VIRGINIA — ANNOTATED MODEL ESSAY: Civil Procedure (The Voluntary Nonsuit)
Virginia is not a UBE jurisdiction and tests its own distinctive civil practice. The voluntary nonsuit — a plaintiff's near-absolute right to dismiss and refile — is one of the most heavily tested Virginia peculiarities.
Donna sued Carl in a Virginia circuit court for breach of contract, seeking 60,000 dollars. Carl filed a grounds-of-defense answer but no counterclaim. The case was tried to a jury. After both sides rested and closing arguments concluded, but before the judge sent the jury to deliberate, Donna's counsel sensed the jury was hostile and moved for a nonsuit. The judge granted it over Carl's objection.
Six weeks later Donna filed a new suit against Carl on the same contract claim. Carl moved to dismiss, arguing Donna had waited too long after closing argument and that, in any event, the second suit was barred. The applicable statute of limitations on the contract claim had run two months before Donna refiled.
Separately, assume instead that before resting, Donna had already taken one prior nonsuit of this same claim, and now moved for a second nonsuit, again over Carl's objection.
(1) Was the nonsuit properly granted? (2) Is Donna's refiled suit timely despite the expired limitations period? (3) In the alternative scenario, may Donna take a second nonsuit as of right?
Model Answer — with annotations
Black text is the answer you could write under timed conditions. The gold boxes explain why each move earns points and flag where Virginia law departs from the general rule.
I. The Virginia nonsuit is a powerful plaintiff-side right. Virginia gives a plaintiff a statutory right to take a voluntary nonsuit — a dismissal without prejudice — and the right to one nonsuit is essentially absolute and may be taken over the defendant's objection and without the court's permission. This departs sharply from the federal rule and most states, where a plaintiff's unilateral dismissal is cut off once the defendant answers or trial substantially proceeds, and where repeated dismissal can trigger an adjudication on the merits.
II. Timing: a nonsuit must be taken before the case is "submitted." The one limit on the first nonsuit is timing. A party may not nonsuit after the matter has been submitted to the court or jury for decision. The cut-off is submission for decision — not the close of evidence and not the close of argument. Here Donna moved after closing arguments but before the judge instructed and sent the jury out to deliberate. Because the case had not yet been submitted to the jury for decision, the nonsuit was timely and properly granted over Carl's objection.
III. A defendant's counterclaim can defeat or limit the nonsuit. The right is not unconditional in every posture: if the defendant has filed a counterclaim, cross-claim, or third-party claim that cannot remain pending for independent adjudication, the plaintiff generally cannot nonsuit without consent over that objection. Here Carl filed only a grounds-of-defense answer and no counterclaim, so nothing constrained Donna's right. The objection was properly overruled.
IV. The refiling window and the tolling/extension effect. The signature consequence of a nonsuit is that the plaintiff may recommence the same action. Virginia provides a protected window to refile even if the original limitations period has since expired: the plaintiff may refile within six months of the nonsuit order, or within the original limitations period, whichever is longer. This statutory window is the reason the nonsuit is so valuable — it effectively rescues a claim whose limitations period lapses after the nonsuit.
V. Application to Donna's refiled suit. Donna refiled six weeks after the nonsuit order — well within six months. Although the contract limitations period had run two months before she refiled, the nonsuit statute gives her the longer of the original period or six months from the nonsuit. Six months from the order had not elapsed, so the refiled suit is timely. Carl's limitations argument fails, and his "waited too long after closing argument" point fails because, as shown above, the case had not been submitted for decision when she nonsuited.
VI. The second nonsuit is not a matter of right. The absolute entitlement runs to one nonsuit only. A plaintiff is entitled to a nonsuit as of right one time; any additional nonsuit of the same claim may be granted only with the court's leave (or the parties' agreement), in the court's discretion and typically on terms. So in the alternative scenario, Donna cannot take a second nonsuit over Carl's objection as a matter of right; she would need the court's permission, which the court may condition or deny.
VII. Conclusion. (1) The nonsuit was properly granted: it preceded submission to the jury and no counterclaim limited it. (2) The refiled suit is timely because Virginia allows refiling within six months of the nonsuit order, overriding the lapsed limitations period. (3) A second nonsuit is not available as of right; Donna would need the court's leave, which it may grant on terms or deny.
- Identifies the voluntary nonsuit as a distinctively Virginia, plaintiff-favoring right and contrasts it with the federal two-dismissal rule.
- Nails the timing cut-off — the case must not yet be "submitted for decision" — and applies it to a jury that had not retired.
- Spots and disposes of the counterclaim exception that can defeat a nonsuit.
- States the refiling window precisely (six months from the nonsuit order or the remaining limitations period, whichever is longer) and uses it to rescue a time-barred claim.
- Draws the bright line that only one nonsuit is available as of right; further nonsuits require leave of court.
- Closes by answering each numbered call directly.
📝 This is one model essay on Virginia’s distinctive law. For full subject-by-subject Virginia coverage, see the Virginia Bar Exam Outlines & Subject Guide; for the universal MEE subjects, the Annotated Model Essays. Then write timed answers and get AI feedback at BarExamNextGen.
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