View Full Version : Are dismissals with prejudice unless otherwise stated?
09-30-2004, 03:06 PM
Or does this vary from state to state?
09-30-2004, 04:54 PM
Just the contrary. If a case is dismissed, the suit (action, petition, etc.) can be reinstituted unless the dismissal was on the merits of the case or for some other reason precluding a new filing, such as Statute of limitations, Statute of Frauds, etc. Such a dismissal should state "with prejudice."
09-30-2004, 06:03 PM
That's not the case in Illinois, or in the Federal system. Dismissals are presumed to be with prejudice (or on the merits), unless the reason for the dismissal falls into a limited number of categories (dismissal for want of jurisdiction, for example) or unless the dismissal is expressly stated to be without prejudice. See FRCP 43(b)
09-30-2004, 09:15 PM
New York Civil Practice Law & Rules 3217(c) provides:
(c) Effect of discontinuance. Unless otherwise stated in the notice, stipulation or order of discontinuance, the discontinuance is without prejudice, except that a discontinuance by means of notice operates as an adjudication on the merits if the party has once before discontinued by any method an action based on or including the same cause of action in a court of any state or the United States.
09-30-2004, 11:18 PM
That's not the case in Illinois, or in the Federal system. Dismissals are presumed to be with prejudice (or on the merits), unless the reason for the dismissal falls into a limited number of categories (dismissal for want of jurisdiction, for example) or unless the dismissal is expressly stated to be without prejudice. See FRCP 43(b)There is no "FRCP 43(b)" -- I think that you mean Rule 41(b) (http://www.law.cornell.edu/rules/frcp/Rule41.htm):(b) Involuntary Dismissal: Effect Thereof.
For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.But as the rule's title suggests, it refers only to an involuntary dismissal. A voluntary dismissal in the federal system, with or without an order of the court, usually is without prejudice:(a) Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; By Stipulation.
Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.
(2) By Order of Court.
Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.(Emphasis added.)
10-01-2004, 02:16 PM
You are correct, I was referring to Rule 41(b). (43 was a typo.)
I also agree that 41(b) applies to involuntary dismissals only, which is what I assumed (perhaps too quickly) that Liberal was asking about.
Illinois law has the same distinction between voluntary and involuntary dismissals.
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