60-241. Dismissal of actions.
60-241
60-241. Dismissal of actions.(a) Voluntary dismissal; effect thereof. (1) By plaintiff; bystipulation. Subject to the provisions of subsection (e) of K.S.A.60-223 and amendments thereto and of any statute of the state, an actionmay bedismissed by the plaintiff without order of court (i) by filing a noticeof dismissal at any time before service by the adverse party of ananswer or of a motion for summary judgment, whichever first occurs, or(ii) by filing a stipulation of dismissal signed by all parties who haveappeared in the action. Where the dismissal is by stipulation the clerkof the court shall enter an order of dismissal as a matter of course.Unless otherwise stated in the notice of dismissal or stipulation, thedismissal is without prejudice, except that a notice of dismissaloperates as an adjudication upon the merits when filed by a plaintiffwho has once dismissed in any court of the United States or of any statean action based on or including the same claim.
(2) By order of court. Except as provided in paragraph (1) ofthis subsection, an action shall not be dismissed at the plaintiff'sinstance save upon order of the judge and upon such terms and conditionsas the judge deems proper. If a counterclaim has been pleaded by adefendant prior to the service upon the defendant of the plaintiff'smotion to dismiss, the action shall not be dismissed against thedefendant's objection unless the counterclaim can remain pending forindependent adjudication by the court. Unless otherwise specified in theorder, a dismissal under this paragraph is without prejudice.
(b) Involuntary dismissal; effect thereof. (1) For failure of theplaintiff to prosecute or to comply with these sections or any order ofcourt, a defendant may move for dismissal of an action or of any claimagainst the defendant. Unless thecourt in its order for dismissal otherwise specifies, a dismissal underthis paragraph and any dismissal not provided for in thissection,other than a dismissal for lack of jurisdiction, for improper venue, orfor failure to join a party under K.S.A. 60-219 and amendments thereto,operates as anadjudication upon the merits.
(2) The judge may on the judge's own motion cause a case to be dismissedwithout prejudice for lack of prosecution, but only after directing the clerkto notify counsel of record not less than 10 days in advance of such intendeddismissal, that an order of dismissal will be entered unless cause be shown fornot doing so.
(c) Dismissal of counterclaim, cross-claim, orthird-party claim. The provisions of this section apply to the dismissalof anycounterclaim, cross-claim, or third-party claim. A voluntary dismissalby the claimant alone pursuant to paragraph (1) of subsection (a) shallbe 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 whohas once dismissed an action in any court commences an action based uponor including the same claim against the same defendant, the court maymake such order for the payment of costs of the action previouslydismissed as it deems proper and may stay the proceedings intheaction until the plaintiff has complied with the order.
History: L. 1963, ch. 303, 60-241; amended by Supreme Court orderdated July 17, 1969; L. 1980, ch. 171, § 2;L. 1997, ch. 173, § 22; July 1.