RULE 17

DISMISSAL OF
ACTIONS
 MAY THE PLAINTIFF DISMISS HIS OWN
COMPLAINT?
• Yes,
1. By filing a Notice of Dismissal. The plaintiff may file the notice of dismissal
at any time before service upon him of the answer or of a motion for summary
judgment. Upon such notice being filed, the court shall issue an order
confirming the dismissal. Unless otherwise stated in the notice, the dismissal
is without prejudice, except that a notice operates as an adjudication upon the
merits when filed by a plaintiff who has once dismissed in a competent court
an action based on or including the same claim. (Rule 17, Sec.1)
 MAY THE PLAINTIFF DISMISS HIS OWN
COMPLAINT?
2. By filing a Motion to Dismiss. But the complaint shall not be dismissed at the
instance of the plaintiff without the approval of the court. If a counterclaim has
been pleaded by the defendant in his answer prior to the service upon him or her
of the plaintiff’s motion to dismiss, the dismissal shall be limited to the
complaint. The dismissal shall be without prejudice to the right of the defendant
to prosecute his or her counterclaim in a separate action unless within 15 calendar
days from notice of the motion he or she manifests his or her preference to have
his or her counterclaim resolved in the same action. Unless otherwise specified in
the order, a dismissal under this paragraph shall be without prejudice. A class suit
shall not be dismissed or compromised without the approval of the court. (Rule
17, Sec. 2)
IN WHAT INSTANCES MAY THE COURT DISMISS THE
COMPLAINT ON ITS OWN OR ON MOTION OF THE
DEFENDANT?
• If for no justifiable cause,
1. the plaintiff fails to appear on the date of the presentation
of his evidence in chief of the complaint.
2. the plaintiff fails to prosecute his action for an
unreasonable length of time; or
3. the plaintiff fails to comply with the Rules of Court or any
order of the court.
IN WHAT INSTANCES MAY THE COURT DISMISS THE
COMPLAINT ON ITS OWN OR ON MOTION OF THE
DEFENDANT?
• In any of these instances (Rule 17, Sec. 3) :
The dismissal shall have the effect of adjudication
upon the merits, unless otherwise declared by the
court in its order of dismissal.
The dismissal is without prejudice to the right of the
defendant to prosecute his or her counterclaim in the
same or in a separate action.
Cruz, et al. v. CA, et al., G.R. No. 164797.
February 13, 2006
• The second case is Civil Case No. 1600 for Quieting of Title, filed before the Regional Trial
Court of Gapan, Nueva Ecija, Branch 36 with "Carlos L. Bunag, Elias Bunag Natividad,
Mariano Bunag, Salud Bunag Clanaoc and Juliana Bunag Arevalo, as Plaintiffs and Josefina M.
Cruz and Ernestina M. Concepcion as Heirs of Sps. Carlos Maniquis and Marina Bunag, as
Defendants." This case was dismissed for failure to prosecute as evidenced by the Regional Trial
Court Order dated 10 March 2000.
• Private respondents argue that the dismissal of Civil Case No. 1600 (for Quieting of Title) was
not a dismissal on the merits. The dismissal of this case, they claim, will not bar the filing of the
instant case (Civil Case No. 2583-02 for Annulment of Title) because there was neither litigious
consideration of the evidence nor any stipulations submitted by the parties at the trial. In fact,
there was no pre-trial conference and that after four years of court inactivity, the case was
dismissed for failure to prosecute.
Cruz, et al. v. CA, et al., G.R. No. 164797.
February 13, 2006
• SC:
 (Section 3 of Rule 17 of the 1997 Rules of Civil Procedure) The rule enumerates the instances
where the complaint may be dismissed due to plaintiff's fault: (1) if he fails to appear on the
date for the presentation of his evidence in chief; (2) if he fails to prosecute his action for an
unreasonable length of time; or (3) if he fails to comply with the rules or any order of the
court. Once a case is dismissed for failure to prosecute, this has the effect of an adjudication on
the merits and is understood to be with prejudice to the filing of another action unless
otherwise provided in the order of dismissal. In other words, unless there be a qualification in
the order of dismissal that it is without prejudice, the dismissal should be regarded as an
adjudication on the merits and is with prejudice.
Cruz, et al. v. CA, et al., G.R. No. 164797.
February 13, 2006
• SC:
“For failure of the plaintiffs as well as counsel to appear on several settings
despite due notices, precisely for the reception of plaintiffs' evidence, upon
motion of the defendant through Atty. Mark Arcilla, this case is dismissed for
failure to prosecute.”
“Since the order did not contain a qualification whether same is with or
without prejudice, following Section 3, it is deemed to be with prejudice and
shall have the effect of an adjudication on the merits. A ruling based on a
motion to dismiss, without any trial on the merits or formal presentation of
evidence, can still be a judgment on the merits.”
WHAT IS THE REMEDY OF THE PLAINTIFF IF UNDER THE GROUNDS
IN RULE 17 SEC. 3, THE TRIAL COURT DISMISSES HIS COMPLAINT?

