What is a Nonsuit and Why Should it Matter?

Written by Jessica Relyea, Esq.

Edited by Brian Cafritz, Esq.

Almost every state has certain rules or procedures that are unique to that jurisdiction.  In Virginia, one of our legal oddities is the existence and breadth of the voluntary nonsuit.  A voluntary nonsuit in state court is a procedural right to voluntarily dismiss the case, but it is created by statute.  Va. Code Ann. § 8.01-380.  Although it is a voluntary dismissal, a nonsuit does not operate the same way as a voluntary dismissal in federal court.   It allows the Plaintiff to correct a flaw in her case and reset the matter to the start in a future filing, with no real penalty or hardship.  The Supreme Court of Virginia has described a voluntary nonsuit as a “powerful tactical weapon in the hands of Plaintiff.  Trout v. Commonwealth Transp. Comm’r of Va., 241 VA 69, 73 (1991). Given this tool at plaintiff’s disposal, it is important for all defendants to understand what a voluntary nonsuit is, how it can be used, and how it may impact their case.

In Virginia, a Plaintiff is allowed one nonsuit as a matter of right, which can be taken at any point before a motion to strike the evidence has been sustained or before the case has been submitted to the jury.  Va. Code Ann. § 8.01-380.  This means a Plaintiff can nonsuit her case while a motion for summary judgment is pending or in the middle of trial if she does not like the make-up of the jury or how her doctor testified.  Plaintiff does not need the consent of all parties or even the approval of the Court to take her first nonsuit.  Id.  If a Plaintiff wants to take a second nonsuit, she can only do so at the discretion of the court after reasonable notice is given to all parties.  Va. Code Ann. § 8.01-380(B).

The federal court rules do not allow for nonsuits, but rather, allow for voluntary dismissals under certain circumstances.  Fed. R. Civ. Pro. R. 41.  The most notable distinction between a nonsuit and voluntary dismissal is that if a defendant has entered an appearance in federal court, plaintiff can only dismiss the matter with the consent of all parties or the approval of Court.  Id. Furthermore, the Virginia Supreme Court has held that a voluntary dismissal under the federal rules does not necessarily act as a nonsuit under the Virginia rules.  As such, if a Plaintiff voluntarily dismisses her matter in federal court, she may still be entitled to a nonsuit as a matter of right in state court.  See INOVA Health Care Servs. V. Kebaish, 284 Va. 336 (2012).

There are some limitations and penalties to a Plaintiff’s right to nonsuit. A party cannot nonsuit a cause of action, without the consent of the adverse party, if a counterclaim, cross-claim or third-party claim exists, unless that counterclaim, cross-claim or third party claim can proceed independent of the initial action.  Va. Code Ann. § 8.01-380(D).  Additionally, the nonsuiting party may be assessed costs.  If the party taking the nonsuit does so within seven days of trial, the Court has the discretion to order the nonsuiting party to pay witness fees and travels costs incurred in anticipation of the pending trial  Va. Code Ann. § 8.01-380(C).  Keep in mind that plaintiff cannot be ordered to pay defendant’s attorney’s fees in this scenario. If the Court allows a second or subsequent nonsuit, the Court may assess costs and reasonably attorney’s fees against a nonsuiting party.  Va. Code Ann. § 8.01-380(B).

So what do you do after a nonsuit has been taken?  A voluntary nonsuit tolls the statute of limitations of this lawsuit.  This means that Plaintiff has either six months from the date of the nonsuit or the original period of limitations, whichever is longer, to refile her lawsuit. Va. Code Ann. § 8.01-229(E)(3).  Plaintiff would then have one year from the date of refiling to serve the Complaint.  Va. Sup. Ct. R.  3:5(e).  If Plaintiff fails to properly serve the Complaint within this time period, the defendant can enter a special appearance for the sole purpose of moving the court to dismiss the lawsuit for failure to timely effectuate service.  Id.

Ultimately, after Plaintiff takes a voluntary nonsuit as a matter of right, she can then delay the litigation for an additional 18 months.  A powerful weapon indeed!


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