Nonsuit vs Dismissal in a Debt Collection Lawsuit

Chloe Meltzer

December 01, 2021

Summary: What is the difference between a dismissal and a notice of nonsuit? Find out what each means for you.

If you are involved in a debt collection lawsuit then you may have heard a lot of different legal terms thrown around. It can be stressful and extremely confusing, especially if you are not using a lawyer.

Although hiring a lawyer can prove to be helpful for your defense, it is not always an affordable solution for everyone. Should you be representing yourself in a debt collection lawsuit, then you need to be aware of what could happen, and what all the different legal terms actually mean for you and your case.

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Understanding a dismissal

When it comes to a case being dismissed, it can be done "with prejudice" or "without prejudice." These are terms that explain how the case can be dismissed. When a case is dismissed because of prejudice, it means that it will be permanently dismissed. It means that the case is done and cannot legally be brought back into a courtroom.

When a case is dismissed without prejudice, it means that it can be brought back into the courtroom. Whoever is a part of the case can reopen it, and bring it to court again. Cases can also be dismissed voluntarily by whoever filed the case originally. Despite this, they can be dismissed involuntarily by a judge.

For example, if you wish to file a small claims case, you could voluntarily dismiss your case with or without prejudice. If you were to dismiss it with prejudice, then you would not need to go back to court if you have won or been paid. Although, if you decided you wanted to continue and move the case to a normal court versus small claims, then you could dismiss the small claims case without prejudice. Then, you could bring the case to the regular court.

Your case could actually be brought to small claims and back to a regular court, over and over again. It can quite literally go back and forth as long as it is considered to be without prejudice. This might be a good or a bad situation for you depending on your case.

If a judge were to dismiss your case involuntarily it means that it goes against the wishes of one party. It is only considered involuntary when the judge decides the case can't go forward because of a legal reason. At this point, it can be considered dismissed with or without prejudice, but typically this is done without prejudice.

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Understanding a notice of nonsuit

Nonsuits are voluntary withdrawals or dismissals of lawsuits by the party who filed them. This allows that party to bring on a second suit. The result is a termination of the case without prejudice. This means that the other party may be able to bring the case back to court. It is essentially a judgment given against a plaintiff where the court dismisses the case. This is typical because the plaintiff was either unable to make a proper reason for the case, or is unwilling to continue it. Nonsuits can be voluntary or involuntary.

The Federal Rules of Civil Procedure (FRCP) contain guidelines for motions of nonsuit. There are situations where a plaintiff may file motions to dismiss their case. This can be standalone or with a court order. Unless the order is stated, these orders are without prejudice.

In many states, the plaintiff in civil litigation is given one “free” nonsuit. This means that the court must grant a nonsuit regardless of the reason why. There is no necessary explanation, but it can be done. This may vary from state to state.

There is a situation when there is an unconditional right to nonsuit. This only exists if the defendant has filed a counterclaim from the same transaction as the plaintiff's claim. In this case, the counterclaimant must agree with the nonsuit.

When a plaintiff has the right to a nonsuit, it means that they can opt to drop the case at any time. Regardless of if both sides have spent a lot of effort, time, and even money on the litigation of the case. This can be frustrating for one party, especially if it has been multiple years of litigation. Essentially, if a plaintiff doesn't like the way the trial is heading, they can declare a nonsuit. This will end the proceeding until the case is refiled.

There are three main situations where a nonsuit is considered “late”:

  1. After a “motion to strike the evidence”: This is a motion for a judgment as a matter of law. Once this has been granted the nonsuit would be considered too late.
  2. After the jury “retires from the bar”: This is when the jury has been told that the case has commenced and they leave the courtroom.
  3. After the case has been submitted to the judge for a final decision: This may be due to the case facts, or based on a dispositive motion.

Understanding your situation

It can be difficult to know what to do if you are in a situation where a nonsuit occurs, but a dismissal can also be a bad situation. Especially if you have spent time and money on your case. Despite this, understanding the difference between the two will be your best bet in hopes to take the best next steps.

If you are working on a case and do not have a lawyer involved, be sure to educate yourself the best that you can, because this will give you the best chance at a positive outcome.

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