Short answer. Only before the adverse party serves a responsive pleading or a motion for summary judgment; if neither has been served, you may still withdraw by notice up until evidence is introduced at the trial or hearing. The same dismissal rules that govern complaints apply equally to counterclaims, cross-claims, and third-party complaints.
What the law says
The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party complaint. A voluntary dismissal by the claimant by notice as in [S]ection 1 of this Rule, shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing.
Rule 16, Section 4 — Dismissal of counterclaim, cross. Read the full provision →
The dismissal rules extend beyond complaints
This provision makes it explicitly clear that the entire set of dismissal rules found within this Rule are not limited in application only to a plaintiff's original complaint. They apply with equal force to the dismissal of any counterclaim, cross-claim, or third-party complaint filed within the case, so a party pursuing one of these ancillary types of claims remains fully subject to the same overall governing framework.
The timing window for a notice-based voluntary dismissal
A voluntary dismissal made by the claimant simply through notice must occur before a responsive pleading, or a motion for summary judgment, is actually served in response to that particular claim. This is the very same style of straightforward notice-based dismissal already available for an original complaint, here simply extended to apply equally to a cross-claim, counterclaim, or third-party complaint.
What happens if no responsive pleading has been served
If no responsive pleading and no motion for summary judgment has yet been served in response to the counterclaim, cross-claim, or third-party complaint in question, the available window for a simple notice-based dismissal does not necessarily close there right away — it instead remains genuinely open all the way until the actual introduction of evidence at the trial or hearing itself begins.
Why the deadline is tied to the adverse party's response
Once the party against whom the cross-claim is directed has already responded to it substantively, or once evidence has actually started coming in during the proceedings, allowing an entirely unrestricted notice-based withdrawal at that late stage could unfairly and significantly disrupt a case the responding party has already invested real effort in defending against. Cutting off the simple notice option at that particular point in the proceedings fairly balances the claimant's freedom to withdraw against basic fairness owed to the party who must actually respond, and against the time and resources already spent preparing that response.
Related provisions
- Rule 16, Section 4 — Dismissal of counterclaim, cross
- Rule 16, Section 3 — Dismissal due to fault of plaintiff
- Rule 16, Section 2 — Dismissal upon motion of plaintiff