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Rule 16 Motion to Dismiss Overview: Counterpart of motion to quash (Rule 117) in criminal procedure Filed in lieu of an answer; and

nd filed within the time to file an answer to a complaint (within 15 days after service of summons) or pleading asserting a claim (i.e. CC, XC, 3PC)

Example: An allegation that a contract is an equitable mortgage is a conclusion and not a material allegation. Hence, it is not deemed admitted by the motion to dismiss. Another example: A files an action for damages against B who files a motion to dismiss, B in effect says that even assuming the facts to be true as alleged by A, the latter has failed to show that he has a right to relief because his action has prescribed or because the court where the action was filed has no jurisdiction over the subject matter of the complaint. Omnibus Motion

Motion to Dismiss Even when the allegations are now clear enough to enable the defendant to file his responsive pleading because the adverse party has already submitted a bill of particulars, the defendant need no file his answer immediately. He may first explore the possibility of filing a motion to dismiss under Rule 16. If there is no ground for a motion to dismiss, he has to file his answer. While the filing of a motion to dismiss is not prohibited, the remedy being an integral part of the Rules of Court, the current policy of the Supreme Court is not to encourage the filing of a motion to dismiss but to instead file an answer. Thus, effective August 26, 2004, within 1 day from receipt of the complaint, summons shall contain a reminder to the defendant to observe restraint in filing a motion to dismiss and instead allege the grounds thereof as defense in the answer. [A.M. No. 03-1-09-SC, July 13, 2004]. A motion to dismiss is not a pleading It is merely a motion. It is an application for relief other than by a pleading. A motion is not one of those designated as a pleading under the Rules of Court. Hypothetical admissions of a motion to dismiss A motion to dismiss hypothetically admits the truth of the factual allegations of the complaint. The admission extends only to such matters of fact that have been sufficiently pleaded and not to mere epithets charging fraud, allegations of legal conclusions or erroneous statements of law, inferences from facts not stated, matters of evidence or irrelevant matters. Only deemed hypothetically admitted are material allegations, not conclusions.

1. When a motion to dismiss is filed, all


grounds available at the time the motion is filed must be invoked in the motion. Grounds not so invoked are deemed waived except lack of jurisdiction over the subject matter, litis pendencia, res judicata and prescription. 2. The above rule only applies when a motion to dismiss is filed. Where no motion to dismiss is filed, the grounds for motion to dismiss may be availed of as affirmative defense. No defense is waived because no motion to dismiss was filed. There is indeed an unmistakable difference in the legal effects between the filing and not filing a motion to dismiss in relation to waiver of defenses. 3. If no motion to dismiss has been filed, any of the grounds for dismissal may be pleaded as an affirmative defense, and in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed. Based on the foregoing, a preliminary hearing undeniably is subject to the discretion of the trial court. The trial courts order granting or dispensing with the need for a preliminary hearing may not be corrected by certiorari absent any showing that the trial court had acted without jurisdiction or in excess thereof or with such grave abuse of discretion as would amount to lack of jurisdiction. Contents and form of the motion

1. It shall state the relief sought and the


grounds upon which it is based and shall be accompanied by supporting affidavits and papers. 2. It shall be set for hearing by the applicant and shall contain a notice of hearing addressed to all parties concerned. Such notice shall specify the time and date of

the hearing which must not be later than 10 days after the filing of the motion. 3. The notice requirement in a motion is mandatory and its absence renders the motion defective. As a rule, a motion without a notice of hearing is considered pro forma and does not affect the reglementary period for the filing of the requisite pleading. Section 1. Grounds. Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: Time to file the motion 1. Within the time for filing the answer but before filing said answer, a motion to dismiss may be filed on any of the grounds mentioned in Rule 16. 2. A motion to dismiss that is filed after the answer has been filed is considered filed out of time and the defending party is estopped from filing the motion to dismiss. 3. Note however, that a motion to dismiss may be filed even after the filing of the answer and will not be considered filed out of time if the ground raised in the motion is either of the following: a. lack of jurisdiction over the subject matter; b. that there is another action pending between the same parties for the same cause; c. that the action is barred by a prior judgment; or that the action is barred by the statute of limitations Under Section 1 of Rule 9, when any of the above grounds appears from the pleadings or from the evidence on record, the court shall dismiss the claim. The authority given to the court is not only mandatory but also subject to a motu proprio dismissal. Since the ground for dismissal may appear from the evidence, it is obvious that the dismissal may be made during the trial and this means, even after the answer has been filed. (a) That the court has no jurisdiction over the person of the defending party; (b) That the court has no jurisdiction over the subject matter of the claim; (c) That venue is improperly laid; (d) That the plaintiff has no legal capacity to sue;

