RULE 17: DISMISSAL OF ACTIONS
LAW ON LEGAL AND COURT PROCESSES:
A RULE-BY-RULE EXPOSITION
PUBLISHED ONLY VIA
PROJECT JURISPRUDENCE - PHILIPPINES
-oOo-
MARK ANGELO S. DELA PEÑA
To cite this online book, please use the following:
Dela Peña. 2023. "Law on Legal and Court Processes: A Rule-by-Rule Exposition." Published by Project Jurisprudence - Philippines. Published: September 20, 2023. Link: [Insert link] Last accessed: [Insert date of access].
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RULE 17: DISMISSAL OF ACTIONS
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.[1]
Normally, it is the defending party who is interested in having the case filed by the claiming party dismissed or thrown out of court. Nevertheless, it may happen that, for practical or personal reasons, the plaintiff wishes to withdraw the case and pursue it no longer.
There are two (2) such situations that the student must keep in mind. First is before service of the answer or before service of a motion for summary judgment. Second is after such service. In the first situation, the plaintiff simply needs to notify the court of his/her intention to withdraw the case through what is known in practice as a notice of dismissal. The notice of dismissal may state that the same is with or without prejudice to re-filing. The second situation is dealt with under Section 2of Rule 17.
It appears from the wording of Section 1of Rule 17 that dismissal by plaintiff via notice is a matter of procedural right. However, it can only be exercised twice because the second dismissal by plaintiff via notice will be considered as an adjudication on the merits, i.e., as if the court has already decided on the case and as if there is bar by prior judgment on the same claim. This is called the “two (2) dismissal” rule.
This humble author has had an experience in filing a notice of dismissal. In one case of personal experience, this author was hired as counsel for a petition for guardianship over a minor child and her property. The petition was filed, docket and other legal fees were paid and the court already issued an order setting the petition for hearing. However, in the middle of all these, the family of the minor figured in a personal problem that prevented them from cooperating with one another. In fact, there was even a proposal to bring the minor child abroad. At the instance of the family members who represented the child, this author filed a notice of dismissal which was granted by the court. Interestingly, the order of dismissal issued by the court was very brief, saying: “Petitioner through counsel filed a notice of dismissal of this petition for personal and other family reasons. Finding the same in accordance with the Rules of Court, the same is hereby GRANTED. SO ORDERED.” The reason for such short and direct grant of the notice of dismissal is that, in law, the dismissal of an action rests exclusively on the will of a plaintiff or claimant, to prevent which the defending party and even the court itself is powerless, requiring in fact no action whatever on the part of the court except the acceptance and recording of the causative document.[2]
GO V. CRUZ
In Go v. Cruz,[3] the notice of dismissal was filed by the plaintiff on November 12, 1981. Defendant filed his answer three (3) days earlier, or on November 09, 1981, but plaintiff was only served a copy of the answer by registered mail only on November 16, 1981. Notwithstanding the fact that the answer was filed with the trial court three (3) days prior to the filing of the notice of dismissal, the Supreme Court still affirmed the dismissal sought by the plaintiff. The Court declared that the right of the plaintiff to cause the dismissal of the complaint by mere notice is lost not by the filing of the answer with the trial court, but upon the actual service to the plaintiff of the answer. The Court further ruled that the plaintiff’s notice ipso facto brought about the dismissal of the action then pending in the trial court, without need of any order or other action by the judge. The dismissal was effected without regard to whatever reasons or motives the plaintiff might have had for bringing it about and should be considered without prejudice to re-filing, the contrary not being otherwise stated in the notice itself and it being the first time the action was being so dismissed.
DISMISSAL UPON MOTION OF PLAINTIFF
Except as provided in Section 1 of Rule 17, 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 or her 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/her counterclaim in a separate action unless within fifteen (15) calendar days from notice of the motion s/he manifests his/her preference to have his/her 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.[4]
The second situation not covered by Section 1 of Rule 17 is a dismissal at the instance of the plaintiff after service of the answer or after service of a motion for summary judgment. In such a situation, dismissal must be submitted to the approval of the court via a motion. Hence, the proper motion is a motion to dismiss.
