What You Need to Know About Nonsuits

In both the Virginia state courts and in federal court, plaintiffs possess the ability to voluntarily dismiss some or all of their claims in a way that does not reach the merits of action, and does not bar the refiling of the same claims later. But it can be complicated, and it can be dangerous. The “dismissing” part is easy enough; the trick comes in making sure you can “un dismiss” later. This article will give an overview of the process and identify some of the hidden dangers.

Where is the Law?

In Virginia, nonsuits are governed by Va. Code § 8.01-380. In federal court, Rule 41 of the Federal Rules of Civil Procedure controls. This article will give you the basic ideas, but it is imperative that you do the research as it pertains to your particular case. You won’t find cases cited here; the temptation to cut-and-paste cites from articles without reading the cases is just too great.

When can I take a nonsuit?

The question should probably be, “when can I voluntarily dismiss a claim without prejudice?” A plaintiff can always dismiss a lawsuit with prejudice. There is obviously no reason to discuss this kind of dismissal–the bad kind–because the case is just over. The terms “nonsuit” and “voluntary dismissal” imply dismissals that do not conclude the case.

In the Virginia state courts, a plaintiff has a near-absolute right to a first nonsuit any time before the jury retires, a motion to strike the evidence is sustained, or the case is submitted to the court for decision. A nonsuit can be taken orally in court, and this frequently occurs when some glitch occurs in the presentation of a case.

A plaintiff’s rights are not so broad in federal court. A plaintiff may give unilateral notice of a voluntary dismissal (the federal rules do not use the term “nonsuit”) without leave of court or the agreement of the parties at any time before the opposing party files either an answer or a motion for summary judgment. Once either of those two acts occurs, however, a plaintiff may only voluntarily dismiss a claim with the permission of the court, or by a stipulation signed by all parties.

How many?

In Virginia state court, a plaintiff only has a right to a single nonsuit as to each party and each cause of action, although the court can grant permission to take additional nonsuits and the parties can agree to additional nonsuits. There is no upper limit, although it seems doubtful that a court would have infinite patience in this respect.

In federal court, a plaintiff must be careful of the “two dismissal rule.” The rule is that a second voluntary dismissal by notice (as opposed to by court order or by stipulation of the parties) operates as dismissal on the merits. This is true even if the first dismissal was in state court. Further, the claims don’t have to be identical for the rule to apply. Rule 41(a)(1)(B) provides that, “if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.” So, if a plaintiff filed a case containing several claims against several defendants and voluntarily dismissed it, then filed a different lawsuit in federal court against a different defendant based on the same conduct and dismissed that case by filing a notice of voluntary dismissal, the dismissal would be with prejudice and would end the case. All you need to remember is that a second voluntary dismissal has the potential to be very bad.

Aside from this rule, there is theoretically no limit on the number of voluntary dismissals that can occur in federal court, although there is certainly a practical limit.

Of What?

A plaintiff can nonsuit or voluntarily dismiss an entire case, or all claims against a particular defendant. Nonsuits and voluntary dismissals should not be used to dismiss some but not all claims against a defendant. Rather, the plaintiff should amend to remove those claims. This is not only technically proper, but can preserve the dismissal or nonsuit “as of right” for future use.

Refiling the Claim

Except for the “two dismissal rule” in federal court, there is nothing about a nonsuit or voluntary dismissal in itself that can prohibit refiling the claim. Rather, the issue is one of statute of limitations in both state and federal court. Additionally, the concept of the compulsory counterclaim causes problems in federal court.

The issue of the compulsory counterclaim is simplest, and the rule can be stated as follows: don’t take a nonsuit or voluntarily dismiss your claim if there is also any kind of claim against you. If you do this, in either state or federal court, your opponent is entitled to continue the case, meaning that all you have done is turned yourself from plaintiff into defendant. This is unfortunate, but not fatal in state court. But in federal court, all claims arising from the same operative facts must be brought in the same lawsuit or be forever barred. If a plaintiff files a claim and a defendant files a counterclaim, the two become “counterclaims” of each other, and if either is dismissed while the other continues, the end of the lawsuit is the end of both claims.