• The remedy is to appeal within the reglementary period from the order of the dismissal
because the order of dismissal is a final order in the sense that it completely disposes of
the complaint.
• But, if the order of dismissal states that the dismissal is without prejudice, the remedy
of the plaintiff is to refile his complaint. He cannot appeal because under Section 1[g],
Rule 41, an order dismissing an action without prejudice is not appealable.
• Rule 41 Sec. 3 – The appeal shall be taken within 15 days from notice of judgment or
final order appealed from. Where a record on appeal is required, the appellants shall file
a notice of appeal and a record on appeal within 30 days from notice of the judgment or
final order.
Suppose the case is dismissed on any of the grounds in Rule 17, Sec. 3, but
the order does not contain the declaration is without prejudice and the
plaintiff did not appeal therefrom within the reglementary period, may he
refile the same complaint?

• No, plaintiff cannot refile the same complaint. The order of dismissal has
already become final for failure of the plaintiff to appeal therefrom within
the reglementary period. If he refiles the same complaint, the defendant
may move to dismiss it on the ground that the complaint is already barred
by prior judgment (res judicata). This is so because the order of dismissal
has the effect of adjudication upon the merits of the case. (Cruz, et al. CA,
et al., G.R. No 164797, Feb. 13, 2006)
For no justifiable cause, the plaintiff failed to appear on the date of the
presentation of rebuttal evidence because of this, the trial court
dismissed his complaint. Is the dismissal of the complaint correct?

• No, because plaintiff’s failure to appear was on the date

for the presentation of his rebuttal evidence. What the
court should have done is to consider plaintiff’s failure
to appear as waiver of his right to present rebuttal
evidence and then, consider the case submitted for
decision.
If a motion is dismissed on motion of the plaintiff himself, or on motion of the
defendant, or on court’s own motion, is the counterclaim asserted in defendant’s
answer likewise dismissed?

