“The Visa” – Dismissing a Case

After Elaine accidentally causes Ping the delivery boy to crash his bike into a parked car, Ping files a suit against Elaine for the injuries he sustained during the crash. But when George starts dating Ping’s cousin Cheryl, the courtroom “terminator,” Ping drops the suit based on Cheryl’s advice. Is Ping legally allowed to bring back the lawsuit once George “disturbed” Cheryl into dropping him?

Civil cases can be dismissed with or without prejudice. A plaintiff’s ability to bring back a case that he or she dismissed will depend upon whether the case was dismissed with or without prejudice. If a case is dismissed without prejudice then a plaintiff is free to bring the same suit again based on that same claim. But if the case is dismissed with prejudice, then the plaintiff is prohibited from filing a new lawsuit stemming from that same claim.

- Not anymore. - What?

Generally speaking, when a plaintiff drops a case and files with the court for it to be dismissed, then the case going to be a dismissed without prejudice, unless the court otherwise specified. This will typically happen in situations just like the one Elaine finds herself in. Apologies between the plaintiff and defendant are made and the plaintiff decides to just drop the suit. The problem for Elaine though is that Ping retains the right to refile his case against her since this kind of dismissal is voluntary, and, without formalizing some kind of agreement and approved by the court, it is also going to be deemed to be without prejudice. Therefore, Ping is fully within his rights to refile the claim, just as he and Cheryl do at the conclusion of the episode.

But if Ping were to drop the suit a second time, a court would most likely dismiss the case with prejudice. While courts generally assume that a voluntary dismissal is going to be without prejudice, that’s only for the first go around. A second voluntary dismissal flips that assumption around, and it is presumed to be with prejudice.

So what could Elaine have done differently to ensure that Ping can’t bring a claim against her? Well first off she should have hired Jackie Chiles to make sure that “The Shark” specified in the dismissal paperwork that they would not bring suit again.

I guess you don't have any advice for me on how to win the case.

Elaine could also bring some legal arguments. One argument that Elaine could try to use, but would almost certainly fail in bringing, is to argue that Ping’s second suit is invalid based on claim preclusion doctrine or “res judicata.” This doctrine prevents a plaintiff from filing suit based on a claim that has already been litigated in court. Once a court has made it’s ruling on a specific case, that’s it, it’s over. But this doctrine is inapplicable here because Ping’s suit never actually progressed to a final judgment on the merits of the case. Instead, it was dismissed voluntarily at a preliminary stage, and “res judicata” therefore does not take effect. (Editor’s Note: We hope to explore this issue fully in a future post.)

Stay tuned for our next post on the resolution to Ping’s case. While we never officially find out what happens to the suit, that doesn’t mean we at SeinfeldLaw can’t give you our best analysis on what likely would have happened. Will Elaine have to pay through the nose? Follow us on Facebook and Twitter to stay connected to find out. Until then….

Hasta la vista, baby.

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