The Plaintiff’s Guide to Taking a Nonsuit

Taking a Nonsuit in State and Federal Courts

Learn When, How, and Why a Nonsuit (Voluntary Dismissal) Can Help You Recover More Money in Litigation

The Supreme Court of Virginia has said that the right to take a nonsuit, notwithstanding a defendant’s loss of time and expense incurred in preparation or any disruption to the court’s docket, is a powerful tactical weapon in the hands of a plaintiff.

A nonsuit gives you a “do-over” or mulligan and allows you to correct any flaws in your case, with no penalty. You can use it in claims based on car accidents, medical malpractice, traumatic brain injury and concussion, defective products, construction accidents, defamation, and business torts – and even in workers compensation.

This article explains the basics of moving for a nonsuit, when you should consider taking one, and the differences between nonsuits and voluntary dismissals in Virginia and federal courts.

Please keep reading to learn more. And check out Virginia Code Section 8.01-380, entitled Dismissal of Action by Nonsuit; Fees and Costs.

If you have any questions about your case or would like a free consultation with a top-rated personal injury lawyer, call me: (804) 251-1620 or (757) 810-5614. See why accident victims and other attorneys have voted my firm as one of the best in Virginia and how we can help you get results.

What is a Nonsuit?

Black’s Law Dictionary defines a nonsuit as: “A plaintiff’s voluntary dismissal of a case or of a defendant, without a decision on the merits.”

A nonsuit is a legal procedure that ends your lawsuit without prejudice. It allows you to sue the same defendants again based on the same cause of action (negligence, intentional tort, strict liability, etc.). Res judicata and collateral estoppel (legal doctrines that prevent plaintiffs from retrying the same cause of action) do not apply to nonsuits. 

When is a Nonsuit Allowed?

The right to a nonsuit is absolute in Virginia courts. The court must grant it – with some exceptions.  

Usually, it is easy to determine if you can take a nonsuit. But there are unique situations. And numerous judicial opinions address when it is or is not too late to take a nonsuit. 

You may take a nonsuit unless:

• The court has sustained (granted) a motion to strike the evidence. Typically a defendant moves to strike the evidence after the plaintiff presents its case-in-chief.

• The jury retires to deliberate (decide) the case. This means the court has instructed the jury, and the jurors have left the courtroom to render a verdict.

• The parties have submitted the case to the judge sitting without a jury (bench trial or a ruling on a dispositive motion).

• A defendant has filed a counterclaim, cross-claim, or third party claim arising from the same occurrence – unless the defendant’s claim can remain pending as an independent action or the defendant consents to a nonsuit.

You have the right to nonsuit if none of these exceptions apply. And you can exercise this right regardless of the time and money spent on discovery and litigation.  

When Should I Consider Taking a Nonsuit?

You do not have to have a reason for taking a nonsuit. 

But there are several reasons you might want to move for leave to nonsuit your case. These reasons include:

• You do not think the trial is going well for you

• You think the jury makeup is defense friendly (a nonsuit allows you to jury shop)

• Your witnesses did not testify well.

• You did not hold up well on cross-examination.

• The judge made an evidentiary ruling that you do not like (permitting the defendants to present evidence that you think should be excluded or excluding evidence that is important to you)

• You realize that you are not prepared for the trial and need to conduct more discovery or retain additional expert witnesses.

• You are surprised by events at trial.

How Many Nonsuits are Allowed in Civil Litigation?

In Virginia a plaintiff may take one nonsuit as a matter of right. 

However, the court may allow additional nonsuits if you show good cause and provide reasonable notice to the defendants. It may also grant subsequent nonsuits if the defendants stipulate (agree) to them. 

Do I Have to Pay the Defendant’s Fees and Costs if I Take a Nonsuit?

No – in most cases.

But there are two exceptions. 

First, the court may order you to pay the opposing party’s costs and reasonable attorney fees if it permits you to take more than one nonsuit. The court can make the payment of these fees and expenses a condition of refiling the civil action. 

Second, the court may order you to pay reasonable witness fees and travel costs of expert witnesses scheduled to appear at the trial if you take a nonsuit within seven (7) days of the trial or during the trial. But it cannot order you to pay attorney’s fees if this is your first nonsuit.  

The court is authorized to determine the reasonableness of the expert witness fees and travel costs. And invoices, receipts, and confirmation of payment are admissible to prove the reasonableness of the fees and legal expenses sought by the opposing party. You may, however, offer additional testimony or evidence to rebut the amount sought.  

