Checking Whether Voluntary Dismissal is Possible
1Read your Rules of Civil Procedure. Each court has rules of civil procedure which explain when you can dismiss a lawsuit voluntarily. You should find your relevant rule and read it. It will explain the situations when you can seek dismissal.
- If you are in federal court, then read Federal Rule 41. It is available online.
- If you are in state court, then find your state’s rules of civil procedure, which should be online. If you can’t find your state’s rules online, then check with a law library, which might be at your courthouse or at a nearby law school.
2Check whether the defendant has answered the lawsuit. According to the federal rule (and many state rules), you can only seek voluntary dismissal if the defendant hasn’t answered your lawsuit or filed a motion for summary judgment. Go through your papers and check if the defendant has answered the lawsuit in any way.
- A defendant can answer the lawsuit by filing an “answer” or a “motion to dismiss.”
3Come to an agreement with the defendant. If the defendant has answered your lawsuit, then you can still get a voluntary dismissal so long as the defendant agrees to dismiss the lawsuit. This is called a “stipulation.”
- You should contact the defendant and explain why you want to dismiss the case.
- Be careful with what you say. You shouldn’t say, “I want to dismiss the case because my evidence is weak.” However, if you settle the lawsuit, for example, then you can agree to dismiss the lawsuit as part of the settlement.
4Check if the defendant filed a counterclaim. You can still get a dismissal even if the defendant has answered your complaint and even if the defendant refuses to agree to dismiss the suit. In this situation, you need to file a motion and get the court’s approval. However, the defendant might have pled a counterclaim when he or she answered your complaint.
5Decide whether to dismiss “with prejudice.” If you dismiss a case “without prejudice,” then you can file it again at a later date. However, when a case is dismissed “with prejudice,” you cannot refile it later. You should seek a voluntary dismissal “with prejudice” only in the following circumstances:
- You have resolved the dispute. For example, someone might have owed you money. If he or she paid you in full, then you can dismiss the lawsuit “with prejudice.”
- You reached a settlement. As part of a settlement agreement, you will agree to release the defendant from further liability. Accordingly, you may agree to dismiss the case “with prejudice.”
- You sued the wrong person. You might realize that you named the wrong person as a defendant. You should be 100% sure that the person is not the right defendant before seeking to dismiss “with prejudice.”
6Pay attention to your statute of limitations. A “statute of limitation” tells you how much time you have to bring a lawsuit. Generally, the clock starts running from the date of the injury. For example, “breach of contract” is a cause of action which in California has a four-year statute of limitation (if the contract was written).
- The statute of limitations will differ depending on the cause of action and on your state.
- If you dismiss, remember that you have to refile before the statute of limitations period ends. If the period has already expired, then you won’t be able to refile. You should always pay attention to the statute of limitations period.
7Consult with an attorney if you have questions. This area of law is complicated. Each rule of civil procedure has wrinkles that you might not be aware of. For example, the federal rule states that if you seek voluntary dismissal for the same claim twice, then the second dismissal is “with prejudice” and you can’t refile. You should always talk to an attorney if you have questions.
- You can get a referral to an attorney by contacting your local or state bar association.
- Call the attorney and schedule a consultation. Ask ahead of time how much he or she charges.
Filing a Notice of Dismissal
1Find a notice of dismissal form. You can file a “notice of dismissal” if the defendant hasn’t answered or if the defendant agrees to dismiss the suit. Your court may have printed, “fill in the blank” forms you can use to seek voluntary dismissal. You can stop in and ask the court clerk or check the court’s website.
- You can’t file a “notice of dismissal” if the defendant has already answered your complaint and refuses to agree to the dismissal. In this situation, you need to file a “motion for dismissal” with the court.
2Format your document. If there is no form, then you will have to draft your own. Open a blank word processing document and set the font to a legible size and style. Times New Roman or Arial 14 point works for most people.
- Read your court’s local rules for more formatting requirements. You should have picked up these rules before filing your complaint. You can usually get them from the judge’s clerk. They are often posted on the court’s website as well.
