Is There A Way To Continue Litigating A Case That's Been Dismissed With Prejudice?

One of the worst things that can happen in a personal injury case is to have it dismissed with prejudice, because this essentially bars you from filing the case again. However, it may be possible to overcome or circumvent a dismissal depending on the reason for the judgment and the circumstances of the case. Here are a few options available to you that may let you continue litigating a case that was dismissed with prejudice.

Refile Using a Different Claim

As noted previously, when your case is dismissed with prejudice, you cannot file it again using the same claim. If you sued the defendant for negligence, you will not be allowed to bring another negligence claim against the individual for the same incident.

The reason for the dismissal will vary, and the judge will usually tell you why he or she has decided to let the case go. The majority of the time, though, a case is dismissed with prejudice because it lacks legal support. For instance, your claim may be dismissed with prejudice if the defendant can show the statute of limitations has expired.

It may be possible to go back to court and sue under a different legal claim, however. If you were injured by a product but your case failed under product liability laws, you could go back to court and try again using regular negligence laws or possibly file a medical malpractice claim if the injury occurred in a healthcare setting, for instance.

Have the Judgment Vacated

Not all cases will have an alternative legal route that can be used to refile the lawsuit, so another way to deal with a dismissal is to petition to have the judgment set aside or vacated. Essentially, you are asking the court to erase the decision in the case and let you start over again.

Courts will only vacate or set aside judgments if you can provide a valid reason. The acceptable reasons will vary between jurisdictions, but generally only some type of legal mistake or excusable neglect is allowed (e.g. the wrong paperwork was submitted). You must also file the request within a specific period of time. California requires litigants to file a request for a dismissal to be vacated within 6 months after it has been entered into the record, for instance, and the dismissal must have been due to a mistake, surprise, inadvertence, or excusable neglect.

Appeal the Decision

The third and most common option is to appeal the decision to the Court of Appeals. If you can convince the appeals court that the lower court judge made a mistake, the appeals court will overturn the lower judge's decision and allows your case to proceed. However, if the appeals court side with the lower court, your case is truly toast and you won't be able to go any further with it.

All of these options require an additional investment of time and money, so you need to decide if pursuing the case after it was dismissed with prejudice makes sense for your lifestyle and finances. Consult with a personal injury attorney about these and other options to help you choose the best route for your case. Visit for more information.