“Dismissed without prejudice” is a legal term that means a case is dismissed but can still be refiled at a later point. Both civil and criminal cases can be dismissed without prejudice. The plaintiff or prosecutor can refile their civil claim or criminal charge, typically after fixing problems with the initial filing.
This is different from cases that have been dismissed with prejudice, which cannot be refiled.
Effect of Dismissal Without Prejudice
A case that is dismissed without prejudice can be refiled. If it is a criminal case, the prosecutor can refile the charges. If it is a civil case, the plaintiff can refile the lawsuit. In this sense, a dismissal without prejudice is only a temporary dismissal.
When the case is refiled, it can be:
- filed in a different court,
- filed against different people or parties, and/or
- amended to include new claims, facts, or allegations.
The case must be refiled before the applicable statute of limitations has run.
Dismissals without prejudice can be:
- requested by the prosecutor or the plaintiff, or
- ordered by the court.
Reasons a Plaintiff or Prosecutor Might Ask for Dismissal
Also known as a voluntary dismissal without prejudice, the plaintiff or prosecutor may ask the judge to dismiss the case without prejudice. If the judge agrees, the case will be dismissed from court so that it can be refiled later. There are numerous reasons to ask for a voluntary dismissal. A few common ones are:
- new facts have emerged that necessitate a change to the lawsuit or criminal charges,
- the plaintiff wants to add new defendants to the case,
- the prosecutor wants to refile the case with either more severe or less severe charges, and
- the plaintiff or prosecutor wants to file the case in a different court, like in a federal court or a small claims court.
For example: Betty is seriously hurt in a car accident while visiting California from out of state. Her personal injury attorney files a personal injury claim in California state court. However, Betty’s injuries become severe enough that her legal damages surpass $75,000. This triggers federal jurisdiction over her case.[1] Thinking that a local jury might side with the defendant, who is from the area, Betty’s lawyer asks for a voluntary dismissal without prejudice so they can file the case in federal district court, instead.
Involuntary Dismissal
An involuntary dismissal is the legal term for when the trial court judge dismisses the case without being asked to do so by the prosecutor or plaintiff. Involuntary dismissals can be done without prejudice, allowing the prosecutor or plaintiff to refile the case.
Judges can do this for numerous reasons, including:
- the plaintiff’s complaint is inadequate,
- there are legal errors in the complaint or criminal charges,
- the court in which the case was filed does not have jurisdiction to hear it,
- the court does not have jurisdiction over the defendant in the case,
- the defendant was not served with the lawsuit, or
- the judge determines that his or her court is an improper venue for the case.
After an involuntary dismissal without prejudice, the prosecutor or plaintiff can fix the errors that led to the dismissal. Once they believe that the errors have been fixed, they can refile the case.[2]
Involuntary dismissals can doom a case. Some victims file their lawsuits days before the statute of limitations has run, only for them to get involuntarily dismissed. Even if it was dismissed without prejudice, the delay made it impossible to refile it on time.
Statute of Limitations
Nothing. A dismissal without prejudice does not delay, or toll, the statute of limitations. The charge or lawsuit that gets dismissed without prejudice is treated as if it were never filed.[3]
If you file a lawsuit before the statute of limitations has run, but that lawsuit gets dismissed without prejudice and the statute of limitations has expired in the meantime, when you refile the lawsuit it will get dismissed, again. The second dismissal, however, will be one with prejudice. The dismissal will be because the lawsuit is time-barred by the statute of limitations.
For example: Prosecutors charge Raphael with assault, but legal errors in the court filing leads to the judge dismissing it without prejudice so the prosecutors can fix it and refile it. The prosecutors dawdle in refiling the case, though. By the time it is refiled, the 1-year criminal statute of limitations for assault has expired. Raphael’s criminal defense attorney demands that the judge dismiss the criminal court case for being time-barred.
Note that the applicable statute of limitations will depend on the case type. Family law cases may have a different SOL than, say, cases for driving under the influence (DUI).
Dismissal With Prejudice Distinguished
Cases that are dismissed with prejudice cannot be refiled. Prosecutors cannot bring the same or similar charges again because defendants have a constitutional right against double jeopardy.[4] Prosecutors can, however, pursue different charges. Plaintiffs whose lawsuit is dismissed with prejudice lose their case.
A case can be dismissed with prejudice for numerous reasons, including:
- a criminal defendant successfully completes a diversion program,
- the facts of the case are so weak that they cannot possibly support the allegations being made,
- the statute of limitations has run, or
- the case has been dismissed without prejudice so often that the judge does not think it is worth giving the plaintiff or prosecutor another chance.
Getting a criminal law case dismissed with prejudice means that you win your case. This type of dismissal is a high priority for the defense lawyers at our law firm.
Legal References:
[2] See McCants v. Ford Motor Co., 781 F.2d 855 (11th Cir. 1986).
[3] See Cardio-Medical Association v. Crozer-Chester Medical Center, 721 F.2d 68, 77 (3rd Cir. 1983).