Insert the caption information. At the top of the page, you should insert the caption. The caption contains the name of the court, the names of you and the defendant, and the case number. Check your complaint, which should have this information.
4Title the document. You should title it “Notice of Voluntary Dismissal Pursuant to [insert the relevant rule of civil procedure].” Make the title all caps, in bold, and center it between the left- and right-hand margins.
- For example, if you are seeking dismissal in federal court before the defendant has answered, then your title would read “Notice of Voluntary Dismissal Pursuant to F.R.C.P. 41(a)(1)(A)(i).” “F.R.C.P.” is the abbreviation for the Federal Rules of Civil Procedure.
- By contrast, if you are seeking dismissal in federal court after the defendant has answered—but the defendant has agreed to the dismissal—then your title would read “Notice of Voluntary Dismissal Pursuant to F.R.C.P. 41(a)(1)(A)(ii)” since this is the part of the rule that provides for the parties to agree to a dismissal.
5Add the body of the notice. The body of your notice can be simple. You should state what rule of civil procedure gives you the right to seek voluntary dismissal and also state whether the dismissal is “with prejudice” or “without prejudice.” You do not need to go into greater detail as to why you are seeking to dismiss the case.
- For example, sample language could read: “Pursuant to F.R.C.P. 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, the plaintiff Michelle Jones hereby gives notice that the above-captioned action is voluntarily dismissed, without prejudice against the defendant Acme Corporation.”
Sign and date the notice. If the defendants have to agree to the dismissal, then include signature lines for them as well and ask them to sign and date the Notice.
7Serve a copy on the defendant. You should mail or hand deliver a copy of the notice of dismissal to the defendant. Whoever serves the defendant may have to complete a “proof of service” form, which may be attached to the notice. If not, then you can get a proof of service form from the court clerk.
- You can’t make service. Whoever does make service should sign the proof of service and return it to you. Keep a copy for your records and file the original with the court.
File your notice. You should take the completed Notice of Voluntary Dismissal to the court clerk and file it. The clerk should stamp your copies with the filing date.
Filing a Motion for Dismissal
1Find a form. If the defendant has answered and won’t agree to dismiss the lawsuit, then you need a judge to grant a motion to dismiss the lawsuit. You will need to file a motion. Your court may have “fill in the blank” forms you can use. Check with the court clerk or look on the court’s website.
- You cannot use the “notice of dismissal” form. Instead, you are filing a motion for a judge to rule on.
2Format your own motion. Your court might not have a form you can use. In this situation, you will need to draft your own. Open a blank word processing document. Set the font to a comfortable size and style.
- Times New Roman or Arial 14-point font is standard.
3Insert the caption. Look at your complaint. At the top should be the following information: the name of the court, the names of the parties (you and whoever you sued as the “defendant”), and the case number. You need to put this information in your motion for voluntary dismissal.
4Add a title. You can title your motion “Motion for Voluntary Dismissal Without Prejudice” or “Motion for Voluntary Dismissal With Prejudice.” You can add the title right below the caption.
5Insert an introduction. You should introduce yourself and identify the rule of civil procedure that allows you to seek a judge’s order for a voluntary dismissal. If the defendant filed a counterclaim, then briefly explain why the judge should dismiss the counterclaim or why the counterclaim can stand on its own.
- Sample language could read: “Plaintiff, Michelle Jones, moves pursuant to Federal Rule of Civil Procedure 41(a)(2) for leave to dismiss its complaint and terminate this action for the reasons that the claims are moot. Plaintiff also moves, pursuant to rule 12(b)(6), to dismiss the counterclaim filed by Defendant on the grounds that it is not a proper counterclaim.”
6Provide background facts. The judge is looking for key information in order to decide whether to grant your motion. Make sure to include the following information in complete sentences under the heading “Factual Background”:
- The date you filed the lawsuit.
- The date the defendant answered the lawsuit and when you received the answer.
- Whether a hearing has been held.
7Explain why you want dismissal. Under the heading “Plaintiff’s Reasons for Seeking a Voluntary Dismissal,” you should explain why you want to dismiss the case. Go into sufficient detail so that the judge understands your reasoning.