• No, The rule now is that dismissal of the complaint on motion

of the plaintiff or on motion of the defendant, or on court’s own
motion is without prejudice to the prosecution by the defendant
of his counterclaim ( whether compulsory or permissive) in the
same action or in a separate action. (Rule 17, Secs. 2 and 3)
Roasters Philippines, inc. v.
George Ga Viola, et al., G.R. No. 191874, September
2, 2015
• On 9 April 2003, respondents Georgia Gaviola and Maria Leisa M. Gaviola (Maria Leisa),
together with their children Karla Helene, Kashmeer Georgia and Klaire Marlei, filed a
Complaint for Damages against Roasters Philippines before the RTC of Las Piñas City.
The family was Hospitalized due to acute gastroenteritis and possible Food poisoning
when dined at Kenny Rogers Roasters restaurant Duty-Free Branch in Parañaque.
• Petitioner (Roasters Philippines, inc.) filed a Motion to Dismiss on the ground of failure to
state a cause of action. The trial court denied the motion to dismiss, as well as the
subsequent motion for reconsideration filed by petitioner.
• In its Answer Ad Cautelam, petitioner alleged that the complaint states no cause of action;
that it is not the direct and real owner of the said Kenny Rogers branch; and that there was
no valid demand made by respondents. Petitioner counterclaimed for damages.
Roasters Philippines, inc. v.
George Ga Viola, et al., G.R. No. 191874, September
2, 2015
• Meanwhile, petitioner (Roasters Philippines, inc.) filed a Petition for Certiorari
before the Court of Appeals questioning the refusal of the trial court to dismiss the
complaint. On 14 March 2005, the appellate court dismissed the petition.
• On 26 April 2007, petitioner filed a Motion to Dismiss on the ground of failure of
respondents to prosecute the pending case alleging that respondents had not filed any
pleading to revive or re-activate their case since the 14 March 2005 Decision of the
Court of Appeals has become final and executory. In response to the Motion to
Dismiss, respondents filed a· Manifestation with Motion to Set the Case for Pre-Trial.
The trial court denied the Motion to Dismiss filed by petitioner and set the pre-trial.
• The trial court set the hearing for 19 May 2008.
Roasters Philippines, inc. v.
George Ga Viola, et al., G.R. No. 191874, September
2, 2015
• During the presentation of their evidence-in-chief on 19 May 2008, respondents failed to
attend the hearing. Consequently, the trial court issued an Order dismissing the Complaint
for failure to prosecute pursuant to Section 3, Rule 17 of the Rules of Court.
• Respondents filed a motion for reconsideration which was denied by the court on August
26, 2008.
• On 18 September 2008, respondents changed their counsel and the new counsel filed a
Motion for Leave to file a Second Motion for Reconsideration. On 23 October 2008, the
trial court. denied the second motion for reconsideration for lack of merit.
• Respondents filed a Notice of Appeal from the 19 May 2008, 26 August 2008 and 23
October 2008 Orders of the trial court. On 18 November 2008, the trial court denied the
appeal on the ground that the orders appealed from are mere interlocutory orders.
Roasters Philippines, inc. v.
George Ga Viola, et al., G.R. No. 191874, September
2, 2015
• Respondents (George Ga Viola, et al.) then filed a petition for certiorari before the Court
of Appeals alleging grave abuse of discretion on the part of the trial court judge in
dismissing the case for failure to prosecute, for affirming the dismissal of· the case, and
for denying the appeal taken by respondents.
• On 11 December 2009, the Court of Appeals made a decision annulling the orders of the
trial court and directing the reinstatement of the case.
• The appellate court found grave abuse of discretion on the part of the trial court for
ordering the dismissal of the case. Maria Leisa's unexpected hospital confinement were
sufficient justifications for their non-appearance.
Roasters Philippines, inc. v.
George Ga Viola, et al., G.R. No. 191874, September
2, 2015
• Roasters Philippines, inc. filed a petition for certiorari.
• Petitioner argues that the 19 May 2008 Order dismissing the case for failure to prosecute
and the 26 August 2008 Order denying the Motion for Reconsideration have already
attained finality when respondents chose to file a second motion for reconsideration,
instead of filing a notice of appeal. The petition for certiorari before the Court of Appeals
was filed out of time because the petition was filed more than 60 days upon receipt of the
denial of respondents' first motion for reconsideration on 10 September 2008.
• Petitioner contends that since the second motion for reconsideration filed by respondents
is a prohibited pleading, the period to appeal began to run from the denial of the first
motion for reconsideration. Thus, the Notice of Appeal is also filed out of time.
Roasters Philippines, inc. v.
George Ga Viola, et al., G.R. No. 191874, September
2, 2015
• SC:
 An action may be dismissed for failure to prosecute in any of the following instances: (1) if the
plaintiff fails to appear at the time of trial; or (2) if he fails to prosecute the action for an
unreasonable length of time; or (3) if he fails to comply with the Rules of Court or any order of
the court.
 The fundamental test for non prosequitur is whether, under the circumstances, the plaintiff is
chargeable with want of due diligence in failing to proceed with reasonable promptitude. There
must be unwillingness on the part of the plaintiff to prosecute.
 The respondents have been long notified of the hearing, and considering further that none of the
respondents' supposed ten (10) witnesses particularly the respondents themselves appeared, the
Court is constrained to DISMISS this case for failure to prosecute in accordance with Section 3,
Rule 17 of the 1997 Rules of Civil Procedure.
Roasters Philippines, inc. v.
George Ga Viola, et al., G.R. No. 191874, September
2, 2015
• SC:
 A second motion for reconsideration, as a rule, is a prohibited pleading which shall not be
allowed except for extraordinarily persuasive reasons and only after an express leave shall
have first been obtained.
 In this case, considering that a second motion for reconsideration is a pro forma motion and
does not toll the reglementary period for an appeal, the period to appeal lapsed. Therefore, the
impugned RTC Orders became final and executory. The Notice of Appeal was correctly denied
by the trial court.
Roasters Philippines, inc. v.
George Ga Viola, et al., G.R. No. 191874, September
2, 2015
• As to the survival of the counterclaim, SC cited Pinga v. Heirs of German Santiago (June 30, 2006)
 “When the Court promulgated the 1997 Rules of Civil Procedure, including the amended Rule 17,
those previous jural doctrines that were inconsistent with the new rules incorporated in the 1997
Rules of Civil Procedure were implicitly abandoned insofar as incidents arising after the effectivity
of the new procedural rules on 1 July 1997. BA Finance, or even the doctrine that a counterclaim
may be necessarily dismissed along with the complaint, clearly conflicts with the 1997 Rules of Civil
Procedure. The abandonment of BA Finance as doctrine extends as far back as 1997, when the Court
adopted the new Rules of Civil Procedure. If, since then, such abandonment has not been affirmed in
jurisprudence, it is only because no proper case has arisen that would warrant express confirmation
of the new rule. That opportunity is here and now, and we thus rule that the dismissal of a complaint
due to fault of the plaintiff is without prejudice to the right of the defendant to prosecute any pending
counterclaims of whatever nature in the same or separate action. We confirm that BA Finance and all
previous rulings of the Court that are inconsistent with this present holding are now abandoned.”
Roasters Philippines, inc. v.
George Ga Viola, et al., G.R. No. 191874, September
2, 2015
• SC:
 Accordingly, the RTC clearly erred when it ordered the dismissal of the counterclaim, since
Section 3, Rule 17 mandates that the dismissal of the complaint is without prejudice to the
right of the defendant to prosecute the counterclaim in the same or separate action. If the RTC
were to dismiss the counterclaim, it should be on the merits of such counterclaim. Reversal of
the RTC is in order, and a remand is necessary for trial on the merits of the counterclaim.
 WHEREFORE, the petition is GRANTED. The Decision and Resolution dated 11 December
2009 and 30 March 2010, respectively of the Court of Appeals in CA-G.R. SP No. 106728, are
REVERSED and SET
 ASIDE. The Regional Trial Court of Las Pifias City, Branch 198 Orders dated 19 May 2008,
26 August 2008, 23 October 2008 and 18 November 2008 are REINSTATED. Trial on
petitioner's counterclaim shall proceed.