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Nonsuit filing after dismissal hearing rejected

Virginia Lawyers Weekly//April 16, 2020

Nonsuit filing after dismissal hearing rejected

Virginia Lawyers Weekly//April 16, 2020//

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Where plaintiff filed a nonsuit motion after a hearing on defendant’s motion to dismiss, the nonsuit motion is denied because the case had been submitted to the court for a decision.


Plaintiff alleged that defendant Norfolk Southern Railway caused, in whole or in part, the death of plaintiff’s decedent. Defendant filed a motion to dismiss, arguing that plaintiff had not filed the suit through a personal representative qualified in Virginia.

At the Feb. 19, 2020, hearing on the motion to dismiss, plaintiff’s counsel mentioned filing a nonsuit but did not request one. At the end of the hearing, the court indicated that defendant had the better argument but the case would be taken under advisement.

On Feb. 27, plaintiff filed a motion for nonsuit. On March 3, the court, unaware of the nonsuit motion, issued a letter opinion granting defendant’s motion to dismiss. On March 11, the court received a proposed dismissal order from defendant and a nonsuit order from plaintiff. Each party had objected to the other party’s order. On March 18, the court conducted a phone conference with the parties pertaining to whether plaintiff was entitled to a nonsuit.


Code § 8.01-380(A) states, “‘A party shall not be allowed to suffer a nonsuit as to any cause of action … unless he does so … before the action has been submitted to the Court for decision.’ …

“At the February 19 hearing, there is no doubt that both parties had fully and ably briefed the issues on Defendant’s Motion to Dismiss. There is also no doubt that counsel had made and completed their oral argument. Before the hearing concluded, no party asked for (and by implication was granted) additional time within which to submit additional argument or authorities. Instead, the hearing concluded with the understanding that the case was in the Court’s hands and the Court would issue a decision in two weeks.

“Harsh as the result may be, the Court concludes that when the February 19 hearing came to a close with Plaintiff not having made a nonsuit motion, both parties had yielded the issue to the Court for consideration and decision. The time bar thus became effective at the conclusion of the February 19 hearing and Plaintiff in this case was barred from taking a nonsuit at the adjournment of the hearing.”

The court will enter defendant’s order of dismissal and refuse plaintiff’s order for a nonsuit.

Stacy v. Norfolk Southern Railway Co., Case No. CL-19-2085. March 26, 2020; Roanoke Cir. Ct. (Carson). Charles J. Dickerson, Elizabeth G. Perrow, J. Mark Cook, Thomas Joyce for the parties. VLW 020-8-027, 4 pp.

VLW 020-8-027

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