Dismissal without Prejudice

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When a court dismisses a claim but leaves the plaintiff free to bring a subsequent suit based on the same grounds as the dismissed claim. In Semtek Intern. Inc. v. Lockheed Martin Corp., the Supreme Court pointed out that one of the main features of dismissal without prejudice is that it does not prevent refiling of the claim in the same court. Contrast with dismissal with prejudice. Under Federal Rules of Civil Procedure Rule 41(b), the default rule is that a dismissal, except in the case of voluntary dismissal by the Plaintiff (Rule 41(a)), is considered an “adjudication on the merits,” and therefore with prejudice. Ash v. Cvetkov illustrates too that, generally in the federal court system, District Courts possess discretion in determining whether to dismiss with or without prejudice.

District Courts may opt to dismiss without prejudice for a variety of reasons. A court may allow a plaintiff to voluntarily withdraw from the suit through a Rule 41(a) dismissal without prejudice if the plaintiff would suffer hardship from continuing the suit. Also, under Rule 37(b)(2), a court may dismiss without prejudice to sanction a party acting in bad faith. For example, in U.S. v. National Broadcasting Co., Inc., a California District Court employed Rule 37(b)(2) to dismiss a government anti-trust complaint without prejudice because the government failed to comply with the Court’s orders, but the government’s failure to comply did not prejudice the defendant.

[Last updated in November of 2020 by the Wex Definitions Team]