The vital distinction between dismissal with prejudice and dismissal without prejudice

Posted Saturday, April 2nd, 2022 by Gregory Forman
Filed under Family Court Procedure, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

In family court there is a vital distinction between dismissal with prejudice and dismissal without prejudice. “A dismissal of a case without prejudice means that the plaintiff can reassert the same cause(s) of action by curing the defects that led to dismissal. By contrast, dismissals with prejudice are intended to bar relitigation of the same claim.” McEachern v. Black, 329 S.C. 642, 651, 496 S.E.2d 659, 663 (Ct. App. 1998). A dismissal with prejudice operates as an adjudication on the merits terminating the action and concluding the rights of the parties. Freeman v. McBee, 280 S.C. 490, 493, 313 S.E.2d 325, 327 (Ct. App. 1984).

In the context of family court, a dismissal with prejudice requires the parties to allege subsequent facts to seek the same relief. In a divorce case, a dismissal with prejudice extinguishes any existing fault grounds in subsequent litigation while a dismissal without prejudice does not. In the context of support or custody modification cases, a dismissal with prejudice eliminates any existing change of circumstances as a basis for future modification while a dismissal without prejudice allows any change of circumstance since the prior final order to be a basis of subsequent modification.

Pursuant to Rule 41, SCRCP, voluntary dismissals are “without prejudice” unless the dismissal indicates otherwise. Most voluntary dismissals are without prejudice. Litigants sometimes voluntarily dismiss their litigation because they have basically battled to a draw and are ready to end the fight. In such circumstances a dismissal without prejudice is just.

However, sometimes the dismissal is sought because the plaintiff’s position is weak and the defendant is willing to forgo a fee claim to simply end the litigation. In that situation, the defendant should demand the dismissal be with prejudice.

A defendant, considering an offer of voluntary dismissal, should consider whether the litigation has been a draw or a victory. If it has been a draw, dismissal without prejudice is a good result. However, if the defendant has successfully defended the case, a dismissal with prejudice, with the plaintiff essentially conceding defeat, is a proper outcome and should be sought.

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