Dismissal

Rules embodied in state codes of CIVIL PROCEDURE and the Federal Rules of Civil Procedure govern the granting of dismissals in civil actions brought in state and federal courts. The primary function of a dismissal is to promote the speedy and efficient administration of justice by removing from the consideration of a court any matters that have been unnecessarily delayed to the disadvantage of the defendant.

Dismissal with Prejudice A dismissal with prejudice is a judgment rendered in a lawsuit on its merits that prevents the plaintiff from bringing the same lawsuit against the same defendant in the future. It is a harsh remedy that has the effect of canceling the action so that it can never again be commenced. A dismissal with prejudice is RES JUDICATA as to every issue litigated in the action.

The possibility of such a dismissal acts as a deterrent to the use of dilatory tactics by a plaintiff who wants to prejudice a defendant's case by unreasonably hindering the disposition of the action from the time of the filing of the action to the actual trial of the issues. It is also designed to minimize, if not eliminate, the congestion of court calendars caused by unnecessary delays in pending cases. Because it is regarded as a drastic remedy, courts grant dismissals with prejudice only in the most egregious cases in response to a motion brought by a defendant or by a court sua sponte or on its own will.

Motion by a Defendant A defendant may make a motion to a court to dismiss the CAUSE OF ACTION if the plaintiff has failed to appear to prosecute his or her case. A plaintiff is obligated to prosecute the action with due diligence within a reasonable time of commencing the action. If the passage of time hurts the defendant in the preparation of his or her case or if it substantially affects the defendant's rights, then the defendant may seek a dismissal with prejudice. A dismissal will not be granted if the failure to prosecute resulted from unavoidable circumstances, such as the death of the plaintiff, and there is a delay in the appointment of a PERSONAL REPRESENTATIVE to continue the action. When the parties attempt to negotiate a settlement of the controversy, consequent delays in reaching an agreement will not provide a basis for dismissal with prejudice. If, however, a plaintiff delays prosecution based on the mere possibility of a settlement without demonstrating concrete efforts to achieve an agreement, a court may grant a dismissal upon the defendant's motion.

The defendant must be free of any responsibility for delay when he or she seeks a dismissal for failure to prosecute. A lawsuit will not be dismissed if the defendant caused or contributed to the delay, such as if the individual leaves the state to avoid the trial.

Sua sponte power of court A court has inherent power to dismiss an action with prejudice if it is vexatious, brought in bad faith, or when there has been a failure to prosecute it within a reasonable time. If a plaintiff who has commenced an action fails to comply with discovery devices, a court, which has issued the order of compliance, may sua sponte dismiss the case with prejudice.

Dismissal without Prejudice A plaintiff is not subsequently barred from suing the same defendant on the same cause of action when a court grants a dismissal WITHOUT PREJUDICE of his or her case. Such a dismissal operates to terminate the case. It is not, however, an ultimate disposition of the controversy on the merits, but rather it is usually based upon procedural errors that do not substantially harm the defendant's rights. It effectively treats the matter as if the lawsuit had never been commenced, but it does not relieve a plaintiff of the duty of complying with the STATUTE OF LIMITATIONS, the time limit within which his or her action must be commenced. A dismissal without prejudice is granted in response to a notice of dismissal, stipulations, or a court order.

Notice of Dismissal A plaintiff may serve a notice of dismissal upon a defendant only if the defendant has not yet submitted an answer in response to the plaintiff's complaint. A notice of dismissal preserves the right of the plaintiff to commence a lawsuit at a later date. While not commonly employed, such a notice is useful when exigent circumstances—such as the sudden unavailability of witnesses—warrant the termination of the action. The clerk of the court in which the lawsuit was commenced must receive a copy of the notice of dismissal served upon the defendant to adjust the record of the action accordingly.

Stipulation Once a defendant has served an answer to the plaintiff's complaint, the plaintiff may obtain a dismissal without prejudice by entering a formal agreement, a stipulation, with the defendant. The parties agree to the terms of the dismissal, which must be filed with the court clerk and put into effect by the action of the clerk. A dismissal agreement is a court order that enforces the stipulation of the parties. A dismissal by stipulation is a dismissal without prejudice unless the parties otherwise agree and record their agreement in the text of the stipulation.

Court Order A plaintiff may make a motion to dismiss his or her action without prejudice if the plaintiff cannot serve a notice of dismissal or obtain a stipulation. A dismissal will not be granted to a plaintiff, however, if it would prejudice the rights of any other individual who has a legal interest in the subject matter of a lawsuit. If a joint tenant fails to agree with his or her cotenant to dismiss an action against a landlord for breach of the WARRANTY of habitability without prejudice, then there will not be a dismissal.