What Does Dismiss With Prejudice Mean? Definition and Effects

Dismiss with prejudice means the court has ended the lawsuit permanently and the plaintiff cannot refile the same claim against the same defendant. The dismissal is treated as a final judgment on the merits, even though no trial occurred, and it triggers the doctrine of res judicata in any subsequent action. Both civil and criminal courts use the phrase, although the procedural mechanics differ. Defendants generally welcome the label because it provides finality; plaintiffs generally resist it because it forecloses any second chance.

This guide defines the phrase precisely, walks through the procedural triggers that produce a with-prejudice dismissal, explains the preclusive consequences, and contrasts the with-prejudice label against the alternative without prejudice outcome. For the comparison view, see our anchor explainer on dismiss with prejudice vs without prejudice. For deeper procedural background, see our guides on the motion to dismiss and on voluntary vs involuntary dismissal.

Where the With-Prejudice Label Comes From

The phrase with prejudice is a term of art borrowed from English common-law practice and codified in the Federal Rules of Civil Procedure. The 'prejudice' in question is the legal disadvantage the plaintiff suffers when the court rules that the dismissal will preclude any future suit on the same claim. The phrase has nothing to do with bias, animus, or the merits of the underlying dispute.

In federal civil practice, the rule that drives most with-prejudice dismissals is FRCP 41(b): 'Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule, except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19, operates as an adjudication on the merits.' The default presumption favors the with-prejudice outcome for any dismissal not falling into one of the three enumerated exceptions.

State courts use the same vocabulary. California Code of Civil Procedure section 581(d), Texas Rule of Civil Procedure 162, and New York CPLR 3217 each distinguish dismissals on the merits (with prejudice) from dismissals that preserve the right to refile (without prejudice). The federal terminology is now nearly universal.

Procedural Triggers for a With-Prejudice Dismissal

A court enters a dismissal with prejudice through several distinct procedural pathways.

Settlement. The most common path. After settlement, the parties file a stipulation of dismissal under FRCP 41(a)(1)(A)(ii). Defendants insist on the with-prejudice label so that the same suit cannot be resurrected after the settlement check clears. The plaintiff's signature on the stipulation reflects the bargain: in exchange for the settlement payment, the right to refile is surrendered.

Failure to state a claim where amendment would be futile. When a defendant prevails on a Rule 12(b)(6) motion to dismiss and the court determines that the defect cannot be cured (for example, because the claim is barred by the statute of limitations or by clear binding precedent), the dismissal is entered with prejudice. Most circuits require the court to permit at least one round of amendment unless the defect is incurable; the third or fourth round of dismissal frequently converts to a with-prejudice ruling.

Failure to prosecute. Under FRCP 41(b), a court may dismiss for failure to prosecute, failure to obey a court order, or failure to comply with the rules. The dismissal is presumptively with prejudice. Most circuits require the court to consider lesser sanctions and warn the plaintiff before imposing this drastic remedy, but the ultimate authority rests with the trial judge.

Discovery sanctions. Under FRCP 37(b)(2)(A)(v), a court may dismiss the action with prejudice as a discovery sanction. This is reserved for cases of willful misconduct, repeated violations after lesser sanctions, or destruction of evidence (sometimes overlapping with the doctrine of spoliation of evidence).

Two-dismissal rule. Under FRCP 41(a)(1)(B), a notice of dismissal by a plaintiff who has previously dismissed the same claim once before operates as an adjudication on the merits. The second dismissal is automatically with prejudice, even if the notice itself purports to be without prejudice.

Adverse summary judgment. A grant of summary judgment against the plaintiff is a final judgment on the merits and is treated as a with-prejudice dismissal for preclusion purposes, although the order itself is more likely to use the words 'judgment for defendant' than 'dismissal.'

Adverse trial verdict. A defense verdict at trial is a final adjudication on the merits and bars relitigation of the same claim against the same defendant.

Effects: Res Judicata and Claim Preclusion

The principal consequence of a with-prejudice dismissal is the application of res judicata, the doctrine of claim preclusion. Three elements must be satisfied: a final judgment on the merits in the first action; the same parties (or those in privity); and a claim arising out of the same transaction or occurrence.

Once res judicata applies, it bars not only the actual claim that was dismissed but also any claim that could have been raised in the first action. A plaintiff who sues for breach of contract and loses on a with-prejudice dismissal generally cannot file a second suit for fraud arising out of the same contract negotiation. The first dismissal is treated as having merged or barred all such claims.