(e) That there is another action pending between the same parties for the same cause; (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (g) That the pleading asserting the claim states no cause of action; (h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and (j) That a condition precedent for filing the claim has not been complied with. Grounds for motion to dismiss (Section 1 aj) (A) THAT THE COURT HAS NO JURISDICTION OVER THE PERSON OF THE DEFENDING PARTY When there is absence of or improper service of summons The weakest ground subject to many exceptions (WAIVER; VOLUNTARY APPEARANCE; IMPROPER SERVICE; ALIAS SUMMONS) Filing of MTD on the basis of lack of jurisdiction over the person together with other grounds NOT considered voluntary appearance (Rule 14, 20)

(B) THAT THE COURT HAS NO JURISDICTION OVER THE SUBJECT MATTER OF THE CLAIM; One of the most important grounds PRINCIPLES: o J-SM determined by the allegations in the complaint o When the defendant files a MTD on this ground, he hypothetically admits all the allegations in the complaint o J-SM once acquired by the court continues until the case is finished and terminated (ADHERENCE OF JURISDICTION)

Lack of J-SM may be raised at any stage of the proceeding even first time on appeal. In short, ANYTIME. Exception: Tijam v Sibonghanoy: Estoppel by laches 10 years before MTD was filed on the basis of lack of J-SM (C) THAT VENUE IS IMPROPERLY LAID o Violation of Rule 4

(D) THAT THE PLAINTIFF HAS NO LEGAL CAPACITY TO SUE HOW: (1) When the plaintiff does not possess the necessary qualifications to appear at trial such as when the plaintiff is not in full exercise of his civil right like when he is a minor or insane (2) does not possess the character or representation which he claims such as when he claims he is a guardian when in fact he is not Lack of legal capacity to sue refers to disability wile lack of legal personality to sue refers to the person not being a real party in interest (-- ground for MTD: lack of COA)

REQUITIES: 1. Identity of parties between the 2 actions, or at least such as represent the same interest 2. Identity of rights asserted and relief prayed for 3. Relief founded on same facts, basis, evidence 4. Any judgment which may be rendered on the other action will, regardless of which party is successful, amount to Res Adjudicata Regardless of who wins the case the resolution of one case will also resolve the other What case will be abated? o GENERAL RULE: the second case will be dismissed because of priority in time o EXCEPTIONS: (1) More appropriate action test (2) interest of justice When does an action become pending? o Upon filing of the case in court and payment of docket fees

(E) THAT THERE IS ANOTHER ACTION PENDING BETWEEN THE SAME PARTIES FOR THE SAME CAUSE Litis pendens/pendencia or action pendant (pending litigation) A case is filed against the defendant while another case based on the same COA is pending. In short, splitting of COA. Forum Shopping vs Litis Pendencia: Almost identical. Read First Phil. International Bank v CA. January 24, 1996. LP One case alive No such thing

(F) THAT THE CAUSE OF ACTION IS BARRED BY A PRIOR JUDGMENT OR BY THE STATUTE OF LIMITATIONS; TWO GROUNDS: (1) Res Adjudicata (2) Prescription Barred by Res Judicata: REQUISITES: 1. Former final judgment 2. Court has J-SM 3. Judgment on Merits 4. Identity of parties, SM, COA Res judicata as a ground for dismissal is based on two grounds, namely: 1] public policy and necessity, which makes it to the interest of the State that there should be an end to litigationrepublicae ul sit litium; and 2] the hardship on the individual of being vexed twice for the same causenemo debet bis vexari et eadem causa. A conflicting doctrine would subject the public peace and quiet to the will and dereliction of individuals and prefer the regalement of the litigious disposition on the part of suitors to the

FS

Effect: both cases dead Disciplinary action against the lawyer + contempt of court Literal identity of parties not required identity of interests enough

Identity of parties required

preservation of the public tranquility and happiness. Accordingly, courts will simply refuse to reopen what has been decided. They will not allow the same parties or their privies to litigate anew a question once it has been considered and decided with finality. Litigations must end and terminate sometime and somewhere. The effective and efficient administration of justice requires that once a judgment has become final, the prevailing party should not be deprived of the fruits of the verdict by subsequent suits on the same issues filed by the same parties. Concepts of Res Judicata 1. It comprehends two distinct concepts: 1] bar by a former judgment, and 2] conclusiveness of judgment. 2. The first concept bars the prosecution of a second action upon the same claim, demand or cause of action. The second conceptconclusiveness of judgmentstates that a fact or question which was in issue in a former suit and there judicially passed upon and determined by a court of competent jurisdiction, is conclusively settled by the judgment therein as far as the parties to that action and persons in privity with them are concerned and cannot be again litigated in any future action between such parties or their privies, in the same court or any other court of concurrent jurisdiction on either the same or different cause of action, while the judgment remains unreversed by proper authority.

