A Lawsuit or Claim will be Dismissed with Prejudice if a Judge Believes that a Deficiency cannot be Cured

In other posts we discussed what it means to move to dismiss a civil case and the difference between dismissing a case with prejudice and dismissing a case without prejudice.

A motion to dismiss is where a defendant asks a judge to throw out all or part of the case. There are numerous grounds to ask a court to dismiss a case.  Some examples of grounds to dismiss a complaint with prejudice are listed in Rule 12 of the Federal Rules of Civil Procedure and similar state rules.

Often, prior to dismissing a case with prejudice, the judge will offer the plaintiff a chance to correct any deficiency. She might dismiss the case, but without prejudice, meaning that the plaintiff will get a chance to replead her case.  The plaintiff will have an opportunity to correct the deficiency.  In fact, Rule 15 of the Federal Rules of Civil Procedure and similar state rules encourage judges to dismiss cases without prejudice so plaintiff will be able to have his case heard and the court can decide the case on its merits.

When a judge dismisses a case with prejudice, she terminates the case without offering the plaintiff a chance to cure any deficiency. So why would a judge dismiss a case and deny the chance to replead?  Usually dismissal with prejudice occurs when the judge determines that plaintiff cannot cure the deficiency, therefore, there is no point to allowing the plaintiff another chance.

Examples where Courts Dismiss with Prejudice

The following examples are where courts might dismiss a case with prejudice.  Keep in mind that before dismissing with prejudice, the court might dismiss without prejudice to give plaintiff a chance to cure any deficiency with his case.  If you look at Federal Rule of Civil Procedure 12 you can see certain specific grounds to ask a court to dismiss a case.  Also, if you scroll below you can see a video.

Lack of Subject Matter Jurisdiction

If the parties cannot demonstrate that the case is in the correct court, the case must be dismissed with prejudice.  For example, if a state law case is in federal court based on diversity subject matter jurisdiction, the court must dismiss the case for lack of jurisdiction if the parties are not citizens of different states or the amount in controversy is less than $75,000.

Lack of Personal Jurisdiction

If the court lacks power over the defendant, the case should be dismissed with prejudice for lack of personal jurisdiction.  For example, let’s say a plaintiff sues a defendant from New Zealand in New York federal court.  Plaintiff cannot show that defendant has any significant contact with New York.  As a result, the court should dismiss the case with prejudice.  

Failure to State a Claim

Sometimes a court cannot provide relief to a plaintiff and the case must be dismissed with prejudice.  For example, if plaintiff claims that defendant defeated her in tennis and hurt her feelings, the claim would have to be dismissed because feeling bad over a tennis match is not a cause of action.  Likewise, if plaintiff cannot allege fraud with the particularity required by Rule 9, (especially if she was given more than one opportunity to do so), the complaint should be dismissed with prejudice.

As a Sanction

In certain situations where a party or its attorney violates a rule, a court could sanction (punish) a party by dismissing that party’s case with prejudice.  Disissing a case with prejudice is an uncommon sanction, but courts do have this power.  For example, if a party repeatedly violates its discovery obligations, a court might have no choice but to dismiss its claim (if the offending party is a plaintiff) or strike its defenses (if the offending party is a defendant).

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