If the Plaintiff Is a No-Show

Find out what happens when the plaintiff fails to show up to court

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Occasionally, the plaintiff fails to show up to a scheduled small claims court hearing. In this situation, the judge normally will either dismiss the case or decide it based on the defendant's evidence, especially if the defendant filed a defendant's claim. The defendant usually will prefer to have the judge decide the case, because if the case is simply dismissed (called a "dismissal without prejudice"), the plaintiff can refile it.

If a plaintiff does not show up at the hearing and did not request a postponement, it's likely the judge will dismiss the case. If the judge dismisses the case "without prejudice," this means the plaintiff can refile the case as long as the statute of limitations has not run out in the meantime. Normally, you have to refile quickly (many states have a 30-day limit).

However, if the judge dismisses the case "with prejudice," the plaintiff can't refile the case without first asking the judge to cancel (vacate or set aside) the dismissal. A judge is most likely to dismiss a case with prejudice if the defendant shows up in court and the plaintiff did not file a written request for postponement before the court date.

The judge is most likely to grant your motion to set aside the dismissal if both of the following are true:

  • The plaintiff moves to have the judgment vacated promptly upon learning of his or her mistake. "Promptly" usually means within 30 days after the day the dismissal was entered and is thought by most judges to be a much shorter time.
  • The plaintiff has a good explanation as to why he or she was unable to be present or call on the day the case was regularly scheduled. A judge might accept something like this: "I had a flu with a high fever and simply lost track of a couple of days. As soon as I felt better, which was two days after my case was dismissed, I came to the clerk's office to try to get the case rescheduled."

To get a dismissal vacated, ask the small claims court clerk for the rules and forms you should use.

If the judge enters a default judgment for the defendant, the plaintiff cannot appeal the judgment but may appeal the judge's decision to give the defendant a default judgment. Remember, the plaintiff is the one who initiated the case and established the hearing date, so no one is going to have a great deal of sympathy for the plaintiff's failure to show up, and the plaintiff's reason for not appearing must be a very good one and should be supported by written evidence. The procedure for vacating or setting aside a judgment is the same as the procedure discussed above for defendants.

by: Ralph Warner

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