N.M. R. Civ. P. Dist. Ct. 1-041
N.M. R. Civ. P. Dist. Ct. 1-041
ANNOTATIONS The 2002 amendment, effective April 1, 2002, deleted Paragraph E(3) which read "The filing of a motion for dismissal pursuant to this rule shall not be an entry of appearance in said action or proceeding."
For dismissal of appeals in district court, see Section 39-3-14 NMSA 1978. Compiler's notes. - Paragraph A is deemed to have superseded 105-1401 and 105-1403, C.S. 1929, respectively, relating to dismissal of action in vacation of the district court and dismissal prior to judgment. Paragraph B, together with Rules 1-020 and 1-055 NMRA, is deemed to supersede 105-819, C.S. 1929, relating to trial in absence of a party and separate trials. I. GENERAL CONSIDERATION. Allegations which state cause of action, taken as true. - Allegations of conspiracy, trespass, false arrest, conversion, unlawful coercion and interference in the use of property, all claimed to have been committed with malice outside of the scope of the defendants' authority, appear to have stated a cause of action, which, for the purpose of a motion to dismiss, should be taken as true. Allen v. McClellan, 1967-NMSC-114, 77 N.M. 801, 427 P.2d 677. A party who does not appeal is presumed to be satisfied with the judgment rendered by the court, and plaintiff, not having taken advantage of the election afforded her when the trial judge in dismissing her complaint gave her 20 days to amend it, was bound by the judgment entered against her. Watkins v. Local Sch. Bd., 1975 -NMSC-048, 88 N.M. 276, 540 P.2d 206. Dismissal with prejudice was not manifestly unreasonable. - Where mortgage company filed a complaint for foreclosure on defendant's home seeking an in rem judgment against the property itself to satisfy the amounts claimed under the note and mortgage, and where the district court dismissed the complaint to foreclose on the note and mortgage with prejudice as a discovery sanction, the district court's post-judgment order enforcing the order of dismissal with prejudice was not manifestly unreasonable, and substitute plaintiff was precluded from seeking any relief under the note and mortgage, because the complaint for foreclosure sought to obtain an in rem judgment for the entire unpaid balance due on the contract and that was the claim that was dismissed with prejudice. Federal Nat'l Mortg. Ass'n v. Chiulli, 2018-NMCA-054. Rule held inapplicable. - Where a district court dismisses an appeal from a magistrate court and five months later remands the case for execution of judgment to the original court, this rule shall not apply. Los Alamos County v. Beery, 1984-NMSC-050, 101 N.M. 157, 679 P.2d 825. II. VOLUNTARY DISMISSAL. Voluntary dismissal of legal separation action following the death of one party. - Section 40-4-20 NMSA 1978 does not preclude voluntary dismissal of a legal separation action as a means of concluding the proceedings after the death of one of the parties. Trinosky v. Johnstone, 2011-NMCA-045, 149 N.M. 605, 252 P.3d 829. Where petitioner filed a petition for legal separation, division of property and spousal support and while the action was pending and before entry of a final decree, respondent died; and petitioner filed a motion to voluntarily dismiss the action, Section 40-4-20 NMSA 1978 did not preclude the district court from granting the motion to dismiss the action. Trinosky v. Johnstone, 2011-NMCA-045, 149 N.M. 605, 252 P.3d 829. Rule 1-041 NMRA does not apply to the voluntary dismissal of a declaration of water rights filed in an adjudication of water rights. State ex rel. State Eng'r v. Commissioner of Pub. Lands, 2009-NMCA-004, 145 N.M. 433, 200 P.3d 86, cert. denied, 2008-NMCERT-011. Rule 1-041 NMRA does not permit the voluntary dismissal of individual claims that make up an action. Gates v. New Mexico Taxation & Revenue Dep't, 2008-NMCA-023, 143 N.M. 446, 176 P.3d 1169. Voluntary dismissal rule has consistently been interpreted as drawing a bright line that permits unilateral dismissal of a case by a plaintiff in the earliest stages of litigation thus extinguishing the action and leaving it as though no suit had ever been brought. Becenti v. Becenti, 2004-NMCA-091, 136 N.M. 124, 94 P.3d 867. No absolute right in plaintiff to dismiss action. - Plaintiff has not an absolute right to dismiss an action, and dismissal will be denied where it creates an injustice to defendant by depriving him of affirmative relief. On dismissal, plaintiff must pay costs. Delahoyde v. Lovelace, 1935-NMSC-063, 39 N.M. 446, 49 P.2d 253; Andrews v. French, 1913-NMSC-022, 17 N.M. 615, 131 P. 996 (decided under former law). Voluntary dismissal leaves situation same as though suit had never been brought; all prior proceedings and orders in the case are vitiated and annulled, and jurisdiction of the court is immediately terminated. Board of Educ. v. Rodriguez, 1968-NMSC-163, 79 N.M. 570, 446 P.2d 218. Court without jurisdiction after voluntary dismissal. - After voluntary dismissal, the court is without further jurisdiction and has no right to render any judgment. The case is moot and the parties are out of court for every purpose. Board of Educ. v. Rodriguez, 1968-NMSC-163, 79 N.M. 570, 446 P.2d 218. Judgment final where no appeal taken from erroneous dismissal. - Where no appeal was taken from erroneous dismissal of a second amended complaint without prejudice, the judgment became final and it could not be questioned on later litigation. State ex rel. Bliss v. Casarez, 1948-NMSC-062, 52 N.M. 406, 200 P.2d 369. Implicit acknowledgement for conditions of dismissal. - Although the district court entered a form order dismissing the action, the order explicitly noted that petitioner had initiated the dismissal and that no responsive pleading had been filed in the case. Thus, the district court implicitly acknowledged that the conditions of a voluntary dismissal had been met. Becenti v. Becenti, 2004-NMCA-091, 136 N.M. 124, 94 P.3d 867. Reinstatement. - Paragraph A of this rule makes no provision for the reinstatement of an action following a voluntary dismissal. Becenti v. Becenti, 2004-NMCA-091, 136 N.M. 124, 94 P.3d 867. Filed stipulation renders court powerless to prevent dismissal. - Once the parties have agreed in their filed stipulation to dismiss the case, under this rule, it is dismissed and the district court is powerless to prevent it. Elwess v. Elwess, 1964-NMSC-014, 73 N.M. 400, 389 P.2d 7. Court's jurisdiction terminated. - Stipulation for dismissal, signed by both parties, leaves a situation the same as though the suit had never been brought and jurisdiction of the court is terminated. Halmon v. Pico Drilling Co., 1967-NMSC-238, 78 N.M. 474, 432 P.2d 830. Court cannot award attorneys' fees where stipulation is signed by both defendant and plaintiff; the action is effectively dismissed without further jurisdiction. McCuistion v. McCuistion, 1963-NMSC-144, 73 N.M. 27, 385 P.2d 357. Court permission is required for motion to dismiss after commencement of trial. State ex rel. State Hwy. Comm'n v. Weatherly, 1960-NMSC-048, 67 N.M. 97, 352 P.2d 1010. Upon voluntary dismissal, the answer of the defendant is vitiated and the counterclaim annulled. Telephonic, Inc. v. Montgomery Plaza Co., 1975-NMCA-040, 87 N.M. 407, 534 P.2d 1119. Effect of absence of court order authorizing dismissal. - Because there was no court order authorizing a dismissal of the counterclaim, it could only have been dismissed by plaintiff's consent. Griego v. Roybal, 1968-NMSC-077, 79 N.M. 273, 442 P.2d 585. Counterclaim dismissed prior to judgment, without prejudice. - A defendant who has filed a counterclaim against plaintiff in a cause tried to the court has the right to dismiss his counterclaim without prejudice before judgment is rendered. Pershing v. Ward, 1929-NMSC-069, 34 N.M. 298, 280 P. 254 (decided under former law). Dismissal without prejudice entirely within court's discretion. - The right of a plaintiff to dismiss his cause of action without prejudice under Subdivision (a) (see now Paragraph A) is entirely within the discretion of the court, and unless there is a clear abuse of discretion, the judgment of the trial court in denying a plaintiff the right to dismiss without prejudice will not be disturbed on appeal. Emmco Ins. Co. v. Walker, 1953-NMSC-074, 57 N.M. 525, 260 P.2d 712 (decided before 1979 amendment). Duty to correct clerical mistake. - Where plaintiffs, pursuant to this rule, filed a motion to dismiss before the answer and counterclaim were filed, and the motion contained a clerical error in that the phrase "with prejudice" was substituted for "without prejudice" at some point between counsel's dictation of the notice and the final draft, and upon discovery of the error, the plaintiffs filed a motion pursuant to Rule 60(a) (see now Rule 1-060 NMRA) to correct the notice (also before defendant's answer and counterclaim), the lower court not only had the right but the duty to correct the clerical mistake in plaintiffs' original notice of dismissal with prejudice to read "without prejudice." Telephonic, Inc. v. Montgomery Plaza Co., 1975-NMCA-040, 87 N.M. 407, 534 P.2d 1119 (decided before 1979 amendment). Effect of dismissal of coobligor on liability of remaining obligors. - A dismissal seasonably entered by leave of court as to one of a number of defendants severally liable does not charge from liability his coobligors and codefendants. Bank of Commerce v. Broyles, 1910-NMSC-017, 16 N.M. 414, 120 P. 670, rev'd sub nom. Schmidt v. Bank of Commerce, 234 U.S. 64, 34 S. Ct. 730, 58 L. Ed. 1214 (1914) (decided under former law). III. INVOLUNTARY DISMISSAL. False conflict doctrine applied. - The trial court properly applied the false conflict doctrine and dismissed the plaintiff's action for breach of contract and unjust enrichment because under the following circumstances the plaintiff was an independent contractor of the defendant notwithstanding the fact that the parties' contract purported to create an employer-employee relationship between the parties, and the plaintiff did not substantially comply with contractor licensing requirements: the