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What does it mean for a case to be "dismissed without prejudice"?

Posted by Neil Shouse | Feb 17, 2020 | 0 Comments

judge looking over a case file
A case can be dismissed without prejudice by a judge or by the plaintiff

"Dismissed without prejudice" refers to a situation in which a is dismissed, but the petitioner is not necessarily precluded from later refiling it. The case can be criminal, though it is more common for civil cases to be dismissed without prejudice. Plaintiffs who have had their case dismissed without prejudice can correct the errors in their lawsuit and re-file it. However, they still have to comply with the statute of limitations.

A case can be dismissed without prejudice either:

  • voluntarily, by the plaintiff, or
  • involuntarily, by the judge.

These cases are contrasted with those that have been dismissed with prejudice. Cases dismissed with prejudice cannot be re-filed. They are final. They cannot be filed, again. They can only be appealed.

Can a case be dismissed without prejudice by the court?

Many cases are dismissed without prejudice involuntarily.

A judge can dismiss a case without prejudice over the objections of the plaintiff. They can do this for a variety of reasons. Some of the most common include:

  • lack of subject matter jurisdiction, where the court does not have the power to hear the type of case,
  • lack of personal jurisdiction, where the court does not have power over the defendant,
  • improper venue, where it would better for a different court to hear the case, or
  • improper service, where the defendant has not received the lawsuit.

Courts tend to dismiss cases only when requested by the defendant. Judges rarely dismiss a case on their own accord once the defendant is involved. Defendants ask a court to throw out a case by filing a motion to dismiss. That motion urges the court to end the case. It explains why the lawsuit should be dismissed.

The plaintiff has an opportunity to respond to the motion to dismiss. If the plaintiff's response is not persuasive, the judge will likely dismiss the case.

The judge may choose to give the plaintiff an opportunity to fix their case. If the judge makes this choice, he or she dismissed the case without prejudice. The plaintiff can then correct the flaws in their lawsuit. Once it is fixed, they can file it, again.

Example: Julie files a personal injury claim after being hurt in a car accident. She files it in small claims court. The court can only hear cases concerning up to $5,000. Julie has asked for $15,000 in compensation. The judge dismisses her case without prejudice so Julie can file it in trial court.

Can a case be dismissed voluntarily?

A plaintiff can also voluntarily dismiss their case without prejudice.

This usually happens when the plaintiff:

  • wants to move their case to or from small claims court,
  • decides to file their lawsuit in a different state, or
  • wants to take their state court claim to federal court, or vice versa.

Example: Julie is in trial court with her car accident claim. She decides it is worth it to pursue less money in order to go through small claims court. She files a motion to voluntarily dismiss her trial court claim.

Does the statute of limitations get delayed?

No.

All cases that have been dismissed without prejudice can be re-filed. When they are re-filed, they still have to comply with the statute of limitations.

The statute of limitations provides a time limit for cases to be filed. Cases that are not filed before this time limit has expired will be dismissed. That dismissal will be with prejudice. The case cannot be re-filed.

Certain things will toll, or delay, the statute of limitations. While it is tolled, the time limit to file a case does not run.

A dismissal without prejudice does not toll the statute of limitations.1 When a case gets dismissed without prejudice, it is treated as if it was never filed. A dismissed case that is re-filed after the statute expires will be dismissed, again.

Example: Julie has 2 years to file her personal injury lawsuit. With 6 months left, she files in small claims court. 1 year later, her case is dismissed without prejudice. When she files in trial court, her case gets dismissed, again. The statute of limitations expired while her case was in small claims court.


Legal Reference:

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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