What is the meaning of dismissed with prejudice?
What is the difference between dismissed with or without prejudice?
What are the legal consequences?
We will look at the dismissed with prejudice meaning, dismissals with prejudice vs without prejudice, voluntary and involuntary dismissals, how it affects the statute of limitations, motion to dismiss, examples and more.
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Table of Contents
What does dismiss with prejudice mean
A case dismissed with prejudice is a legal way of saying a case was dismissed forever or permanently.
In other words, the plaintiff lawsuit is dismissed and he or she can no longer come back to court and bring suit against the defendant for the same thing.
The word “prejudice” sounds negative (it even smells like discrimination) but it is not.
Dismissal with prejudice involves the loss of certain rights
A dismissal with prejudice means that the case is dismissed along with the loss of certain rights.
In this case, the plaintiff’s right to file a lawsuit against the defendant on the same legal grounds is lost.
For example:
Mary sues John for $20,000 alleging John breached the terms of their contract.
John files a motion to dismiss against Mary’s lawsuit giving reasons why the case should be dismissed.
The judge renders a judgment ruling that Mary’s lawsuit is “dismissed with prejudice”.
This means that Mary’s lawsuit against John on the basis of these allegations of breach of contract can no longer be retried in court.
You can have a case dismissed “with prejudice” or “without prejudice”, “voluntarily” or “involuntarily.
We will explain their nuances later in this post, so be sure to keep reading.
Dismissed with prejudice
Dismissed with prejudice or dismiss with prejudice or dismissal with prejudice all mean that a court case has been dismissed permanently.
Following such a dismissal, the plaintiff is forever barred from filing a lawsuit against the defendant on the same grounds and relating to the same object or damages.
The court may decide to dismiss a case with prejudice for different reasons, such as:
- The plaintiff is time-barred from bringing an action against the defendant
- If the plaintiff’s action is vexatious
- When a plaintiff fails to comply with discovery orders
- When a plaintiff fails to comply with court orders
Dismissed with prejudice definition
According to Cornell Law School’s Legal Information Institute who has taken the definition from Nolo’s Plain-English Law Dictionary, dismissed with prejudice is defined as:
When a lawsuit is dismissed with prejudice, the court is saying that it has made a final determination on the merits of the case, and that the plaintiff is therefore forbidden from filing another lawsuit based on the same grounds.
What is notable with this definition is that when a court dismisses a case with prejudice, it is rendering a decision on the merits of the case.
Voluntary dismissal with prejudice
A plaintiff can voluntarily decide to dismiss his or her own case with prejudice (voluntary dismissal with prejudice).
At first, that sounds like a horrible thing to do!
However, voluntary dismissal with prejudice is not necessarily a bad thing.
Voluntary dismissal with prejudice is when you drop the case forever
You may want to dismiss your own case “with prejudice” when you know that you do not need to come back to court again.
Perhaps the defendant has agreed to pay for your damages, you definitively settled the case or you’ve already been paid.
If the case is resolved permanently and you know that you no longer need to pursue your lawsuit against the defendant, you can voluntarily and permanently put an end to the legal proceedings.
Involuntary dismissal with prejudice
An involuntary dismissal with prejudice is when the court or a judge dismisses a case “with prejudice” and bars the plaintiff from moving forward with the case for good.
Typically, when a court dismisses a case, it’s likely that the defendant filed a motion to dismiss against the plaintiff’s action and the court granted the defendant’s motion.
If the court is convinced that the plaintiff’s action does not have any merit that it dismisses the case permanently.
What does dismiss without prejudice mean
A case dismissed without prejudice means that a case is dismissed by the court for now but not forever.
Whereas a dismissal with prejudice is a permanent dismissal, a dismissal without prejudice is a temporary dismissal.
The plaintiff has the right to refile suit on the same legal grounds in the future
In other words, the plaintiff is not barred from refiling or retrying the same case again against the defendant.
The meaning of “dismissed without prejudice” is essentially the opposite of “dismissed with prejudice”.
Dismissed without prejudice
Dismissed without prejudice or dismiss without prejudice or dismissal without prejudice all mean that a court case has been dismissed but not permanently.
Typically, a case can be dismissed without prejudice due to certain procedural irregularities or jurisdiction issues.
A case may be dismissed without prejudice for different reasons, such as:
- Lack of subject matter jurisdiction
- Lack of personal jurisdiction
- Improper venue
- Improper service
- Procedural defects
As such, the court does not want to penalize the plaintiff by completely dismissing the case on procedural grounds and opts to temporarily dismiss the case allowing the plaintiff to refile the application in the future.
