2009 Kansas Code
Chapter 60 PROCEDURE, CIVIL
Article 2 RULES OF CIVIL PROCEDURE
60-241. Dismissal of actions.

60-241

Chapter 60.--PROCEDURE, CIVIL Article 2.--RULES OF CIVIL PROCEDURE

      60-241.   Dismissal of actions. (a) Voluntary dismissal; effect thereof. (1) By plaintiff; by stipulation. Subject to the provisions of subsection (e) of K.S.A. 60-223 and amendments thereto and of any statute of the state, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Where the dismissal is by stipulation the clerk of the court shall enter an order of dismissal as a matter of course. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.

      (2)   By order of court. Except as provided in paragraph (1) of this subsection, an action shall not be dismissed at the plaintiff's instance save upon order of the judge and upon such terms and conditions as the judge deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant 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 by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

      (b)   Involuntary dismissal; effect thereof. (1) For failure of the plaintiff to prosecute or to comply with these sections or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this paragraph and any dismissal not provided for in this section, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under K.S.A. 60-219 and amendments thereto, operates as an adjudication upon the merits.

      (2)   The judge may on the judge's own motion cause a case to be dismissed without prejudice for lack of prosecution, but only after directing the clerk to notify counsel of record not less than 10 days in advance of such intended dismissal, that an order of dismissal will be entered unless cause be shown for not doing so.

      (c)   Dismissal of counterclaim, cross-claim, or third-party claim. The provisions of this section apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to paragraph (1) of subsection (a) shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing.

      (d)   Costs of previously dismissed action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it deems proper and may stay the proceedings in the action until the plaintiff has complied with the order.

      History:   L. 1963, ch. 303, 60-241; amended by Supreme Court order dated July 17, 1969; L. 1980, ch. 171, § 2; L. 1997, ch. 173, § 22; July 1.