Ind. Trial Rule 41

Effective January 1, 1994

(A) Voluntary dismissal: Effect thereof.

(1) By plaintiff--By stipulation. Subject to contrary provisions of these rules or of any statute,

an action may be dismissed by the plaintiff without order of court:

(a) 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

(b) by filing a stipulation of dismissal signed by all parties who have appeared in the

action.

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 provisions of this subdivision shall not apply

if the plaintiff in such action could not effectuate service of process, or otherwise procure

adjudication on the merits.

(2) By order of court. Except as provided in subsection (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 or cross-claim has

been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim or cross-claim can remain pending for independent adjudication by the court. Unless

otherwise specified in the order, a dismissal under this subsection is without prejudice.

(B) Involuntary dismissal: Effect thereof.

After the plaintiff or party with the burden of proof upon an issue, in an action tried by the

court without a jury, has completed the presentation of his evidence thereon, the opposing

party, without waiving his right to offer evidence in the event the motion is not granted, may

move for a dismissal on the ground that upon the weight of the evidence and the law there

has been 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. If the court renders judgment on the merits against the plaintiff or

party with the burden of proof, the court, when requested at the time of the motion by either

party shall make findings if, and as required by Rule 52(A). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision or subdivision (E) of this rule

and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction,

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 subsection (1) of subdivision (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) Failure to prosecute civil actions or comply with rules.

Whenever there has been a failure to comply with these rules or when no action has been

taken in a civil case for a period of sixty [60] days, the court, on motion of a party or on its

own motion shall order a hearing for the purpose of dismissing such case. The court shall

enter an order of dismissal at plaintiff’s costs if the plaintiff shall not show sufficient cause at

or before such hearing. Dismissal may be withheld or reinstatement of dismissal may be

made subject to the condition that the plaintiff comply with these rules and diligently prosecute the action and upon such terms that the court in its discretion determines to be necessary to assure such diligent prosecution.

(F) Reinstatement following dismissal.

For good cause shown and within a reasonable time the court may set aside a dismissal

without prejudice. A dismissal with prejudice may be set aside by the court for the grounds

and in accordance with the provisions of Rule 60(B).