Order 
Entered:  December 21, 2004

ADM File No. 2004-13

Proposed Amendment of 
Rule 2.504 of the
Michigan Court Rules
                 

     On order of the Court, this is to advise that the Court is considering an amendment
of Rule 2.504 of the Michigan Court Rules.  Before determining whether the proposal
should be adopted, changed before adoption, or rejected, this notice is given to afford
interested persons the opportunity to comment on the form or the merits of the proposal
or to suggest alternatives.  The Court welcomes the views of all.  This matter also will be
considered at a public hearing.  The notices and agendas for public hearings are posted at
www.courts.mi.gov/supremecourt. 

Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal in its
present form.

       [Additions are indicated below by underlining
       and deletions are indicated by overstriking.]
      

                                
Rule 2.504  Dismissal of Actions

     (A)  Voluntary Dismissal; Effect.
     
          (1)  [By Plaintiff; by Stipulation.] Subject to the provisions of
          MCR 2.420 and MCR 3.501(E), an action may be dismissed by the
          plaintiff [without an order of the court and on the payment of
          costs
          
               ](a)  by filing a notice of dismissal or a proposed order
               of dismissal, or by otherwise requesting dismissal before
               service by the adverse party of an answer or of a motion
               under MCR 2.116, whichever first occurs; or
               
               (b)  by filing a stipulation of dismissal signed by all the parties.
               
               Unless otherwise stated in the notice or order of dismissal
          or stipulation, the dismissal is without prejudice, except that a
          dismissal under subrule (A)(1)(a) operates as an adjudication on the
          merits when filed by a plaintiff who has previously dismissed an
          action in any court based on or including the same claim. 
          Where a plaintiff obtains a dismissal under subrule (A)(1)(a),
          the adverse party is entitled to reimbursement for any costs incurred
          before the dismissal.
          
          (2)   [By Order of Court]. Except as provided in subrule
          (A)(1), an action may not be dismissed at the plaintiff's request
          except by order of the court on terms and conditions the court deems
          proper.
          
               (a)  If a defendant has pleaded a counterclaim before being served
               with the plaintiff's motion to dismiss, the court shall not
               dismiss the action over the defendant's objection unless the
               counterclaim can remain pending for independent
               adjudication by the court.
               
               (b)  Unless the order specifies otherwise, a dismissal under
               subrule (A)(2) is without prejudice.
               
     (B)-(E)   [Unchanged.]
     
Staff Comment:  The proposed amendment of MCR 2.504(A) would
clarify that any second voluntary dismissal pursuant to subrule (A)(1) constitutes an
adjudication on the merits, even where the plaintiff obtains a court order finalizing the
dismissal and whether or not the plaintiff is ordered to pay costs.  

The staff comment is not an authoritative construction by the court.

     A copy of this order will be given to the Secretary of the State Bar and to the State
Court Administrator so that they can make the notifications specified in MCR 1.201. 
Comments on these proposals may be sent to the Supreme Court Clerk in writing or
electronically by April 1, 2005, at P.O. Box 30052, Lansing, MI  48909, or
MSC_clerk@courts.mi.gov.  When filing a comment, please refer to ADM File No.
2004-13.  Your comments will be posted on the Court's website, along with the
comments of others, at:
www.courts.mi.gov/supremecourt/Resources/Administrative/index.htm.