plaintiff performed construction work on a project in Arizona for the defendant; both parties were New Mexico citizens; Arizona law required the plaintiff to have an Arizona contractor's license to perform the work on the project; the plaintiff did not have the required Arizona contractor's license; the defendant had the required Arizona contractor's license; and under both New Mexico and Arizona law unlicensed contractors are barred from recovering for their work under any cause of action. Fowler Brothers, Inc. v. Bounds, 2008-NMCA-091, 144 N.M. 510, 188 P.3d 1261. Notice and hearing required for res judicata effect. - While dismissal under Paragraph B of this rule may not require a notice and a hearing, for an order of dismissal to have res judicata effect, notice and a hearing must be provided, and the result is an adjudication on the merits. Cagan v. Village of Angel Fire, 2005-NMCA-059, 137 N.M. 570, 113 P.3d 393. Prima facie case does not preclude dismissal. - Assuming, but not holding, that plaintiff had established a prima facie case, a prima facie case does not preclude dismissal by the trial court. Carrasco v. Calley, 1968-NMCA-061, 79 N.M. 432, 444 P.2d 617; White v. City of Lovingston, 1967-NMCA-034, 78 N.M. 628, 435 P.2d 1010. Timeliness essential in making motion. - Where defendant did not make any motion to dismiss, either oral or written, before the trial setting was obtained by the plaintiff, and the oral motion was made at the outset of the trial, it was neither timely nor proper and its denial was correct. Beyer v. Montoya, 1965-NMSC-064, 75 N.M. 228, 402 P.2d 960. Rule 1-037 and Paragraph B distinguished. - Subdivision (b) (see now Paragraph B) deals with sanctions available for use during the trial, whereas Rule 37(d) (see now Rule 1-037 NMRA), spells out sanctions for failure to give a deposition or answer interrogatories. Rule 37(d) (see now Rule 1-037 NMRA) is adequate in itself to allow a dismissal with prejudice. Chalmers v. Hughes, 1971-NMSC-111, 83 N.M. 314, 491 P.2d 531. Rule 1-050(A) and Paragraph B distinguished. - The grant of a motion to dismiss under Paragraph B will be sustained even if the plaintiff has produced enough evidence to withstand a directed verdict under Rule 1-050(A), so long as the decision of the trial judge is rationally based on the evidence. Padilla v. RRA, Inc., 1997-NMCA-104, 124 N.M. 111, 946 P.2d 1122. Waiver of venue by acquiescing to motion hearing in different county. - Plaintiff waived his right of having case brought to enjoin trespass to land tried in the county where the land is located by apparently acquiescing to holding of a hearing on a motion to dismiss the action in another county within the district. Heron v. Gaylor, 1948-NMSC-072, 53 N.M. 44, 201 P.2d 366. The special statutory eminent domain procedure is inconsistent with Subdivisions (b) and (e) (see now Paragraphs B and E), and these rules are therefore inapplicable to eminent domain proceedings brought under the special alternative procedure where, as here, a permanent order of entry has been made as to some part of the property being condemned. State ex rel. State Hwy. Comm'n v. Burks, 1968-NMSC-121, 79 N.M. 373, 443 P.2d 866. For dismissal of action in quiet title action. Gilman v. Osborn, 1967-NMSC-244, 78 N.M. 498, 433 P.2d 83. When nonsuit not reversed on appeal in quiet title action. - In an action to quiet title, where the deeds forming the basis of plaintiff's title are void for insufficiency of description of the land they purport to convey, a nonsuit granted pursuant to this rule will not be reversed on appeal. Komadina v. Edmondson, 1970-NMSC-065, 81 N.M. 467, 468 P.2d 632. Presumption that case dismissed under court's inherent authority. - Where the trial court does not state by what authority it is dismissing the case, it will be assumed it was doing so pursuant to its inherent authority. Mora v. Hunick, 1983-NMCA-127, 100 N.M. 466, 672 P.2d 295. Trial court, being the trier of the facts, has the power of applying its own judgment and may grant or deny a motion to dismiss. Gilon v. Franco, 1967-NMSC-112, 77 N.M. 786, 427 P.2d 666. A trial court, being the trier of the facts, has the power of applying its own judgment and may grant or deny a motion to dismiss under this rule. The case of Olivas v. Garcia, 1958-NMSC-105, 64 N.M. 419, 329 P.2d 435, and other prior cases which are to the effect that a demurrer (now motion to dismiss) to the evidence raises only a question of law, are no longer applicable. Hickman v. Mylander, 1961-NMSC-068, 68 N.M. 340, 362 P.2d 500. Judgment entered under this rule constitutes a judgment on the merits, unless the trial court otherwise specifies. Herbert v. Sandia Sav. & Loan Ass'n, 1971-NMSC-064, 82 N.M. 656, 486 P.2d 65. Notice and hearing essential to decision upon merits. - The provision "any dismissal not provided for in this rule" does not require a holding that the dismissal of the original action was an adjudication upon the merit. The provision applies to a dismissal of which the party affected has notice. Notice and hearing, or an opportunity to be heard, is essential to a decision upon the merits. Otero v. Sandoval, 1956-NMSC-008, 60 N.M. 444, 292 P.2d 319. Dismissal either with or without prejudice. - The right of a defendant to move for dismissal for failure of the plaintiff to prosecute with diligence is provided by this rule, and a dismissal under this rule may be either with or without prejudice depending on the circumstances. Martin v. Leonard Motor-El Paso, 1965-NMSC-060, 75 N.M. 219, 402 P.2d 954. Deliberate failure to appear for inspection of records. - Dismissal with prejudice of suit to compel production of records was proper where the court gave the petitioner clear and specific notification of the time and place for the inspection of the records, but the petitioner deliberately chose not to appear. Newsome v. Farer, 1985-NMSC-096, 103 N.M. 415, 708 P.2d 327. Standard of review of involuntary dismissal. - A judge ruling on a motion for involuntary dismissal is not bound to give the plaintiff's testimony the most favorable aspect, but rather should give the testimony such weight as it is entitled to receive. On appeal, evidence is examined only to the extent necessary to determine whether it gives substantial support to the district court's findings. Substantial support is that which is acceptable to a reasonable mind as adequate support for a conclusion. The appellate courts view evidence in the most favorable light to support the findings, and evidence inconsistent with or unfavorable to the findings will be disregarded. An involuntary dismissal will be upheld on appeal if the dismissal is rationally based on the evidence. Mayer v. Smith, 2015-NMCA-060, cert. denied, 2015-NMCERT-004. Where plaintiff owned property burdened by an easement, but erected a fence that encroached onto the easement, the district court's finding that the use of the easement had changed, causing an additional burden to the servient estate, was not supported by the evidence when the owners of the dominant estate testified that there had been no change to the use of the easement since it was purchased in 1979 and that the easement had not been modified by the division of the dominant estate. Mayer v. Smith, 2015-NMCA-060, cert. denied, 2015-NMCERT-004. Evidence submitted by plaintiff considered true. - When a motion to dismiss is interposed at close of plaintiff's case, the evidence submitted by plaintiff is to be considered as being true and any fair and reasonable inferences that may be drawn therefrom should be resolved in his favor. Pilon v. Lobato, 1950-NMSC-030, 54 N.M. 218, 219 P.2d 290. Evidence given such weight as court believes it deserves. - Upon dismissal of a plaintiff's case under this rule, the trial court weighs the evidence and gives to it such weight as the court believes it deserves. Worthey v. Sedillo Title Guar., Inc., 1973-NMSC-072, 85 N.M. 339, 512 P.2d 667. This rule authorizes the court upon a motion to dismiss at the close of plaintiffs' case to weigh the evidence and give it such weight as the court believes it deserves. Komadina v. Edmondson, 1970-NMSC-065, 81 N.M. 467, 468 P.2d 632. Unimpeached and uncontradicted evidence needs consideration as well. - In ruling on a motion to dismiss made at the close of plaintiff's case, the trial court is not required to view evidence in its most favorable light, but rather to weigh all evidence and give it the weight it deserves. However, evidence which is unimpeached and uncontradicted may not be disregarded, and findings diametrically opposed thereto lack support. Lorenzo v. Lorenzo, 1973-NMSC-062, 85 N.M. 305, 512 P.2d 65. Court gives only such weight as plaintiff's testimony entitled to receive. - On motion to dismiss after presentation of plaintiff's case in a nonjury trial the court is not bound to give plaintiff's testimony the most favorable aspect but rather should give the testimony such weight as it is entitled to receive and, as trier of the facts, is to apply its own judgment in ruling on the motion. Carlile v. Continental Oil Co., 1970-NMCA-051, 81 N.M. 484, 468 P.2d 885. Under this rule, the trial court is not bound to give plaintiff's testimony the most favorable possible aspect. Rather, the trial court is to give the testimony such weight as it is entitled to receive. Carrasco v. Calley, 1968-NMCA-061, 79 N.M. 432, 444 P.2d 617. The trial court is not bound to give plaintiff's testimony the most favorable possible aspect. Rather, the trial court is to give the testimony such weight as it is entitled to receive. Thus, the trial court, as the trier of the facts, is to apply its own judgment in ruling on a motion to dismiss after plaintiff has completed the presentation of its evidence. White v. City of Lovingston, 1967-NMCA-034, 78 N.M. 628, 435 P.2d 1010. Under this rule the trial court was not required to view plaintiff's testimony, together with all reasonable inferences therefrom in its most favorable aspect for plaintiff. Rather, the court could weigh the testimony and apply its judgment thereto. Blueher Lumber Co. v. Springer, 