A Non-Suit in a Nutshell

5/30/2022

A nonsuit is a legal term which refers to the dismissal of a lawsuit. There are two types of nonsuits: voluntary and involuntary. A voluntary nonsuit refers to when the plaintiff chooses to willingly discontinue the case. Conversely, an involuntary nonsuit refers to a court’s dismissal of a lawsuit on a motion to dismiss or other legal grounds sufficient for the court to dismiss the case.

A Nonsuit “With Prejudice” Versus a nonsuit “Without Prejudice”

Not understanding the difference in a nonsuit with prejudice and without prejudice could have serious consequences. When the court dismisses a lawsuit with prejudice, that is the end of the case and all claims involved for all parties involved. The plaintiff can not bring another action based on the same claims in court and may not appeal the decision to a higher court.

In contract, when a plaintiff takes a nonsuit without prejudice, this basically refers to the plaintiff dismissing the case for a short period with the intent to refile, so long as done with the statute of limitations.

Limitations on when the Plaintiff May Take a Nonsuit Without prejudice

Unlike a nonsuit with prejudice which can be taken at any time, a nonsuit without prejudice has procedural limitations. A majority of state courts allow a plaintiff one involuntary dismissal. Plaintiff must give notice of the dismissal either in writing or orally in court and notice must begiven prior to: the jury retiring; the judge sustaining a motion to strike evidence; and the case is before the court for decision.

In federal court, a plaintiff may only voluntarily dismiss a claim by giving notice of the voluntary dismissal prior to the defendant filing an answer or counterclaim. The plaintiff must request that the court voluntarily dismiss before the opposing party files for summary judgment. Notwithstanding these two procedural requirements, a plaintiff may still dismiss the suit afterwards with court permission and a signed agreement between the plaintiff and the defendant.

Additionally, a class action in which the court has certified the class, cuts off the plaintiff’s right to take a voluntary nonsuit as does a class certified for the purposes of settlement. Specifically, Fed. R. Civ. P. 23(e), provides that “[t]he claims, issues, or defenses of a certified class—or a class proposed to be certified for purposes of settlement—may be settled, voluntarily dismissed, or compromised only with the court's approval.” Id. (emphasis added). Finally, pursuant to Fed. R. Civ. P. 66, when a receiver has been appointed, the action may be dismissed only by court order.

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