IX.
DISMISSAL OF ACTIONS deemed one with prejudice because it is considered as an
Pertinent Rule: Rule 17, Rules of Court
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.
Dismissal upon notice of plaintiff
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.
Since the order issued by the court merely confirms the dismissal, it
follows that 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.
It is submitted that the dismissal should occur as of the date the
notice is filed by the plaintiff and, not as of the date the court issues
the order confirming the dismissal.
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.
Dismissal without prejudice; exceptions
The general rule is that a dismissal made in this section is without
prejudice, except when:
(a) the notice of dismissal by the plaintiff provides that the dismissal
is with prejudice;
(b) the plaintiff has previously dismissed the same case in a court of
competent jurisdiction based on or including the same claim (res
judicata); and
(c) if the plaintiff files a notice of dismissal providing a reason that
prevents the refiling of the complaint.
Two-dismissal rule
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 refiled.
However, if the refiled claim or complaint is dismissed again through
a second notice of dismissal, the second notice triggers the
application of the two-dismissal rule and the dismissal is to be
adjudication upon the merits.
In short: 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.
The rule applies when the plaintiff has:
(a) twice dismissed actions;
(b) based on or including the same claim; and
(c) in a court of competent jurisdiction.
This rule shall not apply if the prior dismissal was done at the instance
of the defendant.
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.
Effect on counterclaim
Lim Teck Chuan v. Uy
The RTC erred when it dismissed the case when the present rules
state that the dismissal shall be limited only to the complaint. A
dismissal of an action is different from a mere dismissal of the
complaint.
For this reason, since only the complaint and not the action is
dismissed, the defendant in spite of said dismissal may still prosecute
his counterclaim in the same action.
In Pinga, the Court clearly stated that the dismissal of the complaint
does not necessarily result to the dismissal of the counterclaim.
The Court held that:
At present, even Section 2, concerning dismissals on motion of the
plaintiff, now recognizes the right of the defendant to prosecute the
counterclaim either in the same or separate action notwithstanding
the dismissal of the complaint, and without regard as to the
permissive or compulsory nature of the counterclaim.
In his commentaries on the 1997 Rules of Civil Procedure, Justice
Regalado expounds on the effects of the amendments to Sections 2
and 3 of Rule 17:
Under this revised section [2], 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.
These alternative remedies of the defendant are available to him
regardless of whether his counterclaim is compulsory or permissive.
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.
Shimizu vs. Magsalin
An action may be dismissed for failure to prosecute in any of the
following instances:
(a) Failure of the plaintiff, without justifiable reasons, to appear 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.
Roasters Phils. Inc. v. Gaviola
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.
Insigne v. Abra Valley College
Although Section 3, Rule 17 of the Rules of Court expressly empowers
the trial court to dismiss the complaint motu proprio or upon motion
of the defendant if, for no justifiable cause, the plaintiff fails to comply
with any order of the court, the power to dismiss is not to wielded
indiscriminately, but only when the non-compliance constitutes a
willful violation of an order of consequence to the action.
Dismissal of the action can be grossly oppressive if it is based on non-
compliance with the most trivial order of the court considering that
the dismissal equates to "an adjudication upon the merits, unless
otherwise declared by the court.
A line of demarcation must be drawn between an order whose non-
compliance impacts on the case, and an order whose non-compliance
causes little effect on the case.
Laurel v. Vardeleon
Trial courts have the duty to dispose of controversies after trial on the
merits whenever possible. It is deemed an abuse of discretion for
them, on their own motion, to enter a dismissal which is not
warranted by the circumstances of the case.
While it is true that the dismissal of an action on grounds specified
under Section 3, Rule 17 of the Revised Rules of Court is addressed to
their discretion, such discretion must be exercised soundly with a
view to the circumstances surrounding each particular case.
If facts obtain that serve as mitigating circumstances for the delay, the
same should be considered and dismissal denied or set aside,
especially where the suit appears to be meritorious and the plaintiff
was not culpably negligent and no injury results to defendant.
Atty. Pontejos v. Hon. Desierto
The provisions of the Rules of Court may be applied suppletory to the
rules of procedure of administrative bodies exercising quasi-judicial