1967-NMSC-034, 77 N.M. 449, 423 P.2d 878. The trial court when ruling on a motion to dismiss made at the close of the plaintiff's case is not required to view the plaintiff's testimony together with all reasonable inference therefrom in its most favorable aspect for the plaintiff, but rather that the trial court weighs the testimony and applies its judgment thereto. Gilon v. Franco, 1967-NMSC-112, 77 N.M. 786, 427 P.2d 666; Simmons v. International Minerals & Chem. Corp., 1966-NMSC-220, 77 N.M. 100, 419 P.2d 756. Under this rule on motion for dismissal by defendant at close of plaintiff's case, the trial court may determine the facts and in so doing is not bound to give plaintiff's testimony the most favorable aspect, together with all reasonable inferences therefrom, and to disregard all unfavorable testimony. Rather, it is the trial court's duty to weigh the evidence and give to it such weight as he believes it is entitled to receive. Giles v. Canal Ins. Co., 1965 -NMSC-024, 75 N.M. 25, 399 P.2d 924; Montano v. Saavedra, 1962-NMSC-095, 70 N.M. 332, 373 P.2d 824. Under this rule, a trial judge, when ruling on a motion to dismiss made at the close of plaintiff's case, is not required to view plaintiff's testimony together with all reasonable inferences therefrom in its most favorable aspect for plaintiff, but rather the court weighs the testimony and applies its judgment thereto. Frederick v. Younger Van Lines, 1964-NMSC-156, 74 N.M. 320, 393 P.2d 438. When defendant moves for dismissal under this rule, the trial court may determine the facts and in so doing is not bound to give plaintiff's testimony the most favorable aspect, together with all reasonable inferences therefrom, and to disregard all unfavorable testimony. Rather, it is the trial court's duty to weigh the evidence and give to it such weight as it believes it is entitled to receive. Montano v. Saavedra, 1962-NMSC-095, 70 N.M. 332, 373 P.2d 824. Under this rule the trial court, as the trier of the facts without a jury, is not bound to give appellants' and counterclaimants' testimony the most favorable possible aspect, together with all reasonable inferences therefrom. Rather, it is the trial court's duty to give appellants' and counterclaimants' testimony such weight as it believes it is entitled to receive. Hickman v. Mylander, 1961-NMSC-068, 68 N.M. 340, 362 P.2d 500. Credibility of testimony is for the trial court, and it is not the function of the court of appeals to determine the weight to be given the evidence. Harlow v. Fibron Corp., 1983-NMCA-117, 100 N.M. 379, 671 P.2d 40. Consideration and weight to be given the testimony of an adverse witness is the same whether the proceedings leading to a judgment on the merits fall within this rule or constitute a complete trial consisting of a full presentation of evidence by both sides and the resting of their respective cases. Herbert v. Sandia Sav. & Loan Ass'n, 1971-NMSC-064, 82 N.M. 656, 486 P.2d 65. Testimony of witness taken out of order disregarded. - In testing the sufficiency of the proof and in weighing the evidence, the testimony of defendants' witness taken out of order should be disregarded. Frederick v. Younger Van Lines, 1964-NMSC-156, 74 N.M. 320, 393 P.2d 438. Matters in record which allow court to disregard testimony. - The rule in this jurisdiction is that the testimony of a witness, whether interested or disinterested, cannot arbitrarily be disregarded by the trier of the facts; but it cannot be said that the trier of facts has acted arbitrarily in disregarding such testimony, although not directly contradicted, whenever any of the following matters appear from the record: (a) that the witness is impeached by direct evidence of his lack of veracity or of his bad moral character, or by some other legal method of impeachment, (b) that the testimony is equivocal or contains inherent improbabilities, (c) that there are suspicious circumstances surrounding the transaction testified to, (d) that legitimate inferences may be drawn from the facts and circumstances of the case that contradict or cast reasonable doubt upon the truth or accuracy of the oral testimony. Frederick v. Younger Van Lines, 1964-NMSC-156, 74 N.M. 320, 393 P.2d 438. An instruction covering an issue not presented to court cannot be first raised on appeal. State v. Rael, 1970-NMCA-101, 81 N.M. 791, 474 P.2d 83. Abuse of discretion by trial court ground for appeal. - The district court has inherent power to dismiss a case for failure to prosecute, independent of statute, and unless there has been an abuse of discretion, the trial court's dismissal will not be disturbed upon appeal. Baker v. Sojka, 1964-NMSC-234, 74 N.M. 587, 396 P.2d 195. Two courses of action for defendant after denial of motion to dismiss. - Where a defendant makes a motion to dismiss under Subdivision (b) (see now Paragraph B) at the close of plaintiff's case and it is denied, he has two courses of action: he may stand on his motion and appeal directly from the order of denial or proceed to offer evidence. Den-Gar Enters. v. Romero, 1980-NMCA-021, 94 N.M. 425, 611 P.2d 1119, cert. denied, 94 N.M. 628, 614 P.2d 545. When defendant waives right to claim error in denial of motion. - Where defendant, after its motion to dismiss was denied, proceeded to present its own case, it waived any right to claim as error the denial of its motion to dismiss. Den-Gar Enters. v. Romero, 1980-NMCA-021, 94 N.M. 425, 611 P.2d 1119, cert. denied, 94 N.M. 628, 614 P.2d 545. Statute of limitations not suspended while suit pending. - A dismissal without prejudice operates to leave the parties as if no action had been brought at all. Following such dismissal, the statute of limitations is deemed not to have been suspended during the period in which the suit was pending. King v. Lujan, 1982-NMSC-063, 98 N.M. 179, 646 P.2d 1243. Motion for directed verdict in nonjury trial is, in effect, a motion to dismiss under Subdivision (b) (see now Paragraph B). Garcia v. American Furn. Co., 1984 -NMCA-090, 101 N.M. 785, 689 P.2d 934. Case remanded when motion erroneously granted. - When on appeal the court determines that the defendant's motion to dismiss should have been denied, the case must be remanded for presentation of testimony by the plaintiff in the furtherance of her case. Bogle v. Potter, 1961-NMSC-025, 68 N.M. 239, 360 P.2d 650. Appellate court views evidence in light most favorable to defendant. - In disposing of an action on its merits under this rule a trial court is not bound to give the plaintiff's evidence the most favorable aspect, but only has the duty to weigh the evidence and give it such weight as the court believes it is entitled. Upon review, in determining whether the findings of the trial court are supported by substantial evidence, an appellate court will view the evidence in the light most favorable to support the findings. Blancett v. Homestake-Sapin Partners, 1963-NMSC-180, 73 N.M. 47, 385 P.2d 568. No review of facts on appeal where plaintiff initially waived findings. - Where plaintiff fails to request findings of fact, thereby in effect waiving findings, and trial court dismissed plaintiff's claim at the close of plaintiff's case, ruling on the merits, plaintiff may not, in order to determine whether the trial court correctly dismissed the claim against defendant for failure of proof, obtain a review of the facts on appeal. Wallace v. Wanek, 1970-NMCA-049, 81 N.M. 478, 468 P.2d 879. When appellant made no request for specific findings. - Where the judgment contains a general finding of fact finding the issues for appellee, and no specific findings of fact were requested or tendered by appellant, the appellant cannot invoke a review of the evidence to ascertain whether it supports the general finding or judgment. Western Timber Prods. Co. v. W.S. Ranch Co., 1961-NMSC-124, 69 N.M. 108, 364 P.2d 361. Motion held proper where appellant's circumstantial proof inconclusive. - Where trial court weighed the evidence and found appellant's circumstantial proof to be inconclusive as to the fact of delivery of material by appellant to defendant, it properly sustained defendants' motion to dismiss under this rule. Panhandle Pipe & Steel, Inc. v. Jesko, 1969-NMSC-098, 80 N.M. 457, 457 P.2d 705. Insufficient evidence to support claim of conversion. - In a dispute between parties to a contract for the construction of a new home, where construction company, after experiencing financial difficulties, ceased operations and failed to construct and deliver the home to plaintiffs after plaintiffs made a deposit of over $165,000, substantial evidence supported the district court's decision to dismiss the claim of conversion against defendant in his individual capacity, because the evidence at trial was that defendant played no role in the liquidations and distribution of the construction company's assets after operations ceased, and therefore defendant took no part in the decision-making process to detain plaintiffs' deposit, the purchase agreement did not create an independent duty related to monies paid by plaintiffs pursuant to the purchase agreement, and there was no evidence that defendant engaged in the unauthorized use of plaintiff's money. Fogelson v. Wallace, 2017-NMCA-089, cert. granted. Plaintiff failed to show a sufficient causal nexus between the use of the uninsured vehicle and the resulting harm. - Where plaintiff was transported in an uninsured vehicle to a place where she was sexually assaulted, and where plaintiff subsequently filed a claim for uninsured motorist coverage for the incident under a policy that defendant insurance company had issued to plaintiff's mother and under which plaintiff was an insured, the trial court did not err in ruling that there was not a sufficient causal nexus between the use of the uninsured vehicle and the sexual assault of plaintiff, because the uninsured vehicle was not an integral element of the sexual assault; an uninsured vehicle does not constitute an active accessory to the commission of an intentional tort solely because use of the vehicle was necessary to transport the assailant and/or