What is a Discontinuance?

Terry Masters

A discontinuance is the legal term for a formal notice filed by a plaintiff with a court and served on the defendant to end a civil lawsuit. A civil lawsuit is a legal action brought by a plaintiff against a defendant. Since the plaintiff is the one who initiates the litigation, only he can file a notice for discontinuance.

If a plaintiff chooses to end a civil lawsuit against a defendant, it is referred to as a discontinuance.
If a plaintiff chooses to end a civil lawsuit against a defendant, it is referred to as a discontinuance.

Defendants cannot halt the dismissal of a lawsuit if the plaintiff files a discontinuance. Courts consider the plaintiff in a civil lawsuit to be the master of the legal action. Civil procedure enables the plaintiff to use this type of dismissal as an organized withdrawal from the litigation, if the plaintiff chooses to do so. Even if the defendant wants the litigation to proceed for the purpose of vindication or in the hope of obtaining court costs, he has no standing to prevent dismissal once the plaintiff requests an end to the action. A defendant’s only recourse is to file a separate action against the plaintiff if he has a cognizable cause of action.

Filing a notice of discontinuance effectively abandons the case, but it does not necessarily prevent the plaintiff from bringing another lawsuit on the same facts at some future date. The action would be requested and granted before the case is decided on its merits. Once granted, it means that there has been no judgment of success or defeat on the issues. The plaintiff would be free to pursue the matter again, provided the court did not dismiss the case subject to a preventive provision and any future lawsuit complied with general filing restrictions, such as a statute of limitations.

The procedure for filing a notice of discontinuance with a court differs by jurisdiction, and the correct procedure should be available in the court’s formal rules for civil procedure. In the U.K., for example, the rules for filing can be found in the court’s Civil Procedure Rules. In British Columbia, Canada, the rules relating to notices of discontinuance can be found in the British Columbia Rules of Court.

Although the civil procedure of most jurisdictions designed the notice of discontinuance to be used voluntarily by the plaintiff, the court can issue an involuntary dismissal if circumstances warrant. An involuntary discontinuance would likely prejudice the court against any future lawsuit on the same matter unless the underlying reasons for the dismissal were addressed. Reasons for an involuntary dismissal could include some insufficiency in the pleadings or misbehavior by the parties.

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Discussion Comments


Discontinuance seems like an odd term. Perhaps it's just my jurisdiction. Around here, a civil suit is typically dropped when the plaintiff files a motion to dismiss and a judge grants that with an order. Still, the concept is essentially the same.

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