SCRCP 41

(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; By Stipulation. Subject to the provisions of Rule 23(c), of Rule 66(a),

and of any statute, an action may be dismissed by the plaintiff without order of court

(A) by filing and serving a notice of dismissal at any time before service by the adverse

party of an answer or 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.

(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 him of the

plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's

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: Non-suit; 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 him. After the plaintiff in an action tried by the court without a jury has completed

the presentation of his evidence, the defendant, 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 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. If the court renders judgment

on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the

court in its order for dismissal otherwise specifies, 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

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 paragraph (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.

Note:

This Rule 41 is the same as the Federal Rule, except that it requires service as well as

filing the notice of voluntary dismissal by plaintiff if taken before answer or motion to

dismiss is served. This Rule amends present State practice as to dismissal (non-suit);

but clarifies Circuit Rules 29, 30, 59 and 76, which this Rule 41 and Rule 50 (directed

verdict) replace. It is particularly helpful when the court tries a law action without a

jury, and specifies the court's duty on such procedure. Rule 41(b) also makes clear

when involuntary dismissal operates as an adjudication on the merits.

Rule 41.1

Sealing Documents and Settlement Agreements

(a) Purpose. Because South Carolina has a long history of maintaining open court proceedings and

records, this Rule is intended to establish guidelines for governing the filing under seal of settlements

and other documents. Article I, § 9, of the South Carolina Constitution provides that all courts of this

state shall be public and this Rule is intended to ensure that that Constitutional provision is fulfilled.

However, the Court recognizes that as technology advances, court records will be more readily

available and this Rule seeks to balance the right of public access to court records with the need for

parties to protect truly private or proprietary information from public view and to insure that rules of

court are fairly applied. This Rule does not apply to private settlement agreements and shall not be

interpreted as approving confidentiality provisions in private settlement agreements where the parties

agree to have the matter voluntarily dismissed under Rule 41(a)(1), SCRCP, without court involvement.

The enforceability of those provisions is governed by general legal principles, not by this Rule.

(b) Filing Documents under seal. Should Rule 26(b)(5), SCRCP, be inapplicable, and absent another

governing rule, statute, or order, any party seeking to file documents under seal shall file and serve a

"Motion to Seal." The motion shall identify, with specificity, the documents or portions of documents

for which sealing is considered necessary, shall contain a non-confidential description of the

documents, and shall be accompanied by a separately sealed attachment labeled "Confidential

Information to be submitted to Court in Connection with the Motion to Seal." The attachment shall

contain the documents for the court to review in camera. The motion shall state the reasons why

sealing is necessary, explain why less drastic alternatives to sealing will not afford adequate protection,

and address the following factors:

(1) the need to ensure a fair trial;

(2) the need for witness cooperation;

(3) the reliance of the parties upon expectations of confidentiality;

(4) the public or professional significance of the lawsuit;

(5) the perceived harm to the parties from disclosure;

(6) why alternatives other than sealing the documents are not available to protect

legitimate private interests as identified by this Rule; and

(7) why the public interest, including, but not limited to, the public health and safety,

is best served by sealing the documents.

The burden is on the party seeking to seal documents to satisfy the court that the balance of public

and private interests favors sealing the documents. In family court matters, the judge shall also

consider whether documents: 1) contain material which may expose private financial matters which

could adversely affect the parties; and/or 2) relate to sensitive custody issues, and shall specifically

balance the special interests of the child or children involved in the family court matter.

Unless otherwise ordered by the court, the clerk of court shall treat the motion to seal in a manner

similar to all other motions filed with the court. The motion shall be entered in the Clerk's File Book

and on the Motion Calendar and a hearing on the motion shall be held.

(c) Sealing Settlements. A proposed settlement agreement submitted for the court's approval shall

not be conditioned upon its being filed under seal. Under no circumstances shall a court approve

sealing a settlement agreement which involves a public body or institution.

Simultaneously with the filing of a motion seeking court approval of a settlement, or after a settlement

has been approved, any party to the litigation may file a motion seeking to have all or part of the

settlement filed under seal.

If the agreement is approved, and a motion to seal has been filed, the procedure set forth in (b)

above shall be followed with the exception that the factors for sealing a settlement set forth below

shall be addressed.

In determining whether to approve the filing of the settlement documents, in whole or in part, under

seal, the court shall consider:

(1) the public or professional significance of the lawsuit;

(2) the perceived harm to the parties from disclosure:

(3) why alternatives other than sealing the documents are not available to protect

legitimate private interests as identified by this Rule; and,

(4) why the public interest, including, but not limited to, the public health and safety,

is best served by sealing the documents.

In family court matters, the judge shall also consider whether the settlement: 1) contains material

which may expose private financial matters which could adversely affect the parties; and/or 2) relates

to sensitive custody issues, and shall specifically balance the special interests of the child or children

involved in the family court matter.

(d) Orders Sealing Documents. All orders sealing documents or all or parts of settlements shall set

forth with specificity the reasons that require they be sealed.

Note:

Rule 41.1 was enacted to set forth with clarity the fact that the courts of this State are

presumed to be open and to set forth with particularity when documents and

settlement agreements, submitted to a court for approval, may be sealed.

Last amended by Order dated May 5, 2003.