Can a Judge Force Me to Take a Nonsuit?

No. 

In Virginia a nonsuit is voluntary. The court may recommend that you take a nonsuit, but it cannot force you to. Though you should reevaluate your evidence if the court makes that recommendation. 

How Do I Take a Nonsuit?

There are two ways to move for a nonsuit in civil litigation. 

First, you can file a written motion asking the court for leave to take a nonsuit.

Second, you can make an oral motion (followed by the submission of a written order) to nonsuit. Use this method if you need to nonsuit quickly because the judge has indicated he or she will grant a motion to strike the evidence or other dispositive motion that would result in losing on the merits. 

No matter what method used, you must inform the court if you have taken a prior nonsuit of the same action.

Refiling the Lawsuit After a Nonsuit

If you sue again after a nonsuit, you must file the lawsuit in the same court as the first one unless one of the following exceptions apply:

• The original court does not have jurisdiction over the matter. This situation is common if you increase the damages amount sought (ad damnum) and must now file the lawsuit in circuit court instead of the general district court.

• The original court is not a proper venue.

• You filed the first complaint in state court but have now filed the lawsuit in a federal court. Or vice versa (a voluntary dismissal under the federal rules does not act as a nonsuit under the Virginia civil procedure rules).

Understanding the Relationship Between a Nonsuit and the Statute of Limitations

A voluntary nonsuit tolls the statute of limitations in Virginia.

Typically you must file the complaint within the original period of limitations (two years for motor vehicle accident claims). 

But if you take a nonsuit, you have six months from the date the court entered the nonsuit to refile your claim – even if the original limitations period has expired. This right is found in Virginia Code Section 8.01-229(E)(3). 

Once you have filed the lawsuit, you have an additional twelve months to serve it on the defendant in Virginia (Rule 3:5(e) of the Rules of Virginia Supreme Court. You can build the evidence in your case during this period. 

Sample Motion for Nonsuit in a Civil Action

Below is the template I use when filing a motion for leave to take a nonsuit in civil litigation. 

Motion for Voluntary Nonsuit (Auto Accident Case)

The plaintiff, John Smith, moves for leave to take a nonsuit without prejudice in this action. 

Smith states the following:

On May 1, 2021 Smith filed a complaint against the respondent in the Virginia Beach Circuit Court. This action arises from a motor vehicle accident occurring on December 1, 2020. Smith alleges the respondent’s negligence caused Smith harm.

Smith has not taken a prior nonsuit. 

Smith now asks the court to grant his motion for voluntary nonsuit as a matter of right under Virginia Code Section 8.01-380. 

Sincerely, 

John Smith

Taking a Nonsuit in Federal Courts (A Motion for Voluntary Dismissal under Rule 41)

The federal court rules do not give plaintiffs as much power as state court rules for nonsuits. 

There is no right to nonsuit in federal court. But there is a similar procedure – the voluntary dismissal. 

Rule 41 of the Federal Rules of Civil Procedure governs dismissals in federal court. 

Voluntary Dismissals Without a Court Order

Rule 41 provides two ways to get a voluntary dismissal without a court order, meaning the motion for dismissal is self-executing. 

First, you may take a voluntary dismissal if the defendant has not yet filed an answer or a motion for summary judgment in response to your complaint. You need only file a notice of dismissal with the clerk of the court. A court order is not required. 

Second, you may take a voluntary dismissal if all the parties (including all defendants) agree to it. You need only file with the clerk of the court a stipulation of dismissal that all the parties (or their counsel) signed. 

When You Need a Court Order for a Voluntary Dismissal in Federal Court

If neither of the situations described above applies, you cannot obtain a voluntary dismissal without a court order. 

You can try to obtain an order by filing a motion for a voluntary dismissal that states why the court should grant relief.

Usually the federal court will grant the motion for voluntary dismissal unless the defendant can show it would suffer actual legal prejudice. But it may impose terms and conditions (including the payment of attorney’s fees and legal expenses to the defendant) should it grant the motion. A failure to satisfy the court’s requirements could bar you from refiling the lawsuit. 

If the court imposes terms that seem unfair or are unreasonable, consider withdrawing the motion and continuing with the lawsuit. 

Further, the court may not allow a voluntary dismissal if a defendant has pleaded a counterclaim and the counterclaim has no independent jurisdictional basis. 

How Many Voluntary Dismissals of Right Can I Take in Federal Court?

