DISMISSAL OF ACTIONS

(a) Voluntary Dismissal; Effect of.

(1) By Parties. Except in actions where property has been seized or is in the custody of the court, an action may be dismissed by the plaintiff without order of court by:

(A) by the plaintiff informing the defendant and clerk of the dismissal before the trial date fixed in the notice to appear, or before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision; or

(B) by filing a stipulation of dismissal signed by all parties who have appeared in the action. The dismissal is without prejudice unless otherwise stated. A dismissal operates as an adjudication on the merits when a plaintiff has dismissed an action based on or including the same claim in any court.

(2) By Order of the Court. Except as provided in this rule, an action must not be dismissed except on order of the court with terms and conditions as the court finds proper. A dismissal under this subdivision is without prejudice unless otherwise specified in the order.

(b) Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court. After a party seeking affirmative relief in an action has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief without waiving the right to offer evidence in the event the motion is not granted. The court may then determine and render judgment against the party seeking affirmative relief or may decline to render any judgment until the close of all the evidence. Unless the court otherwise specifies in its order for dismissal, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.

(c) Counterclaim. If a counterclaim has been filed by the defendant before the plaintiff voluntarily dismissed the original action, the defendant’s counterclaim remains pending unless the defendant agrees to its dismissal. The provisions of this rule apply to the dismissal of any counterclaim.

(d) Costs. Costs must be assessed and judgment for costs entered in any action dismissed under this rule. If a party who has once dismissed a claim in any court of this state commences an action based on or including the same claim against the same adverse party, the court must order for the payment of costs of the claim previously dismissed in an amount found proper and stay the proceedings in the action until the party seeking affirmative relief has complied with the order.

(e) Failure to Prosecute.

(1) If it appears on the face of the record that no activity has been taken by filing of pleadings, order of court, or otherwise for a period of 6 months, the action must be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not.

(2) Prior to any action being dismissed for failure to prosecute, 30 days’ notice must be provided to the parties.

(3) An action cannot be dismissed for failure to prosecute if:

(A) a stipulation staying the action has been filed with the court;

(B) a stay order has been filed; or

(C) a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.