Harris Texas Motion by Defendant to Dismiss with Prejudice for Failure to Prosecute

State:
Multi-State
County:
Harris
Control #:
US-02698BG
Format:
Word; 
Rich Text
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Description

Rule 41(b) of the FRCP states:


If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. 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 following form is a complaint that adopts the "notice pleadings" format of the Federal Rules of Civil Procedure, which have been adopted by most states in one form or another. For example, the Pennsylvania Rules of Civil Procedure state:


Rule 1901. Prompt disposition of matters; termination of inactive cases.


(a) General policy.-It is the policy of the unified judicial system to bring each pending matter to a final conclusion as promptly as possible consistently with the character of the matter and the resources of the system. Where a matter has been inactive for an unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate order terminating the matter.

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FAQ

In civil procedure, when a court dismisses a case with prejudice, it means that the court intends for that dismissal to be final in all courts, and that res judicata should bar that claim from being reasserted in another court.

The dismissal for want of prosecution is without prejudice, meaning that the case can be refiled and res judicata will not be a viable defense. It is also referred to as a judgment of non-prosecution.

A dismissal with prejudice is much more desirable for the defendant than dismissal without prejudice. When a criminal case is dismissed with prejudice, the prosecutor cannot file new charges or reopen the case. The dismissal permanently ends the case in the defendant's favor.

Instead, dismissal for failure to prosecute is only proper when the plaintiff manifests an intention to thwart the progress of the action to its conclusion, or by some delaying tactic plaintiff fails to progress the action toward its conclusion. In re Will of Kersey, 176 N.C. App.

The court's decision to terminate a court case without imposing liability on the defendant. The court may dismiss a case in response to a defendant's motion to dismiss or do so sua sponte.

The termination of a civil action at the motion of the defendant.

LOP stands for Lack of Prosecution. Generally Dismissal for lack of prosecution occurs when the court closes a case as nothing has been filed within a specified period of time. The court presumes that as there is no record of activity the party does not wish to pursue the case.

When a court dismisses an action, they can either do so with prejudice or without prejudice. Dismissal with prejudice means that the plaintiff cannot refile the same claim again in that court.

Failure to prosecute occurs in a case when a claimant fails to continue to pursue an action but does not withdraw the claim.

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Harris Texas Motion by Defendant to Dismiss with Prejudice for Failure to Prosecute