Can I Refile a Case After Dismissal for Lack of Proper Service?
Full Question:
Answer:
As long as you are still within the statute of limitations for the claim and the dismissal was without prejudice, you may refile. The phrase without prejudice means that a claim, lawsuit, or proceeding has been brought to a temporary end but that no legal rights or privileges have been determined, waived, or lost by the result. This means that the dismissal is no bar to bringing a new case.
If the dismissal was stated to be with prejudice, that means it the same claim cannot be refiled later. That dismissal is a judgment against the party "on the merits" of the case, and extinguishes the claim that was being sued over.
Please see the following FL statute:
Rule 1.420. Dismissal of Actions
(a) Voluntary Dismissal.
(1) By Parties. Except in actions in which
property has been seized or is in the custody of the court,
an action may be dismissed by plaintiff without order of
court (A) before trial by serving, or during trial by stating
on the record, a notice of dismissal at any time before a
hearing on motion for summary judgment, or if none is served
or if the motion is denied, before retirement of the jury in
a case tried before a jury or before submission of a nonjury
case to the court for decision, or (B) by filing a
stipulation of dismissal signed by all parties who have
appeared in the action. Unless otherwise stated in the notice
or stipulation, the dismissal is without prejudice, except
that a notice of dismissal operates as an adjudication on the
merits when served by a plaintiff who has once dismissed in
any court an action based on or including the same claim.
(2) By Order of Court; If Counterclaim. Except as
provided in subdivision (a)(1) of this rule, an action
shall not be dismissed at a party's instance except on
order of the court and upon such terms and conditions as
the court deems proper. If a counterclaim has been served
by a defendant prior to the service upon the defendant of
the plaintiff's notice of dismissal, the action shall not
be dismissed against defendant's objections unless the
counterclaim can remain pending for independent
adjudication by the court. Unless otherwise specified in
the order, a dismissal under this paragraph is without
prejudice.
(b) Involuntary Dismissal. Any party may move for
dismissal of an action or of any claim against that party
for failure of an adverse party to comply with these
rules or any order of court. Notice of hearing on the motion
shall be served as required under rule 1.090(d). After a
party seeking affirmative relief in an action tried by the
court without a jury has completed the presentation of
evidence, any other party may move for a dismissal on the
ground that on the facts and the law the party seeking
affirmative relief has shown no right to relief, without
waiving the right to offer evidence if the motion is not
granted. The court as trier of the facts may then determine
them and render judgment against the party seeking
affirmative relief or may decline to render judgment until
the close of all the evidence. Unless the court in its
order for dismissal otherwise specifies, a dismissal under
this subdivision and any dismissal not provided for in this
rule, other than a dismissal for lack of jurisdiction or
for improper venue or for lack of an indispensable party,
operates as an adjudication on the merits.
(c) Dismissal of Counterclaim, Crossclaim, or
Third-Party Claim. The provisions of this rule apply
to the dismissal of any counterclaim, crossclaim, or
third-party claim.
(d) Costs. Costs in any action dismissed under
this rule shall be assessed and judgment for costs entered
in that action. If a party who has once dismissed a claim
in any court of this state commences an action based upon
or including the same claim against the same adverse party,
the court shall make such order for the payment of costs of
the claim previously dismissed as it may deem proper and
shall stay the proceedings in the action until the party
seeking affirmative relief has complied with the order.
(e) Failure to Prosecute. In all actions in which
it appears on the face of the record that no activity by
filing of pleadings, order of court, or otherwise has
occurred for a period of 10 months, and no order staying the
action has been issued nor stipulation for stay approved by
the court, any interested person, whether a party to the
action or not, the court, or the clerk of the court may serve
notice to all parties that no such activity has occurred. If
no such record activity has occurred within the 10 months
immediately preceding the service of such notice, and no
record activity occurs within the 60 days immediately
following the service of such notice, and if no stay was
issued or approved prior to the expiration of such 60-day
period, the action shall be dismissed by the court on its own
motion or on the motion of any interested person, whether a
party to the action or not, after reasonable notice to the
parties, unless a party shows good cause in writing at least
5 days before the hearing on the motion why the action should
remain pending. Mere inaction for a period of less than 1
year shall not be sufficient cause for dismissal for failure
to prosecute.
(f) Effect on Lis Pendens. If a notice of lis
pendens has been filed in connection with a claim for
affirmative relief that is dismissed under this rule, the
notice of lis pendens connected with the dismissed claim is
automatically dissolved at the same time. The notice,
stipulation, or order shall be recorded.