A related doctrine, collateral estoppel or issue preclusion, prevents relitigation of any issue actually decided in the first action even between different parties (under non-mutual collateral estoppel as recognized in Parklane Hosiery Co. v. Shore). Issue preclusion is particularly important when a dismissal turns on a discrete legal question (the meaning of a contract clause, for example) that may arise in a related dispute.

The preclusive effect attaches the moment the order is entered. The dismissed claim is now legally extinct. A defendant served with a refiled complaint can move to dismiss the new action on res judicata grounds, often resolving the second case at the pleading stage with no discovery required.

Civil vs Criminal: Two Different Worlds

Although both civil and criminal courts use the phrase 'dismissed with prejudice,' the practical effect is different.

In civil practice, the dismissal binds the plaintiff. The plaintiff cannot refile the same claim against the same defendant. The defendant has finality. The matter is over from the perspective of the underlying private dispute, although collateral consequences (collection actions, reputational effects) may persist.

In criminal practice, the dismissal binds the prosecution. The state cannot recharge the defendant for the same offense. The defendant has finality with respect to the criminal exposure, although the underlying arrest may still appear on background-check databases unless sealed or expunged. See our companion guide on dismissed cases on background checks for the FCRA and EEOC analysis.

One critical distinction: in criminal practice, double jeopardy may attach independently of the with/without prejudice label. Under the Fifth Amendment, a defendant may not be retried for the same offense after a verdict of acquittal or after jeopardy has otherwise terminated. A pre-trial dismissal with prejudice for, say, a Speedy Trial Act violation provides analogous (but statutory rather than constitutional) protection.

Appeal and Post-Dismissal Relief

A dismissal with prejudice is a final judgment, which makes it appealable. In federal practice, the plaintiff has thirty days (or sixty days where the United States is a party) to file a notice of appeal under Federal Rule of Appellate Procedure 4. The appellate court reviews the dismissal under varying standards depending on the underlying basis: de novo for legal rulings (12(b)(6), summary judgment), abuse of discretion for failure to prosecute, and clear error for factual findings.

Outside of direct appeal, the most common post-dismissal vehicle is FRCP 60(b). Rule 60(b) authorizes relief from a final judgment for six grounds: mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence; fraud or misconduct by an opposing party; voidness; satisfaction or release; or any other reason justifying relief. Rule 60(b) motions face a high bar and must be filed within a reasonable time (and within one year for the first three grounds).

If you are facing a dismissal with prejudice and need to evaluate appeal or Rule 60(b) options, our attorney-drafted appellate briefs and post-trial motions start at $899 (motions) or $1,499 (appellate briefs). Order an attorney-drafted motion to vacate if extraordinary circumstances justify reopening the case.

Frequently Asked Questions

Is dismissed with prejudice good or bad?

It depends on which side you are on. For a defendant, dismissed with prejudice is the best possible non-trial outcome because the same plaintiff cannot bring the same claim again. For a plaintiff, it is the worst non-trial outcome (short of an adverse judgment after trial) because the claim is permanently extinguished. In a settlement context, both sides typically agree to a with-prejudice dismissal because the defendant has paid for finality and the plaintiff has accepted the settlement payment in exchange.

What does it mean to say dismissed with prejudice?

A dismissal with prejudice means the case is permanently closed and cannot be filed again. The judge has made a final decision treated as on the merits. Judges enter this kind of dismissal when: the plaintiff cannot prove any facts that would support a valid legal claim even after amendment; the parties settle and stipulate to dismissal in exchange for payment; the plaintiff fails to prosecute; or the same plaintiff has voluntarily dismissed the claim once before, triggering the two-dismissal rule under FRCP 41(a)(1)(B).

Why are cases dismissed with prejudice?

Most with-prejudice dismissals reflect one of four scenarios: (1) settlement, where the defendant has paid for finality; (2) the grant of a Rule 12(b)(6) motion where amendment would be futile; (3) failure to prosecute under Rule 41(b); or (4) discovery sanctions for willful misconduct. A small additional percentage reflect the two-dismissal rule, where a plaintiff who has voluntarily dismissed once before has the second voluntary dismissal converted to a with-prejudice outcome by operation of law.

Is dismissed the same as denied?

No. A dismissal terminates the case (or at least the dismissed claim within it). A denial typically refers to a court declining to grant a particular motion, leaving the case to continue. In appellate practice, a denial of a petition for certiorari is the Supreme Court's refusal to hear the case, which leaves the lower-court ruling in place but is not itself a merits ruling. A dismissed lawsuit cannot be reactivated by the plaintiff (especially with prejudice); a denied motion may be re-presented in different forms or at different stages.