The Nonsuit: Virginia Plaintiffs' Unique Do-Over (and Its Limits)
Imagine you are months into an injury lawsuit and something goes wrong that has nothing to do with the merits of your case. A key expert becomes unavailable. A treating doctor's records surface late. A witness you were counting on moves overseas. In most states, you would be stuck — forced to trial unready, or begging the court and opposing counsel for a dismissal on their terms.
Virginia is different. Virginia gives every civil plaintiff something almost no other state offers: the nonsuit — a voluntary dismissal, taken once as a matter of right, that lets you end the case and start over.
How the nonsuit works
The nonsuit lives in Virginia Code § 8.01-380. The core rule is simple: a plaintiff may take one nonsuit as a matter of right. The judge does not have to agree. The defendant does not have to agree. You file, the case is dismissed without prejudice, and — critically — you can bring it again.
The companion statute, Virginia Code § 8.01-229(E)(3), supplies the safety net that makes the nonsuit valuable: after a nonsuit, the plaintiff may recommence the action within six months from the date of the nonsuit order, or within the original statute of limitations period, whichever is longer. So even a plaintiff who nonsuits on the eve of the limitations deadline gets six months to refile.
The limits — and they are real
The nonsuit is powerful, but it is not unlimited. The statute builds in several hard boundaries:
| Rule | What it means in practice |
|---|---|
| One nonsuit as of right | The first nonsuit needs no permission; additional nonsuits require court leave or the parties' agreement |
| Timing cutoff | No nonsuit after a motion to strike the evidence has been sustained, after the jury retires, or after the case has been submitted to the court for decision |
| Counterclaim limit | If the defendant has filed a counterclaim arising out of the same transaction, you generally cannot nonsuit unless that claim can proceed independently |
| Refiling window | Six months from the nonsuit order or the remainder of the original limitations period, whichever is longer (§ 8.01-229(E)(3)) |
| Cost exposure | If the nonsuit is taken within seven days of trial, the court may award the defense its reasonable fees and travel costs for expert witnesses scheduled to appear |
The timing cutoff is the one that burns people. The nonsuit must be taken before the case is out of your hands — before a dispositive ruling, before the jury retires, before submission to the judge. Wait one motion too long and the right evaporates.
Note also that the court may assess costs and reasonable attorney fees against a party seeking a second or additional nonsuit, and prior nonsuits must be disclosed to the court.
Why defendants hate it — and why it exists
Defense lawyers call the nonsuit a "free pass," and it is true that no comparable tool exists for defendants. But the nonsuit reflects a deliberate policy judgment: cases should be decided on their merits, not lost to scheduling accidents, expert emergencies, or curable pleading problems. For an injured person who gets one chance at compensation for a lifetime of harm, that policy matters.
What this means for injured people in Virginia
For our clients, the nonsuit shapes strategy in several concrete ways:
- It is a shield against the unexpected. If a case develops a problem that time can fix — an expert gap, missing records, a newly discovered defendant — the nonsuit converts a potential loss into a six-month reset.
- It is leverage, used carefully. Insurers know a Virginia plaintiff facing a bad trial posture can nonsuit and return better prepared. That reality affects settlement negotiations.
- It is not a license to be unprepared. The one-nonsuit limit means the do-over card can be played exactly once without the court's permission. Careful lawyers treat it as an emergency brake, not a plan.
- Deadlines still rule. The six-month recommencement window is unforgiving. A nonsuited case that is not refiled in time is simply gone.
A few scenarios come up again and again in practice. A case is filed in a venue that proves unfavorable; a nonsuit permits refiling where the case belongs. Discovery reveals that the wrong corporate entity was named, or that an additional defendant — an employer, a contractor, a second driver — should have been in the case from the start; a nonsuit resets the pleadings cleanly. A treating physician retires or an expert's opinion shifts on the eve of trial; a nonsuit buys the time to rebuild the proof. In each situation the alternative — pressing forward with a compromised case — risks a judgment on the merits that would be final forever. The nonsuit trades a delay for a fair fight.
The nonsuit is one of those quiet procedural rules that can matter more than any doctrine of substantive law. Knowing when to use it — and when its window is about to close — is part of trying injury cases well in Virginia.
If you or a loved one has been hurt, call Posey Lebowitz at (202) 524-0123 or send us a message for a free consultation.
Part of our DMV case law archive, compiled in 2026 to reflect the archive of some of the most important decisions in injury law.