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Can we ask the Court to change from dismiss without prejudice to with prejudice?

San Jose, CA |

Dear Sir or Madam,
I was sued by collection agency, before the case went to trial, CA filed the motion to dismiss without prejudice. I did not file counter claim against the CA. Could I still show up at the trial date and ask Judge to dismiss with prejudice after showing all the evidences? This case was limited.
Thank you,
Confused

Attorney Answers 3

Posted

The dismissal was likely without prejudice because it was requested voluntarily by the plaintiff. If the motion has been granted there is no trial to "show up" for, and no opportunity to present any evidence. Unless both parties agree to a dismissal with prejudice (meaning it can't be refilled) which is sometimes part of a settlement process, it would be rare for the dismissal to be with prejudice. In the event that the plaintiff moved to dismiss because you have convincing evidence in your favor, it is doubtful the case will be refilled.

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Asker

Posted

Dear Ms. Sinclair, Thank you for your explanation. It is very helpful. I guess I need to wait for the plaintiff to file new case; if they do, to show the evidence then. I hope to resolve this matter quick, but have to wait again. Thank you, Confused

Posted

Plaintiff had the absolute right to dismiss the case without prejudice prior to trial. This gives them the right to refile the lawsuit again at a later date as long as the statute of limitations has not expired.

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Posted

I agree with attorney Paula Brown Sinclair. The plaintiff has a right to dismiss without prejudice. To dismiss with prejudice, it is their case, and if they want to end the case, they can do so; period. You are not a participant in that decision unless you are a part of a negotiated settlement. In other words, the answer is a straight out NO.

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