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Dismissed without prejudice.

Discussion in 'Small Claims & Municipal Court' started by Smartmom, Nov 3, 2017.

  1. Smartmom

    Smartmom Law Topic Starter New Member

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    Jurisdiction:
    Idaho
    I filed a small claims case and it was dismissed without prejudice. I need to know how to proceed with my case. Do I need to refile the case or is there something that I can do to reopen the case and if so what forms are needed?
     
  2. Highwayman

    Highwayman Well-Known Member

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    The case was dismissed, so you can't "re-open" it.

    Why was it dismissed? You probably messed up somewhere and need to correct your mistakes before you can try again.
     
  3. adjusterjack

    adjusterjack Super Moderator

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    Same question.

    Why was it dismissed?
     
  4. mightymoose

    mightymoose Moderator

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    "Without prejudice" pretty much tells you the door is still open to take action. You are free to try again, but apparently you need to do something different.
     
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  5. zddoodah

    zddoodah Well-Known Member

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    You've told us precisely nothing about the case, except that it was dismissed without prejudice. You didn't even tell us why it was dismissed.

    We have no conceivable way of knowing unless you want to provide relevant facts.
     
  6. Smartmom

    Smartmom Law Topic Starter New Member

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  7. Smartmom

    Smartmom Law Topic Starter New Member

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    Unfortunately I wasn't able to attend that particular day due to unforeseen circumstances. I filed a motion to continue however it was just a week prior to the actual court date. I am simply trying to determine how to proceed whether it be to file a motion to set aside a dismissal. As I mentioned in my post it was dismissed without prejudice.
     
  8. army judge

    army judge Super Moderator

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    Read your state's rules of civil procedure regarding dismissals, and if you wish tell us WHY the case was dismissed.

    I've appended a link to a manual published by your state's court on small claims cases, a "how to", if you will.


    Idaho Rules of Civil Procedure Rule 41. Dismissal of Actions.

    (a) Voluntary Dismissal.

    (1) By the Plaintiff.

    (A) Without a Court Order. Subject to Rules 73, and 77(e) and any applicable statute, the plaintiff may dismiss an action without a court order by filing:

    (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or

    (ii) a stipulation of dismissal signed by all parties who have appeared.

    (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any state or federal court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

    (2) By Court Order; Effect. Except as provided in subsection (a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this subsection (2) is without prejudice.

    (b) Involuntary Dismissal; Effect.

    (1) Failure to Prosecute or Comply With Rules. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.

    (2) Dismissal in Court Trial. In an action tried without a jury, after presentation of plaintiff's evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court must make findings as provided in Rule 52.

    (3) Effect of Dismissal. Unless the dismissal order states otherwise, a dismissal under this subsection (b) and any dismissal not under this rule, except one for lack of jurisdiction or failure to join a party under Rule 19, operates as an adjudication on the merits.

    (c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim. This rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimant’s voluntary dismissal under Rule 41(a)(1)(A)(i) must be made:

    (1) before a responsive pleading is served; or

    (2) if there is no responsive pleading, before evidence is introduced at a hearing or trial.

    (d) Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court:

    (1) may order the plaintiff to pay all or part of the costs of that previous action; and

    (2) may stay the proceedings until the plaintiff has complied.

    (e) Dismissal of Inactive Cases. Any action, appeal or proceeding, except for guardianships, conservatorships, and probate proceedings, in which no action has been taken for a period of 90 days may be dismissed unless there is a showing of good cause for retention.

    (1) Dismissal pursuant to this rule is with prejudice in the case of appeals and without prejudice as to all other matters.

    (2) At least 14 days prior to such dismissal, the clerk must give notice of the pending dismissal to all parties or their attorneys of record.

    I.R.C.P. 41. Dismissal of Actions | Supreme Court


    ID Courts Manual on Small Claims Cases:

    https://isc.idaho.gov/links/clerkman/8.0 Small Claims.pdf
     
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  9. mightymoose

    mightymoose Moderator

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    It sounds like the dismissal was due to failure to apoear and failure to file the request for continuance timely.
    You essentially need to start over from the beginning. Start fresh.
     
  10. zddoodah

    zddoodah Well-Known Member

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    Ok, that's at least something to go on. You filed the case but then didn't show up, so the court dismissed it without prejudice. Happens all the time. You can either seek to have the dismissal vacated (IRCP 60) or file again from scratch. One caveat: I have no idea if the IRCP apply to small claims case or if there are different small claims rules, etc.
     
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