Dismissal with prejudice vs. Dismissal without prejudice

Whats the difference between a dismissal with prejudice and a dismissal without prejudice?  

Depending on the circumstances and the specific details of the case at hand, there is a big difference between  a dismissal without prejudice and a dismissal with prejudice.  A dismissal without prejudice, sometimes referred to as a DWOP, means that the plaintiff can re-file the lawsuit within the applicable statute of limitations, or within six months from the date of dismissal in the event the statute would run during that time frame.  On the contrary, a dismissal with prejudice means that the cause of action, or lawsuit, is closed for good.  Once a dismissal with prejudice is entered, the case can never be brought again.

During the course of litigation of a collection action, it is not unusual to have a plaintiff who wishes to dismiss the case.  Of course, the plaintiff would always prefer to dismiss without prejudice so that they have the option of bringing the case back should they desire.  However, there may be times when the plaintiff can be persuaded to dismiss without prejudice which should give the defendant some peace of mind and closure.  Nobody wants to leave court thinking that they are still under the gun for a debt or subject to being served with process yet again.

Unfortunately, there is often confusion as to what kind of dismissal is taking place.  We often hear from clients who thought the matter was closed for good or who paid other attorneys only to find themselves back in the same position as when they started.  For other folks, the dismissal without prejudice may work just fine and they may never have the collector of that debt darken their doors again.

As I mentioned, there are many reasons that a plaintiff may dismiss.  Depending on how strong the plaintiff’s documentation is, or whether or not they have witnesses readily available, they may dismiss to allow themselves more time to prepare the matter for trial or litigation.  The plaintiff may also choose to dismiss in one court and to file in a different court for other tactical reasons.  What is really most important is that the defendant knows what type of dismissal is being entered so that he or she can remain vigilant and prepared.

Finally, it should be noted that once dismissed without prejudice, the matter can only be filed one more time.  If the plaintiff dismisses the matter a second time, even if it states that it is being done without prejudice, the matter will be forever closed.  The plaintiff cannot bring the case back for a third time and the defendant should be aware of this fact to protect himself in the event this is the case.  This is a very rare situation, but it is certainly something to watch out for.