Minn. R. Civ. P. 41.02(c) sets a default that runs the opposite way from what most lawyers expect, and it reaches past Rule 41:
Unless the court specifies otherwise in its order, a dismissal pursuant to this rule and any dismissal not provided for in this rule or in Rule 41.01, other than a dismissal for lack of jurisdiction, for forum non conveniens, or for failure to join a party indispensable pursuant to Rule 19, operates as an adjudication upon the merits.
Read the scope clause twice. It covers dismissals under Rule 41.02 and “any dismissal not provided for in this rule or in Rule 41.01.” There are exactly three carve-outs: lack of jurisdiction, forum non conveniens, and failure to join a Rule 19 indispensable party. If a dismissal order says nothing about prejudice and doesn’t rest on one of those three grounds, the rule’s stated default is an adjudication on the merits.
Keep that sentence in your head when a court signals it’ll dismiss and asks whether anyone objects to the form of the order. The word “without” belongs in the order, and asking for it is your job.
Which dismissals are with prejudice, and which are not?
Here’s each path, straight from the rule text:
Notice of dismissal, first time (Rule 41.01(a)(1)). Without prejudice, unless the notice itself says otherwise. Rule 41.01(a) provides that “[u]nless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice.”
Notice of dismissal, where the plaintiff has dismissed once before (Rule 41.01(a)). An adjudication on the merits. The same sentence keeps going: “except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.”
Stipulation of dismissal (Rule 41.01(a)(2)). Without prejudice, unless the stipulation says otherwise. Same default sentence. Notice that the two-dismissal exception in that sentence is written to reach “a notice of dismissal,” not a stipulation.
Dismissal on the plaintiff’s motion, by court order (Rule 41.01(b)). Without prejudice unless the order says otherwise: “Unless otherwise specified in the order, a dismissal herein is without prejudice.”
Involuntary dismissal (Rule 41.02). An adjudication on the merits unless the court specifies otherwise, subject to the three carve-outs quoted above.
A dismissal ordered under some other rule. Same default as involuntary dismissal, by the express terms of 41.02(c)’s “any dismissal not provided for in this rule or in Rule 41.01” clause, subject to the same three carve-outs.
| Path | Rule | Default effect if the paper is silent |
|---|---|---|
| Plaintiff’s notice, no prior dismissal | 41.01(a)(1) | Without prejudice |
| Plaintiff’s notice, plaintiff has once dismissed an action on the same claim | 41.01(a) | Adjudication on the merits |
| Stipulation signed by all parties who have appeared | 41.01(a)(2) | Without prejudice |
| Court order on plaintiff’s motion | 41.01(b) | Without prejudice |
| Involuntary dismissal | 41.02(a), (b), (c) | Adjudication on the merits, except lack of jurisdiction, forum non conveniens, or failure to join a Rule 19 indispensable party |
| Dismissal not provided for in Rule 41.01 or 41.02 | 41.02(c) | Adjudication on the merits, same three exceptions |
Every one of these defaults gives way to what the notice, stipulation, or order actually says. Writing the words is cheaper than litigating the default.
When can a plaintiff dismiss without a court order?
Only two ways, and only before a specific event. Rule 41.01(a):
Subject to the provisions of Rules 23.05, 23.09 and 66, an action may be dismissed by the plaintiff without order of court (1) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (2) by filing a stipulation of dismissal signed by all parties who have appeared in the action.
Four pieces of that sentence matter.
The cutoff has two named events. The unilateral notice route closes on service of an answer or service of a motion for summary judgment, whichever comes first. Those are the two events the rule names. Calendar the answer date. A defendant who serves an answer on day 21 has taken away the plaintiff’s option to walk away unilaterally.
It’s filing, not service. Both routes in 41.01(a) happen “by filing.” That matters in Minnesota, where an action is commenced by service and may sit unfiled. See the one-year filing deadline under Rule 5.04.
The stipulation needs the signature of every party who has appeared. The rule’s condition is appearance. Not being named, and not being served. Figure out who has appeared in the action before you circulate the stipulation, and get every one of them on it.
Three rules fence the route in. Rule 23.05(a)(1) provides that “[a] settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class is effective only if approved by the court.” Rule 23.09 governs derivative actions by shareholders or members. And Rule 66 provides that “[a]n action wherein a receiver has been appointed shall not be dismissed except by order of the court.” Class, derivative, and receivership cases don’t use the notice-and-walk route.
What is the two-dismissal rule, exactly?
It turns a second notice of dismissal into an adjudication on the merits. Here’s the language again, in full:
Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.
The instrument that triggers it is a notice of dismissal. The exception clause names that instrument and no other.
The prior event is described as having “once dismissed in any court of the United States or of any state an action based on or including the same claim.” Two things about that description. The forum can be any federal or state court, not just Minnesota. And the prior action only has to be “based on or including the same claim,” which is broader than an identical action.
The clause as written doesn’t condition the consequence on the earlier action having been against the same defendant. Rule 41.04 does. It applies where a plaintiff “commences an action based upon or including the same claim against the same defendant” (emphasis added). The drafters used the same-defendant limit in one provision and left it out of the other.
Before you file a second notice on a claim you’ve dismissed anywhere before, pull the earlier dismissal. If the two-dismissal rule applies, move under Rule 41.01(b) instead and ask the court to specify that the dismissal is without prejudice.
What happens after the notice window closes?
You need a court order, and the defendant’s counterclaim gets protected. Rule 41.01(b):
Except as provided in clause (a) of this rule, an action shall not be dismissed at the plaintiff’s instance except upon order of the court and upon such terms and conditions as the court deems proper.
