaint under
this rule is WITHOUT PREJUDICE.
Exceptions:
a. where the notice of dismissal so provides;
b. where the plaintiff has previously dismissed the
same case in a court of competent
jurisdiction;
c. even where the notice of dismissal does not
provide that it is with prejudice but it is
premised on the fact of payment by the defendant
of the claims involved.
For the notice of dismissal to be effective, there
must be an order confirming the dismissal.
2. Dismissal upon motion by plaintiff; effect
on existing counterclaim
Rule 17, 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.
3. Dismissal due to the fault of plaintiff
Rule 17, 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.
4. Dismissal of counterclaim, cross-claim or third-
party complaint
Rule 17, 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.
DISMISSALS
What dismissals are WITH prejudice?
a. Dismissal upon mere NOTICE without order of the court
when filed by a party who has once dismissed in a
competent court an action based on or including the same
claim
(Rule 17, Sec. 1).
b. Dismissal by order of the court upon a partys MOTION
which specifies that the same shall be with prejudice to the
filing of a subsequent action based on or including the
same claim (Rule 17, Sec. 2).
c. Dismissal upon motion of a defendant or on the
courts motion upon plaintiffs
FAILURE TO PROSECUTE his claim (Rule 17, Sec. 3).
d. Dismissal as a result of plaintiffs FAILURE TO
APPEAR during the pre -trial, unless
otherwise ordered by the court (Rule 18, Sec. 5).
What dismissals are WITHOUT prejudice?
a. Dismissal for the first time by plaintiff upon mere
NOTICE without order of the court
(Rule 17, Sec. 1).
b. Dismissal by order of the court upon plaintiffs own
MOTION (Rule 17, Sec. 2).
c. Dismissal upon motion of defendant or upon the
courts own motion upon FAILURE TO PROSECUTE
by plaintiff and the court SPECIFIES that the same
shall be without prejudice (Rule 17, Sec. 3).
When is an action dismissed for failure to
prosecute?
a. If the plaintiff fails to appear at the time of trial;
b. If he fails to prosecute his action for an
unreasonable length of time;
c. If he fails to comply with the Rules of Court or any
order of the court (Rule 17, Sec. 3)
NOTE:
Effect of dismissal for failure to prosecute - Once a
case is dismissed for failure to
prosecute, this has the effect of an ADJUDICATION
ON THE MERITS and is understood to be WITH
PREJUDICE to the filing of another action unless
otherwise provided for in the order of dismissal (De
Knecht vs. CA , May 20, 1998).
Dismissal for failure to prosecute is an adjudication
on the merits. Therefore, such
dismissal should be challenged by APPEAL within the
reglementary period. (3A Apparel
Corporation vs. Metropolitan Bank and Trust Co .,
G.R. No. 186175, Aug. 25, 2010)