The reason for requiring the court’s approval is obvious. It may happen that the plaintiff has already read the defendant’s answer and, finding his/her cause defeated, the plaintiff may opt to withdraw the case s/he himself/herself initiated in order to avoid further humiliation or defeat. Such an attitude toward the court cannot be allowed without its approval because it makes a mockery of the justice system.
Even if the court grants the plaintiff’s motion to dismiss after service of answer or a motion for summary judgment, it may include in its order such terms and conditions as may be proper. For example, the court may grant the motion to dismiss under the condition that the same is with prejudice to re-filing, although as a general rule such dismissal is without prejudice, or that the plaintiff must pay the defendant damages. Hence, as can be inferred from the discussions above, an order by the court granting the plaintiff’s motion to dismiss (not as a matter of procedural right) may take the form of a summary judgment because the issues have already been joined.
As explained by renowned remedial law expert, former Associate Justice Florenz D. Regalado, in his treatise on the matter, where the plaintiff moves for the dismissal of the 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/her counterclaim in a separate action or to have the same resolved in the same action. Should s/he opt for the first alternative, the court should render the corresponding order granting and reserving his/her right to prosecute his claim in a separate complaint. Should s/he choose to have his/her counterclaim disposed of in the same action wherein the complaint had been dismissed, s/he must manifest within fifteen (15) days from notice to him/her of plaintiff’s motion to dismiss.[5]
In Blay v. Baña,[6] the Court of Appeals (CA) confined the application of Section 2 of Rule 17 to that portion of its second sentence which states that the “dismissal shall be limited to the complaint,” ignoring the same provision’s third sentence, which provides for the alternatives available to the defendant who interposes a counterclaim prior to the service upon him/her of the plaintiff’s motion for dismissal. As may be clearly inferred therefrom, should the defendant desire to prosecute his/her counterclaim, s/he is required to manifest his/her preference therefor within fifteen (15) days from notice of the plaintiff’s motion to dismiss. Failing in which, the counterclaim may be prosecuted only in a separate action but will not result in the dismissal or waiver of the counterclaim. The rationale behind this rule is not difficult to discern: the passing of the fifteen-day period triggers the finality of the court’s dismissal of the complaint and, hence, bars the conduct of further proceedings, i.e., the prosecution of defendant’s counterclaim, in the same action. Thus, in order to obviate this finality, the defendant is required to file the required manifestation within the aforesaid period; otherwise, the counterclaim may be prosecuted only in a separate action.[7]
EFFECT OF DISMISSAL ON OTHER CLAIMS
A counterclaim pleaded in the answer cannot be adversely affected by the plaintiff’s motion to dismiss his/her own complaint. The defendant has two (2) options: (a) to prosecute the counterclaim in a separate action; or (b) to pursue the same in the same action.
EFFECT OF DISMISSAL ON CLASS SUIT
A class suit shall not be dismissed or compromised without the approval of the court. A class suit affects persons who are not impleaded as parties in the suit; because of this, the court must exercise more caution in order to protect the rights of all concerned.
The term “compromised” here means “settled,” not “adversely affected.” In civil cases, it is typical for parties to reach an agreement that puts an end to the litigation. In class suits, however, the Rules of Court cautions the court to proceed carefully in order not to prejudice the rights of those not impleaded as parties. The evil sought to be prevented is a compromise between the parties that will result in the dismissal of the case but without sufficient settlement insofar as the non-impleaded parties are concerned.
DISMISSAL DUE TO FAULT OF PLAINTIFF
If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his/her evidence in chief on the complaint, or to prosecute his/her action for an unreasonable length of time, or to comply with the Rules of Court 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/her 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.[8]
There are three kinds of dismissal under Rule 17 of the Rules of Court: (a) dismissal via plaintiff’s notice; (b) dismissal via plaintiff’s motion; and (c) dismissal due to plaintiff’s fault. The “fault” spoken of under Section 3 of Rule 17 has four (4) kinds: (a) failure to appear during presentation of evidence in chief; (b) failure to prosecute for an unreasonable length of time; (c) failure to comply with the Rules of Court; and (d) failure to comply with an order of the court. In all of these, the plaintiff may interpose the defense of a justifiable reason that has prevented presentation, prosecution or compliance.
