• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Dismissed Without Prejudice

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

kcamsoma

Junior Member
What is the name of your state?

California.

In a Limited Civil Case, the Plaintiffs case was "Dismissed Without Prejudice" by the Judge because the Attorney did not show up for mediation, or to any of the two subsequent hearings. In other words "Failure to Prosecute".

My question is:

1.) Would this be considered a Voluntary Dismissal or a Non-voluntary Dismissal?

2.) Is there a Statute of Limitations (SOL) for them to refile?

3.) At what point, if any, should a motion be file to "Dismiss With Prejudice"?

Thanks.

Kcam
 


S

seniorjudge

Guest
1.) Would this be considered a Voluntary Dismissal or a Non-voluntary Dismissal?

A: For whatever it is worth, I would call it a non-voluntary dismissal but why do you care about the terminology?


2.) Is there a Statute of Limitations (SOL) for them to refile?

A: Yes, the same SOL that was running before they filed.


3.) At what point, if any, should a motion be file to "Dismiss With Prejudice"?

A: There is no case for a motion to be filed in.
 

kcamsoma

Junior Member
Senior,

Thanks for the reply.

The reason for the concern for the terminology is because:

I was under the impression that a voluntary dismissal, which is not appealable because it is not a final judgment, therefore must be refiled. Whereas, an involuntary judgment adjudicates the case, and must be appealed within the time frame allowable by the court.

The Judge dismissed the case for failure to prosecute, and stated that maybe this will get the attorney's attention, and that he will allow the attorney to explain why he did not appear at mediation and at the last hearing, which the Judge specifically ordered the attorney to appear.

For what it's worth I thought this was also an involuntary dismissal, however, without prejudice was circled instead of with prejudice, which lead to me asking question #3. The timeframe for appeals has expired, however, there is still time left before the SOL expires.

Just curious.

Thanks.

Kcam
 

badapple40

Senior Member
There may be a savings statute that would extend the SOL by a year in California. I'd check that out. It typically only applies where the dismissal comes after the original SOL has run out, and allows for re-filing within one year
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top