The Director of Lands is a quasi-judicial officer. As such officer, his decisions and orders rendered pursuant to his quasijudicial authority, have upon their finality, the force and binding effect of a final judgment within the purview of res judicata. No res judicata in criminal proceedings: Res judicata is a doctrine of civil law and thus, has no bearing on criminal proceedings. Hence, the argument that the dismissal of a case during preliminary investigation bars a further reinvestigation because of the doctrine of res judicata is untenable. Also, the dismissal of a case during preliminary investigation does not constitute double jeopardy, preliminary investigation not being a part of the trial.

Barred by Prescription: filed out of time Prescription Laches Fact of delay Matter of time Statutory Fixed time Effect of delay Matter of inequity Nope Nope

Laches as a ground for a motion to dismiss under Rule 16 The Supreme Court held that under paragraph [h] of Section 1 of Rule 16, one of the grounds for the dismissal of an action is where a claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned and otherwise extinguished. The Court declared that the language of the rule, particularly on the relation of the words abandoned and otherwise extinguished to the phrase claimed or demand deemed set forth in the plaintiffs pleading is broad enough to include within its ambit the defense of bar by laches. However, when a party moves for the dismissal of the complaint based on laches, the trial court must set a hearing on the motion where the parties shall submit not only their arguments on the questions of law but also their evidence on the questions of fact involved. Thus, being factual in nature, the elements of laches must be proved or

The application of the doctrine of res judicata does not require absolute identity of parties but merely substantial identity of parties. There is substantial identity of parties when there is community if interest or privity of interest between a party in the first and a party in the second case even if the first case did not implead the latter. Application of res judicata to quasijudicial proceedings: The rule of res judicata which forbids the reopening of a matter once judicially determined by competent authority applies as well to the judicial and quasi-judicial acts of public, executive or administrative officers and boards acting within their jurisdiction as to the judgments of courts having general judicial powers.

disproved through the presentation of evidence by the parties.

(G) THAT THE PLEADING ASSERTING THE CLAIM STATES NO CAUSE OF ACTION; Complaint must have a COA, determined from the allegations Failure to state a COA (determined fro, allegations in the complaint Rule 16) vs Lack of COA (determined from the evidence not what Rule 16 contemplates)

(H) THAT THE CLAIM OR DEMAND SET FORTH IN THE PLAINTIFF'S PLEADING HAS BEEN PAID, WAIVED, ABANDONED, OR OTHERWISE EXTINGUISHED Payment, performance, condonation, compensation, remission, etc.

3. An agreement made in consideration of marriage, other than a mutual promise to marry; 4. An agreement for the sale of goods worth more than PHP 500; 5. A lease agreement for real property, if the lease is longer than one year; 6. A sale of real property; 7. A representation to the credit of a third person. The purpose of the statute is prevent fraud and perjury in the enforcement of obligations. Section 2. Hearing of motion. At the hearing of the motion, the parties shall submit their arguments on the questions of law and their evidence on the questions of fact involved except those not available at that time. Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same. (n) GENERAL RULE: The defendant is allowed to present evidence to prove the ground for dismissal EXCEPTIONS: Lack of J-SM and Failure to state COA o Why? MTD implies admission of all the allegations as true and correct Section 3. Resolution of Motion. After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading. The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor. (3a) Court 1. 2. 3. may: Grant motion Deny (Proceed to trial) Order Amendment

(I) THAT THE CLAIM ON WHICH THE ACTION IS FOUNDED IS UNENFORCEABLE UNDER THE PROVISIONS OF THE STATUTE OF FRAUDS; AND Art. 1403 (2): unenforceable contracts because they are not in writing

