Dismissal

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The legal term dismissal refers to a ruling by a judge that the plaintiff’s lawsuit is thrown out. A dismissal is effective immediately on pronouncement by the judge, and no further evidence, testimony, or imploring will be heard. The judge has the power to dismiss a case at any point during the proceedings, before, during, or after a trial, if he is convinced the plaintiff has not, and cannot, prove his case. A dismissal may be made on the judge’s own choosing, or as a result of a motion to dismiss filed by the defendant. In addition, a plaintiff may dismiss his case, or a cause of action, before the trial, if he desires. To explore this concept, consider the following dismissal definition.

Definition of Dismissal

Noun

  1. A spoken or written order of termination of a lawsuit or other legal proceeding.

Origin

1800     British English dismiss +al (replacing dismission of 1540s)

What is Dismissal

There are a number of ways and reasons a case, cause of action, or count might be dismissed, but the primary purpose of dismissals is to move forward in the legal process in a speedy and efficient manner by eliminating resolved or unprovable issues. The type of dismissal often determines the party’s future rights in the dismissed matter.

Dismissal With Prejudice

The legal term dismissal with prejudice is a source of confusion for many laypeople involved in the legal system. The dismissal of a lawsuit with prejudice has nothing to do with prejudice against a person, or any protected class of people. Rather, it refers to the dismissal by the judge on a civil lawsuit which forbids the plaintiff from refiling the lawsuit, or filing a new lawsuit on the same issue.

When a judge orders a dismissal with prejudice, it is done based on the merits of the case, and has the strict effect of canceling every issue related to the lawsuit, barring the plaintiff from refiling an action based on the same issues, against the same defendant.

Dismissal Without Prejudice

An order of dismissal without prejudice terminates the current case, but does not bar the plaintiff from refiling the lawsuit at a later time. Such dismissals commonly occur when there has been a procedural error, or if a plaintiff representing himself simply fails to bring with him the right evidence or witnesses.

A dismissal without prejudice basically resets the matter so that it is as if the lawsuit had never been started. This gives the plaintiff time to gather together everything he needs to prove his case, and to comply with the required procedural issues. A dismissal without prejudice does not, however, eliminate or change the statute of limitations.

Voluntary Dismissal

When an individual has filed a lawsuit, he has the right to terminate the lawsuit through a voluntary dismissal, as long as the defendant has made any formal action in court. In the event the defendant has formally entered the lawsuit by filing documents with the court, the plaintiff may still be able to enter a voluntary dismissal if the defendant signs an agreement, called a “stipulation for dismissal,” with the plaintiff to dismiss the case. Alternatively, either party may ask the court to order the case dismissed.

If a plaintiff enters a voluntary dismissal, or if an order for dismissal is obtained, he may be free to refile the matter at a later time, unless the stipulation or order specifies that the case is dismissed with prejudice.

For Example:

Amelia files a civil lawsuit against a previous tenant of her rental property for unpaid rent in the amount of $2,000, and damages to the property in the amount of $500. The tenant answers the lawsuit, denying she owes Amelia any money, as she never received her security back. Before the trial date, the two are able to come to an agreement in which Amelia agrees to accept $1,800 as total settlement of the case, and the tenant agrees to make payments of $200 each week until the amount is paid in full. A stipulation for dismissal is signed by both parties and filed with the court, giving Amelia the right to refile the case should the tenant default on their agreement. This amounts to a voluntary dismissal without prejudice.

Voluntary Dismissal Procedure

There are many reasons a plaintiff might want to go through the voluntary dismissal procedure. These commonly include:

  • Settlement or Partial Settlement – in the event the parties have reached a settlement, or a partial settlement, the plaintiff may file a voluntary dismissal without prejudice. This way they avoid court, but the plaintiff maintains the right to refile the case if the defendant fails to keep the agreement.
  • Agreement to Accept Payments – the defendant has agreed to make payments to settle the lawsuit, though the plaintiff maintains the right to refile the case if the payments are not made as agreed.
  • Unprepared Plaintiff – the plaintiff discovers he is not ready to go to court for some reason. If a continuance does not enable him to get what is needed on time, he may file a voluntary dismissal without prejudice, and refile the matter later.

The dismissal procedure involves completing a court form called a “Request for Dismissal,” then filing it with the court, and serving it on the defendant. The dismissal procedure requires that the form be sent to the judge, who determines whether to approve or deny the voluntary dismissal.

Dismissal for Want of Prosecution

The legal phrase dismissal for want of prosecution refers to the court’s dismissal of a case due to inactivity of the litigants. The court, naturally, wants to ensure there is room on its calendar for cases in which individuals are serious about seeking justice. It is common for courts to, after a review of inactive cases, send out “Intent for Dismissal for Want of Prosecution” notices, which warn the litigants that the case will be closed, usually in about 30 days, if neither party responds. Alternatively, a party to a lawsuit who feels that the opposing party has unjustifiably delayed the case, may request that the judge issue a dismissal for want of prosecution.

Related Legal Terms and Issues

  • Cause of Action – The legal theory upon which a plaintiff sues a defendant, such as breach of contract, fraud, or assault and battery.
  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • 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.