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Does It Matter?


Claude
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JBD suit dismissed without prejudice per their lawyer's motion. They didn't provide me a certificate of service of their motion as required by Nebraska civil procedures. Can I use this fact to motion that the judge dismiss the suit WITH prejudice? Or maybe even to get a summary judgment? Is there a difference?

 

 

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@Claude

 

Generally, the right of the plaintiff to voluntary dismissal is a right that is not a matter of judicial grace or discretion. A plaintiff may enter a dismissal as a matter of right at any time before final submission of the case. Knapp v. Village of Beaver City, 273 Neb. 156, 728 N.W.2d 96, 99 (2007).

 

You'd need a good reason to get the court to set aside the dismissal.

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@Claude

 

Generally, the right of the plaintiff to voluntary dismissal is a right that is not a matter of judicial grace or discretion. A plaintiff may enter a dismissal as a matter of right at any time before final submission of the case. Knapp v. Village of Beaver City, 273 Neb. 156, 728 N.W.2d 96, 99 (2007).

 

You'd need a good reason to get the court to set aside the dismissal.

Fair enough. So the failure to follow proper civil procedure rules isn't a good reason? Just asking. Also, would a motion for "reconsideration" be better? Meaning I'm not asking the court to set aside the dismissal but rather to amend it to WITH prejudice. Thanks for your input.

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Without researching the case law you put down there typically the party will have one chance to dismiss or non suit it before a verdict is read. Also, typically as long as they swore they mailed you the motion that is going to be enough to count for service. I would be shocked if this allowed you to get it moved to dismissed with prejudice.

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@Jimmy E

 

First, since a plaintiff is allowed to voluntarily dismiss a complaint, the OP would have to find out if he can even motion to request that the dismissal be with prejudice instead of without prejudice. 

 

Second, if he is allowed to make such a motion, he'd have to find out the reasons that motion would be granted.  As you stated, if the OP wasn't prejudiced in some way, it may not fly. 

 

Usually, when a complaint is voluntarily dismissed, the plaintiff can refile within a certain amount of time.  A dismissal with prejudice might prejudice the plaintiff. 

 

The OP needs to do some fast research.  I would suggest contacting an attorney to get some answers.

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