No one wants to go through the stress of preparing a defense to a small claims action and appearing in court. But, on occasion, the plaintiff—the person who initiates a lawsuit by filing a complaint—fails to show up. If this happens to you, the judge will likely dismiss the matter, but not always, and the plaintiff might be able to refile the case.
Whether the case will resurface will depend on if the plaintiff had a good reason for not appearing—such as a sickness or family emergency—or merely a change of heart. In this article, you’ll learn what to expect if the plaintiff is a no-show.
The allegations in the small claims complaint are just that—allegations. Before a plaintiff can win a case, the plaintiff must present evidence proving the truth of the facts stated in the complaint. This requirement makes it’s virtually impossible for the plaintiff to prevail without showing up.
For example, let’s assume that the plaintiff filed a small claims complaint alleging that the defendant wasn’t watching where he was going when he knocked the plaintiff down and broke her expensive designer sunglasses. To receive reimbursement for a claim of negligently damaged property, the plaintiff will need to prove:
To prove these elements, the plaintiff might present the following evidence:
A plaintiff who shows up for the trial and presents the evidence above will likely prevail. The plaintiff will have met the burden of proof. However, since a plaintiff cannot rely on the allegations in the complaint alone, if the plaintiff fails to attend the trial, and thus fails to present evidence, the judge will likely dismiss the case.
Learn about what to expect at the small claims trial.
Just because a judge dismisses a plaintiff’s case doesn’t mean that the case is over. Two types of dismissals exist— a dismissal with prejudice and a dismissal without prejudice—and in either case, there is a potential that the plaintiff might refile the action. Here’s how it works.
Find out how much time you have to bring your case by reviewing the statute of limitations by state chart.
A defendant isn’t always liable. A defendant who believes the plaintiff owes the defendant money or that the plaintiff wronged the defendant in some way can file a claim against the plaintiff. If the plaintiff doesn’t show up in a case in which the defendant filed a counterclaim, the outcome will likely be different.
Instead of dismissing the case, the court will usually allow the defendant to go forward with evidence. The same would be true if the plaintiff showed up, but the defendant didn’t—the judge would let the plaintiff submit evidence and “prove up” the case.
When the opposing party doesn’t show, the judge will issue a default judgment in favor of the person bringing the claim. But it doesn’t end there. A default judgment doesn’t mean the person will automatically win the amount claimed. The person filing the claim must still prove that he or she is entitled to an award. Therefore, the person who filed the claim can put on the case and submit evidence of the amount of the loss.
The plaintiff or defendant on the wrong side of a default judgment or a dismissal with prejudice can ask the court to vacate it. The judge is most likely to grant a motion to set aside if both of the following are true:
To get a default judgment or dismissal with prejudice vacated, you can ask the small claims court clerk for the rules and forms you should use or use the self-help resources located in many courthouses.