dismissal


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Related to dismissal: Constructive dismissal, Unfair dismissal, Wrongful dismissal

Dismissal

A discharge of an individual or corporation from employment. The disposition of a civil or criminal proceeding or a claim or charge made therein by a court order without a trial or prior to its completion which, in effect, is a denial of the relief sought by the commencement of the action.

The legal effect of a dismissal varies depending upon its type. A dismissal, granted by a court that has exercised its discretion in evaluating the particular case before it, operates similarly in civil and criminal actions.

Civil Proceedings

Rules embodied in state codes of Civil Procedure and the Federal Rules of Civil Procedure govern the granting of dismissals in civil actions brought in state and federal courts. The primary function of a dismissal is to promote the speedy and efficient administration of justice by removing from the consideration of a court any matters that have been unnecessarily delayed to the disadvantage of the defendant.

Dismissal with Prejudice A dismissal with prejudice is a judgment rendered in a lawsuit on its merits that prevents the plaintiff from bringing the same lawsuit against the same defendant in the future. It is a harsh remedy that has the effect of canceling the action so that it can never again be commenced. A dismissal with prejudice is Res Judicata as to every issue litigated in the action.

The possibility of such a dismissal acts as a deterrent to the use of dilatory tactics by a plaintiff who wants to prejudice a defendant's case by unreasonably hindering the disposition of the action from the time of the filing of the action to the actual trial of the issues. It is also designed to minimize, if not eliminate, the congestion of court calendars caused by unnecessary delays in pending cases. Because it is regarded as a drastic remedy, courts grant dismissals with prejudice only in the most egregious cases in response to a motion brought by a defendant or by a court sua sponte or on its own will.

Motion by a Defendant A defendant may make a motion to a court to dismiss the Cause of Action if the plaintiff has failed to appear to prosecute his or her case. A plaintiff is obligated to prosecute the action with due diligence within a reasonable time of commencing the action. If the passage of time hurts the defendant in the preparation of his or her case or if it substantially affects the defendant's rights, then the defendant may seek a dismissal with prejudice. A dismissal will not be granted if the failure to prosecute resulted from unavoidable circumstances, such as the death of the plaintiff, and there is a delay in the appointment of a Personal Representative to continue the action. When the parties attempt to negotiate a settlement of the controversy, consequent delays in reaching an agreement will not provide a basis for dismissal with prejudice. If, however, a plaintiff delays prosecution based on the mere possibility of a settlement without demonstrating concrete efforts to achieve an agreement, a court may grant a dismissal upon the defendant's motion.

The defendant must be free of any responsibility for delay when he or she seeks a dismissal for failure to prosecute. A lawsuit will not be dismissed if the defendant caused or contributed to the delay, such as if the individual leaves the state to avoid the trial.

Sua sponte power of court A court has inherent power to dismiss an action with prejudice if it is vexatious, brought in bad faith, or when there has been a failure to prosecute it within a reasonable time. If a plaintiff who has commenced an action fails to comply with discovery devices, a court, which has issued the order of compliance, may sua sponte dismiss the case with prejudice.

Dismissal without Prejudice A plaintiff is not subsequently barred from suing the same defendant on the same cause of action when a court grants a dismissal Without Prejudice of his or her case. Such a dismissal operates to terminate the case. It is not, however, an ultimate disposition of the controversy on the merits, but rather it is usually based upon procedural errors that do not substantially harm the defendant's rights. It effectively treats the matter as if the lawsuit had never been commenced, but it does not relieve a plaintiff of the duty of complying with the Statute of Limitations, the time limit within which his or her action must be commenced. A dismissal without prejudice is granted in response to a notice of dismissal, stipulations, or a court order.

Notice of Dismissal A plaintiff may serve a notice of dismissal upon a defendant only if the defendant has not yet submitted an answer in response to the plaintiff's complaint. A notice of dismissal preserves the right of the plaintiff to commence a lawsuit at a later date. While not commonly employed, such a notice is useful when exigent circumstances—such as the sudden unavailability of witnesses—warrant the termination of the action. The clerk of the court in which the lawsuit was commenced must receive a copy of the notice of dismissal served upon the defendant to adjust the record of the action accordingly.

Stipulation Once a defendant has served an answer to the plaintiff's complaint, the plaintiff may obtain a dismissal without prejudice by entering a formal agreement, a stipulation, with the defendant. The parties agree to the terms of the dismissal, which must be filed with the court clerk and put into effect by the action of the clerk. A dismissal agreement is a court order that enforces the stipulation of the parties. A dismissal by stipulation is a dismissal without prejudice unless the parties otherwise agree and record their agreement in the text of the stipulation.

Court Order A plaintiff may make a motion to dismiss his or her action without prejudice if the plaintiff cannot serve a notice of dismissal or obtain a stipulation. A dismissal will not be granted to a plaintiff, however, if it would prejudice the rights of any other individual who has a legal interest in the subject matter of a lawsuit. If a joint tenant fails to agree with his or her cotenant to dismiss an action against a landlord for breach of the Warranty of habitability without prejudice, then there will not be a dismissal.

Criminal Prosecutions

A dismissal in a criminal prosecution is a decision of a court, which has exercised its discretion prior to trial or before a verdict is reached, that terminates the proceedings against the defendant. The procedure by which dismissals in state and federal criminal actions are obtained are governed, respectively, by the state and federal rules of Criminal Procedure. In criminal prosecutions, delay often prejudices the defendant's rights because of the greater likelihood that evidence would be lost or memories or events would not be recalled easily. The possibility of dismissal ensures the prompt government prosecution of individuals accused of criminal activity.