Dismissed without prejudice definition
According to Cornell Law School’s Legal Information Institute who has taken the definition from Nolo’s Plain-English Law Dictionary, dismissed without prejudice is defined as:
When a case is dismissed without prejudice, it leaves the plaintiff free to bring another suit based on the same grounds, for example if the defendant doesn’t follow through on the terms of a settlement.
What is notable with this definition is that when a case is dismissed without prejudice, the plaintiff is legally allowed to file a new lawsuit, on the same grounds, against the plaintiff.
Voluntary dismissal without prejudice
In some cases, you may want to voluntarily dismiss your case on a without prejudice basis.
Why would you do that?
At the end of the day, you want to stop the legal action for some time while maintaining your right to retry the case or file a lawsuit on the same grounds against the defendant.
A plaintiff may opt for voluntary dismissal without prejudice for the following reasons:
- Have the lawsuit transferred from one court to another
- Have the lawsuit transferred from one state to another
- Have the lawsuit transferred from the state court to the federal court
Let’s look at an example of why you may want to voluntarily dismiss your own case on a “without prejudice basis”.
For example:
John sues Mary for a certain amount of money before the small claims court.
However, for various reasons, John wants to continue the lawsuit against Mary before regular courts (wants to claim additional compensatory damages) and not the small claims court.
In that case, John can file a voluntary dismissal without prejudice so he can exit the small claims court and then come back to court before the regular courts.
Involuntary dismissal without prejudice
An involuntary dismissal without prejudice is when the court or a judge decides to dismiss the plaintiff’s case.
However, the court does not permanently bar the plaintiff from coming back to court against the defendant for the same thing.
Typically, a civil case may be dismissed involuntarily on a without prejudice basis due to procedural defects preventing the court from allowing the case to proceed.
However, the court does not have any reasons to dismiss the plaintiff’s case on its merits.
So the case is dismissed in such a way that the plaintiff is given the chance to fix the defects and refile the lawsuit.
For example:
Mary intends to sue John for breach of contract.
Mary serves her legal documents to John but does not include the summons along with the complaint.
John did not know that he needed to show up in court.
The court may dismiss the case requiring Mary to serve the summons and complaint properly so the case can move forward.
Civil lawsuit dismissal
The decision as to how a case must be dismissed (with or without prejudice) will be determined by law or a judge.
Dismissed with prejudice civil case
In cases when there are legal defects impossible to remedy, the case will be dismissed with prejudice where the law is the deciding factor.
A civil case dismissed with prejudice, the court is making a decision on the merits of the case.
For example:
The plaintiff files a lawsuit in one jurisdiction against the defendant and obtains a final judgment.
The plaintiff then files other lawsuits on the basis of the same facts and grounds against the defendant in other jurisdictions.
The courts of the second or third jurisdiction will dismiss the case with prejudice stating that the case must be permanently dismissed as it has already been decided (res judicata).
Dismissed without prejudice civil case
If the judge notices a procedural defect or irregularity with the plaintiff’s lawsuit, the judge may decide to have the civil case dismissed without prejudice allowing the plaintiff to cure the defect and refile.
In this case, the judge is the deciding factor, not the law.
When a civil case is dismissed without prejudice, the court does not make a decision on the merits of the case.
Statute of limitations
In what way will a dismissal without prejudice or with prejudice affect the statute of limitations.
Dismissal with prejudice statute of limitations
When a case is dismissed with prejudice, the notion of the statute of limitations is not relevant anymore as the case is permanently dismissed.
This means that the plaintiff does not have the right to file the case anymore on the same legal grounds even if he or she were to comply with statute of limitations.
Dismissal without prejudice statute of limitations
A dismissal without prejudice does not overturn the statute of limitations.
As a result, if the plaintiff runs the risk of getting time-barred due to the statute of limitations mechanics.
The statute of limitations clock keeps on ticking!
The petitioner must make sure to refile the lawsuit against the defendant in time to avoid having the case dismissed, this time “with prejudice” due to statute of limitations issues.
Even though the plaintiff’s original lawsuit was filed within the statute of limitations timelines before it was dismissed, the statute of limitations test will be run once more when the new lawsuit is filed.
With a without prejudice dismissal, the statute of limitations counter is not delayed or paused (tolled).
When refiling, the plaintiff must ensure that the lawsuit, at the moment of the lawsuit refiling, complies with the statute of limitations applicable to the merits of the case.
Motion to dismiss with prejudice
The courts rarely dismiss a case without the presence of the defendant.
The courts will also rarely dismiss a case in the presence of the defendant unless the defendant asks for a ruling to this effect.
