What Is a Nonsuit Without Prejudice?

Editor at SoloSuit
Hannah Locklear, BA

Hannah Locklear is SoloSuit’s Marketing and Impact Manager. With an educational background in Linguistics, Spanish, and International Development from Brigham Young University, Hannah has also worked as a legal support specialist for several years.

Edited by Hannah Locklear

Summary: A nonsuit without prejudice is a legal ruling in which a case is dismissed, but the same claim can be refiled by the plaintiff (the person or company who initiated a lawsuit), if they so desire. A plaintiff can voluntarily dismiss a case without prejudice, or the court can make the ruling. Either way, “without prejudice” means that the same claim can be brought to court again in the future.

What does nonsuit mean?

Well, a nonsuit refers to a legal action to dismiss a lawsuit. This dismissal can be voluntary or involuntary. A voluntary nonsuit refers to when the plaintiff (the individual who filed the case) willingly discontinues the case.

An involuntary nonsuit describes an action by the court to dismiss a lawsuit if the court finds reasons to dismiss the case either through a motion of dismissal filed by the defendant or when it is not up to legal standards.

What is the difference between a nonsuit with prejudice and without prejudice?

When a court dismisses a lawsuit with prejudice, it marks the end of that claim for both the plaintiff and defendant. The plaintiff can neither bring the case back to the court nor take it to a higher court.

On the other hand, a nonsuit without prejudice refers to temporarily dismissing a lawsuit by the plaintiff. The plaintiff may dismiss the claim to amend the claims or settle the matter outside the court. If need be, the plaintiff may refile the lawsuit provided this is done within the statute of limitations. When this happens, they must send a notice of nonsuit without prejudice to the opposing party.

Nonsuits can be complicated. Before you dismiss a case without prejudice, you must conduct extensive research on the possible drawbacks and repercussions.

Let’s take a look at an example.

Example: Kyle is being sued by a debt collector. He uses SoloSuit to draft and file an Answer to the lawsuit. In his Answer, Kyle denies most of the claims and asserts his affirmative defenses. A few weeks later, he finds out that the debt collector has voluntarily dismissed the case with prejudice, meaning the case is permanently closed and signed by a court order for nonsuit.

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When can I take a nonsuit without prejudice?

You can dismiss a lawsuit with prejudice anytime, permanently ending your case. For a nonsuit without prejudice, the situation requires precision because you don't want to end the lawsuit; you want to postpone the case.

Most state courts in the United States allow plaintiffs to dismiss a lawsuit for the first time voluntarily. You have to give the notice of dismissal before:

The jury retires
The judge sustains a motion to strike evidence
The case reaches the court for decision

You may also take a nonsuit orally in court. The oral dismissal is best suited for when the case presentation faces many challenges.

According to US Federal Rules of Procedure, Rule 41(1)(A) states:

“The plaintiff may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared.”

In other words, the law provides less options for the plaintiff to dismiss a case voluntarily in federal court without an order.

Firstly, you can only discharge a claim by giving a unilateral notice of voluntary dismissal before the defendant files an answer or counterclaim.

Secondly, you have to request the court for a voluntary dismissal before the opposing party files a motion for summary judgment. However, you may still voluntarily dismiss the claim even after the two scenarios but will require the court's permission or a signed agreement between you and the defendant's side.

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How does an involuntary nonsuit work?

US Rules of Civil Procedure Rule 41(2)(b) states:

“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.”

So, an involuntary dismissal (also known as an involuntary nonsuit) occurs when the court decides to dismiss the case due to errors or lack of action on the plaintiff’s part.

How many nonsuits without prejudice can I take?

In a state court, you are only allowed to dismiss a lawsuit once voluntarily. However, you may receive more than one nonsuit request provided both you and the defendant agree on the dismissal. The state courts do not specify the maximum number of nonsuits you may take under such an agreement.

In a federal court, voluntary claim dismissal is a bit complicated. You need to understand the "two dismissal rule" carefully. Otherwise, you may end up permanently dismissing your case. You do not want to risk dismissing your claim with prejudice due to misunderstanding the law.

You may voluntarily dismiss a claim in a federal court by:

Giving a dismissal action notice before the opposing party answers your claim or files a motion of summary judgment
A signed agreement between you and the defendant

If you previously took a nonsuit for the same claim, the federal court may grant the case's dismissal based on adjudication on the merits. Adjudication on the merits means that the court has considered all provided evidence and legal submissions before deciding to dismiss the lawsuit.

Besides, if you had dismissed another claim before, the adjudication on the merits rule may apply. The two dismissal rule may prompt the federal court to close your case permanently.

It does not matter if your previous dismissal was of a different claim; the fact that you have dismissed another lawsuit in the past could result in your claim being dismissed with prejudice.

Let’s fact check, shall we?

Regarding voluntary dismissals, US Federal Rules of Civil Procedure Rule 41(1)(B) states:

“Unless [a] notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.”

So, there's no limit to how many times you can voluntarily dismiss the claim if the two dismissal rule doesn't apply to your lawsuit. For example, if you and the defendant agree to dismiss the case without prejudice the second time.

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Can I take a nonsuit without prejudice for parts of a claim?

No. It would be best if you voluntarily dismissed the entire lawsuit against the defendant. Instead of dismissing parts of the claim, amend the requests to remove the dismissible parts and start a new case.

How do I refile a claim after a nonsuit without prejudice?

First, you have to ensure you refile your claim within the statute of limitations. Your refiled claim is only valid in both state and federal courts when filed within the stipulated time frame.

Secondly, you may encounter setbacks while refiling your claim if your opponent files a counterclaim. The compulsory counterclaim rule provides that you don't take a nonsuit or voluntarily dismiss a case if a defendant has filed a counter lawsuit of any kind against you.

In a state court, the setbacks might be insignificant. However, in a federal court, it could threaten your chance to refile your case. For instance, if you voluntarily dismiss a case that has a counterclaim in a federal court, the court does not discontinue the counterclaim. You end up becoming the defendant, and if your opponent wins, the case is closed, you lose the chance to refile a claim, and you pay the damages.

Using the six-month saving period, you can refile your case in court. The savings statute enables you to refile your claim within six months after the statute of limitations expires. But the six-month savings period comes with several pitfalls.

The six-months savings period to refile a claims has some pitfalls

There are certain pitfalls associated with the six-month savings period. In state courts, the six months are counted soon after the judge signs the dismissal order. In a federal court, the period is calculated from the date the clerk enters the signed order. To beat the deadline, always count the six months from the date of the dismissal notice.

You cannot refile a claim if it falls under the Federal Tort Claims Act under the savings statute.

Causes of action that require pre-suit notice may be subject to the savings statute in some states but not others. For instance, in some states, medical malpractice claims cannot be refiled once dismissed.

The six-month savings period is only offered once. Even if you refile claims consecutively, the six months are counted from the first dismissal date.

That being said, keep in mind that laws vary by state when it comes to voluntary dismissals and refiling.

Use SoloSuit to get your debt lawsuit dismissed

Being sued for a debt is the worst.

You can fight back without having to hire a lawyer, and the chances of having your case dismissed are usually pretty good, especially if your debt is past the statute of limitations or has been acquired by a debt collection agency.

Use SoloSuit to respond to your debt lawsuit and increase your chances of a dismissal by 7x. All you have to do is respond to a few questions online, and SoloSuit’s software will create an Answer document that is customized to your case. We’ll also file for you after having a licensed attorney review it.

Learn more about how to win your debt collection lawsuit in this video:

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