FAILURE TO PROSECUTE
The question of whether a case should be dismissed for failure to prosecute is mainly addressed to the sound discretion of the trial court. The true test for the exercise of such power is whether, under the prevailing circumstances, the plaintiff is culpable for want of due diligence in failing to proceed with reasonable promptitude.[9] There must be unwillingness on the part of the plaintiff to prosecute.[10] This humble author opines that proof of unwillingness on the part of the plaintiff is the existence in the records of the case of multiple orders to reset the hearing without any positive response, or any manifestation of willingness, or any justification offered by the plaintiff.
As to what constitutes an “unreasonable length of time,” the Supreme Court has ruled that it depends on the circumstances of each particular case and that the sound discretion of the court in the determination of the said question will not be disturbed, in the absence of patent abuse.[11]
In Ko v. Philippine National Bank,[12] the Supreme Court affirmed the trial court’s dismissal of the complaint therein for failure to prosecute and held that the span of three years from the filing of the complaint to the order of dismissal shows that the plaintiffs therein had no interest in seeing their case terminated at the earliest possible time, or that the case was unmeritorious from inception. Moreover, in Roasters Philippines, Inc. v. Gaviola,[13] the High Court found that the actions exhibited by plaintiffs demonstrated their lack of interest in prosecuting the case after considering that: (a) almost two years had lapsed from finality of the Court of Appeals’ Decision but they did not file any pleading to revive the case; (2) plaintiffs only acted at the behest of defendants; and (3) plaintiffs and counsel failed to attend the scheduled pre-trial, mediation and hearing for the initial presentation of their evidence-in-chief.
In Philippine National Bank v. Daradar,[14] plaintiff’s actions were found by the Court to be clearly demonstrative of his lack of interest and due diligence to prosecute the case. He failed to act on the trial court’s first order and allowed it to issue its second order four (4) years later. Plaintiff’s lack of interest and due diligence to prosecute his case was further highlighted by his failure to assail the second order and the lapse of another four (4) years before he filed another complaint based on the same cause of action. All told, the Supreme Court found no compelling reason to disturb the trial court’s dismissal of plaintiff’s complaint under Section 3of Rule 17.
FAILURE TO COMPLY WITH THE RULES OR COURT ORDER
Recall that misjoinder or nonjoinder of parties is not a ground for a motion to dismiss. However, the court may order the inclusion or exclusion of a nonjoined or a misjoined party in the interest of justice. If the plaintiff fails to comply with this order of inclusion or exclusion without justifiable cause, the court may order the dismissal of the case under Section 3 of Rule 17.
How about a failure on the part of the plaintiff to comply with an order to submit bill of particulars under Rule 12? Yes, such noncompliance may also result in the dismissal of the case under Section 3 of Rule 17. To recall, under Section 4 of Rule 12, in case the order to submit bill of particulars is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just. The phrase “such other order as it deems just” may include an order of dismissal under Section 3 of Rule 17 if there is no justifiable reason for such noncompliance on the part of the plaintiff.
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, OR THIRD-PARTY COMPLAINT
The provisions of Rule 17 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 Rule 17, 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.[15]
[1] Section 1, Rule 17, Rules of Court.
[2] Go v. Cruz, G.R. No. 58986, 17 April 1989, 172 SCRA 247.
[3] G.R. No. 58986, 17 April 1989, 172 SCRA 247.
[4] Section 2, Rule 17, Rules of Court.
[5] Regalado, Florenz D., Remedial Law Compendium, 10th Ed., Vol. 1, p. 302.
[6] Blay v. Baña, 827 Phil. 494 [ G.R. No. 232189. March 07, 2018 ].
[7] Blay v. Baña, 827 Phil. 494 [ G.R. No. 232189. March 07, 2018 ].
[8] Section 3, Rule 17, Rules of Court.
[9] Allied Banking Corp. v. Spouses Madriaga, 797 Phil. 182, 191 (2016).
[10] Roasters Philippines., Inc. v. Gaviola, 768 Phil. 309,318 (2015).
[11] Philippine National Bank v. Daradar, [ G.R. No. 180203, June 28, 2021 ].
[12] 515 Phil. 276, 282-283 (2006).
[13] 768 Phil. 309,318 (2015).
[14] [ G.R. No. 180203, June 28, 2021 ].
[15] Section 4, Rule 17, Rules of Court.