Did you receive an adverse verdict in a civil, or family law, case? You may be considering filing an appeal—but what if your case was dismissed with prejudice? Can you appeal a civil case if it was dismissed with prejudice? The short answer is “yes’—dismissal with prejudice does not directly impact your appeal rights, but you cannot start over and try again. 

A Dismissal of a Civil Case Typically Occurs Prior to the Start of a Trial 

A dismissal of a civil case typically occurs before the start of a trial. This can happen for various reasons, such as when the parties involved reach a settlement or when the judge or court finds that there is not enough evidence to proceed with the case. In some cases, the dismissal may be voluntary, such as when the plaintiff chooses to drop the case. In other cases, the dismissal may be involuntary, such as when the judge dismisses the case for lack of jurisdiction.

It is not uncommon for a defendant in a civil lawsuit to file a motion to dismiss. For instance, a defendant in a business litigation case may file a motion to dismiss on the grounds that the plaintiff failed to state a claim upon which relief can be granted. If the court granted that motion to dismiss, typically—but with some exceptions—the case will be dismissed without prejudice.  

Background: Understanding What a Dismissal With Prejudice Means

As explained by the Legal Information Institute, a dismissal with prejudice is a final judgment that means that the “plaintiff cannot refile the same claim again in that court.” In other words, the case has been closed, and there is no opportunity to rectify errors and re-file the complaint. A dismissal with prejudice is in contrast to a dismissal without prejudice. When a case is dismissed without prejudice, it has effectively temporarily closed. The plaintiff could potentially review the matter, revise their complaint, and bring the same claim again in the same court at a later time. 

The reason why a case is dismissed matters. For example, the Federal Rule of Civil Procedure 41(a)(B), holds that voluntary dismissals are dismissals without prejudice. Imagine that a breach of contract lawsuit was filed in Washington State. Shortly before the trial is set to start, the parties notify the court that they have reached a settlement agreement. The case will then likely be dismissed without prejudice. As such, it could still be refiled in the future if one (or both) of the parties fail to abide by the terms of the voluntary settlement. 

You Can Appeal a Dismissal With Prejudice 

It is important to emphasize that a dismissal with prejudice does not undermine your appeal rights. You can appeal a dismissal with prejudice. A dismissal with prejudice means that the case has been dismissed permanently and cannot be brought back to the same court. It is, in effect, a final judgment. However, that does not prevent you from appealing to a higher court. Indeed, a dismissal with prejudice is the time to file an appeal if you want to challenge the matter. 

Whether that appeal will actually be heard by a higher court depends on several different factors, including whether or not the appellate court has discretionary review power or non-discretionary review power. In some state and federal civil proceedings, a plaintiff has an automatic right to have a civil appeal heard. However, in other state and federal civil proceedings, a court’s appellate jurisdiction is discretionary. An appeal can still be filed—but it may not be heard. 

Important Appellate Law Tip: There is a very strict deadline to preserve your right to appeal a civil case. You must complete and file a document called a Notice of Appeal in a timely manner. Depending on the type of civil claim and your jurisdiction, you may have as little as 30 days to file a Notice of Appeal. Once a case is dismissed with prejudice, the clock starts running. 


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