Del. Ch. Ct. R. 41

(a) Voluntary Dismissal; Effect Thereof.

(1) By Plaintiff; by Stipulation. Subject to payment of

costs and the provisions of Rule 23(e) and Rule 23.1 an

action may be dismissed by the plaintiff without order

of court (i) 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 (ii) by filing a stipulation or dismissal signed by all

the parties who have appeared in the action. However,

no such dismissal pursuant to subpart (i) above shall be

effective where the complaint is subject to a motion to

dismiss and the plaintiff has chosen to file an answering

brief rather than seeking to amend. See Rule 15(a)(5).

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.

(2) By Order of Court. Except as provided in

paragraph (1) of this subdivision of this Rule, an action

shall not be dismissed at the plaintiff’s instance save

upon order 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 defendant of the plaintiff’s motion to dismiss, the

action shall not be dismissed against the defendants’

objection unless the counterclaim can remain pending

for independent adjudication by the Court. Unless

otherwise specified in the order, a dismissal under this

paragraph is without prejudice.

(b) Involuntary Dismissal; Effect Thereof. For

failure of the plaintiff to prosecute or to comply with these

Rules or any order of court, a defendant may move for

dismissal of an action or of any claim against the

defendant. After the plaintiff has completed the

presentation of plaintiff’s evidence, the defendant, without

waiving the right to offer evidence in the event the motion

is not granted, may move for a dismissal on the ground that

upon the facts and the law the plaintiff has shown no right

to relief. The Court as trier of the facts may then determine

them and render judgment against the plaintiff or may

decline to render any judgment until the close of all the

evidence. Unless the Court in its order for dismissal

otherwise specifies, a dismissal under this paragraph and

any dismissal not provided for in this Rule, other than a

dismissal for lack of jurisdiction or for improper venue, or

for failure to join a party under Rule 19, operates as an

adjudication upon the merits.

(c) Dismissal of Counterclaim, Cross-Claim or

Third-Party Claim. The provisions of this rule apply to

the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone

pursuant to subparagraph (1) of paragraph (a) of this rule

shall be 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 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.

(e) Inaction for 1 Year; Dismissal. Subject to the

provisions of Rules 23, 23.1 and 23.2 in each cause pending

wherein no action has been taken for a period of 1 year, the

Court may upon application of any party, or on its own

motion, and after reasonable notice, enter an order

dismissing such cause unless good reason for the inaction

is given, or the parties have stipulated with the approval of

the Court as to such matter.