One – in most cases. 

When you take a voluntary dismissal of right after having previously taken a voluntary dismissal of right in an action based on the same claim, your second voluntary dismissal of right is with prejudice and considered a decision on the merits. This means you cannot refile the lawsuit.

Using a Nonsuit in Workers Compensation

The ability to take a nonsuit is not limited to plaintiffs seeking to recover damages in a civil action.

A nonsuit is also a powerful tool for injured employees claiming workers compensation benefits.

Can I Take a Nonsuit in a Workers Compensation Case?

Yes. 

You can take a nonsuit and voluntarily dismiss your workers comp claim. 

The Workers Compensation Act and the Rules of the Workers Compensation Commission do not have provisions related to nonsuits. 

However, the Workers Compensation Commission has followed the civil nonsuit provisions in the Virginia Code and allowed injured employees to take a nonsuit in some circumstances. 

Therefore, judicial precedent (common law) permits an injured employee to take a nonsuit in a workers compensation claim. 

Why Should I Take a Nonsuit in My Workers Comp Case?

You do not have to explain to the commission or the defendants why you are taking your first nonsuit.

But there are some reasons you might want to move for a nonsuit.

Here is a list of some of the reasons I might recommend that a client take a nonsuit:

• Your marketing evidence (job search) is inadequate. Those of you who do not have a Workers Compensation Award Letter and have received light duty restrictions from your treating physician must show that you have looked for work within your limitations to receive workers comp payments. If your job search evidence is weak, you may want to move for a nonsuit so that you can improve your marketing efforts.

• Your treating physician has released you to return to full duty work with no restrictions, and you want a second opinion. You will have difficulty proving that you are entitled to wage loss benefits if your doctor thinks you can do your pre-injury job. A nonsuit can give you time to get additional medical evidence to challenge the full duty release. You may use private health insurance or government medical coverage (Medicaid, Medicare, or Tricare) to get a second opinion (usually from an orthopedic surgeon or neurosurgeon in orthopedic injury cases, a cardiologist in heart disease cases, or a neuropsychologist in cases arising from traumatic brain injury (concussion) or other types of head injury).

• The deputy commissioner will not allow you to present all your evidence because you failed to respond to the defendants’ discovery requests completely or timely (or at all). A nonsuit voids all evidentiary rulings and allows you to correct your procedural mistakes.

• You realize that you can file a claim in another state and that state has more employee-friendly workers comp laws. I have represented many tractor-trailer drivers and construction workers who live outside of Virginia and work for out-of-state employers (Maryland, D.C., Missouri, Georgia, etc.) but suffered work-related injuries in Virginia. In these situations, multiple states might have jurisdiction over the workers comp claim. You will want to apply for benefits in whichever state has the lowest burden of proof and pays the most money for your specific injuries. Often the best jurisdiction for you is not the jurisdiction that the insurance company recommends.

• A vital witness did not show up (and you did not serve him or her with a subpoena).

• You want to focus on a third-party lawsuit before pursuing workers comp. Though workers comp is the exclusive remedy when it comes to recovering damages from your employer, there are situations where you can file a civil action.

How Many Nonsuits Can I Take Under Workers Comp Law?

You have the right to take one nonsuit. 

Additional nonsuits are at the commission’s discretion. 

In my experience, the commission will allow multiple nonsuits if there is no record of abuse of process or deliberate disregard for the commission’s authority and procedures. 

How Do I Take a Nonsuit under Workers Comp?

There are two ways to ask the commission to dismiss your claim voluntarily. 

First, you can submit a written motion for nonsuit to the commission. I provide a sample motion for use in workers comp claims later in the article. 

Second, you can make an oral motion to nonsuit the claim. 

You should use this method if you decide to take a nonsuit during the workers compensation hearing. 

Ask the deputy commissioner to allow you to move for a nonsuit on the record. This way, the hearing transcript will memorialize your motion if there is a dispute after the trial. 

When is it Too Late to Move for a Workers Comp Nonsuit?

There are litigation milestones that you cannot pass if you want to nonsuit your workers comp claim.  

You can take a nonsuit any time before the hearing record closes or before you submit the claim to the deputy commissioner for a decision on the merits. Once these milestones pass, the commission will deny any motion for nonsuit or voluntary dismissal. 

Further, you do not want to take a nonsuit once the statute of limitations for your workers compensation case has expired. 

This situation happens often. 

