Your Client Has Been Named as a Defendant in a Civil Lawsuit Filed More Than a Year Ago: Now What?

We all have bad days and even bad weeks, but waiting over a year to serve a defendant in a civil lawsuit in Virginia is just too long—and the rules agree.

Rule 3:5(e) of the Rules of the Supreme Court of Virginia (the “Rules”) states that “[n]o order, judgment, or decree will be entered against a defendant who was served with process more than one year after the institution of the action against that defendant unless the court finds as a fact that the plaintiff exercised due diligence to have timely service on that defendant.” When the Advisory Committee on Rules of Practice and the Supreme Court took actions to shorten this one-year rule, the General Assembly passed S.B. 482 in 1994, codifying the 12-month standard for timely service.[1] As codified, the legislation requires service on a defendant within “twelve months of commencement of the action or suit” and states that service after one year shall only be “timely upon a finding by the court that the plaintiff exercised due diligence to have timely service made on the defendant.”[2]

With these authorities in mind, you can quickly determine what to do if your client is named as a defendant in a civil suit and comes to your office for help more than one year after the underlying complaint was filed. As a preliminary matter, make sure your client is not in default and determine whether or not he or she has been served with process to decide which way to proceed under Virginia Code § 8.01-277.

First, in a situation where the underlying complaint was filed more than a year later and your client has not yet been served, you can simply make a special appearance pursuant to Virginia Code § 8.01-277(B) and file a motion to dismiss. If the other side can prove that it exercised due diligence in trying to serve the defendant within one year, then the motion will be denied and the defendant will have 21 days to file a responsive pleading to the complaint. A determination of due diligence is a “factual question to be decided according to the circumstances of each case,” but the concept has been described as a “devoted and painstaking application to accomplish.”[3] However, if the court finds that the plaintiff did not exercise due diligence in attempting to serve the defendant, then the court will dismiss the action.

Note that there is no statutory authority allowing a plaintiff to prospectively obtain an order granting an extension of the one-year rule.[4] Aside from proving due diligence, a plaintiff’s only recourse is a voluntary nonsuit, as discussed below. Further, the Supreme Court has specifically held that unless a voluntary nonsuit is taken before the motion to dismiss is granted, the dismissal will be with prejudice in order to preserve the policy behind the rule: “to provide for timely prosecution of lawsuits and to avoid abuse of the judicial system.”[5]

Even if a plaintiff fails to exercise the necessary due diligence to serve the defendant, he or she can still take refuge by taking a voluntary nonsuit and then refiling the complaint before the entry of an order granting the motion to dismiss. While this nonsuit avenue appears to sidestep the purpose of Rule 3.5(e), the Virginia Supreme Court has held that a plaintiff’s nonsuit rights do not conflict with the timely service rules.[6] Nevertheless, even with the possibility of a voluntary nonsuit, filing the motion to dismiss under Virginia Code § 8.01-277(B) will put the court on notice of the untimely service and restrict additional nonsuits in the future. After all, subsequent nonsuits are only permitted with leave of the court and may subject the twice-nonsuiting party to costs and fees pursuant to Virginia Code § 8.01-380(B).

Second, if your client has actually been served more than twelve months after the plaintiff’s complaint was filed, you should file a motion to quash service. Under Virginia Code § 8.01-277(A), the defendant may raise objection to the untimely service through a motion to quash, which must be filed before or together with a responsive pleading in order to preserve the objection to the deficient service.[7] Virginia Code § 8.01-277.1 provides a handy list of litigation “conduct” that amounts to a general appearance, which again waives your objection to untimely service if done without the motion to quash.

Bottom line, if more than 12 months has passed in a civil lawsuit before your client learns, from service or otherwise, that he or she has been named as a defendant, quickly consult Virginia Code § 8.01-277 and Rule 3:5(e) of the Rules of the Supreme Court of Virginia to raise an appropriate objection through a motion to dismiss or quash. While a voluntary nonsuit is likely to follow, you will have done your own due diligence to ensure that the lawsuit is timely prosecuted.

[1] See Kent Sinclair and Leigh B. Middleditch, Jr., Virginia Civil Procedure (7t. ed. 2020).
[2] Virginia Code § 8.01-275.1.
[3] Dennis v. Jones, 240 Va. 12 (1990) (quoting, in part, Webster’s Third New International Dictionary (1981)).
[4] See Bowman v. Concepcion, 283 Va. 552 (2012).
[5] Gilbreath v. Brewster, 250 Va. 436, 441 (1995).
[6] See McManama v. Plunk, 250 Va. 27 (1995).
[7] See Lyren v. Ohr, 271 Va. 155 (2006).

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These articles are provided for general informational purposes only and are marketing publications of Gentry Locke. They do not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.