A defendant can file a motion to dismiss to have the court dismiss the case with prejudice or without prejudice.
The defendant must ask the court to dismiss the case by filing a motion to dismiss
By filing a motion to dismiss, the defendant affirmatively seeks the court to render a judgment on this aspect.
The defendant must present important arguments to the court as to why the case must be dismissed.
Similarly, the plaintiff will need to defend against the motion to dismiss by stating the reasons why the lawsuit is admissible and must proceed.
The court must decide on motion to dismiss
The judge may decide in the following ways:
With prejudice vs without prejudice
What is the difference between “with prejudice” vs “without prejudice” dismissals?
There are two possible outcomes when a case is dismissed, either:
- The plaintiff is barred from refiling the same lawsuit against the defendant forever
- The plaintiff maintains the right to file a lawsuit against the defendant on the same legal grounds
That’s when we qualify the first scenario as with prejudice dismissal and the second scenario as without prejudice dismissal.
When a plaintiff’s lawsuit, court application, petition, motion or complaint is dismissed on the merits and the court’s judgment is the equivalent to a final judgment, that’s a dismissal with prejudice.
When the plaintiff’s lawsuit or court pleadings are dismissed without putting a definitive end to the legal dispute, that’s a case dismissed without prejudice.
Nonsuit vs dismissal with prejudice
A nonsuit is when a court renders a judgment dismissing the case either because the plaintiff was unwilling to continue the case or did not make an adequate showing.
The nonsuit can be voluntary or involuntary.
Typically, nonsuit results in a dismissal without prejudice
Nonsuit is when the plaintiff or petitioner drops his or her case without affecting the right to bring forward a future action on the same facts.
Unless stated otherwise in the court’s judgment, the case is considered to be dismissed without prejudice.
For example:
The plaintiff files a lawsuit against two defendants.
The plaintiff settles the case with one defendant but wants to continue the matter against the other.
As a result, the plaintiff will file a voluntary nonsuit against the defendant with whom the case was settled.
The case is not necessarily dismissed but no longer proceeds against the defendant.
Dismissal without prejudice and a nonsuit without prejudice is similar whereby the plaintiff stops the legal action from moving forward at this time.
Dismissed with prejudice FAQ
Can a case dismissed with prejudice be appealed
Yes, if a court dismisses your case permanently on a “with prejudice” basis and you do not agree with that ruling, you can appeal the decision to a higher court.
The important consequence of a case dismissed with prejudice is that your case is dismissed on the merits.
If you do not appeal the decision, the dismissal will forever and permanently close the matter (in legal terms, we’ll say res judicata or the dismissal judgment definitively settles the dispute.
How to get a case dismissed without prejudice
To have a case dismissed without prejudice, you’ll need to file a motion to dismiss against the other party’s lawsuit or legal action requesting that the court dismiss the case.
Once a motion to dismiss is served to the other party, you’ll eventually have a hearing where you will need to argue your legal position as to why the court must dismiss the case without prejudice.
To have a case dismissed, in most cases, you must file a motion to dismiss
The other party will be given a chance to persuade the court that the motion to dismiss is not founded and the case must proceed.
Ultimately, the court will render a judgment and decide if the case will continue or be dismissed with or without prejudice.
Why would a case be dismissed with prejudice
The court tends to dismiss a case with prejudice when there are one more legal grounds making it impossible for the case to move forward or perhaps the conduct of the plaintiff justifies for the court to take such a drastic measure.
The court may dismiss a case with prejudice when:
- The plaintiff is time-barred from bringing an action against the defendant
- If the plaintiff’s action is vexatious
- When a plaintiff fails to comply with discovery orders
- When a plaintiff fails to comply with court orders
Case dismissed without prejudice statute of limitations
If the plaintiff files a lawsuit against the defendant beyond the statute of limitations time period, the court may upon request from a party or even of its own volition (sua sponte) dismiss the case with prejudice.
If the case is dismissed on the basis that the plaintiff is time-barred, the deciding factor to dismiss the case is the law.
What does a dismissal with or without prejudice mean in criminal law
In criminal law, a case may be dismissed with or without prejudice.
If a case ends “with prejudice”, the result for the defendant is similar to a “not guilty” finding or an acquittal.
If a case ends “without prejudice”, the prosecutor may charge the defendant on the same basis.
What is the definition of dismissal with prejudice
A case dismissed with prejudice is a legal way of saying a case was dismissed forever or permanently.
A dismissal with prejudice is like getting a judgment on the merits of the case that will forever and definitively put an end to the dispute relating to the same allegations or facts.
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