Nonsuit

A nonsuit is a motion filed by a defendant to be released from a civil lawsuit, usually because the plaintiff has failed to pursue the lawsuit in a timely manner. In some jurisdictions, a nonsuit may be filed by a plaintiff to dismiss one or more defendants from a lawsuit while keeping others. The reason for doing this is to release those defendants from being potentially liable for the issue at hand.

An example of a nonsuit would be a plaintiff releasing a particular doctor from a malpractice lawsuit in which he was one of several named in the suit. The plaintiff may do this if the doctor he chooses to release had the least amount of influence on the allegedly botched procedure. To explore this concept, consider the following nonsuit definition.

Definition of Nonsuit

Noun

1. A motion made by a plaintiff to release a defendant, or defendants, from a lawsuit.

Origin

1350-1400       Anglo-French   nounsute

Judgment of Nonsuit

A judgment of nonsuit is a judgment that is entered against a plaintiff who is unable to prove his case. A judgment of nonsuit may also be entered when a plaintiff either refuses or neglects to proceed to a trial on his claim. A judgment of nonsuit can be voluntary or involuntary.

When a judgment of nonsuit is voluntary, this is because the plaintiff has voluntarily abandoned his own cause. An agreement is then drafted for a judgment for costs against the plaintiff. These costs are intended to pay for expenses incurred by the defendants in defending themselves against what has ultimately become an otherwise frivolous lawsuit.

An involuntary nonsuit, on the other hand, occurs when the plaintiff neglects to show up for a trial on his own complaint. Further, an involuntary nonsuit is entered when a plaintiff fails to provide evidence for a jury to consider in their attempt to render a verdict.

The term “nonsuit,” however is fairly outdated and is not often used in today’s areas of law. When someone enters a motion to have a case dismissed, it is normally referred to as a “motion for dismissal,” or a “motion for summary judgment.”

Compulsory Nonsuit

A compulsory nonsuit is a decision made by a court when the court believes the case cannot proceed to trial. This can either be because procedure prevents it from going to trial, or because the plaintiff has not provided sufficient evidence to prove that the matter is, in fact, triable. A compulsory nonsuit can be dismissed with or without prejudice. In deciding a compulsory nonsuit, a court will consider the evidence that has been introduced by the plaintiff, as well as the evidence that has been introduced by the defendant but that is favorable to the plaintiff.

If a compulsory nonsuit request is granted, the plaintiff may file a motion to have the nonsuit reversed. In actions that involve more than one plaintiff, the court cannot enter a compulsory nonsuit as to any one plaintiff until all plaintiffs have presented their case. In actions involving more than one defendant, however, the court can enter a nonsuit of any one plaintiff before all of the plaintiffs have presented their case.

Order of Nonsuit

An order of nonsuit is entered when a plaintiff has expressed his desire to officially end his case against the defendant(s). A nonsuit can also be requested by the defendant(s). An order of nonsuit typically cannot be entered, however, unless the court obtains the express consent of the plaintiff to end the case. An order of nonsuit can be entered with or without prejudice.

There are certain cases wherein a court can order what is called a “compulsory nonsuit.” In a compulsory nonsuit, the court may decide after weighing everything that has been brought before it that a case ultimately cannot and should not proceed to trial.

Nonsuit with Prejudice

When an order for nonsuit with prejudice is entered, the case has been permanently dismissed. The plaintiff is not permitted to re-file on the same issues he initially presented to the court. For example, entry of a nonsuit with prejudice renders the case over and done with by the court. It is never to be brought back before the court again, unless the plaintiff has new issues to add to the case which would then make the case different than before. Even then, the court may consider the new case to be too similar to the old case and dismiss the matter outright.

Nonsuit without Prejudice

An entry of nonsuit without prejudice means that the plaintiff has the right to re-file his lawsuit in the future. For example, a nonsuit without prejudice may be requested by a plaintiff who chooses to take his case out of one court and bring it in another. He may do this if, for instance, the amount he would receive in damages would be less in small claims court than in a higher court. He would then file a nonsuit in small claims to dismiss the action without prejudice so that he could bring the action before a higher court.

For example:

Daniel was in an accident in which Nora pulled out of a driveway without looking, hitting his car. He files a civil lawsuit in small claims court to recover the amount it cost to repair his car, as well as for his medical bills. The limit that may be tried in small claims court in their state is $5,000, and Daniel realizes after receiving all of his medical bills that his total out-of-pocket damages amount to $8,000, and he plans to sue for pain and suffering, since he was injured.

Daniel may simply withdraw the lawsuit and re-file in the regular civil court, unless the action has already begun. If this realization comes to Daniel at the trial, he may request the court enter a nonsuit without prejudice, which would allow him to re-file in civil court.

Nonsuit vs. Dismissal

When a case is determined to be a voluntary nonsuit, this may be worse than the case being outright dismissed, mainly for financial reasons. As mentioned earlier, if a case is dismissed as a voluntary nonsuit, then a judgment can be entered against the plaintiff for, essentially, wasting everyone’s time. He may then be ordered to foot the bill for the defendant’s attorney fees.

Nonsuit Example Involving a Person’s Will

Della Tussey was an unmarried woman who agreed to live with and work for her father. In return, her father promised her that he would leave her one-fourth of all of his property upon his death. Her father made a will to enforce this promise, but he later added an amendment that effectively revoked his verbal contract with his daughter, choosing instead to leave the entirety of his estate to his wife and two sons. Della, according to the agreement, was supposed to live with her father, helping him, until his death. She did not do that, but rather got married in 1903, and moved to Chattanooga.

In 1904, Della decided to file suit to go after what she was initially promised. At the trial of the matter, it was determined that yes, Della’s father had agreed to pay Della for her services upon his death, as Della had alleged in her complaint. The trial court also found that Della did, in fact, render services to her father as agreed and awarded her $1,500 for her services. Unsatisfied with this award, Della appealed the matter to the Supreme Court of North Carolina.

The Supreme Court of North Carolina found that Della did not provide enough specifics in her claim that proved that she held up her end of the bargain. According to the Court, Della’s lack of performance was not because she was prevented from holding up her half of the contract by her father, or by anyone who was legally authorized to act on her father’s behalf.

Therefore, in 1907 the Court ruled that the trial court had erred, and that the defendant’s request for a motion to nonsuit should have been granted. The Court dismissed the case and held that Della would have to amend and re-file her complaint in order to more effectively challenge her financial award. Della appealed this decision and again appeared before the Supreme Court of North Carolina the following year, now asking for $2,000 in compensation for services rendered.

The Court, however, stood its ground, affirming its prior decision, and recommending that Della sue the defendant again and plea as advised. Specifically, the Court held:

“The plaintiff may, under the decisions of this Court, bring another act on within one year after the judgment of nonsuit. If this were an open question the writer of this opinion would not give his assent to the principle as thus decided, as a dismissal of the case upon the merits, whether called a nonsuit or by any other name, is equivalent in law to a judgment upon a demurrer to the evidence, which by the best considered authorities has the same effect as a bar to another suit. as judgment rendered upon a demurrer to the pleadings or as any other judgment upon the merits. But the law has been settled the other way by actual decision upon the very question, and we now hold unanimously that another suit will lie within a year of the nonsuit. It would seem that a decision affirming the judgment is the best disposition for the plaintiff that could be made of the case, as it eliminates the serious question raised by the defendant’s counsel, whether the judgment of the Superior Court sustaining the demurrer operates as a bar to a second assertion of the same cause of action to which the objection by way of demurrer was first taken.”

Related Legal Terms and Issues

• Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
• Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.