powers, unless otherwise provided by law or the rules of procedure
of the administrative agency concerned.
Even if Section 3, Rule 17 of the Rules of Court is applied to the subject
administrative proceedings, petitioner's argument on the matter of
failure to prosecute still lacks merit. Section 3, Rule 17 provides for
the instances where the complaint may be dismissed due to the
plaintiff's fault.
In the absence of a pattern or scheme to delay the disposition of the
case or a wanton failure to observe the mandatory requirement of
the rules on the part of the plaintiff, as in the case at bar, courts
should decide to dispense with rather than wield their authority to
dismiss.
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.
Pinga v. Heirs of German Santiago
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, compulsory
or otherwise. In fact, the dismissal of the complaint is without
prejudice to the right of defendants to prosecute the counterclaim.
Whatever the nature of the counterclaim, it bears the same integral
characteristics as a complaint; namely a cause (or causes) of action
constituting an act or omission by which a party violates the right of
another.
The main difference lies in that the cause of action in the counterclaim
is maintained by the defendant against the plaintiff, while the
converse holds true with the complaint.
Yet, as with a complaint, a counterclaim without a cause of action
cannot survive. It would then seemingly follow that if the dismissal of
the complaint somehow eliminates the cause(s) of the counterclaim,
then the counterclaim cannot survive. Yet that hardly is the case,
especially as a general rule.
More often than not, the allegations that form the counterclaim are
rooted in an act or omission of the plaintiff other than the plaintiff's
very act of filing the complaint. Moreover, such acts or omissions
imputed to the plaintiff are often claimed to have occurred prior to
the filing of the complaint itself.
The only apparent exception to this circumstance is if it is alleged in DISTINCTION BETWEEN DISMISSAL OF COMPLAINT AND
the counterclaim that the very act of the plaintiff in filing the DISMISSAL OF ACTION
complaint precisely causes the violation of the defendant's rights.
Yet even in such an instance, it remains debatable whether the Ewan eto naintindihan ko sa group chat eh
dismissal or withdrawal of the complaint is sufficient to obviate the A complaint states the cause of action while an action is the entirety
pending cause of action maintained by the defendant against the of a judicial proceeding.
plaintiff. When a complaint is dismissed, it disposes of the cause of action
These considerations persist whether the counterclaim in question is alleged; either with or without prejudice. It does not prejudice a
permissive or compulsory. A compulsory counterclaim arises out of or counterclaim, cross-claim, etc. filed before dismissal.
is connected with the transaction or occurrence constituting the When an action is dismissed, it completely disposes of all claims,
subject matter of the opposing party's claim, does not require for its including counterclaims.
adjudication the presence of third parties, and stands within the So, think of an action as an umbrella and a complaint is just under the
jurisdiction of the court both as to the amount involved and the umbrella. Closing the action (umbrella) also closes the complaint(s).
nature of the claim.
The fact that the culpable acts on which the counterclaim is based are
founded within the same transaction or occurrence as the complaint,
is insufficient causation to negate the counterclaim together with the
complaint.
The dismissal or withdrawal of the complaint does not traverse the
boundaries of time to undo the act or omission of the plaintiff against
the defendant, or vice versa. While such dismissal or withdrawal
precludes the pursuit of litigation by the plaintiff, either through
his/her own initiative or fault, it would be iniquitous to similarly
encumber the defendant who maintained no such initiative or fault.
If the defendant similarly moves for the dismissal of the counterclaim
or neglects to timely pursue such action, let the dismissal of the
counterclaim be premised on those grounds imputable to the
defendant, and not on the actuations of the plaintiff.

DISTINCTION BETWEEN DISMISSALS WITH PREJUDICE AND

WITHOUT PREJUDICE

Strongworld Construction vs. Perello (not in assigned cases)

We distinguish a dismissal with prejudice from a
dismissal without prejudice. The former disallows and bars the
refiling of the complaint; whereas, the same cannot be said of a
dismissal without prejudice.
Likewise, where the law permits, a dismissal with prejudice is subject
to the right of appeal.

Shimizu vs. Magsalin

Dismissals of actions (under Section 3) which do not expressly state
whether they are with or without prejudice are held to be with
prejudice.
As a prejudicial dismissal, it is deemed to be a judgment on the merits
so that the petitioner's complaint can no longer be refiled on the
principle of res judicata.
As an adjudication on the 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.
Rule 36, 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.