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The Right to Nonsuit in Virginia Litigation

  What is a nonsuit? Simply stated, a nonsuit is a voluntary withdrawal or dismissal of a lawsuit by the party that filed it that allows the party to bring a second suit on the same cause of action. (See Va. Code § 8.01-380) [an annotated version of this statute is available to subscribers]. It results in a termination of the case "without prejudice," leaving open the possibility that the plaintiff will bring the same claims a second time. Litigators from other states are often surprised to hear about this Virginia procedural device, as it arguably gives plaintiffs an enormous tactical advantage. If you're a lawyer admitted pro hac vice to a Virginia state court, this blog post is for you.

Plaintiffs in civil litigation get one "free" nonsuit. This means that, subject to the exceptions described below, the first time a plaintiff moves for a nonsuit with respect to a defendant or cause of action, the court must grant it, no questions asked. Plaintiffs do not need to explain their reasons for wanting to nonsuit. Don't like the way a juror looked at you? Go ahead and nonsuit if you feel strongly enough about it. It doesn't even matter if the case was previously in federal court and voluntarily dismissed; you're entitled to one nonsuit in Virginia state court. The second time the case is brought, it may still be possible to nonsuit, but this time the judge will have discretion to grant or deny your motion. You can also nonsuit a second time if the defendant has no objection (which is often the case as defendants tend to be eager for litigation to end).

The unconditional right to nonsuit, however, exists only where no defendant has filed a counterclaim, cross-claim, or third-party claim that arises out of the same transaction as the plaintiff's claim. If that's the case, the counterclaimant needs to consent to the nonsuit, unless the defendant's claim can remain pending as an independent action. The counterclaim provisions of the nonsuit statute were designed to address the situation where a plaintiff and defendant are pursuing claims that are two sides of the same coin. For example, in a car accident case, the two sides will often blame each other for causing the accident. If one of those litigants wants the liability issue to be addressed by the court, he or she may be able to prevent the other from taking a nonsuit.

Whether a counterclaim is capable of remaining for independent adjudication depends on whether adjudication of the counterclaim would necessarily involve an adjudication of the plaintiff's claim. See Gilbreath v. Brewster, 250 Va. 436, 442 (1995) [an enhanced version of this opinion is available to subscribers]; Lee Gardens Arlington Limited Partnership v. Arlington County Board, 250 Va. 534, 541 (1995) [enhanced version]. A nonsuit will not be permitted where an adjudication of one claim would necessarily result in adjudicating both claims. Derivative third-party claims, for example, cannot be adjudicated independently.

 Read the rest of the article at the Virginia Business Litigation Lawyer Blog.

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