the victim to or from the scene of the intentional tort. Crespin v. Safeco Ins. Co. of Am., 2018-NMCA-068. Reinstatement following dismissal for lack of prosecution. - A case that has been dismissed without prejudice for lack of prosecution may be reinstated upon a showing of good cause; a new complaint need not be filed in order to proceed and, thus, there is no problem with the running of the statute of limitations. Wershaw v. Dimas, 1996-NMCA-118, 122 N.M. 592, 929 P.2d 984. IV. COSTS OF PREVIOUSLY DISMISSED ACTION. Generally. - Since defendant suffers no damages other than those that accompany all suits of like kind, a mere possibility of future litigation is not such hardship as would prevent a dismissal by plaintiff, because the hardship is presumably compensated for by recovery of costs. Johnson v. Walker-Smith Co., 1943-NMSC-037, 47 N.M. 310, 142 P.2d 546. V. DISMISSAL OF ACTION WITH PREJUDICE. A. IN GENERAL. Arbitrary dismissal. - Where there exists no evidence of wrongful or wilful conduct on the part of a party in presenting a stipulated motion without the concurrence of another party, in failing to serve the other party with a copy of the stipulated motion, or in failing to obtain that party's approval of the order, the dismissal was arbitrary because it was too extreme a sanction under the circumstances. Gila Resources Information Project v. New Mexico Water Quality Control Comm'n, 2005-NMCA-139, 138 N.M. 625, 124 P.3d 1164, cert. denied, 2005-NMCERT-009. Effect of 1990 amendment - Paragraph E of this rule was essentially rewritten in 1990 and differs from the former rule in several ways. Cagan v. Village of Angel Fire, 2005-NMCA-059, 137 N.M. 570, 113 P.3d 393. Not due process violation. - Plaintiff was not denied her right to due process by the court's dismissal of her action because the rule does not require notice and a hearing prior to dismissal and, in any event, she was provided with notice and a hearing after dismissal but before the court's determination of whether the dismissal would be with or without prejudice. Lowrey v. Atterbury, 1992-NMSC-001, 113 N.M. 71, 823 P.2d 313. Rights of litigants not to be completely disregarded in applying Paragraph E. - Subdivision (e) (see now Paragraph E) is intended to promote judicial efficiency and to conclude stale cases, but it should not be applied in complete disregard of the rights of litigants to have their day in court and their cases decided on the merits and not on trivial technicalities. Sewell v. Wilson, 1982-NMCA-017, 97 N.M. 523, 641 P.2d 1070. Dismissal removes plaintiff's remedy, not his rights. - An order of dismissal under this rule only takes from a plaintiff a remedy, but it does not destroy his rights. Eager v. Belmore, 1949-NMSC-029, 53 N.M. 299, 207 P.2d 519. The effect of a dismissal merely deprives one of his remedy from again bringing suit on the same cause of action, but the rights are not destroyed. Otero v. Sandoval, 1956-NMSC-008, 60 N.M. 444, 292 P.2d 319. Mandamus is the proper proceeding to compel dismissal under this rule when the district judge has refused to do so. State ex rel. City of Las Cruces v. McManus, 1965-NMSC-071, 75 N.M. 267, 404 P.2d 106. The special statutory eminent domain procedure is inconsistent with Subdivisions (b) and (e) (see now Paragraphs B and E), and these rules are therefore inapplicable to eminent domain proceedings brought under the special alternative procedure where, as here, a permanent order of entry has been made as to some part of the property being condemned. State ex rel. State Hwy. Comm'n v. Burks, 1968-NMSC-121, 79 N.M. 373, 443 P.2d 866. These rules are inapplicable to eminent domain proceedings in which an order of permanent entry and possession has been made. State ex rel. State Hwy. Comm'n v. Burks, 1968-NMSC-121, 79 N.M. 373, 443 P.2d 866. Written motion required. - Before the court is empowered to dismiss under this rule for lack of diligence, the party must elect to invoke his right to compel a dismissal and must manifest such election by filing a written motion to dismiss. Martin v. Leonard Motor-El Paso, 1965-NMSC-060, 75 N.M. 219, 402 P.2d 954. A trial court does have the inherent power to dismiss a cause for failure of prosecution. Smith v. Walcott, 1973-NMSC-074, 85 N.M. 351, 512 P.2d 679. The right of a court to dismiss a suit for failure to prosecute with diligence exists independently of statute; it is inherent. The determination of what amounts to lack of diligence is within the discretion of the court. City of Rosewell v. Holmes, 1939-NMSC-062, 44 N.M. 1, 96 P.2d 701 (decided under former law). Paragraph E does not oust the trial court of jurisdiction to exercise its inherent power to dismiss under Local Rule 43 (1st Dist.). Gathman-Matotan Architects & Planners, Inc. v. State, Dep't of Fin. & Admin., 1988-NMSC-020, 107 N.M. 113, 753 P.2d 892. Order entered pursuant to such power, final. - The order or judgment entered pursuant to the inherent power to dismiss a cause is final and effectively terminates a case, unless and until it is properly reinstated. Smith v. Walcott, 1973-NMSC-074, 85 N.M. 351, 512 P.2d 679. Effect of omitting defendant from order. - Even if defendant was not included in the order of dismissal, the statute specifically provides that the dismissal shall be "with prejudice to the prosecution of any other or further action or proceeding based on the same cause of action set up in the complaint" so no new action may be tried against the defendant. Brown v. Davis, 1964-NMSC-241, 74 N.M. 610, 396 P.2d 594. Order entered sua sponte does not constitute adjudication upon merits. - The order of dismissal entered sua sponte by the trial court does not constitute an adjudication upon the merits. Hence, the doctrine of res judicata is not applicable to the issues presented in this case. Smith v. Walcott, 1973-NMSC-074, 85 N.M. 351, 512 P.2d 679. Power to dismiss both good and deficient complaints. - A trial court has the power to dismiss a perfectly good complaint for a failure to expeditiously move a case along, and it has the same power in regard to a complaint which is patently deficient. Birdo v. Rodriguez, 1972-NMSC-062, 84 N.M. 207, 501 P.2d 195. The rule contemplates a hearing upon a motion to dismiss at which the parties may present evidence on the issue of whether the plaintiff therein or any defendant filing a cross-complaint therein has failed to take any action to bring such action or proceeding to its final determination for a period of at least three years after the filing of said action or proceeding or of such cross-complaint. Dunham-Bush, Inc. v. Palkovic, 1973-NMSC-012, 84 N.M. 547, 505 P.2d 1223; State ex rel. Reynolds v. Molybdenum Corp. of Am., 1972-NMSC-027, 83 N.M. 690, 496 P.2d 1086. Failure to give notice of motion not jurisdictional error. - Even if it is required that notice be given of a motion to dismiss under this rule, failure to give such notice is not a jurisdictional error. Midwest Royalties, Inc. v. Simmons, 1956-NMSC-084, 61 N.M. 399, 301 P.2d 334. Timeliness essential in making motion. - Where defendant did not make any motion to dismiss, either oral or written, before the trial setting was obtained by the plaintiff, and the oral motion was made at the outset of the trial, it was neither timely nor proper and its denial was correct. Beyer v. Montoya, 1965-NMSC-064, 75 N.M. 228, 402 P.2d 960. When motion to dismiss not timely filed. - Motions to dismiss made during the time court was actually hearing argument and evidence on petition for ejectment and the response thereto were not timely filed. Southern Pac. Co. v. Timberlake, 1970-NMSC-013, 81 N.M. 250, 466 P.2d 96. Where defendant acted more than two years after complaint filed (now three years) but before written motion to dismiss, the subsequent motion for dismissal was too late. Martin v. Leonard Motor-El Paso, 1965-NMSC-060, 75 N.M. 219, 402 P.2d 954. Motion must precede action by court and parties toward determination. - Where action was taken by the trial court and by both parties toward a final determination of the case, and such action was taken before the defendant filed his motion to dismiss, the motion to dismiss under this statute came too late. Dollison v. Fireman's Fund Ins. Co., 1966 -NMSC-198, 77 N.M. 392, 423 P.2d 426. The application of Subdivision (e) (see now Paragraph E) must be preceded by defendant's motion and a hearing. Mora v. Hunick, 1983-NMCA-127, 100 N.M. 466, 672 P.2d 295. Determination of motion to dismiss action with prejudice. - To resolve a motion to dismiss pursuant to Subdivision (e)(1) (see now Paragraph E(1)), the trial court should determine, upon the basis of the court record and the matters presented at the hearing, whether such action has been timely taken by the plaintiff, the cross-claimant or the counter-claimant against whom the motion is directed and, if not, whether he has been excusably prevented from taking such action. Albuquerque Prods. Credit Ass'n v. Martinez, 1978-NMSC-003, 91 N.M. 317, 573 P.2d 672. Factors to be considered by court. - A court must consider many factors in ruling on a motion to dismiss pursuant to Subdivision (e) (see now Paragraph E), including: (1) All written and oral communications between the court and counsel; (2) actual hearings by the court on motions; (3) negotiations and other actions between counsel looking toward the early conclusion of the case; (4) all discovery proceedings; and (5) any other matters which arise and the actions taken by counsel in concluding litigation. Jones v. Montgomery Ward & Co., 1985-NMSC-062, 103 N.M. 45, 702 P.2d 990. Prejudice to defendant is not discrete matter to be considered in deciding a motion under Subdivision (e) (see now Paragraph E). Howell v. Anaya, 1985-NMCA-019, 102 N.M. 583, 698 P.2d 453. Timeliness of activities between filing and hearing of motion. - A court may, in its discretion, consider as timely, activities occurring between the filing of a motion to dismiss and the hearing on it. Sewell v. Wilson, 1982-NMCA-017, 97 N.M. 523, 641 P.2d 1070. Right to dismissal depends whether plaintiff abandoned his