Jump to content

How many times can they refile the lawsuit after voluntary dismissal?(Cavalry/Missouri)


Recommended Posts

In June of 2020, Cavalry filed suit on a $4500 Citibank card debt they now own.  They attempted to serve at my mother's house where I no longer live. 3 seperate process servers returned the summons Non-est. Then, CAVALRY dismissed the case without prejudice.

 

I know this only because I looked up the case on the courts public website.

 

4 months after dismissal  they sued again. Same result as first time. 3 separate process servers returned as Non-est. Last week they filed another motion to dismiss.

 

The debt is still within the statute of limitations. In December 2021, it will be past the statute of limitations.

 

Missouri rules say they have one year to refile the first lawsuit. So, do they also have a year from this most recent lawsuit to refile, or are they out of luck if they don't sue again before December?

 

Does Missouri have a two-dismissal rule preventing filing a suit a third time after two voluntary dismissals?

 

Link to comment
Share on other sites

Technically as long as each dismissal is without prejudice, they can refile as many times as they want because they have a right to justice. I cannot see an appeals court turning down a plaintiff from refiling simply because they are having a hard time finding and serving a defendant.

That said, they still would have to stay within the statute of limitations. They cannot continuously file and dismiss as a way to avoid that indefinitely.

Link to comment
Share on other sites

1 hour ago, WhoCares1000 said:

Technically as long as each dismissal is without prejudice, they can refile as many times as they want because they have a right to justice. I cannot see an appeals court turning down a plaintiff from refiling simply because they are having a hard time finding and serving a defendant.

That said, they still would have to stay within the statute of limitations. They cannot continuously file and dismiss as a way to avoid that indefinitely.

It depends on one’s rules of civil procedure as to whether a plaintiff can refile as many times as it wants.  In some states, a second voluntary dismissal acts as an adjudication on the merits.

Also, in some states, a 2nd voluntary dismissal can only be done under certain circumstances.  The OP needs to read his rules for voluntary dismissals.

  • Like 1
Link to comment
Share on other sites

@Phillipemoren @BV80 @WhoCares1000

Rule 67 -- Dismissal of Civil Actions

67.01. Dismissal Without Prejudice and With Prejudice

A dismissal without prejudice permits the party to bring another civil action for the same cause, unless the civil action is otherwise barred. A dismissal with prejudice bars the assertion of the same cause of action or claim against the same party.

67.02. Voluntary Dismissal - Effect of

(a) Except as provided in Rule 52, a civil action may be dismissed by the plaintiff without order of the court anytime:
(1) Prior to the swearing of the jury panel for the voir dire examination, or

(2) In cases tried without a jury, prior to the introduction of evidence at the trial.
A party who once so dismisses a civil action and thereafter files another civil action upon the same claim shall be allowed to dismiss the same without prejudice only:

(1) Upon filing a stipulation to that effect signed by the opposing party, or

(2) On order of the court made on motion in which the ground for dismissal shall be set forth.

(b) Except as provided in Rule 67.02(a), an action shall not be dismissed at the plaintiff's instance except upon order of the court upon such terms and conditions as the court deems proper.

(c) A voluntary dismissal under Rule 67.02(a) shall be without prejudice unless otherwise specfied by the plaintiff. Any other voluntary dismissal shall be without prejudice unless otherwise specified by the court or the parties to the dismissal.

(d) If a plaintiff who has once dismissed a civil action in any court commences a civil action based upon or including the same claim against the same defendant, the court may make an order for the payment of any unpaid costs of the civil action previously dismissed. In addition, if the plaintiff dismissed the previous civil action without prejudice within ten days of the date set for trial, the court may make an order for the payment of witness and other expenses, not including attorney fees, incurred by any other party that are caused to be incurred for the second trial because of the dismissal without prejudice of the previous civil action. The court may stay the proceedings in the civil action until the plaintiff has complied with any such order.

(June 27, 2006, eff. Jan. 1, 2007.)

  • Like 1
Link to comment
Share on other sites

  • 2 weeks later...

Do the final motions on the docket, and final disposition of these cases provide insight?

First lawsuit docket entry:

[Date] Motion to Dismiss 

           Dismissal without Prejudice. 

           Filed by:[Cavalry Attorney] 

Disposition: Dismiss by Ct w/o Prejudice

 

 Second lawsuit final docket entry:

[Date] Notice of Dismissal 

           NOTICE OF DISMISSAL.

           Filed by: [Cavalry Attorney]

Disposition: Dismissed by Parties

 

 

I had no contact with them so it wasn't dismissed by "parties"

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...