The commission may schedule your workers comp hearing for a date after the statute of limitations has expired if you waited until close to the deadline to file the initial claim or if the commission has postponed (continued) the hearing from earlier dates. 

Many people will not recognize the weaknesses of their case until soon before the trial (or during it) – primarily if they did not use the litigation discovery tools available (interrogatories, requests for production of documents, requests for admissions, depositions, doctor causation letters, etc.). 

It can be tempting to move for a nonsuit and voluntary dismissal when you realize your case is not as strong as you thought. But taking the nonsuit after the statute of limitations has expired can result in forfeiting your right to workers comp benefits such as lifetime medical coverage, temporary total disability, and compensation for permanent partial disability. 

This is because the commission will treat your initial claim as never being filed when it grants the nonsuit motion. And the statute of limitations will bar you from pursuing the claim you refile. 

Can the Employer and its Insurance Carrier or Third Party Administrator (TPA) Object to My Motion for a Nonsuit?

The defendants (employer, insurer, TPA) might object to your motion for a nonsuit and voluntary dismissal. 

But most won’t if you have not taken a nonsuit before. 

This is because experienced attorneys know that the commission will grant the motion for a nonsuit and dismissal without prejudice over an objection and that an objection to the plaintiff’s first nonsuit is a waste of time.  

If you are seeking a second nonsuit (or third or fourth), most defense attorneys will object. The more nonsuits you have taken (and been granted) before, the more likely it is that the commission will not grant another. The insurer will have a better argument that you are abusing the litigation process and that it is time for a decision on the claim’s merits.

Will I Have to Pay the Employer or Insurer’s Attorney’s Fees and Costs if I Nonsuit My Workers Compensation Case?

No.

You will not have to pay your employer (or its insurer’s) attorney’s fees and litigation expenses if you nonsuit your workers comp claim.

Virginia Code Section 65.2-713 provides for assessing costs, including attorney’s fees, against an employer or insurer in a workers comp matter. Usually costs are assessed if the commission finds the insurer did not have a reasonable basis to defend the claim and deny benefits.

The Code, however, does not have a section for the assessment of costs and attorney’s fees against the claimant in a workers compensation case. And the commission has declined to charge fees or expenses to claimants that voluntarily dismiss their case.

This is a critical distinction between nonsuits in civil proceedings and workers comp claims.

Sample Motion for Nonsuit in a Workers Comp Case

Below is the template I use when filing a motion for nonsuit in a workers comp claim. 

Motion for Nonsuit and Dismissal of Claim Without Prejudice 

The claimant, Jane Doe, moves for leave to take a nonsuit in this action. She offers the following to support this motion:

• Doe suffered an injury by accident arising out of and in the course of her employment on January 4, 2021.

• Doe submitted a claim for benefits to the Commission on February 8, 2021. She sought lifetime medical benefits for a back injury and a torn rotator cuff, temporary total disability beginning January 5, 2021, and continuing, and compensation for permanent partial loss of her right arm and both legs.

• Doe filed a supplemental Request for Hearing on April 19, 2021, seeking authorization and payment of spinal fusion surgery (lumbar spine).

• To the best of Doe’s knowledge and understanding, the employer has not filed a counterclaim, crossclaim, or third-party claim to Doe’s claims for benefits detailed above.

• The Court of Appeals of Virginia has held that: “The commission has adopted no rule governing the withdrawal or nonsuit of a pending claim. Nevertheless, the commission … ‘has generally followed’ the provisions of Code § 8.01-380 and allowed a party to nonsuit a claim at any time prior to it being submitted for a decision.’ Thus a claimant before the commission has customarily enjoyed the rights assured by Code § 8.01-380 …” Powell v. Foley Material Handling, VWCFile No. 191-98-17 (March 30, 2000) citing United Elastic Corp. v. Tatum, Record No. 0415-95-3 (February 21, 1996).

• Doe has not submitted her claims for a decision on the merits. The commission is scheduled to hear them later this month.

• Doe has not taken a prior nonsuit.

• Doe understands that should she choose to refile her claim for benefits, she must do so within the applicable statute of limitations.

For the reasons stated above, Doe moves that her pending claims may stand dismissed without prejudice to bringing another action concerning the matters involved. 

Sincerely,

Jane Doe

Get Help with Your Tort Claim

If you realize that you need more evidence and time in the middle of litigation, take a deep breath and call me: (804) 251-1620 or (757) 810-5614.

You might be able to take a nonsuit so that you can start over and build a strong case from the ground up.