The availability of a dismissal without prejudice, whether it emanates from the judge or from the plaintiff, varies between jurisdictions, and may have a limitation built in (eg. a year extension only to re-file the same litigation).
It is often used to "reboot" an action where, at trial, has not started well and the cause of action lost if left to a decision on its merits under the circumstances. Where the procedure is available, it may be invoked by a plaintiff when a serious problem arises during the presentation of his case such as, for example, a proposed and essential expert witness not being qualified to testify.1
A court may allow a dismissal without prejudice subject to limitations in either scope or time. For example, taken from Canadian cases:
- "... dismissed without prejudice to filing for further or even similar relief if such circumstances warrant.
- "... dismissed without prejudice to the plaintiff seeking a further amendment in this regard that is not contrary to the Rules.
- "The motion for an extension of time to file the Applicant's Record is dismissed without prejudice to the applicant's right to bring a further motion for an extension.
- "The motion will be dismissed without prejudice to reapply on better evidence.
- "All other motions are dismissed without prejudice to the rights of the parties to bring them on again in the proper manner."
Justice Schall of the United States Court of Appeals (Federal Circuit) wrote the opinion of the court in 2002 case Graves v. Principi:
"A dismissal without prejudice is a dismissal that occurs without an adjudication on the merits. The dismissal of an action without prejudice leaves the parties as though the action had never been brought.... A voluntary dismissal without prejudice leaves the situation as if the action never had been filed."
In his North Carolina Law review article, John Huske wrote:
"The voluntary dismissal without prejudice is one of the most powerful litigation tools available to a plaintiff's attorney. It allows plaintiff's counsel to take a voluntary dismissal, regardless of opposition from the defense or the court, at any time before he rests his case by simply giving oral notice of a voluntary dismissal without prejudice in open court. This escape mechanism allows a plaintiff to cure not only defects which were not apparent until trial, but also to have a test run at presenting his case. The voluntary dismissal without prejudice has been utilized more than any other procedural device to save a failing lawsuit and
allow a plaintiff to start over with a clean slate.
"Considering the power the voluntary dismissal rule places in the hands of plaintiffs' attorneys, its frequent abuse is not surprising. These abusive tactics include the following: (1) pursuing one-time jury and judge shopping; (2) avoiding dismissal for violation of discovery and other court orders; and (3) avoiding summary judgment ... dismissals, and judgment on the pleadings."2
Generally, and subject to statutory adjustments, a trial judge has the authority, the inherent jurisdiction
, to dismiss an action without prejudice if in his or her opinion an adverse judgment with prejudice would defeat justice. The trial court's authority to order an involuntary dismissal without prejudice is therefore exercised in the broad discretion of the trial court and the ruling will not be disturbed on appeal in the absence of a showing of abuse of discretion.3
In Bolten v General Motors Corporation, Chief Justice Major of the United States Court of Appeals (7th Circuit) adopted these words:
"The rule has long prevailed in both law and equity that a plaintiff may dismiss his case without prejudice only by payment of the costs and when the defendant will not be subjected thereby to some plain legal prejudice beyond the incidental annoyance (as distinguished from prejudice) of a second litigation upon the same subject matter....
"Upon a plaintiff's motion to dismiss without prejudice the equities of the plaintiff are not a subject for consideration under the rule. The terms and conditions which the court may impose are for the protection of the rights of the defendant."