Discontinuing a Lawsuit
After a lawsuit has been settled, the parties need to take the appropriate steps to discontinue an action. This usually involves filing the appropriate paperwork that informs the court that an action has been discontinued. Depending on the jurisdiction, discontinuing a lawsuit involves the filing of various documents, and it is important that the proper process is followed in order to discontinue an action.
With Prejudice or Without Prejudice
One important aspect of discontinuing a lawsuit is that parties should usually specify whether the discontinuance is with prejudice or without prejudice. If an action is terminated with prejudice, this means that the lawsuit is terminated with finality and that the case cannot be refiled. If an action is discontinued without prejudice, this usually means that the lawsuit can be refiled at a later time. Depending on the jurisdiction, discontinuances may be presumed to be without prejudice if the paperwork does not mention prejudice so parties should be clear about what type of discontinuance they are filing.
Notice of Discontinuance
When discontinuing a lawsuit before parties have answered a lawsuit, the parties may not need to all sign a document to terminate the case. Rather, a plaintiff’s lawyer may simply file a notice of discontinuance with the court. The notice of discontinuance simply informs the court that the case has been discontinued either without or with prejudice. After this point, the case will usually be closed without further action, and the parties and their lawyers will be discharged from any further responsibility with the lawsuit. Parties need to carefully consider whether they can simply file a notice of discontinuance to terminate a case. If a party even files a stipulation to extend the time to file an answer, this may constitute an appearance by one or more of the parties, which may disallow the use of a notice of discontinuance. An experienced litigation attorney should know whether a notice of discontinuance or other method may be used in order to discontinue an action.
Stipulation of Discontinuance
Parties typically execute and file a stipulation of discontinuance when discontinuing a lawsuit. A stipulation of discontinuance is an agreement between the parties that is filed with the court, notifying the court that an action has been terminated with or without prejudice. It is usually used once parties have answered a complaint and their counsel have filed notices of appearance on a matter. There are certain instances when a stipulation of discontinuance cannot be used. For instance, if any of the parties are a minor, a stipulation of discontinuance may not be permitted. Moreover, if any of the parties are incompetent, a legal representative may need to be appointed for the person or other steps may need to be taken in order for the case to be properly discontinued. However, when all of the parties to a case are corporations, there are less likely to be complications that might prevent a stipulation of discontinuance from being filed in a court to terminate a lawsuit.
Judicial Intervention
In certain instances, it might be necessary to seek the assistance of the court when discontinuing a lawsuit. For instance, sometimes not every party wishes to discontinue a lawsuit. This is especially true if only one party is getting out of a case and other parties remain liable in a lawsuit. Moreover, defendants may have claims against each other, and it might be difficult to get defendants to agree to dismiss another defendant from a lawsuit when the defendant to be dismissed might be liable to another party.
In such instances, parties may need the court approve discontinuing a lawsuit. This can usually be accomplished by filing a motion to have a court “so order” a stipulation so that the proper approval is received. Since it is more costly and burdensome in terms of time to have a court approve a stipulation of discontinuance, efforts should be taken to try and have counsel approve the stipulation of discontinuance.
Other Documents
When discontinuing a lawsuit, it is important to execute more documents than merely the document that will discontinue the lawsuit. Although a notice or stipulation of discontinuance terminate claims that were alleged in litigation, it may not have an impact on claims that were not openly litigated during the course of the lawsuit. Moreover, a stipulation of discontinuance usually will not specify further rights and responsibilities the parties may share amongst themselves.
As a result, it often makes sense to negotiate a more global settlement agreement when discontinuing a lawsuit. The denser settlement agreement will include all of the releases and provisions that will ensure everyone is on the same page with respect their rights and responsibilities moving forward. A stipulation of discontinuance or a notice of discontinuance is usually attached as an exhibit to a settlement agreement so everyone is on board about the document that will be filed to discontinue a lawsuit after a settlement agreement is negotiated.
The Rothman Law Firm has experience settling and discontinuing all manner of lawsuits, whether it be through a notice of discontinuance, stipulation of discontinuance, or through judicial intervention. If you are looking for an experienced New York and New Jersey attorney to handle the settlement of your claim or another litigation matter, please feel free to contact The Rothman Law Firm to request a free legal consultation.