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How Do I Ask to Dismiss a Case Without Prejudice?

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Courts may be asked to dismiss, or cancel, a case. Usually this is done by the person who started the case, but it may be requested by the defendant if he or she countersued.

The court may dismiss the case: 

  • “With prejudice.”  This is when a court ends a case and will not allow any other suit to be filed on the same claim in the future. 
  • “Without prejudice.”  This is when a court closes a case but will allow other suits to be filed on the same claim (if the statute of limitations Opens new window has not run out).

 
Making a motion to dismiss a case “without prejudice”

Some reasons to dismiss a case without prejudice include: 

  • The case is partially settled and the plaintiff agrees to drop it in exchange for a total settlement. But the plaintiff will file a new claim in court if the defendant does not keep their agreement. 
  • The defendant agrees to make payments so the plaintiff does not have to take them to court now. But the plaintiff will file a new claim in court if the defendant does not keep their agreement. 
  • The plaintiff is not ready to go to court because he or she has not been able to serve the defendant. But the plaintiff will file a new claim in court if he or she finds the defendant.

Caution:  Keep in mind the Statutes of Limitations for your type of case.  If you may run out of time to re-file before the defendant(s) makes the payments, do not have your case dismissed at all.  Continue with your case if you can.

If you DO settle your dispute, write down what was agreed to.  Include:
  • The names and addresses of the two people,
  • A brief description of the “what,” “when” and “where” of the dispute that has been resolved,
  • A statement of what the person giving up a claim is getting in return,
  • The date the agreement is being signed, and
  • The signatures of everyone involved.
Make sure everyone has a copy of the agreement, and keep your copy of the agreement in a safe place.



To ask the court to dismiss the case without prejudice

At least 5 days before your hearing date:

Step 1. Get and fill in your court forms.

To dismiss a case without prejudice, use:

  •  Request for Dismissal (Form CIV-110) Opens new window

At the same time, get a copy of the:

  • Notice of Entry of Dismissal and Proof of Service (CIV-120) Opens new window
For the Request for Dismissal (Form CIV-110):
  • In the Request for Dismissal box, check ? Other and write in Small Claims case.
  • In No. 1 -- “TO THE CLERK: Please dismiss this action as follows:”
    • Check a. (2) Without prejudice
    • Check b. (2) if you are the plaintiff.
    • Check b. (3) if you are the defendant and filed a cross-complaint. Fill in your name and the date you filed the cross-complaint.
    • Write the date you are filling out the form.
    • Print your name, and sign the line for (signature).
  • In No. 2 -- “TO THE CLERK: Consent to the above dismissal is hereby given:”
    • Leave blank if you are the plaintiff.
    • Fill in if you are the defendant, you filed a counter-claim and are agreeing to the dismissal of both your claim and theirs.
  • The clerk will fill in the bottom potion of the form.

 

For the Notice of Entry of Dismissal and Proof of Service (Form CIV-120):

Fill in the top section.
Do not fill in the Proof of Service section.


Make copies of Form CIV-110 – 1 copy for your files and one copy for each of the other parties in the case who have been servedOpens new window (The court will keep the original.)


Step 2. File Opens new window the Forms CIV-110 and CIV-120.

Mail or take the Forms CIV-110 and CIV-120 to the courthouse. A clerk will put the originals in the case file, then stamp the photocopies and return them to the person doing the filing. (If you file your papers by mail, include a self-addressed, stamped envelope so the court can mail the copies back to you.) 

IMPORTANT: If the Plaintiff’s Claim and Order to go to Small Claims Court (Form SC-100) has been served Opens new window on the defendant (or if a defendant has filed a counter-claim), then follow Steps 4 and 5.

If the defendant has not been served with the Plaintiff’s Claim, then you do not have to send him or her a copy of your request to dismiss the case.


Step 3. Inform the other side.
(service of processOpens new window

  • Attach a filed (stamped) copy of Form CIV-110 to a Form CIV-120 
  • Have an adult, other than you, mail a copy of the two forms to each person or business involved in the case.


Step 4. Inform the court that the copies were mailed.
(proof of service) Opens new window

  • Have your server complete the “Proof of Service” section at the bottom of the original
    CIV-120 form.
  • Either you or your server may mail or take the completed Proof of Service (on Form
    CIV-120) to the court clerk for filing. 

    •  If you file your form by mail, include a self-addressed, stamped envelope so the court can mail a copy back to you.


Or, at your court hearing you may ask the court to dismiss your case without prejudice.  However, it is recommended that you don’t wait until the hearing, if you don’t have to.


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