claim. - The positive right of a defendant to procure a dismissal with prejudice after at least two years of nonaction on the part of the plaintiff is to be tested by a determination as to just what action the plaintiff could have taken, within the applicable rules of procedure, to bring his case to trial. The dismissal of an action merely because it is not tried within two years, three years or within any other fixed period after the filing of the complaint, amounts to an arbitrary denial of justice unless the plaintiff has failed to take some action, within the given period, which he could effectively take, and has thereby been guilty of a statutory abandonment of his claim. Martin v. Leonard Motor-El Paso, 1965-NMSC-060, 75 N.M. 219, 402 P.2d 954. Duty to act to bring case to trial. - Where appellant urged that his first attorney withdraw, his second attorney left the state, one judge was disqualified, the appointed judge's term expired and two months elapsed before a new judge was appointed; nevertheless, the appellant could have acted toward bringing his case to trial by obtaining a new attorney, and there was a presiding district judge designated to hear the case at all times except for three months; thus his contention was immaterial since more than two years had elapsed since the final designation. Pettine v. Rogers, 1958-NMSC-025, 63 N.M. 457, 321 P.2d 638. Error committed if motion dismissed without good reason. - If no good reason exists, the denial by the trial court of a motion to dismiss is error; but by proceeding to trial the court is within its jurisdiction. Baca v. Burks, 1970-NMSC-055, 81 N.M. 376, 467 P.2d 392. Initiation of discovery proceedings does not necessarily demonstrate the diligence required of a plaintiff under Subdivision (e) (see now Paragraph E), because such activity is routine and almost reflexive in modern litigation. Sewell v. Wilson, 1982-NMCA-017, 97 N.M. 523, 641 P.2d 1070. Factors which cumulatively constitute excusable delay. - Undertaking discovery, the pursuit of or delay in finding an expert witness, the physical disability of a plaintiff, economic difficulty or the need to travel, in and of themselves if taken individually would not constitute sufficient action or excusable delay in bringing a case to final determination within the time constraints of Subdivision (e) (see now Paragraph E), but cumulatively they provide sufficient reason to permit the plaintiff to proceed with his claim. Sewell v. Wilson, 1982-NMCA-017, 97 N.M. 523, 641 P.2d 1070. Good faith attempt to obtain setting bars dismissal. - Letter of March 29, 1963, filed July 26, 1963, which was on the record, and was placed there before the motion to dismiss was filed, while not a motion for a setting, disclosed that a good-faith attempt had been made to obtain a setting and met requirement that action had been taken to prevent dismissal. Foundation Reserve Ins. Co. v. Johnston Testers, Inc., 1966-NMSC-257, 77 N.M. 207, 421 P.2d 123. Good cause for inactivity shown. - Where plaintiffs filed a complaint in July 2002; one plaintiff filed for bankruptcy in federal court in June 2003 and claimed sole ownership of the claim against defendant; counsel for plaintiffs was uncertain whether counsel could represent both plaintiffs in the case without approval of the bankruptcy court; in May 2006, the district court entered an order "closing" the case and permitting plaintiffs to reopen the case within sixty days after the termination of the bankruptcy stay; plaintiffs reached a settlement in the bankruptcy proceeding in which they agreed to pursue their claims against defendant jointly; the bankruptcy proceeding concluded on May 16, 1007; and on May 25, 2007, plaintiffs filed a motion to reinstate the case together with a request for a trial setting, plaintiffs demonstrated good cause and the district court erred when it denying plaintiffs' motion to reinstate the case. Summit Elec. Supply Co., Inc. v. Rhodes & Salmon, P.C., 2010-NMCA-086, 148 N.M. 590, 241 P.3d 188, cert. denied, 2010-NMCERT-008, 148 N.M. 942, 242 P.3d 1288. Setting case for trial defeats dismissal. - Plaintiffs' motion to set the case for trial, made prior to defendant's motion to dismiss, prevents a dismissal under this rule. Procter v. Fez Club, 1966-NMSC-083, 76 N.M. 241, 414 P.2d 219. Motion to set the cause for trial was not action to bring such action to its final determination and such a motion is proper action to satisfy this rule. Foster v. Schwartzman, 1965-NMSC-158, 75 N.M. 632, 409 P.2d 267. Procuring of a setting on the merits prevents mandatory dismissal under this rule. Jones v. Pringle, 1967-NMSC-235, 78 N.M. 467, 432 P.2d 823. Court's refusal to set particular trial date does not violate due process. - Failure or refusal of the court to set a case for trial at any particular time does not deny due process. At any time before the motion to dismiss was filed, and even after expiration of the two-year period, the plaintiff could have prevented dismissal by the mere filing in the case of a written motion requesting a trial setting. Briesmeister v. Medina, 1966-NMSC-157, 76 N.M. 606, 417 P.2d 208. Defendant's motion to dismiss does not inure to the benefit of the plaintiffs. Gilman v. Bates, 1963-NMSC-112, 72 N.M. 288, 383 P.2d 253. When dismissal erroneous although record of actions not in file. - The failures of the trial court to make a record of the pretrial conference and hearing and to decide the legal issues presented to the court by oral arguments and the briefs are not chargeable to either party, therefore, both parties had clearly taken actions to bring the suit to its final conclusion long before May 25, 1971, and although a record of these actions did not appear in the court file, dismissal of the action pursuant to this rule was error. State ex rel. Reynolds v. Molybdenum Corp. of Am., 1972-NMSC-027, 83 N.M. 690, 496 P.2d 1086. Requests for conference sufficient to withstand motion. - Actions consisting of (1) the writing of a letter to the district judge requesting a pretrial conference and hearing on defendant's legal defenses; (2) the participation in this pretrial conference; (3) the subsequent preparation and furnishing to the court of "Plaintiff's Trial Brief on Legal Defenses"; and (4) conferences with defendant's counsel for the purpose of getting an early disposition of at least defendant's legal defenses, were sufficient to withstand motion for dismissal under this rule. State ex rel. Reynolds v. Molybdenum Corp. of Am., 1972-NMSC-027, 83 N.M. 690, 496 P.2d 1086. Failure to immediately file motion does not constitute waiver. - That the defendant did not file his motion immediately upon the expiration of the two years is certainly not a waiver. Featherstone v. Hanson, 1959-NMSC-040, 65 N.M. 398, 338 P.2d 298. Defendant's failure to move for dismissal of the case immediately upon the expiration of the two-year period, the filing of various motions, the initialing of the order by defendants' counsel assenting to a third amended complaint, etc., do not constitute a waiver of the statute. Brown v. Davis, 1964-NMSC-241, 74 N.M. 610, 396 P.2d 594. Defendant required to elect whether to invoke right. - While failure to file a motion for dismissal immediately upon the expiration of the two-year period does not constitute a waiver of the right to invoke dismissal, this rule requires that the defendant elect whether to invoke his right before the plaintiff has taken the requisite action to bring the case to its final determination. Martin v. Leonard Motor-El Paso, 1965-NMSC-060, 75 N.M. 219, 402 P.2d 954. Rule not bar to suit to enforce judgment lien against realty. - A suit on small claims court judgment was not a suit to enforce a judgment lien against real estate, and an order of dismissal under this rule, of a suit to enforce the judgment lien against real estate, was not a bar to such suit. Curtis Mfg. Co. v. Barela, 1966-NMSC-112, 76 N.M. 392, 415 P.2d 361. B. NECESSITY TO BRING ACTION TO FINAL DETERMINATION. In order for res judicata to apply, the action asserted to have preclusive effect must have concluded with a final adjudication on the merits. Cagan v. Village of Angel Fire, 2005-NMCA-059, 137 N.M. 570, 113 P.3d 393. Dismissal constitutes adjudication on merits. - Order of dismissal with prejudice for failure to prosecute pursuant to Paragraph E(1) of this rule constitutes an adjudication on the merits. Cagan v. Village of Angel Fire, 2005-NMCA-059, 137 N.M. 570, 113 P.3d 393. When a dismissal with prejudice for lack of prosecution is entered pursuant to a written motion and after a hearing on the merits where the losing party has had notice and an opportunity to be heard, a dismissal under Paragraph E(1) of this rule constitutes an adjudication on the merits. Cagan v. Village of Angel Fire, 2005-NMCA-059, 137 N.M. 570, 113 P.3d 393. Rule inapplicable where cause already brought to final determination. - Dismissal under this rule is mandatory after the passage of two years from the filing of the action, unless the time is tolled by certain well-defined exceptions, but this rule has no application to a situation where the cause had been brought to a final determination in the district court, an appeal prosecuted and a new trial ordered. Ballard v. Markey, 1964-NMSC-021, 73 N.M. 437, 389 P.2d 205. This rule has no application where the action has previously been brought to final determination, appeal has been taken, and a new trial has been ordered. Clark v. Carmody, 1950-NMSC-064, 55 N.M. 5, 225 P.2d 696. Method of reaching determination immaterial. - This rule, by its express language, has no application to an action once it has been brought to a final determination in the district court. Whether that final determination is reached after a trial on the merits or by way of summary judgment is unimportant. Ballard v. Markey, 1964-NMSC-021, 73 N.M. 437, 389 P.2d 205. Plaintiff's duty to bring case to trial. - Plaintiff should not be permitted to file a motion for trial setting and then, especially when it becomes obvious that such a request has not been effective in producing