Written by Jessica Relyea, Esq.
Edited by Brian Cafritz, Esq.
In Virginia, by statute, Plaintiff has a right to one nonsuit, or voluntary dismissal, as a
matter of right. You can read more about the procedure and rules surrounding a nonsuit here.
While a nonsuit is a very important vehicle for Plaintiff to correct defects in their case, it does
not shield Plaintiff from a pending motion for sanctions. The Supreme Court of Virginia has
held that a trial judge must still hear and decide a motion for sanctions that is pending against
Plaintiff, even if Plaintiff files and receives a nonsuit. Williamsburg Peking Corp. v. Xianchin
Kong, 270 Va. 350 (2005).
In the case of Williamsburg Peking Corp. v. Xianchin Kong, the Supreme Court held that
the trial court should have considered the pending motion for sanctions against Plaintiff even
after the trial court granted Plaintiff’s motion for nonsuit and entered an order nonsuiting the
matter. Id. In that case, a pro se Plaintiff had alleged that Williamsburg Peking Corp. ("Peking")
improperly terminated her employment as a waitress. Id. at 352. Plaintiff did not prosecute her
case for one year and then filed numerous discovery requests and motions which Peking
contended were "inordinately voluminous" and "redundant." Id. Peking responded to the requests in good faith, to which Plaintiff responded with four separate letters objecting to Peking's
responses. Id. at 352-353. Peking filed a motion for a protective order, which was granted by
the trial court. Id. at 353. Peking then filed a motion for sanctions to recover the more than
$16,000 in costs and fees it incurred in responding to the discovery and seeking the protective
order. Id. After Peking filed a motion for sanctions, Plaintiff retained counsel and moved to
nonsuit the matter. Id. The trial court granted the nonsuit and then refused to hear the motion for
sanctions, concluding it lacked jurisdiction to do so. Id. Peking appealed. Id.
The Supreme Court first held that a nonsuit order is a final judgment, which was under
the control and jurisdiction of the trial court for 21 days after the date of entry. Id. at 354. The
Supreme Court then ruled that a nonsuit order did not preclude a trial court from hearing a
motion for sanctions, stating "a motion for sanctions is an application made to a court for the
imposition of the penalty for alleged misconduct of a party or lawsuit or for alleged abuse of the
system. The motion has no bearing on the facts giving rise to a right to seek judicial remedy."
Id. Furthermore, the Supreme Court explained that to allow a nonsuit order to effectively
dismiss a motion for sanctions would go against public policy. Id. at 354-355
There are three main takeaways from this case. First, the Supreme Court's opinion
specifically noted that the motion for sanctions was pending before the nonsuit order was
entered. Second, the Supreme Court also clarified that the trial court is only empowered to
consider the sanctions motion within the 21 days after the nonsuit order is entered, or the court
would lose jurisdiction at that time. Third, the Supreme Court's decision is simply stating that
the trial court can consider motion, not that sanctions would be appropriate or should be entered.
It is important to keep this in mind if you have a pending motion for sanctions and Plaintiff
advises of his intention to nonsuit. The defendant has a right to proceed with the motion, so long
as it has it heard within 21 days of entry of the nonsuit. However, just because you can proceed,
does not mean you should proceed. Knowing the likelihood of success on the motion and the
cost you will incur to have it heard are just two factors to consider when deciding how to proceed. The attorneys at KPM LAW can help you decide how to proceed on a case when the Plaintiff goes rogue.