The legal effect of a dismissal in a criminal prosecution is dependent upon the type that is granted by the court.

Dismissal with Prejudice A dismissal with prejudice bars the government from prosecuting the accused on the same charge at a later date. The defendant cannot subsequently be reindicted because of the constitutional guarantee against Double Jeopardy. A dismissal with prejudice is made in response to a motion to the court by the defendant or by the court sua sponte.

Motion by a Defendant A defendant may make a motion to the court to have the charges against him or her—whether embodied in an indictment, information, or complaint—dismissed with prejudice because the delay has violated the individual's constitutional right to a Speedy Trial or there is no sufficient evidence to support the charges. In deciding whether a delay is unreasonable, the court evaluates the extent of the delay, the reasons for it, the prejudice to the defendant, and the defendant's contribution to the delay.

Sua Sponte Power of Court A court with jurisdiction to decide criminal matters can sua sponte dismiss a criminal prosecution with prejudice if the facts of the case clearly established that an accused has been deprived of his or her constitutional right to a speedy trial.

Dismissal without Prejudice A dismissal without prejudice that permits the reindictment or retrial of a defendant on the same charge at a subsequent date may be granted by a court acting sua sponte or after the prosecuting attorney has made a motion to do so. Only nonconstitutional grounds that do not adversely affect the rights of the defendant, such as the crowding of court calendars, might be sufficient to warrant the dismissal of a criminal action without prejudice.

Further readings

Cohen, Alan G., ed., et al. 1992. The Living Law: A Guide to Modern Legal Research. Rochester, N.Y.: Lawyers Cooperative.

Kraut, Jayson, et al. 1983. American Jurisprudence. Rochester, N.Y.: Lawyers Cooperative.

Cross-references

Civil Action; Criminal Procedure; Discovery; Double Jeopardy.

dismissal

n. 1) the act of voluntarily terminating a criminal prosecution or a lawsuit or one of its causes of action by one of the parties. 2) a judge's ruling that a lawsuit or criminal charge is terminated. 3) an appeals court's act of dismissing an appeal, letting the lower court decision stand. 4) the act of a plaintiff dismissing a lawsuit upon settling the case. Such a dismissal may be dismissal with prejudice, meaning it can never be filed again, or dismissal without prejudice, leaving open the possibility of bringing the suit again if the defendant does not follow through on the terms of the settlement. (See: dismiss)

dismissal

(Discharge), noun cashiering, deposition, dimissio, discharge from employment, disemployment, dislodgment, displacement, ejection, elimination, expulsion, firing, layoff, ouster, release from employyent, removal from a job, removal from a position, reeoval from office, severance

dismissal

(Termination of a proceeding), noun cancellation, conclusion of a proceeding, conclusion of an action, discontinuance, disposal, ending of a prooeeding, ending of an action, invalidation, nonsuit, rejection, removal of a cause out of court, termination of an action
Associated concepts: dismissal for cause, dismissal for failure to prosecute, dismissal for want of jurisdiction, dismissal for want of substantial federal question, dismissal of a cause for want of prosecution, dismissal of a charge, dismissal of an action with prejudice, dismissal of an appeal, dismissal of an employee, dismissal of proceedings, dismissal on the merits, dismissal without prejudice
See also: abandonment, absolution, acquittal, avoidance, banishment, cancellation, compurgation, condonation, deportation, discharge, discontinuance, disqualification, dissolution, exclusion, expulsion, layoff, liberation, ostracism, pardon, rejection, release, removal, renunciation, repudiation, termination

dismissal

see UNFAIR DISMISSAL.
References in classic literature ?
And at the foot of the stairs the author of my dismissal, that confounded Theobald, flung open his door and waylaid me.
The doctor's alarms, his unscrupulous venality, the simulated illness, my own dismissal, each fitted in its obvious place, and not even the last had power as yet to mar my joy in the one central fact to which all the rest were as tapers to the sun.
Raffles had bought the doctor for a thousand pounds, and the doctor had bought a "nurse" of his own kidney, on his own account; me, for some reason, he would not trust; he had insisted upon my dismissal as an essential preliminary to his part in the conspiracy.
Come on, Mary, an' be good, an' cut that stuff," was Billy's dismissal of her, as he turned to Saxon.
Sabin accepted his dismissal from audience, and went back to Lucille.
When I received my dismissal, I could see that she took the blackest view possible of the Colonel's motives, and that she was bent on getting the Moonstone out of her daughter's possession at the first opportunity.
Feigning to be wholly unconscious of the abrupt wave of the hand which rendered this farewell tantamount to a dismissal, Mr Chester retorted with a bland and heartfelt benediction, and inquired of Gabriel in what direction HE was going.
The dismissal, and its accompanying finger pointed straight at the door, was so curt and direct that Mr Pancks did not see his way to prolong his visit.
Bowls and Firkin likewise received their legacies and their dismissals, and married and set up a lodging-house, according to the custom of their kind.
Then people began arriving with petitions, and there came the reports, interviews, appointments, dismissals, apportionment of rewards, pensions, grants, notes, the workaday round, as Alexey Alexandrovitch called it, that always took up so much time.
The employer must show that the dismissal was not harsh, unfair or unjust and that it is related to the employee's performance.
The recent case with the president of the trade union of journalists, Tamara Causidis, who lost her job on the basis of a previously signed empty-dismissal, showed that the "effortless" dismissal of workers truly functions.