(J) THAT A CONDITION PRECEDENT FOR FILING THE CLAIM HAS NOT BEEN COMPLIED WITH. The law requires something to be done before filing of the complaint, e.g. Barangay Conciliation, exhaustion of administrative remedies, earnest efforts towards compromise under Art 151 of FC Art. 1403 (2) requires that contracts involving the following should be written down: 1. An agreement where the terms are to be complied with a year after the agreement; 2. A special promise to answer for the debt, default, or miscarriage of another;

Sec. 4. Time to plead. If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by

Rule 11 counted from service of the amended pleading, unless the court provides a longer period. Remedy of the defendant if the motion is denied 1. If the motion to dismiss is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than 5 days in any event. As a rule, the filing of an answer, going through the usual trial process, and the filing of a timely appeal from an adverse judgment are the proper remedies against a denial of a motion to dismiss. The filing of an appeal from an order denying a motion to dismiss is not the remedy prescribed by existing rules. The order of denial, being interlocutory is not appealable by express provision of Section 1[b], Rule 41. 2. Where the judgment or final order is not appealable, like an interlocutory order, Rule 41 declares that the aggrieved party may file an appropriate civil action, under Rule 65. The remedy would therefore be certiorari, prohibition or mandamus. This remedy however, is predicated upon an allegation showing that the denial of the motion was tainted with grave abuse of discretion amounting to lack of jurisdiction where the remedy chosen is either certiorari or prohibition or both. In case the remedy chosen is mandamus, there must be a showing that the respondent court unlawfully neglected the performance of an act which the law specifically enjoins. Without such showing, Rule 65 cannot be availed of as a remedy. 3. An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally disposes of a case, as it leave something to be done by the court before the case is finally decided on the merits. As such, the general rule is that the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari which is a remedy designed to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a motion to dismiss be the subject of an appeal unless and until a final judgment or order is rendered. In order to justify the grant of the

extraordinary remedy of certiorari, the denial of the motion to dismiss must have been tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. Remedies of the plaintiff if the motion to dismiss is granted 1. If the motion to dismiss is granted, the complaint is dismissed. Since the dismissal is final and not interlocutory in character, the plaintiff has several options. a. Depending upon the ground for the dismissal of the action, the plaintiff may simply refile the complaint. For instance, if the ground for dismissal was anchored on improper venue, the plaintiff may file the action in the proper venue. b. He may appeal from the order of dismissal where the ground relied upon is one which bars the refilling of the complaint like res judicata, prescription, extinguishment of the obligation or violation of the statute of frauds. Since the complaint cannot be refiled, the dismissal is with prejudice. Under Section 1[g] of Rule 41, it is an order dismissing an action without prejudice which cannot be appealed from. Conversely, where the dismissal is with prejudice, an appeal from the order of dismissal is not precluded. However, where the ground for dismissal for instance, is the failure of the complaint to state a cause of action, the plaintiff may simply file the complaint anew but since the dismissal is without prejudice to its refilling, the order of dismissal is without prejudice to its refilling, the order of dismissal cannot be appealed from under the terms of Section 1[h] of Rule 41 of the Rules of Court. Where the ground for dismissal is lack of jurisdiction over the subject matter, the dismissal is without prejudice to the refilling of the complaint. Under Section 1[g] of Rule 41, an order dismissing a complaint for lack of jurisdiction over the subject matter is a dismissal without prejudice and hence, no appeal may be had from the order of dismissal. Despite Section 1 of Rule 41, appeal may nevertheless be taken from the order dismissing an action for lack of jurisdiction over the subject matter in a situation contemplated under Section 8 of Rule 40.

This provision specifically allows, by necessary implication, an appeal from orders dismissing cases on the ground of lack of jurisdiction over the subject matter. The tenor of Section 8 of Rule 40 therefore, operates to furnish an exception to the general rule enunciated in Section 1 of Rule 41. This situation applies in a dismissal made in the Municipal Trial Court and not to a dismissal in the Regional Trial Court. c. The plaintiff may also avail of a petition for certiorari. This remedy is available if the court gravely abuses its discretion in a manner amounting to lack of jurisdiction and is the appropriate remedy in those instances when the dismissal is without prejudice. [Section 1, Rule 41, Rules of Court] Sec. 5. Effect of dismissal. Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim. When complaint cannot be refiled 1. An order granting a motion to dismiss shall bar the refilling of the same action or claim if the dismissal is based on any of the following grounds. a. The cause of action is barred by prior judgment. b. The cause of action is barred by the statute of limitations. c. The claim or demand has been paid, waived, abandoned or otherwise extinguished. d. The claim on which the action is founded is unenforceable under the provisions of the statute of frauds. 2. Where the defendant is barred from refilling the action, the remedy under the circumstances is to file an appeal because by the clear language of Section 5, Rule 16 the dismissal is subject to the right of appeal. Also, the dismissal under this provision is a dismissal with prejudice to the refilling of the case. This kind of dismissal is appealable as a consequence of Section 1[g] of Rule 41. Sec. 6. Pleading grounds as affirmative defenses.

