Dismissals With Prejudice vs. Without Prejudice

When a Virginia court dismisses a case, the dismissal order may state that the dismissal of the case is either “with prejudice” or “without prejudice.” In this context, prejudice has nothing to do with racism or discrimination. Rather, it’s simply an indication of whether the case is permanently ended, with no possibility of finding its way back onto the court’s docket, or merely removed from the docket in such a way as to permit its refiling upon the satisfaction of certain conditions. Sometimes it will be up to the judge to decide whether to dismiss a case with or without prejudice; other times (particularly when the defect in the case cannot be fixed), the law will dictate the form of dismissal.

The Virginia Supreme Court explained the distinction in Primov v. Serco, Inc., decided just a few days ago. There, the court noted that a dismissal of a suit “without prejudice” means that the court is not deciding the controversy on its merits, and that the whole subject of litigation will remain as much open to another suit as if no suit had ever been brought. (See Newberry v. Ruffin, 102 Va. 73, 76 (1903)). In other words, dismissing a case without prejudice terminates the action but does not prohibit its refiling.

By contrast, the court held, dismissal of a suit “with prejudice” is typically an adjudication on the merits of the dispute, and amounts to a “final disposition” that prohibits the right to bring or maintain an action on the same claim. The underlying policy of a dismissal with prejudice “is that when a plaintiff’s claim against a defendant has been resolved adversely to the plaintiff, whether on the merits or because of another bar to recovery such prejudice-300x225as sovereign immunity or the statute of limitations, the plaintiff is not allowed to subject the defendant to repetitive litigation on the same, previously resolved claim.” (See Lambert v. Javed, 273 Va. 307, 311 (2007)). Thus, a dismissal with prejudice is not always an adjudication on the merits. When a case is dismissed after a plea in bar is sustained, for example, the dismissal will be with prejudice. Either way, if a dismissal is with prejudice, the decision is final and the case cannot be refiled.

The issue in Primov v. Serco was whether the Fairfax Circuit Court erred by dismissing a case with prejudice (ending the case permanently) upon sustaining a plea in bar. The plaintiff thought that was a bit harsh. The facts were essentially these: George Primov had a job with Serco that required him to work in Afghanistan, designated an “imminent danger zone” by the State Department. He claimed his employment contract required Serco to pay him certain “uplifts” due to the dangers of his job, which Serco failed to pay. He sued for breach of contract in Fairfax Circuit Court.

Serco pointed out another provision in the employment agreement: a requirement that mediation be pursued as a condition precedent to any litigation:

The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by confidential mediation. If the dispute has not been resolved by mediation within 60 days of a written request to mediate made by one of the parties, then either party may bring suit in the state or federal courts located in Fairfax County, Virginia.

A condition precedent requires the performance of some act, or the happening of some event after the terms of the contract have been agreed upon, before the contract will take effect. (See Smith v. McGregor, 237 Va. 66, 75 (1989)). Serco argued that Primov could not enforce the contract in court because Primov had failed to make a written request to mediate the dispute first. The request to mediate, it argued, was a condition precedent to bringing legal action in court. The trial court agreed, sustained the plea in bar, and dismissed the case.

One might assume the dismissal would be without prejudice, because the error could have been remedied easily–all Primov needed to to was make a written request to mediate and spend up to 60 days attempting in good faith to reach a resolution. But no, the dismissal in this case was with prejudice. The Virginia Supreme Court affirmed that ruling, so Primov’s contract claim is barred forever.

This case provides a good explanation of the distinction between the different types of dismissals, but it should be noted that the facts of the case were fairly unique. The case does not stand for the proposition that failure to seek mediation prior to bringing legal proceedings will necessarily lead to the dismissal of the claim with prejudice. A trial judge has broad discretion how best to deal with the failure of a plaintiff to satisfy a condition precedent. Normally, noncompliance with a condition precedent would lead to a dismissal without prejudice. In this particular case, however, the court felt that it would be unfair to Serco to allow the claim to be refiled. Various factors led to this conclusion, like the fact the case had already been brought twice due to an earlier nonsuit, the fact that it was nonsuited on the date of trial, and that Serco had pointed out the condition precedent to Primov and he still refused to request mediation. In this particular case, the Virginia Supreme Court held that the Fairfax Circuit Court acted well within its discretion in dismissing the case with prejudice.


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