(a) Dismissal Where No Service of Process. Where the plaintiff has not
effected service of process within the time required by Fed. R. Civ. P. 4(m), and the
defendant has not waived service under Rule 4(d), after 21 days’ notice to the attorney
of record for the plaintiff, or the plaintiff if pro se, the Court may enter an order
dismissing the action without prejudice.
(b) Dismissal Where No Answer or Other Pleading Filed. In all cases in
which a defendant has failed to file an answer or otherwise defend within 6 months
from the filing of the complaint and the plaintiff has not moved for a default
judgment, the Court may on its own motion, after 21 days’ notice to the attorney of
record for the plaintiff, or to the plaintiff if pro se, enter an order dismissing the action
for lack of prosecution. Such dismissal must be without prejudice.
(c) Dismissal for Lack of Diligence. Whenever it appears to the Court that
the plaintiff is not diligently prosecuting the action and Civil L. R. 41(a) or (b) does
not apply, the Court may enter an order of dismissal with or without prejudice.
(d) Dismissal of Frivolous Action or Pleading. Whenever it appears to the
Court that the plaintiff’s complaint, the defendant’s answer (including
counterclaims), or any other pleading filed by a party is frivolous, without merit, or
interposed primarily for any improper purpose, the Court may dismiss or strike the
pleading, or any portion of the pleading, without prejudice after 21 days’ written
notice to the parties.
(e) Improper Refiling of Actions. No party or attorney may dismiss and
refile an action for the purpose of obtaining a different judge.
Committee Comment: Civil L. R. 41 includes former Civil L. R. 41.1 - 41.4.
Those provisions have been restyled. Civil L. R. 41(a), former Civil L. R. 41.1, now
explicitly incorporates the good cause standard of Fed. R. Civ. P. 4(m).
Civil L. R. 41(e) is new. It prohibits the filing of an action, followed by the
dismissal and the refiling of that action in the same district for the purpose of
obtaining a different judge. The practice has been reported in at least one district in
this circuit. The rule does not prohibit the dismissal and the refiling of an action for
other reasons.