a trial setting, to sit and do nothing for a period of 11 years. The language of this rule is clear that the duty of bringing a case to trial is plaintiff's; plaintiff may not shift the burden of bringing a case to trial to the court if it becomes obvious that his request for a trial setting is unavailing. Stoll v. Dow, 1986-NMCA-134, 105 N.M. 316, 731 P.2d 1360. What constitutes activity bringing a case to a final determination must be decided considering the facts of each case. Cottonwood Enters. v. McAlpin, 1989-NMSC-064, 109 N.M. 78, 781 P.2d 1156. What constitutes activity bringing a case to a final determination? - Where plaintiffs filed a complaint in July 2002; one plaintiff filed for bankruptcy in federal court in June 2003; the district court entered an order in May 2006 "closing" the case and permitting plaintiffs to reopen the case within sixty days after the termination of the bankruptcy stay; the bankruptcy proceeding concluded on May 16, 2007; plaintiffs filed a motion to reinstate the case on May 25, 2007 together with a request for a trial setting; and in response, defendant filed a motion to dismiss for failure to prosecute, plaintiffs acted to bring the case to a final determination and timely moved for reinstatement before defendant filed a motion to dismiss and the district court abused its discretion by dismissing the case. Summit Elec. Supply Co., Inc. v. Rhodes & Salmon, P.C., 2010-NMCA-086, 148 N.M. 590, 241 P.3d 188, cert. denied, 2010-NMCERT-008, 148 N.M. 942, 242 P.3d 1288. No requirement to be equally active against all defendants. - Plaintiffs took sufficient action towards bringing the case to a final determination so as to avoid a dismissal with prejudice under this provision when they initiated settlement negotiations with one of the multiple defendants which culminated in a settlement agreement. There is no requirement under Paragraph E that a plaintiff be equally active in prosecuting a claim against all of the defendants. New Mexico Water Quality Control Comm'n v. Emerald Corp., Inc., 1991-NMCA-136, 113 N.M. 144, 823 P.2d 944 (Ct. App. 1991). Bona fide efforts on plaintiff's part required. - A notice that the case would be heard, filed just three months after the complaint was filed, without having arranged for a trial setting and with no jury being available although the case was a jury case, did not disclose "actual and bona fide efforts on the part of the plaintiff to have the case finally determined." Foster v. Schwartzman, 1965-NMSC-158, 75 N.M. 632, 409 P.2d 267. Showing of diligence. - A showing of diligence in the court filed by motion seeking action by the court to bring the case to its final determination satisfies the requirements of this rule and when the requisite action is taken to bring the case to its final determination, this rule is satisfied. Martin v. Leonard Motor-El Paso, 1965-NMSC-060, 75 N.M. 219, 402 P.2d 954. Duty rests upon the claimant at every stage of the proceeding to use diligence to expedite his case. Pettine v. Rogers, 1958-NMSC-025, 63 N.M. 457, 321 P.2d 638. Late filing not demonstrate diligence. - Letter not filed until day after motion to dismiss for failure to prosecute was not effective to establish diligence on the part of the plaintiff to bring the case to final disposition within two years after it was filed. Foundation Reserve Ins. Co. v. Johnston Testers, Inc., 1966-NMSC-257, 77 N.M. 207, 421 P.2d 123. Correspondence not reflected in court file. - Correspondence between the court and counsel, not reflected in the court file prior to the filing of the motion to dismiss, is not to be considered in determining the question of diligence of plaintiff in bringing an action to its final determination. Dollison v. Fireman's Fund Ins. Co., 1966 -NMSC-198, 77 N.M. 392, 423 P.2d 426. Correspondence between counsel and the court, and a verbal request for a trial setting, not reflected in the court file prior to the motion to dismiss, does not constitute the action to bring the case to its final determination contemplated by the rule. Briesmeister v. Medina, 1966-NMSC-157, 76 N.M. 606, 417 P.2d 208. This rule does not justify an automatic dismissal upon the expiration of two years after the filing of the complaint or cross-complaint, even though the party has done nothing to bring the action to its final determination. Martin v. Leonard Motor-El Paso, 1965-NMSC-060, 75 N.M. 219, 402 P.2d 954. Four-year delay in setting trial. - Plaintiff's claim was properly dismissed with prejudice where he originally filed suit in 1969 and did not file motion to set trial until 1973, thus failing to meet any reasonable standard for bringing a case to its final determination in accordance with Paragraph E. E.M. Stoll v. Dow, 1986-NMCA-134, 105 N.M. 316, 731 P.2d 1360. Trial setting filed. - Although plaintiff's case lay fallow for over two years, and plaintiff's failure to appear at a hearing could not be condoned, plaintiff's irresponsibility did not warrant dismissal for inactivity where it had filed for a trial setting, thereby acting to bring the case to a conclusion and saving itself from a likely dismissal. Cottonwood Enters. v. McAlpin, 1989-NMSC-064, 109 N.M. 78, 781 P.2d 1156. Filing requests for discovery. - A party's filing of requests for discovery constitutes sufficient action to avoid dismissal under Paragraph E. Jimenez v. Walgreens Payless, 1987-NMSC-082, 106 N.M. 256, 741 P.2d 1377. Hearing prior to dismissal. - Where the trial court relied for its order of dismissal on Paragraph E, it erred by not allowing a hearing at which the parties could have presented evidence. Jimenez v. Walgreens Payless, 1987-NMSC-082, 106 N.M. 256, 741 P.2d 1377. C. STATUTE OF LIMITATIONS. Effect of this rule is the same as that of a statute of limitations; i.e., a plaintiff who fails to act to bring his case to final determination may lose his remedy through a motion for a dismissal of the action. Eager v. Belmore, 1949-NMSC-029, 53 N.M. 299, 207 P.2d 519. This rule has the effect of a statute of limitations, and the order of dismissal does not destroy plaintiff's rights but only takes from him a remedy. Briesmeister v. Medina, 1966-NMSC-157, 76 N.M. 606, 417 P.2d 208. This rule, if not avoided, operates as a statute of limitations. Henriquez v. Schall, 1961-NMSC-008, 68 N.M. 86, 358 P.2d 1001. No requirement that action tried without statutory period. - This rule does not require that an action be tried without the two-year period, but only that the plaintiff take action to bring the case to its final determination within that time, or prior to a motion to dismiss filed thereafter. Briesmeister v. Medina, 1966-NMSC-157, 76 N.M. 606, 417 P.2d 208. Period commences on date of filing of complaint. - The date of filing the complaint is the date upon which the two-year period of the rule commences to run and the only exceptions this court has found are Vigil v. Johnson, 1955-NMSC-102, 60 N.M. 273, 291 P.2d 312 and Chavez v. Angel, 1967-NMSC-084, 77 N.M. 687, 427 P.2d 40, which are to the effect that the statute commenced to run on the date of the filing of an amended complaint. Benally v. Pigman, 1967-NMSC-148, 78 N.M. 189, 429 P.2d 648. Until complaint amended. - The two-year limitation period does not commence running until the complaint is amended in response to a motion for a more definite statement under Rule 12(e) (see now Rule 1-012 NMRA). A motion to dismiss under this rule is premature unless two years have passed since the filing of the amended complaint. Chavez v. Angel, 1967-NMSC-084, 77 N.M. 687, 427 P.2d 40. Period commences on date of amended complaint adding additional party against whom different cause of action is asserted. - The three-year statute of limitations begins to run against a party added in an amended complaint on the date of the filing of the amended complaint, rather than on the date of the filing of the original complaint, if the amended complaint includes a different cause of action against the party added. Fidelity Nat'l Bank v. Collier, 1984-NMSC-039, 101 N.M. 273, 681 P.2d 58. Statute tolled for bona fide reasons disclosed in record. - To avoid the running of the two-year statute for any reason not specifically provided for therein, the court record must disclose actual and bona fide efforts on the part of the plaintiff to have the case finally determined within the two-year period. Schall v. Burks, 1964-NMSC-232, 74 N.M. 583, 396 P.2d 192. Defendants entitled to dismissal when statute not tolled. - Where no sufficient showing to excuse compliance or toll the statute requiring disposition of litigation within two years after the "filing" of an action has been made, defendants are entitled to dismissal for plaintiff's failure to prosecute claim. State ex rel. City of Las Cruces v. McManus, 1965-NMSC-071, 75 N.M. 267, 404 P.2d 106. Motion to set case satisfies statute. - Filing of a motion for a setting of the case and bringing it to the attention of the court for consideration before expiration of the two-year limit satisfies the statute. McClenithan v. Lovato, 1967-NMSC-240, 78 N.M. 480, 432 P.2d 836. The filing of a motion seeking a trial setting and the taking of immediate steps to prepare for trial, even after more than two years had expired, when done before the motion to dismiss was filed, effectively met the requirement of taking action to bring the case to its final determination. Foundation Reserve Ins. Co. v. Johnston Testers, Inc., 1966-NMSC-257, 77 N.M. 207, 421 P.2d 123. Correspondence as to when trial may commence not avoid statute. - Letters from plaintiff to designated judges as to when trial might be had do not constitute sufficient effort to bring case on for trial and avoid the running of the statutory period of two years provided in the rule. More v. Shoemaker, 1967-NMSC-096, 77 N.M. 689, 427 P.2d 41. Preliminary motions not ruled upon will not prevent running of statute. - Preliminary motions filed but not ruled upon by the court will not prevent the running of the statute, at least where the record does not disclose that the court had been timely advised of the urgency of a