Litigation in the pretrial phase progresses to the point of possibly one party filing the MSJ. After that motion has been responded to and the judge has the responsibility to rule on it, may he, for any reason whatever-so-ever, dismiss plaintiff's case without addressing the motion. Has there been enough to qualify for a new trial despite an actual trial not transpiring,for the sake of qualifying under civil rule 59.


3 Answers 3


Yes, with the caveat that one should always check local rules in whatever jurisdiction one is operating in.

I can't think of a reason right now (although I may be overlooking some things) that a judge would ignore a motion for summary judgment, yet dismiss the case for another reason without dismissing it for another reason prior to the motion for summary judgment. I say that because summary judgment motions often come after the discovery phase (not always, but the rule is one must be filed within 30 days of the conclusion of the discovery phase), which may take a significant amount of time. Perhaps, of course, the judge becomes aware of new information unrelated to discovery. Nonetheless, if the dismissal were on jurisdiction grounds or some other issue that was known ahead of time, it is unlikely he or she would wait to dismiss.

That said, courts may act sua sponte, which means on its own / absent a motion by the parties.

With respect to a new trial or not, an example of being dismissed without prejudice and, thus, allowing the trial to begin again, may be a major error in the plaintiffs filing. After fixing the issue(s), he or she may refile the same suit.

Usually, a dismissal for summary judgment will be with prejudice, meaning it can't start over (but it can be appealed). This is because, when dismissing a case based on a motion for summary judgment, the court is determining that the moving party has shown

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

That basically means there is nothing to litigate, so go home.


Normally a motion under Rule 59 of U.S. civil rules based upon the federal rules of civil procedure can be brought (if brought in time) to ask a court to reconsider a final order that resolves an action made by the court as well as a trial verdict.

Even if the MSJ wasn't ruled upon, the Court had to issue some order to dismiss the case and that could be challenged in Rule 59 motion although the time limit for doing so is short (within 14 days of the order in Colorado).

Even if a Rule 59 motion is not brought, usually the order dismissing the case could be appealed in a direct appeal if timely brought.


If the motion has been dismissed "with prejudice" then that is the end of the matter (barring an appeal) and cannot be re-litigated.

If dismissed "without prejudice" then the matter can be re-litigated.

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