What Is a Nonsuit Without Prejudice?

George Simons

May 07, 2021

Make the right defense and debt collectors might give up.

Summary: When you respond to a debt collection lawsuit, you might receive notice your case is a nonsuit without prejudice. Find out what that means and if you might still be on the hook for the debt.

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 a Nonsuit 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.

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

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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.

In a federal court, the law provides narrower options for the plaintiff to dismiss a case voluntarily. 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 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 rules" 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 rules 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.

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 the 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.

How Do I Refile My 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.

Pitfalls of the Six Months Savings Period When Refiling a Claim

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.

What is SoloSuit?

SoloSuit makes it easy to respond to a debt collection lawsuit.

How it works: SoloSuit is a step-by-step web-app that asks you all the necessary questions to complete your answer. Upon completion, you can either print the completed forms and mail in the hard copies to the courts or you can pay SoloSuit to file it for you and to have an attorney review the document.

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"First time getting sued by a debt collector and I was searching all over YouTube and ran across SoloSuit, so I decided to buy their services with their attorney reviewed documentation which cost extra but it was well worth it! SoloSuit sent the documentation to the parties and to the court which saved me time from having to go to court and in a few weeks the case got dismissed!" – James


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