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  • Dearnest 2

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    Ralph Monday
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    The document discusses different types of dismissals under Rule 17. It notes that if a defendant files a counterclaim before the plaintiff's motion to dismiss, the court must grant leave for dismissal which is usually without prejudice. Dismissals for failure to prosecute by the plaintiff can be on the defendant's motion or by the court, and are generally with prejudice. Rule 17 governs dismissals initiated by the plaintiff, not the defendant, which are covered by Rule 16. The document then discusses a specific case involving a complaint to recover logs delivered.

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    The document discusses different types of dismissals under Rule 17. It notes that if a defendant files a counterclaim before the plaintiff's motion to dismiss, the court must grant leave for dismissal which is usually without prejudice. Dismissals for failure to prosecute by the plaintiff can be on the defendant's motion or by the court, and are generally with prejudice. Rule 17 governs dismissals initiated by the plaintiff, not the defendant, which are covered by Rule 16. The document then discusses a specific case involving a complaint to recover logs delivered.

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    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
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    10 views1 page

    Dearnest 2

    Uploaded by

    Ralph Monday
    The document discusses different types of dismissals under Rule 17. It notes that if a defendant files a counterclaim before the plaintiff's motion to dismiss, the court must grant leave for dismissal which is usually without prejudice. Dismissals for failure to prosecute by the plaintiff can be on the defendant's motion or by the court, and are generally with prejudice. Rule 17 governs dismissals initiated by the plaintiff, not the defendant, which are covered by Rule 16. The document then discusses a specific case involving a complaint to recover logs delivered.

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    © All Rights Reserved
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    The second section of the rule contemplates a situation where a counterclaim has been pleaded by the

    defendant before the service on him or her of the plaintiff’s motion to dismiss. It requires leave of
    court, and the dismissal is generally without prejudice unless otherwise declared by the court.

    The third section contemplates dismissals due to the fault of the plaintiff such as the failure to
    prosecute. The case is dismissed either upon motion of the defendant or by the court motu propio.
    Generally, the dismissal is with prejudice unless otherwise declared by the court.

    In all instances, Rule 17 governs dismissals at the instance of the plaintiff, not of the defendant.
    Dismissals upon the instance of the defendant are generally governed by Rule 16, which covers
    motions to dismiss.63

    In Insular Veneer, Inc. v. Hon. Plan,64 Consolidated Logging and Lumber Mills filed a complaint
    against Insular Veneer to recover some logs the former had delivered to the latter. It also filed ex partea
    motion for issuance of a restraining order.

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