ruling on the pending motion with a request for a ruling and a setting for final disposition prior to a motion to dismiss under this rule. State ex rel. City of Las Cruces v. McManus, 1965-NMSC-071, 75 N.M. 267, 404 P.2d 106. Interlocutory matters. - Notice of hearing on motion to dismiss for failure to serve process with reasonable diligence and the setting thereon are nothing more than proceedings leading to the disposition of interlocutory matters and not actions to bring the proceeding to its final determination so as to toll the statute. Jones v. Pringle, 1967-NMSC-235, 78 N.M. 467, 432 P.2d 823. Pendency of motion to join indispensable parties. - The pendency of a motion to join parties claimed to be indispensable will not suspend the running of the statute of limitations in the rule. Briesmeister v. Medina, 1966-NMSC-157, 76 N.M. 606, 417 P.2d 208. Mere filing of a notice of hearing will not suffice to avoid the running of the statute. Schall v. Burks, 1964-NMSC-232, 74 N.M. 583, 396 P.2d 192. The mere filing of a notice of hearing, not considered to amount to an actual and bona fide effort to get the case finally determined, did not prevent the running of the statute. Although the effort should be made within the two-year period, it may be done subsequent to the passage of two years, if done in good faith before the motion was filed. Foundation Reserve Ins. Co. v. Johnston Testers, Inc., 1966-NMSC-257, 77 N.M. 207, 421 P.2d 123. Failure of service of process on nonresident tolls statute. - Statutory period during which plaintiff was required to commence action after filing of complaint was tolled during period in which service of process on nonresident defendant could not be accomplished. Yarbro v. Koury, 1963-NMSC-114, 72 N.M. 295, 383 P.2d 258. Delays in getting on court calendar. - Delays caused by system of placing cases on jury trial calendar do not bring case within exception to limitation period due to causes beyond plaintiff's control. McClenithan v. Lovato, 1967-NMSC-240, 78 N.M. 480, 432 P.2d 836. Difficulty in obtaining judge. - Difficulty in obtaining a judge to hear the case due to various designations of district judges does not excuse failure to bring suit within two years. More v. Shoemaker, 1967-NMSC-096, 77 N.M. 689, 427 P.2d 41. Illness of judge. - Delays caused by illness of the judge do not bring the case within exception to the limitation period due to causes beyond plaintiff's control. McClenithan v. Lovato, 1967-NMSC-240, 78 N.M. 480, 432 P.2d 836. Absence of benefit of counsel, disqualification of judge, etc. - The absence of benefit of counsel for some 14 months, various disqualifications and recusals of trial judges, the pretrial conference, and, particularly, the initialing by defendants' counsel of the order allowing the filing of a third amended complaint will not toll the statute of limitations for bringing a case to trial. Brown v. Davis, 1964-NMSC-241, 74 N.M. 610, 396 P.2d 594. Nonavailability of jury. - Running of the statute of limitations for dismissal for failure to take action is not tolled because of the nonavailability of a jury. Reger v. Preston, 1966-NMSC-234, 77 N.M. 196, 420 P.2d 779. The nonavailability of a jury, in itself, does not prevent dismissal under this rule. Escobar v. Montoya, 1971-NMCA-077, 82 N.M. 640, 485 P.2d 974. The nonavailability of a jury is not good reason to toll the statute where plaintiff had agreed to furnish certain medical data to defendant, and that information was not made available to defendant until after the motion to dismiss. Because of plaintiff's failure to furnish the required material, the case could not have proceeded to trial and could not have been tried within the two-year period, even if a jury had been called. Trujillo v. Harris, 1966-NMSC-014, 75 N.M. 683, 410 P.2d 401; see State ex rel. Reynolds v. Molybdenum Corp. of Am., 1972-NMSC-027, 83 N.M. 690, 496 P.2d 1086. In many counties, jury sessions are infrequently held; but that in itself does not excuse a plaintiff from taking affirmative action showing diligence in bringing the case to trial within the two-year period. Schall v. Burks, 1964-NMSC-232, 74 N.M. 583, 396 P.2d 192. What is required to satisfy this rule that plaintiff bring case to final disposition within two years must be determined in each case. Baca v. Burks, 1970-NMSC-055, 81 N.M. 376, 467 P.2d 392; Foundation Reserve Ins. Co. v. Johnston Testers, Inc., 1966-NMSC-257, 77 N.M. 207, 421 P.2d 123. D. MANDATORY DISMISSAL. Purpose of Paragraph E(2). - Paragraph E(2) of this rule is designed to allow trial judges to clear deadwood from the docket, not to penalize plaintiffs who have lax attorneys. Penalties for laxness may be assessed in appropriate circumstances, including dismissal under Paragraph B of this rule or Rule 1-031E(1) NMRA. Vigil v. Thriftway Mktg. Corp., 1994 -NMCA-009, 117 N.M. 176, 870 P.2d 138. Statute mandatory, but not self-executing. - This rule requires mandatory dismissal except where tolled by statute or failure of process on account of absence of defendant from the state, or, unless for some other good reason, the plaintiff is unable, for causes beyond his control, to bring the case to trial. Although the statute is mandatory, it is not self-executing but requires the timely filing of a motion for its operation. Baca v. Burks, 1970-NMSC-055, 81 N.M. 376, 467 P.2d 392. If no action is taken for a period of at least two years, after filing the complaint, to bring the case to a final determination, the case must be dismissed upon motion of the opposite party unless dismissal is prevented by certain well-defined exceptions. Sarikey v. Sandoval, 1965-NMSC-072, 75 N.M. 271, 404 P.2d 108. Absence of material witnesses is not a reason beyond control of a party for taking no steps to bring a case to final determination and is sufficient ground for a dismissal with prejudice. Ringle Dev. Corp. v. Chavez, 1947-NMSC-027, 51 N.M. 156, 180 P.2d 790. Service of process is not the kind of action sufficient to toll the running of the mandatory dismissal rule, as service upon a defendant is merely one step in the process of litigation and does not constitute the required diligence to bring a case to its final determination. Escobar v. Montoya, 1971-NMCA-077, 82 N.M. 640, 485 P.2d 974; Benally v. Pigman, 1967-NMSC-148, 78 N.M. 189, 429 P.2d 648. Defendant's absence from state no defense to dismissal. - The exception stated in Ringle Dev. Corp. v. Chavez, 1947-NMSC-027, 51 N.M. 156, 180 P.2d 790, is no longer applicable in cases in which the trial court is of the opinion that service could have been made, thus, that defendant is out of the state is not a defense to dismissal under this rule when the defendant could have been served under the "long-arm" statute. Benally v. Pigman, 1967-NMSC-148, 78 N.M. 189, 429 P.2d 648; see State ex rel. Reynolds v. Molybdenum Corp. of Am., 1972-NMSC-027, 83 N.M. 690, 496 P.2d 1086. Where evidence before the trial court shows the inability to locate or serve defendant at two specified addresses, however, the evidence of defendant's residence and whereabouts in the state is uncontradicted and there is no evidence indicating that defendant concealed himself within the state; therefore, the exception to this rule on account of the absence of the defendant from the state, or his concealment within the state, is not applicable. Escobar v. Montoya, 1971-NMCA-077, 82 N.M. 640, 485 P.2d 974. Motion for reinstatement. - A trial judge should reinstate a claim previously dismissed sua sponte if a party can demonstrate to the court that he is ready, willing, and able to proceed with the prosecution of his claim and that the delay in the prosecution is not wholly without justification. Vigil v. Thriftway Mktg. Corp., 1994 -NMCA-009, 117 N.M. 176, 870 P.2d 138. Paragraph E(2) of this rule provides that: "Within thirty (30) days after service of the order of dismissal, any party may move for reinstatement of the case." Thus, the fact that the order of dismissal was not mailed to the worker until August means that the worker had until September to file his motion to reinstate the case, even though the case was actually dismissed sua sponte in May. Vigil v. Thriftway Mktg. Corp., 1994 -NMCA-009, 117 N.M. 176, 870 P.2d 138. Action cannot be reinstated. - When a notice of dismissal is requested or filed by a plaintiff before service of an answer or responsive pleading, the jurisdiction of the district court is immediately terminated, and the district court is without power to reinstate the action under Paragraph E(2) of this rule. Becenti v. Becenti, 2004-NMCA-091, 136 N.M. 124, 94 P.3d 867. Reinstatement for good cause shown. - Paragraph E(2) directs the court to reinstate the case "upon good cause shown." The Judge should have determined whether the plaintiff had shown "good cause" for his lack of action; "compelling excuse" is not the correct standard. The standard adopted by the Judge indicates that he required a greater showing than "good cause". Vigil v. Thriftway Mktg. Corp., 1994 -NMCA-009, 117 N.M. 176, 870 P.2d 138. E. APPEAL. Oral judgments not final. - Oral rulings are not final and therefore not a proper basis for an appeal. There was no final order denying reinstatement until the Judge issued a written order on November 23, 1992. Nor was the worker's motion for reinstatement deemed denied by operation of law under 39-1-1 NMSA 1978. The worker's motion for reinstatement was not filed pursuant to 39-1-1 NMSA 1978, it was filed pursuant to Paragraph E of this rule, which does not contain a provision saying that motions filed pursuant to it are deemed denied is not acted upon within a certain amount of time. Vigil v. Thriftway Mktg. Corp., 1994 -NMCA-009, 117 N.M. 176, 870 P.2d 138. Section not run with nunc pro tunc order. - Where during the course of three years the plaintiff's only action was an occasional interrogatory, where the defendant had the case dismissed under this section, and the plaintiff appealed and then got a nunc pro tunc order, that order was a hollow gesture since the trial court was divested of jurisdiction except for