Under what circumstances (if any) can an error of process doom a plaintiff's claim?

Process errors can include things like failure to serve notice or motions in a timely or correct fashion, or failure to file a timely response or petition.

My understanding is that a court can dismiss a case or decide it against a plaintiff for such errors of process, and that such decisions based on process failures are not usually granted an appeal.

If a plaintiff loses a case based on process errors before a trial but is still within the statute of limitations for his claim, can he always (or never) "start from scratch?" Or, put another way, can one lose one's right to seek redress of a grievance by failure to follow the rules of court?

For example: Suppose a plaintiff is suing (either criminally or civilly) pro se, so there is no attorney the court can sanction or the plaintiff can blame. After a drawn out process the court gets tired of the plaintiff's ignorance of process, grants a defense motion for dismissal, and refuses a plaintiff's petition for reconsideration. Can the plaintiff go back to "square one" and file an identical but new case? If so, it seems like that might be considered to pose an undue burden on the defendant. If not, it seems like the plaintiff is being denied rights due to rules that are, in general, arbitrary even if expedient.

2 Answers 2


The legal term for what you're talking about is "prejudice." When a lawsuit (or a claim, or a party) is dismissed by a court "with prejudice," that means that the same cause of action cannot be brought again by the same plaintiff against the same defendant. It is also possible to dismiss a claim "without prejudice," meaning the same claim can be brought at a later date.

When, exactly, a civil case can be dismissed with or without prejudice will depend on the jurisdiction where you're litigating. However, the general rule is that once the suit is underway, most dismissals are with prejudice.

For example, in U.S. federal court, the plaintiff has the right to dismiss the suit without prejudice only up until the defendant responds to the complaint (see Fed. R. Civ. P. 41(a)(1)), unless all of the defendants agree to be sued again later (this does happen, sometimes, but normally only as part of a broader settlement).

So, yes; you can lose your substantive legal rights if you refuse to follow the court's procedural rules. Most courts, especially in federal court, where there is a fairly permissive standard of pleading, will give plenty of leeway to pro se litigants, but in the end they have to follow the rules.

In my own experience, when pro se claims are dismissed, it's generally on the merits. If cases are dismissed for procedural reasons, it's almost always a case of a pro se litigant refusing to listen to the judge's clear instructions for what they need to do (or, more often, not do).


Some states will let you appeal that first dismissal; some won't.

Despite having the ability to refile your case you have to be aware that if the defendant is crafty his attorney will want to dispose of you completely through dismissals. That first dismissal may just be a stepping stone to the second.

Remember to object to everything that isn't right so that you can preserve for appeal.

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