Published by As an attorney with a Master of Laws degree who has guided business owners through litigation for over 9 years, I regularly explain dismissal terminology to confused clients.
The phrases "with prejudice" and "without prejudice" sound like they involve bias or discrimination—but they don't. In legal terms, "prejudice" refers to the loss of certain rights or privileges, not unfair treatment.
A dismissal with prejudice permanently closes the case. A dismissal without prejudice allows the plaintiff or prosecutor to refile charges later, subject to statute of limitations deadlines.
Why Do They Call It With and Without Prejudice?
"With prejudice" and "without prejudice" are formal legal terms for the different ways court cases get dismissed. Dismissing a case "because of prejudice" sounds like it got dismissed because of a judge's racism or other type of bias. This is not true.
In the legal world, a case is dismissed with prejudice when it is closed permanently. A case dismissed with prejudice is over and done with, and can't be brought back to court.
A case dismissed without prejudice means the opposite. It's not dismissed forever, and the person whose case it is can try again at some point in the future.
Related Article: What is a Civil Lawsuit?
Why Would a Case Be Dismissed Without Prejudice?
Judges often dismiss cases without prejudice to give the prosecution time to work on the case. This allows them to have another chance at securing a conviction at a later date. Other reasons a judge may dismiss a case without prejudice include:
- They don’t have subject matter jurisdiction
- They don’t have personal jurisdiction
- They are not the right venue to handle the case
What Is One Reason Prosecutors May Decide to Dismiss a Case?
The evidence must show that the defendant is guilty of the offense for which they are being prosecuted. For this reason, charges may be voluntarily dropped before trial if the prosecution determines there is inadequate evidence or proof of guilt to proceed with a case against the defendant.
How Long Can a Case Be Dismissed Without Prejudice?
The statute of limitations continues running after a dismissal without prejudice. In federal court, the dismissed lawsuit is treated for statute of limitations purposes as if it had never been filed. This means the original filing does not stop the clock.
The prosecutor or plaintiff must refile charges before the applicable statute of limitations expires. The time during which the original case was pending (from filing to dismissal) generally does not count against the statute of limitations, but any time that elapsed before the original filing and after the dismissal does count.
Statute of limitations periods vary significantly:
- Misdemeanors: Typically 1-2 years in most states
- Felonies: 3-6 years depending on the offense
- Murder: No statute of limitations in most jurisdictions
- Civil personal injury: Usually 2-3 years
Some states have "savings statutes" that provide a grace period for refiling after dismissal. For example, Missouri permits an action dismissed without prejudice to be refiled within one year, and Ohio allows a party to refile within one year of dismissal. However, these vary by state, and plaintiffs should never assume they have extra time.
If the statute of limitations expires before refiling, the case becomes permanently barred—even though the original dismissal was "without prejudice."
Is a Dismissal Without Prejudice the Same as Double Jeopardy?
No. Double jeopardy is the concept of someone being tried twice for the same crime. The U.S. Constitution specifically prohibits that. However, being dismissed without prejudice and then recharged is not double jeopardy.
The key is that the person would have to go through the court case and end up with a conviction, acquittal, or dismissal after the court case has begun to be considered as having been tried once. A dismissal without prejudice happens before the court trial takes place, so technically, the defendant hasn't been tried once yet.
Double jeopardy attaches at specific points:
- Jury trial: When the jury is empaneled and sworn
- Bench trial: When the first witness is sworn
- Guilty plea: When the court accepts the plea
If a case is dismissed before these points, double jeopardy does not apply, and the prosecution may refile charges.
What’s the Difference Between a Protected Conversation and Without Prejudice?
In legal terms, the without prejudice rule only applies if there’s a dispute. This can be unhelpful. Sometimes an employer and employee may want to discuss bringing the employment to an end, even if there’s no dispute.
That’s why the law changed to allow employers and employees to have an “off the record” conversation, even when there’s no dispute. This is known as a “protected conversation”. In most cases, a protected conversation has the same legal effect as a without prejudice discussion.
What Causes a Case to Be Dismissed With Prejudice?
Courts dismiss cases with prejudice when there is no valid reason to allow refiling. Common grounds include:
Constitutional violations: If law enforcement or prosecutors violate your basic rights during a criminal investigation or trial, the court may see dismissal with prejudice as the only fair solution. Examples include illegal searches without a warrant, questioning without Miranda rights, or denying access to a lawyer.
Prosecutorial misconduct: When prosecutors hide evidence, make improper statements, or engage in other unethical conduct, judges may dismiss the case permanently to send a message that such behavior will not be tolerated.
Repeated procedural failures: If the prosecution misses important deadlines multiple times, ignores court orders, or repeatedly shows up to court unprepared, the judge can view this as an abuse of the court's time and resources.
Successful completion of diversion programs: A frequent reason for dismissal with prejudice is if the defendant enters and successfully completes a diversion program.
Res judicata (claim preclusion): Once a case is dismissed with prejudice, it operates as an adjudication on the merits. The doctrine of res judicata prevents the same claims from being relitigated.
FAQs
1. How Does a Dismissal Without Prejudice Differ From a Dismissal With Prejudice?
A dismissal without prejudice allows a plaintiff to refile the case, while a dismissal with prejudice bars any future claims on the same matter, concluding the case permanently.
2. What Steps Should a Plaintiff Take After Their Case Is Dismissed Without Prejudice?
The plaintiff should review the court’s reasons for dismissal, address any issues, and refile the case within the statute of limitations, ensuring compliance with any procedural requirements.
3. How Does a Dismissal Without Prejudice Impact the Statute of Limitations for a Case?
A dismissal without prejudice generally tolls the statute of limitations, allowing the plaintiff to refile the case within the original time frame as if the case had never been dismissed.
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