the appeal, and this section did not commence to run with the nunc pro tunc order. Carter Farms Co. v. Hoffman-LaRoche, Inc., 1977-NMCA-117, 91 N.M. 132, 571 P.2d 124. Dismissal upheld except for abuse of discretion. - The district court has inherent power to dismiss a cause for failure to prosecute the same independent of any existing statute, and unless there has been an abuse of discretion the dismissal will not be disturbed on appeal even though the movant in the court below bases his motion primarily on this rule. Gilman v. Bates, 1963-NMSC-112, 72 N.M. 288, 383 P.2d 253. A district court may dismiss a cause under this rule and under its inherent power to dismiss a cause for failure to prosecute, independent of any statute, and unless there has been an abuse of discretion, a trial court's dismissal will not be disturbed on appeal. Henriquez v. Schall, 1961-NMSC-008, 68 N.M. 86, 358 P.2d 1001. The trial judge has inherent powers to dismiss a cause for failure to prosecute the same independent of any existing statute, and unless there has been an abuse of discretion the trial court's dismissal will not be disturbed on appeal. Pettine v. Rogers, 1958-NMSC-025, 63 N.M. 457, 321 P.2d 638. The discretion of the trial court, whether or not to dismiss the action, will be upheld on appeal except for a clear abuse thereof. Albuquerque Prods. Credit Ass'n v. Martinez, 1978-NMSC-003, 91 N.M. 317, 573 P.2d 672. What trial court should consider in making determination. - The trial court should determine, upon the basis of the court record, whether such action has been timely taken by the plaintiff, against whom the motion is directed, and, if not, whether he has been excusably prevented from taking such action. In making this final determination, the discretion of the trial court will be upheld on appeal except for a clear abuse thereof. Carter Farms Co. v. Hoffman-LaRoche, Inc., 1977-NMCA-117, 91 N.M. 132, 571 P.2d 124. The trial court should determine, upon the basis of the court record and the matters presented at the hearing, whether such action has been timely taken by the plaintiff, the cross-claimant or the counter-claimant against whom the motion is directed, and, if not, whether he has been excusably prevented from taking such action. In making this determination, the discretion of the trial court will be upheld on appeal except for a clear abuse thereof. State ex rel. Reynolds v. Molybdenum Corp. of Am., 1972-NMSC-027, 83 N.M. 690, 496 P.2d 1086; Howell v. Anaya, 1985-NMCA-019, 102 N.M. 583, 698 P.2d 453. Trial court abused its discretion in ordering dismissal. - Trial court abused its discretion in ordering dismissal with prejudice because plaintiff's explanation that she was not prepared for trial due to extended settlement negotiations and a change in attorney representation was reasonable and could not be characterized as extreme. Even if plaintiff's conduct was extreme, the court erred in failing to consider alternative sanctions short of dismissal. Lowrey v. Atterbury, 1992-NMSC-001, 113 N.M. 71, 823 P.2d 313. Failure to take action warrants dismissal. - Since the appellant had at no time since the filing of his counterclaim done anything toward bringing his claim to trial, the lower court was warranted in dismissing it after the two-year lapse either under the inherent power of the courts to keep their dockets clear or under this section. Pettine v. Rogers, 1958-NMSC-025, 63 N.M. 457, 321 P.2d 638. The court of appeals holds that the trial court may dismiss plaintiffs' complaint with prejudice if the trial court finds that plaintiffs failed to take any action to end this litigation beyond all appeal after the filing of the complaint. Carter Farms Co. v. Hoffman-LaRoche, Inc., 1977-NMCA-117, 91 N.M. 132, 571 P.2d 124. Insufficient evidence grounds for dismissal. - The trial court did not abuse its discretion in granting the motion to dismiss for failure to prosecute where the evidence produced by plaintiff was not sufficient to prove anything other than a failure to take any action to bring a case to determination. Dunham-Bush, Inc. v. Palkovic, 1973-NMSC-012, 84 N.M. 547, 505 P.2d 1223. Where only action submission of interrogatories, etc. - Where only action taken by plaintiffs was the submission of interrogatories and a hearing on defendant's motion to be relieved of filing any answers, and the trial court determined that plaintiffs' complaint should be dismissed with prejudice, there was no abuse of discretion. Carter Farms Co. v. Hoffman-LaRoche, Inc., 1977-NMCA-117, 91 N.M. 132, 571 P.2d 124. When appellants' motion for judgment on pleadings properly denied. - Appellants' motion for judgment on the pleadings, or in the alternative, summary judgment on the ground that no action had been taken by appellees to bring the action or proceeding to a final determination within two years (now three years) after the action was filed, was denied where although two years had elapsed since appellees' last motion, two years (three years) had not elapsed since appellants' response thereto, thus it was beyond appellees' control to bring case to a close until the response was filed. Vigil v. Johnson, 1955-NMSC-102, 60 N.M. 273, 291 P.2d 312. Law reviews. - For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961). For comment on Martin v. Leonard Motor-El Paso, 75 N.M. 219, 402 P.2d 954 (1965), see 6 Nat. Resources J. 159 (1966). For article, "Mandamus in New Mexico," see 4 N.M.L. Rev. 155 (1974). For article, "The Writ of Prohibition in New Mexico" see 5 N.M.L. Rev. 91 (1974). For article, "Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Restraints," see 15 N.M.L. Rev. 407 (1985). For article, "Statutory Adoption of Several Liability in New Mexico: A Commentary and Quasi-Legislative History," see 18 N.M.L. Rev. 483 (1988). Am. Jur. 2d, A.L.R. and C.J.S. references. - 20 Am. Jur. 2d Costs §98; 24 Am. Jur. 2d Dismissal, Discontinuance, and Nonsuit §7 et seq. Dismissal of action for failure or refusal of plaintiff to obey court order, 4 A.L.R.2d 348, 56 A.L.R.3d 1109, 27 A.L.R.4th 61, 32 A.L.R.4th 212, 3 A.L.R.5th 237. Federal statutes providing for transfer of certain actions and proceedings to another district or division as affecting court's power to dismiss action, 10 A.L.R.2d 932. Effect of nonsuit, dismissal or discontinuance of action on previous orders, 11 A.L.R.2d 1407. Necessity of notice of application or intention to correct error in judgment entry, 14 A.L.R.2d 224. Punishment of civil contempt in other than divorce cases by striking pleading or entering default judgment or dismissal against contemnor, 14 A.L.R.2d 580. Appellate review at instance of plaintiff who has requested, induced or consented to dismissal or nonsuit, 23 A.L.R.2d 664. Dismissal of plaintiff's case for want of prosecution as affecting defendant's counterclaim, setoff or recoupment, or intervenor's claim for affirmative relief, 48 A.L.R.2d 748. Effect of judgment dismissing action, or otherwise denying relief, for lack of jurisdiction or venue, 49 A.L.R.2d 1036. Dismissal of civil action for want of prosecution as res judicata, 54 A.L.R.2d 473. Authority of attorney to dismiss or otherwise terminate action, 56 A.L.R.2d 1290. What dismissals preclude a further suit, under federal and state rules regarding two dismissals, 65 A.L.R.2d 642. Dismissal without prejudice of injunction action or bill as breach of injunction bond, 91 A.L.R.2d 1312. Attack on personal service as having been obtained by fraud or trickery, 98 A.L.R.2d 551. Time when voluntary nonsuit or dismissal may be taken as of right under statute so authorizing at any time before "trial," "commencement of trial," "trial of the facts," or the like, 1 A.L.R.3d 711. Dismissing action or striking testimony where party to civil action asserts privilege against self-incrimination as to pertinent question, 4 A.L.R.3d 545. Dismissal, nonsuit, judgment or direction of verdict on opening statement of counsel in civil action, 5 A.L.R.3d 1405. Dismissal of action because of perjury or suppression of evidence by party, 11 A.L.R.3d 1153. Attorney's inaction as excuse for failure to timely prosecute action, 15 A.L.R.3d 674. Right of one spouse, over objection, to voluntarily dismiss claim for divorce, annulment or similar marital relief, 16 A.L.R.3d 283. Application to period of limitations fixed by contract, of statute permitting new action to be brought within specified time after failure of prior action for cause other than on the merits, 16 A.L.R.3d 452. Voluntary dismissal of replevin action by plaintiff as affecting defendant's right to judgment for the return or value of the property, 24 A.L.R.3d 768. What amounts to "final submission" or "retirement of jury" within statute permitting plaintiff to take voluntary dismissal or nonsuit without prejudice before submission or retirement of jury, 31 A.L.R.3d 449. Dismissal of state court action for failure or refusal of plaintiff to answer written interrogatories, 56 A.L.R.3d 1109. Dismissal of plaintiff's action as entitling defendant to recover attorneys' fees or costs as "prevailing party" or "successful party," 66 A.L.R.3d 1087. Construction, as to terms and conditions, of state statute or rule providing for voluntary dismissal without prejudice upon such terms and conditions as state court deems proper, 34 A.L.R.4th 778. Dismissal of state court action for plaintiff's failure or refusal to obey court order relating to pleadings or parties, 3 A.L.R.5th 237. Propriety of dismissal under Federal Civil Procedure Rule 41(a) of action against less than all of several defendants, 3 A.L.R. Fed. 569. Propriety of dismissal for failure of prosecution under Rule 41(b) of Federal Rules of Civil Procedure, 20 A.L.R. Fed. 488. Plaintiff's right to file notice of dismissal under Rule 41(a)(1)(i) of Federal Rules of Civil Procedure, 54 A.L.R. Fed. 214. Appealability of order imposing conditions upon grant of plaintiff's motion for dismissal without prejudice, pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, 75 A.L.R. Fed. 505. 20 C.J.S. Costs § 35; 27 C.J.S. Dismissal and Nonsuit §§7 to 39, 41 to 91.