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Six-month tolling provision made second lawsuit timely

Virginia Lawyers Weekly//November 20, 2023

Six-month tolling provision made second lawsuit timely

Virginia Lawyers Weekly//November 20, 2023//

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Where a man timely filed his civil rights suit, then voluntarily dismissed it without serving the defendant and then filed a second suit within six months from the date of the voluntary dismissal, the second suit was timely under the six-month tolling provision in Va. Code § 8.01-229.


On Aug. 23, 2019, Harley Jackson filed suit in this court against Deputy Sheriff Scottie Whited. Jackson alleged that Whited had violated his constitutional rights on Aug. 27, 2017, by searching his home and vehicle without a warrant. The plaintiff failed to serve the defendant with a summons and copy of the complaint within 90 days as required by Federal Rule of Civil Procedure 4(m). The court thereafter ordered the plaintiff to show cause why the action should not be dismissed without prejudice for this failure.

In lieu of responding to the order, the plaintiff filed a notice of voluntary dismissal on April 23, 2021, thus causing the case to be dismissed without prejudice. There is no contention by the plaintiff that he attempted to serve process on the defendant without success or that he exercised due diligence in that regard.

On Oct. 19, 2021, the plaintiff filed the present case, bringing an identical claim against the defendant. The plaintiff served the defendant on April 13, 2023. It is represented by defense counsel that this was the first actual notice that the defendant had received of the plaintiff’s claim, over five years after the alleged events.

Defendant then filed the present motion seeking dismissal under Rule 12(b)(6), contending that this suit is time-barred by the applicable two-year statute of limitations. The defendant’s argument relies on the fact that the plaintiff obtained a voluntary dismissal of the first action without serving process. The defendant asserts that the first action was thus not deemed commenced and accordingly could not toll the limitations period.


The present action plainly accrued on Aug. 27, 2017, when the plaintiff contends that he witnessed the defendant search his residence and vehicle without a warrant and against his will. Congress has not enacted a federal statute of limitations that applies to claims under 42 U.S.C. § 1983. Because there is no express federal statute of limitations for the claim, the court must borrow the most analogous state statute of

Virginia’s two-year statute of limitations for personal injury cases is the most analogous cause of action for § 1983. In addition to the applicable limitations period, the state tolling provisions contained in Va. Code § 8.01-229 also apply. The plaintiff contends that the filing of the first action tolled the statute of limitations under § 8.01-229(E)(1) and that his filing of the second action was thereafter timely based on § 8.01-229(E)(3), since it was filed within six months of the notice of voluntary dismissal of the first action.

The defendant disagrees, arguing that because process was never served on the defendant, the first action was not commenced in accord with Federal Rule of Civil Procedure 4(m) and thus the statute of limitations expired two years after Aug. 27, 2019, before the second action was filed. The defendant’s position is supported by decisions of other judges of this district.

There is no binding precedent for my resolution of the present issue. While I recognize that accepting the plaintiff’s position may, as here, extend the notice period to the possible detriment of those sued, I find that the clear language of the rules constrains a ruling otherwise.

The present cause of action accrued on Aug. 27, 2017. The plaintiff commenced the first action within the two-year statute of limitations by filing the complaint on Aug. 23, 2019, even though the plaintiff later obtained a voluntary dismissal, without serving the defendant with process. The plaintiff renewed the action on Oct. 19, 2021, within the window of Virginia’s six-months savings clause. Therefore, the plaintiff’s action is not time-barred.

Defendant’s motion to dismiss denied.

Jackson v. Whited, Case No. 1:21-cv-00044, Nov. 1, 2023. WDVA at Abingdon (Jones). VLW 023-3-693. 9 pp.

VLW 023-3-693

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