If the Plaintiff Is a No-Show

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

By , Attorney

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.

Find out what to do if you get sued and how to prepare a defense in a small court case.

Filing a Complaint Isn't Enough

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:

  • the defendant failed to act reasonably under the circumstances
  • the defendant's failure caused the property damage, and
  • the dollar amount of the plaintiff's property loss.

To prove these elements, the plaintiff might present the following evidence:

  • her testimony about how the incident occurred
  • witness testimony describing the defendant's behavior and that he wasn't paying attention when he ran into the plaintiff
  • the crushed sunglasses, and
  • a receipt showing the cost of the sunglasses and when they were purchased.

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.

Types of Dismissals

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.

  • Dismissal without prejudice. If the judge dismisses the case "without prejudice," the plaintiff can refile the case as long as the statute of limitations hasn't run out (the period in which you're required to file a case). Many states require the plaintiff to refile within 30 days. A judge might dismiss the case without prejudice if the plaintiff asked for a postponement in writing. Check the rules of your local court.
  • Dismissal with prejudice. If the judge dismisses the case "with prejudice," the case is over. The plaintiff can't refile the case without first asking the court to vacate or set aside (cancel) the dismissal with prejudice. A judge is most likely to dismiss a case with prejudice if the plaintiff doesn't show up in court and doesn't file a written request for postponement before the court date.

Find out how much time you have to bring your case by reviewing the statute of limitations by state chart.

When the Defendant Files a Claim

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.

Here's why.

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.

If the proof is satisfactory, the judge will award a money judgment. Find out how to collect a money judgment.

Vacating a Default Judgment or Dismissal With Prejudice After a No-Show

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:

  • The moving party asks to have the judgment or dismissal vacated promptly upon learning of his or her mistake. "Promptly" usually means within 30 days after the day the dismissal or default was entered and is thought by most judges to be a much shorter time.
  • The moving party has a good explanation as to why he or she was unable to be present or call on the day the case was scheduled. A judge might accept something like this: "I had the flu with a high fever and 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 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.