If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. Pleading grounds as affirmative defenses 1. Implied under Section 6 of Rule 16 is the rule that the grounds for a motion to dismiss are not waived even if the defendant fails to file a motion to dismiss because he may still avail of the defenses under Rule 16 as affirmative defenses in his answer. 2. The preliminary hearing authorized on the affirmative defenses raised in the answer, applies only if no motion to dismiss has been filed. As a rule, a preliminary hearing is not authorized when a motion to dismiss has been filed. An exception is if the trial court had not categorically resolved the motion to dismiss. Another exception would be justified under the liberal construction rule as when it is evident that the action is barred by res judicata. A strict application of Section 6 of Rule 16 would accordingly lead to absurdity when an obviously barred complaint continues to be litigated. 3. May a ground previously invoked in a denied motion to dismiss be invoked anew? The ground may still be invoked. the denial of a motion to dismiss does not preclude any future reliance on the grounds relied thereupon. Section 6 [2nd par]. The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer Effects of dismissal of complaint on the counter claim The dismissal of a complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer of the defendant. Thus, where the defendant pleads a counterclaim in his answer, and after the preliminary hearing on his affirmative defenses, the court dismisses the complaint, it would be error for the court to dismiss the counterclaim. Under Section 6 of Rule 16, the dismissal of the main action does not carry with it the dismissal of the counterclaim.

Exceptions: Rule 17 Dismissal of Actions (a) when the notice of the plaintiff states that the dismissal is with prejudice, or (b) when the two-dismissal rule applies.

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)

two-dismissal rule When the same complaint had twice been dismissed by the plaintiff under Sec. 1 by simply filing a notice of dismissal. The second dismissal shall be WITH PREJUDICE. applies when the same plaintiff : (a) files a second notice of dismissal of a complaint /twice dismissed actions (b) based on or including the same claim (c) in a competent court The second notice of dismissal operates as an adjudication on the merits and thus, will bar the filing of the same action. If the plaintiff files a notice of dismissal providing therein a reason that prevents the refiling of the complaint, the dismissal must be deemed one with prejudice. This happens when the notice provides that the plaintiff recognizes the fact of prescription or extinguishment of the obligation of the defendant or for reasons stated in Sec.5 of Rule 16. dismissal without prejudice the absence of decision on the merits and leaves the parties free to litigate the matter in a subsequent action as though the dismissed action had not been commenced. judgment on the merits one rendered after determination of which party is right, as distinguished from a judgment rendered upon some preliminary or formal or merely technical point. Illustration: (1) Dismissal upon notice by plaintiff Facts: Before any answer or motion for summary judgment could be filed by the defendant, the plaintiff filed a notice of dismissal of his complaint. The Trial court simply noted the

Two ways by which a plaintiff may dismiss his own action: (a) dismissal upon notice by the plaintiff (b) dismissal upon motion of the plaintiff Dismissal upon notice by the plaintiff by filing of NOTICE OF DISMISSAL at ANY TIME BRFORE the service of the answer or of a motion for summary judgment. a matter of right as long as filed before the other party serves his answer or motion for summary judgment. It is not the filing of the defendant's answer or motion for summary judgment but the SERVICE thereof which must be taken into consideration. The rule does NOT require approval of the court before the complaint is dismissed, instead the rule mandates the court to issue an ORDER confirming the dismissal. Withdrawal does not take effect until confirmed by the court. This is keeping with the respect due the court.

General Rule: The dismissal upon notice is


WITHOUT PREJUDICE which means that it does not preclude the plaintiff from filing another action against the same defendant on the same cause of action or subject matter.

dismissal. Is the case considered dismissed?

Held: Yes. In order to dismiss a complaint upon notice of the plaintiff, the rule merely requires filing of a notice of dismissal.The role of the court is merely to issue an order confirming the dismissal.

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. (2a)

It is not the court order that effect the dismissal but the FILING by the plaintiff of his notice of dismissal.

