E.

Dismissal of the action by the plaintiff

Sometimes after filing the action, the plaintiff may have second thoughts over the filing of the
complaint. For reasons personal or otherwise, he may entertain doubts as to the propriety of
the filing of the action. In this case, he may dismiss his own complaint. If the dismissal is before
the adverse party had served an answer or a motion for summary judgment, he may have his
own complaint dismissed by the mere filing of a notice of dismissal. Upon such notice, the court
shall issue an order confirming the dismissal. The dismissal by notice of dismissal is without
prejudice to its being refiled, unless otherwise stated in the notice of dismissal or when the
refiling is barred by what jurisprudence calls `the two-dismissal' rule.

2. After service of the answer or a motion for summary judgment, the plaintiff can no longer
have his action dismissed by mere notice. The plaintiff must now file a motion to dismiss his
complaint. The granting or the denial of the motion to dismiss is now a matter addressed to
sound judicial discretion because this type of dismissal is no longer a matter of right. If the court
allows the dismissal of the complaint, only the complaint is dismissed. A counterclaim already
pleaded prior to the service upon the defendant of the motion for dismissal, is not affected and
is without prejudice to the right of the defendant to prosecute his counterclaim in the same or
in a separate action. A dismissal under this rule, is deemed a dismissal without prejudice, unless
otherwise stated in the order of the court.

May the plaintiff amend his complaint as a matter of right even after a motion to dismiss has
been served? He may. This is because a motion to dismiss is not a responsive pleading. Thus, his
right to amend his complaint is not affected by the filing of the motion to dismiss. After a
responsive pleading has been served, amendment must be by leave of court. This means that
after the answer has been served, an amendment may be done only with the approval of the
court

After the plaintiff submits a bill of particulars which clarifies the ambiguities in the complaint,
the defendant may now file his answer. If however, from the reading of the complaint, a solid
basis exists for the immediate dismissal of the action, the defendant, instead of filing his
answer, may opt to file a motion to dismiss.
There are numerous grounds for a motion to dismiss and these grounds must be invoked by
filing the requisite motion. Normally, a court will wait for a party to file a motion to dismiss
even if the ground for dismissal is known to it. For instance, unless the case is covered by the
Rules on Summary Procedure, the court will and ought to refrain from dismissing a complaint
on the ground of improper venue even if the venue is blatantly defective. Venue is a matter
designed for the convenience of the parties and if no party complains about the venue, it is not
for the court to take up the cudgels for them. There are however, grounds for dismissal which
the court will recognize on its own motion. Lack of jurisdiction over the subject matter of the
action, litis pendencia, res judicata and prescription are reasons for the court to effect a motu
proprio dismissal of the complaint whenever any of these grounds appears from the pleadings
or from the evidence on record.