“Upon such terms and conditions as the court deems proper” is broad, and it’s where costs, conditions on refiling, and fee awards get imposed. Don’t assume a late voluntary dismissal is free.
The counterclaim provision is specific: “If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim may remain pending for independent adjudication by the court.” You compare the date the counterclaim was pleaded with the date the plaintiff’s motion was served on that defendant.
Calendar the motion on the dispositive track. Minn. Gen. R. Prac. 115.01(a)(1) defines dispositive motions as those “which seek to dispose of all or part of the claims or parties, except motions for default judgment,” and lists “motions to dismiss a party or claim” among them. That puts a Rule 41.01(b) motion on Rule 115.03’s 28-day, 14-day, 7-day schedule. See motion practice under Rule 115, and read the assigned judge’s standing orders and practice pointers before drafting. Those orders regularly add requirements the rules don’t contain, and they control your filing. They’re published on the district’s page at mncourts.gov.
When can a court dismiss involuntarily?
Two situations, in Rule 41.02(a) and (b).
Rule 41.02(a): “The court may upon its own initiative, or upon motion of a party, and upon such notice as it may prescribe, dismiss an action or claim for failure to prosecute or to comply with these rules or any order of the court.” That’s three grounds (failure to prosecute, failure to comply with the rules, failure to comply with a court order), and the court may act on its own. The notice owed is whatever the court prescribes.
Rule 41.02(b): after the plaintiff finishes presenting evidence, the defendant may move for dismissal “on the ground that upon the facts and the law, the plaintiff has shown no right to relief,” and does so “without waiving the right to offer evidence in the event the motion is not granted.” In a court trial, the court as trier of fact may then determine the facts and render judgment against the plaintiff, or may decline to render judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, “the court shall make findings as provided in Rule 52.01.”
Don’t skim past that findings requirement. Rule 52.01 provides that findings of fact and conclusions of law “are unnecessary on decisions on motions pursuant to Rule 12 or 56 or any other motion except as provided in Rules 23.08(c) and 41.02.” Rule 41.02 is one of the two named exceptions. A merits dismissal under it comes with findings, and findings are what an appellate record is built from.
Does Rule 41 apply to a counterclaim or a third-party claim?
Yes. Rule 41.03: “The provisions of Rules 41.01 and 41.02 apply to the dismissal of any counterclaim, cross-claim, or third-party claim.” A defendant dropping a counterclaim works inside the same structure, including the 41.02(c) default. See Rule 12 defenses and waiver for the pleading side of counterclaims and cross-claims.
What does it cost to dismiss and refile?
Potentially the first case’s costs, plus a stay until you pay. Rule 41.04:
If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.
It’s discretionary (“may make such order … as it may deem proper”), and it’s separate from the two-dismissal rule. It can apply to a refiled case even where the prior dismissal was plainly without prejudice.
Rule 41 itself has no tolling provision. Nothing in its text stops, suspends, or extends a limitations period. Whether a dismissal has some other tolling effect is a question for the substantive law of limitations, not for this rule, and this piece doesn’t take it up. Confirm the applicable period, and any tolling authority outside Rule 41, before you dismiss anything you plan to refile; see Minnesota civil statutes of limitations.
The with-prejudice dismissal that isn’t in Rule 41
Minnesota has a dismissal that works by rule alone: no motion, no order, and no notice from anyone. Minn. R. Civ. P. 5.04(a):
Any action that is not filed with the court within one year of commencement against any party is deemed dismissed with prejudice against all parties unless the parties within that year sign a stipulation to extend the filing period. This paragraph does not apply to family cases governed by Rules 301 to 378 of the General Rules of Practice for the District Courts.
Keep two things straight. The dismissal is against all parties, and the stipulation to extend has to be signed within that year. The family-case carve-out is in the rule itself. It’s all covered in detail in the one-year filing deadline under Rule 5.04, and it’s the single most common way a Minnesota case ends with prejudice when nobody meant it to.
Three habits cover most of Rule 41’s exposure. Check for a prior dismissal on the same claim before you file a notice. Put the words “without prejudice” in every stipulation and proposed order you draft. And read every dismissal order the other side submits for what it doesn’t say. Rule 41.02(c) fills in the default when the order is silent, and that default isn’t the one you want.
Madgett Law, LLC associates with lawyers on Minnesota civil matters. If you’ve got a case here and want local counsel, send us a message.
Sources: Minn. R. Civ. P. 41.01(a) (voluntary dismissal by notice or stipulation; cutoff events; without-prejudice default; two-dismissal exception), 41.01(b) (dismissal by court order; counterclaim protection; without-prejudice default), 41.02(a) (dismissal for failure to prosecute or comply), 41.02(b) (involuntary dismissal after the plaintiff’s evidence; Rule 52.01 findings), 41.02(c) (adjudication-on-the-merits default and its three exceptions), 41.03 (application to counterclaims, cross-claims, and third-party claims), 41.04 (costs of a previously dismissed action; stay); Minn. R. Civ. P. 5.04(a) (one-year filing deadline; deemed dismissal with prejudice; stipulation to extend; family-case exclusion); Minn. R. Civ. P. 23.05(a)(1) (court approval of voluntary dismissal of a certified class), 23.09 (derivative actions by shareholders or members); Minn. R. Civ. P. 52.01 (findings; Rule 41.02 as a named exception); Minn. R. Civ. P. 66 (action with a receiver dismissed only by court order); Minn. Gen. R. Prac. 115 (motion tracks, referenced generally). Rule text: Minnesota Judicial Branch rules of court, August 10, 2026.
This article is general legal information about Minnesota procedure, not legal advice. Reading it creates no attorney–client relationship, and no outcome is promised or implied.