Dismissal upon motion of the plaintiff AFTER SERVICE of the answer or of the motion for summary judgment, the dismissal of the action by the plaintiff ceases to be matter of right on his part. Dismissal is now subject to the APPROVAL OF THE COURT--- subject to its discretion and upon such terms as are just. A class suit cannot be dismissed or compromised without the approval of the court.. Reason: To prevent the person who filed from prejudicing the right of the members of the class suit

(2) Two-dismissal rule

Facts: Suppose you file a case against Mr. C and you immediately changed your mind and had it dismissed under Section 1. And the after having dismissed, you changed your mind again and you want to re-file the action. How do you re-file the action?

Held: It depends on whether the order of dismissal has already become final. (a) If within 15 days from the time it is ordered dismissed, all that you have to do is to ask the court to set aside the order of dismissal and revive the case because the order has not yet become final. (b) If the order has become final after 15 days, an enetirely new action must be filed.

If a counterclaim has been pleaded by the


defendant prior to the service upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the complaint. (applicable to both compulsory and permissive because the rule makes no distinction) The dismissal does not prejudice the right of the defendant to either: (a) prosecute his counterclaim in a separate action OR (b) To have the same resolved in the same action. In this case defendant must within 15 days from the notice of the motion manifest his preference to have his counterclaim resolved in the same action. Dismissal is WITHOUT prejudice. Exceptions: (a) when the contrary is specified in the order of the court. (b) When otherwise stated in the motion to dismiss.

Section 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 plaintiffs motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right

Illustration: Facts: X filed an action for reconveyance against Y Y forthwith filed his answer and served it on X. . A week later, X filed a motion to withdraw action since he could not avail of the services of a counsel.The court dismissed the complaint based on failure to prosecute. A month after, X instituted the very same action against Y. Y invoked res judicata and moved for dismissal. The court dismissed the case on the said ground. Was the ruling correct? Held: No. The dismissal upon motion of the plaintiff, shall as a rule, be WITHOUT PREJUDICE, unless otherwise specified in the order of dismissal. Note: The dismissal of the first case upon motion should not be the basis for the court to dismiss the action based on failure to prosecute.

evidence-in-chief- the main evidence of the plaintiff to prove his cause of action.

Aside from the abovementioned grounds,


the action may also be dismissed for failure of the plaintiff to appear at a pretrial conference without justifiable cause or without him having a duly authorized representative (in writing) to enter into an amicable settlement, to submit to alternative modes of dispute resolution or admission of facts and of documents (Secs. 4 & 5, Rule 18) The mere failure to attend a conference called by the court to discover ways and means of expediting disposition of the case, including submission to mediation is NOT one of the grounds for the dismissal of an action due to plaintiff's fault. Reason: The conference was neither a regular trial where evidence would be presented nor a pre-trial as defined by the Rules. The dismissal rests on the discretion of the court. This discretion must not be abused. Deferment of proccedings may be tolerated so that cases may be adjudged only after a full and free presentation of all the evidence by both parties. The propriety of dismissing a case must be determined by the circumstances surrounding the particular case and there must be sufficient reason to jsutify the dismissal. (BPI v. CA. G.R. No. 117385, Feb 11,1999)

Section 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. (3a)

General Rule: The court should not dismiss


the case upon its own initiative, because grounds for dismissal are waivable. If the defendant fails to move for dismissal, he is waiving the defect. Exceptions: (1) Sec. 3, Rule 17 (plaintiff's fault) (2) When on its face the complaint shows that the court has no jurisdiction over the subject matter; (3) When there is litis pendentia, or res judicata, or when the action has prescribed; (4) Under the Summary Rules DISMISSAL shall have the effect of an ADJUDICATION UPON THE MERITS (RES JUDICATA), unless otherwise declared by the court, or if the court has not yet acquired jurisdiction over the person of the defendant.

Dismissal due to the fault of the plaintiff Instances of /Causes for Dismissal: (1) Plaintiff fails to appear on the date of the presentation of his evidence in chief; (2) Plaintiff fails to prosecute his action for an unreasonable length of time; or (3) Plaintiff fails to comply with the Rules of Court or any order of the court. Complaint may be dismissed: (a) upon motion of the defendant (b) upon the court's own initiative

General Rule: dismissal is WITH prejudice. Exception: when the court provides otherwise. 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. Section 4. Dismissal of counterclaim, crossclaim, 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)

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 pleadings ineffective (Servicewide Specialist Inc. v. CA, G.R. No.110597, May 8, 1996)

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