DISMISSAL
A discharge of an individual or corporation from employment. The disposition of a civil or criminal proceeding or a claim or charge made therein by a court order without a trial or prior to its completion which, in effect, is a denial of the relief sought by the commencement of the action.
The legal effect of a dismissal varies depending upon its type.A dismissal, granted by a court that has exercised its discretion in evaluating the particular case before it, operates similarly in civil and criminal actions.
Civil Proceedings
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.
Criminal Prosecutions
A dismissal in a criminal prosecution is a
decision of a court, which has exercised its discretion
prior to trial or before a verdict is
reached, that terminates the proceedings against
the defendant. The procedure by which dismissals
in state and federal criminal actions are
obtained are governed, respectively, by the state
and federal rules of CRIMINAL PROCEDURE. In
criminal prosecutions, delay often prejudices the
defendant’s rights because of the greater likelihood
that evidence would be lost or memories
or events would not be recalled easily. The possibility
of dismissal ensures the prompt government
prosecution of individuals accused of
criminal activity.
The legal effect of a dismissal in a criminal
prosecution is dependent upon the type that is
granted by the court.
Dismissal with Prejudice A dismissal with
prejudice bars the government from prosecuting
the accused on the same charge at a later date.
The defendant cannot subsequently be reindicted
because of the constitutional guarantee
against DOUBLE JEOPARDY. A dismissal with
prejudice is made in response to a motion to the
court by the defendant or by the court sua
sponte.
Motion by a Defendant A defendant may
make a motion to the court to have the charges
against him or her—whether embodied in an
indictment, information, or complaint—dismissed
with prejudice because the delay has violated
the individual’s constitutional right to a
SPEEDY TRIAL or there is no sufficient evidence
to support the charges. In deciding whether a
delay is unreasonable, the court evaluates the
extent of the delay, the reasons for it, the prejudice
to the defendant, and the defendant’s contribution
to the delay.
Sua Sponte Power of Court A court with
jurisdiction to decide criminal matters can sua
sponte dismiss a criminal prosecution with prejudice
if the facts of the case clearly established
that an accused has been deprived of his or her
constitutional right to a speedy trial.
Dismissal without Prejudice A dismissal
without prejudice that permits the reindictment
or retrial of a defendant on the same charge at a
subsequent date may be granted by a court acting
sua sponte or after the prosecuting attorney has
made a motion to do so. Only nonconstitutional
grounds that do not adversely affect the rights of
the defendant, such as the crowding of court calendars,
might be sufficient to warrant the dismissal
of a criminal action without prejudice.
FURTHER READINGS
Cohen, Alan G., ed., et al. 1992. The Living Law: A Guide to
Modern Legal Research. Rochester, N.Y.: Lawyers Cooperative.
Kraut, Jayson, et al. 1983. American Jurisprudence. Rochester,
N.Y.: Lawyers Cooperative.
CROSS-REFERENCES
Civil Action; Criminal Procedure; Discovery; Double Jeopardy.
