There comes a time to walk away from the courthouse and call it a day. If you have sued someone in a civil case and agreed to an out-of-court settlement or you acted too early or you just want to forget the whole thing, dismissing your lawsuit is the road to take. The court forms are not difficult to fill out, but it's important to know the rules for dismissals and the consequences.
You file your civil suit with the court clerk, serve the summons and complaint on the defendant and then -- before the other party files any papers -- decide not to proceed. This is the easiest type of dismissal to accomplish; you simply fill out a Notice of Dismissal form, file it with the court and deliver a copy to the defendant. But if you plan to refile at a later date, keep your eye on the statute of limitations period -- the window of time you have to file a lawsuit. Statutes of limitations vary among states and also among types of actions. For example, the California statute of limitations for assault is two years from the date you were injured; an civil lawsuit to enforce a written contract, however, may be brought up to four years from the time the contract was broken.
Dismissal After Answer
If the court battle is already underway -- the defendant has filed an answer or a summary judgment motion -- you can still dismiss but it is not as easy. In some states, like California, you cannot dismiss after the other party has filed a pleading unless you get that party to sign the Request for Dismissal. In other states, like Missouri, you can file a notice of dismissal at any time before the jury is sworn in or evidence is introduced, but you are likely to have to pay the other party's court costs. And you cannot dismiss a suit in many states if a judgment or support order has been entered or a temporary restraining order is in effect.
With or Without Prejudice
Before you dismiss a case, you must determine whether the matter is completely finished for you or whether you may want to refile at a later time. If you want to reserve the option to refile, your dismissal must be "without prejudice." A dismissal "with prejudice" bars you from bringing the same lawsuit again. Frequently, cases that are settled before trial are dismissed with prejudice to preclude the plaintiff from filing the same lawsuit again. If you fail to specify whether your dismissal is with or without prejudice, most courts assume that it is without prejudice. In some states, like Florida, the second dismissal of the same action is always with prejudice.
Read More: What Is the Meaning of Without Prejudice?
Defendant Seeking Dismissal
Getting the other party's civil complaint dismissed is an entirely different matter than dismissing a case you brought yourself. You must file a motion in court and attend a hearing. Each state specifies grounds in its statutes for this type of dismissal, which include lack of jurisdiction, failure to name indispensable parties and failure to prosecute the case. You can also to move to dismiss the case after the party who brought the action presents his evidence at trial, if it is insufficient to prove his case.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.