- For example, you might want to bring suit in a different court that is more convenient. You might have sued in regular civil court but want to refile in small claims court. In this situation, you would want a voluntary dismissal “without prejudice” so that you can refile in the small claims court.
8Argue that the defendant will not be prejudiced. You don’t have an automatic right to get the case dismissed “without prejudice.” Instead, you have to convince the judge that dismissing the case will not prejudice the defendant. A court will generally look at four factors, so give a reason why all four work in your favor:
- How far along the case has progressed, including how much time and money the defendant has spent preparing for trial. If you are seeking dismissal shortly after the defendant answered, then you are more likely to get a dismissal “without prejudice.” For example: “Plaintiff has timely filed this motion for voluntary dismissal, as the action has been pending for only four weeks.”
- How diligently you have been pursuing your lawsuit. The lawsuit might have been pending for a year, which is not necessarily bad if you have been diligently working toward trial. If so, explain what you have done.
- How expensive it would be to pursue the lawsuit if it is refiled. If you filed your motion for dismissal early, then the defendant shouldn’t have spent much money defending the suit.
- How adequate your explanation is for seeking dismissal.
9Argue that the counterclaim doesn’t prevent dismissal. If the defendant didn’t file a counterclaim, then you don’t need this section. However, if there is a counterclaim, then you need to argue one of the following:
- The counterclaim isn’t valid to begin with and should be dismissed or struck. For example, the defendant might not have made a valid legal claim in your state.
- The counterclaim is valid and can stand on its own. This means that the defendant’s counterclaim doesn’t arise from the same transaction or occurrence as your lawsuit. For example, you may have sued the defendant for negligence for crashing into your garage. However, he may have countersued for a debt that you owe him. Because the debt doesn’t arise from the same occurrence (the crash) as your suit, you can argue that you are entitled to voluntary dismissal.
10Add a conclusion. Your conclusion can be brief. You can simply repeat your request: “Plaintiff asks that the action be dismissed without prejudice.”
- Underneath the conclusion, insert the words “Respectfully submitted” and then a signature block underneath. Sign your motion.
11Create a certificate of service. You need to tell the judge that you gave the defendant notice of your motion. On a separate sheet of paper, type “Certificate of Service.”
- The body of the certificate could read: “I hereby certify that a true and correct copy of the foregoing Motion for Voluntary Dismissal was furnished by United States Mail, postage paid, this [enter mailing date] to [insert name of defendant’s attorney].” Then add a signature line and sign.
12Serve notice on the defendant. You provide notice by sending a copy of your motion. You should serve notice using the delivery method stated in your certificate of service. If the defendant has an attorney, then serve the attorney instead of the defendant.
- You generally can’t serve notice. Instead, you need someone 18 or older, unrelated to the lawsuit, to serve the notice.
- In some courts, your server must fill out a “proof of service” form. You can get this from the court clerk and give it to your server. He or she completes it, signs it, and returns it to you. You then attach the completed form to your motion.
13File your motion with the court. Make several copies of your motion and take them to the court clerk. Ask to file. Depending on your court, you may have to file copies along with the original. Remember to always keep a copy for your records.
- You may have to pay a filing fee, which will vary by court. Ask the court clerk for the amount and acceptable methods of payment.
14Prepare for the hearing. The judge might hold a hearing on whether to dismiss the case, although in some courts the judge will decide the issue by reading your motion. You can prepare for the hearing in the following ways:
- Read the defendant’s response. The defendant might file a motion opposing the dismissal. You should read it carefully so that you understand the arguments made.
- Write out a list of bullet points. You might not get a lot of time to talk to the judge. For this reason, you should plan on making your strongest three or four points.
- Practice making your argument. At the hearing, you will go first. You can practice making an argument with friends. Try to simulate a real hearing. Call the judge “Your Honor” and practice answering questions.
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- If you settle a class action lawsuit in federal court, you need the judge’s approval, even if all parties are in agreement. You cannot file a Notice of Dismissal.
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