Legal Question in Civil Litigation in North Carolina

What kind of a stipulation are you filing? Rule 41 concerns the dismissal of actions. I don't understand why the other party has to sign at all, unless there are other issues addressed in the stipulation and you want to do this for some reason. Under Rule 41 (the text of the rule is below), you can simply file a voluntary dismissal of an action or counterclaim. Here is a link to the form:

http://www.nccourts.org/Forms/Documents/251.pdf

The other party does not have to agree. If the other party refuses to sign, then you can dismiss the action on your own or proceed with your case. If you are the plaintiff, then you have a duty to move the case along. However, if that is the case, I can't imagine why a defendant would not sign a stipulation to dismiss the case. If the other party is the plaintiff, its their action ... you can't make them sign and dismiss the case. However, they have a duty to move the case along as well and their attorney (and the other party) can face sanctions if this is a frivolous case and they refused to dismiss it.

Since you are in litigation, I assume that you have legal counsel. If that is the case, then you need to direct your question to legal counsel. It is not fair to your counsel or any attorney here if you are asking an attorney here to comment on something when we have not been privy to the litigation or what the stipulation says.

Rule 41. Dismissal of actions.

(a) Voluntary dismissal; effect thereof. �

(1) By Plaintiff; by Stipulation. � Subject to the provisions of Rule 23(c) and of any statute of this State, an action or any claim therein may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before the plaintiff rests his case, or; (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of this or any other state or of the United States, an action based on or including the same claim. If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless a stipulation filed under (ii) of this subsection shall specify a shorter time.

(2) By Order of Judge. � Except as provided in subsection (1) of this section, an action or any claim therein shall not be dismissed at the plaintiff's instance save upon order of the judge and upon such terms and conditions as justice requires. Unless otherwise specified in the order, a dismissal under this subsection is without prejudice. If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless the judge shall specify in his order a shorter time.

(b) Involuntary dismissal; effect thereof. � For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim therein against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this section and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a necessary party, operates as an adjudication upon the merits. If the court specifies that the dismissal of an action commenced within the time prescribed therefor, or any claim therein, is without prejudice, it may also specify in its order that a new action based on the same claim may be commenced within one year or less after such dismissal.

(c) Dismissal of counterclaim; crossclaim, or third‑party claim. � The provisions of this rule apply to the dismissal of any counterclaim, crossclaim, or third‑party claim.

(d) Costs. � A plaintiff who dismisses an action or claim under section (a) of this rule shall be taxed with the costs of the action unless the action was brought in forma pauperis. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant before the payment of the costs of the action previously dismissed, unless such previous action was brought in forma pauperis, the court, upon motion of the defendant, shall make an order for the payment of such costs by the plaintiff within 30 days and shall stay the proceedings in the action until the plaintiff has complied with the order. If the plaintiff does not comply with the order, the court shall dismiss the action.