Nonsuiting or voluntarily dismissing a claim outside the statute of limitations is not the disaster that nonsuiting or dismissing in the face of a counterclaim is, and indeed is often the right thing to do. But it can go wrong, and the rules are much more complicated.

Obviously, there has to be some mechanism to get around the statute of limitations and let you refile your case. That device is the Virginia “savings statute,” Va. Code § 8.01-229. Many a lawyer has spent many an hour looking for the federal equivalent of this statute; there isn’t one. Statutes of limitation as to state law causes of action are creatures of state law, and so the state savings statute works as to all state law causes of action, regardless of whether they were brought in state or federal court. Federal causes of action with federal statutes of limitation are a different animal, and are discussed below.

The savings statute has two components. The first way that an action may be “saved” is found in Va. Code § 8.01-229(E)(1), which provides that when an action is dismissed for any reason not on the merits, the plaintiff gets the remainder of the statute that he or she had when the case was filed. In other words, if a lawsuit was filed 30 days before the statute of limitations ran, remained pending for a year, and then was dismissed without concluding the merits, the plaintiff has 30 days to file suit again. This is a handy thing to know, but this does not work in the case of a nonsuit or voluntary dismissal. It works only when the court dismisses an action against the plaintiff’s will, but in a way that doesn’t reach the merits.

The more important provision is found in Va. Code § 8.01-229(E)(3), and creates the familiar “6 month savings period.” Basically, if you dismiss your lawsuit without prejudice after the statute of limitations has run, you get 6 months from the date of the entry of the order of dismissal to refile your action. This sounds simple. It is not.

Traps, Technicalities and Pitfalls

The language of the statute itself raises a few red flags. For instance, what is meant by “6 months”? Is this 6 calendar months, or 180 days? The statute doesn’t say, but the answer is 6 calendar months, e.g., from January 1 to July 1. The period starts to run when the order of dismissal is entered, but what does “entry” mean? This could be somewhat tricky; in state court, it is the day the judge signs the order, while in federal court it is the day that the clerk enters the signed order. Of course, you can’t go wrong if you start counting your 6 months from the date of the notice of nonsuit or dismissal, and you re-file well before the deadline.

The real traps are more difficult. These are things that you just have to know.

First, there are some claims that are simply immune to the savings statute. Claims under the Federal Tort Claims Act, for instance, cannot be refiled based on a state law savings statute in any state. If you dismiss your Federal Tort Claims Act case outside the statute of limitations, you will not get back into court, except during your malpractice trial. The same rule applies as to contractual statutes of limitation, which are sometimes found in construction contracts and the like.

The same may be true as to many “statutory” causes of action, under the theory that these causes of action only exist by virtue of statutes which are in derogation of the common law, and which have to be strictly construed. For instance, until the legislature fixed the problem, the Virginia savings statute did not apply to wrongful death actions. Although there is no clear precedent in Virginia, it is almost certain that the savings statute will not save a will contest. If you have any type of claim besides a run-of-the-mill state law contract or tort claim, you should research very carefully to make sure that the savings statute has application in that type of case.

Second, in the case of causes of action which require pre-suit notice, which is true of medical malpractice claims in many states, the interplay between the savings statute and the notice provisions may be quite intricate. Do your research before the dismissal.

Third, the 6 month savings period is a one-time only offer. The plaintiff may take successive nonsuits or dismissals, but he or she does not get successive 6 month savings periods. The single 6 month savings period runs from the date of the first dismissal. Do not dismiss a case outside this period.

Fourth, you must be sure to determine whether the savings statute saves your claim from a statute of repose. The answer is not uniform as to all claims, much less all states.

Final Word

In conclusion, taking a nonsuit or voluntarily dismissing your case should weigh on your mind in roughly the same way that getting a tattoo should. It is a significant step, and it may turn out to be permanent. Do your research, ask the questions raised here, and don’t do things in a panic or at the last minute.

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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.