The Virginia nonsuit: one as of right, and the moment it expires
Virginia procedure · Last verified August 17, 2026
The nonsuit is Virginia's most distinctive procedural device and has no close equivalent elsewhere. A plaintiff may walk away from a case once, as a matter of right, and the court cannot refuse. Not on a showing of good cause, not subject to the defendant's consent — as of right.
What makes it demanding is the timing. The right exists up to a precise moment and then vanishes.
When the right exists
Va. Code § 8.01-380(A):
A party shall not be allowed to suffer a nonsuit as to any cause of action or claim, or any other party to the proceeding, unless he does so before a motion to strike the evidence has been sustained or before the jury retires from the bar or before the action has been submitted to the court for decision.
Three cutoffs, whichever comes first:
| Trial posture | The right ends when |
|---|---|
| Jury trial | the jury retires from the bar |
| Bench trial | the action is submitted to the court for decision |
| Either | a motion to strike the evidence has been sustained |
That third one is the trap. A motion to strike sustained mid-trial ends the right immediately — before any verdict, before submission. A plaintiff whose case is going badly has to decide before the ruling, not after it.
Where the refiled case must go
The same subsection restricts the forum:
After a nonsuit no new proceeding on the same cause of action or against the same party shall be had in any court other than that in which the nonsuit was taken, unless that court is without jurisdiction, or not a proper venue, or other good cause is shown for proceeding in another court, or when such new proceeding is instituted in a federal court. If after a nonsuit an improper venue is chosen, the court shall not dismiss the matter but shall transfer it to the proper venue upon motion of any party.
So the default is: refile where you nonsuited. The exceptions are real but must be established — lack of jurisdiction, improper venue, other good cause, or a move to federal court.
The last sentence is a useful safety net. Choosing the wrong venue on refiling is not fatal; the case is transferred, not dismissed.
One as of right, and what a second costs
§ 8.01-380(B):
Only one nonsuit may be taken to a cause of action or against the same party to the proceeding, as a matter of right, although the court may allow additional nonsuits upon reasonable notice to counsel of record for all defendants and upon a reasonable attempt to notify any party not represented by counsel, or counsel may stipulate to additional nonsuits. The court, in the event additional nonsuits are allowed, may assess costs and reasonable attorney fees against the nonsuiting party. When suffering a nonsuit, a party shall inform the court if the cause of action has been previously nonsuited. Any order effecting a subsequent nonsuit shall reflect all prior nonsuits and shall include language that reflects the date of any previous nonsuit together with the court in which any previous nonsuit was taken.
Four things follow.
The first is free; later ones are not. A second nonsuit needs the court's leave or the parties' stipulation, and the court may shift costs and fees.
Notice is required for a second. Reasonable notice to all defence counsel, and a reasonable attempt to reach any unrepresented party.
And there is an affirmative duty of candour. "A party shall inform the court if the cause of action has been previously nonsuited." The order must recite every prior nonsuit, with dates and courts. This is not a formality — it is how the court knows whether the right is still available.
"To a cause of action or against the same party." The unit is the cause of action and the party, not the lawsuit. Nonsuiting one defendant does not necessarily spend the right against another.
The seven-day notice, and what it costs to skip
§ 8.01-380(C):
If notice to take a nonsuit of right is given to the opposing party within seven days of trial or during trial, the court in its discretion may assess against the nonsuiting party reasonable witness fees and travel costs of expert witnesses scheduled to appear at trial, which are actually incurred by the opposing party, solely by reason of the failure to give notice at least seven days prior to trial. The court shall have the authority to determine the reasonableness of expert witness fees and travel costs. Invoices, receipts, or confirmation of payment shall be admissible to prove reasonableness without the need to offer testimony to support the authenticity or reasonableness of such documents …
The right survives late notice — but it can be taxed. Expert witnesses booked for a trial that does not happen are the specific harm this addresses, and the fees are recoverable only where they were incurred solely by reason of the short notice.
Seven days before trial is therefore the date to work back from if a nonsuit is a live possibility.
Why the tolling matters
A nonsuit is not a dismissal on the merits, and Virginia's tolling statute preserves the plaintiff's position for a period after one is taken. That interaction — between § 8.01-380 and the tolling provisions of § 8.01-229 — is what makes the nonsuit strategically valuable rather than merely an exit.
It is also where the analysis gets fact-specific, and this page does not attempt it. What is worth carrying away is that the refiling window is set by statute and is not open-ended.
How Virginia compares
| Virginia | North Carolina | Georgia | Federal | |
|---|---|---|---|---|
| Name | nonsuit | voluntary dismissal | voluntary dismissal | voluntary dismissal |
| As of right | once | once, before rest | once, before first witness | once, before answer or summary judgment |
| Latest moment | before the evidence is struck, the jury retires, or submission | before the plaintiff rests | before the plaintiff rests | before the answer or a summary judgment motion |
| Court may refuse the first | no | no | no | no |
| Second one | leave or stipulation; costs and fees possible | operates as an adjudication on the merits | operates as an adjudication on the merits | operates as an adjudication on the merits |
| Duty to disclose prior ones | yes, expressly | — | — | — |
| Refile forum restricted | yes, same court unless an exception applies | — | — | — |
| Late-notice cost exposure | expert fees and travel, inside 7 days of trial | — | — | — |
A short checklist
- Know which of the three cutoffs applies to your trial posture, and treat the earliest as your real deadline.
- Decide before a motion to strike is ruled on. Once it is sustained, the right is gone.
- Give notice at least seven days before trial if you can — inside that window you risk the other side's expert fees and travel costs.
- Check whether this cause of action against this party has been nonsuited before. The unit is the claim and the party, not the case.
- Tell the court about any prior nonsuit. The statute requires it, and the order must recite the dates and courts.
- Plan to refile in the same court unless you can establish lack of jurisdiction, improper venue, other good cause, or you are going to federal court.
- If you refile in the wrong venue, ask for transfer — the statute says the court shall transfer rather than dismiss.
- Work out the refiling window before you take the nonsuit, not after.
Where these rules live
- Va. Code § 8.01-380 — Dismissal of action by nonsuit; fees and costs.
- Va. Code § 8.01-229 — Suspension or tolling of statute of limitations
- Rule 1:1 — Finality of Judgments, Orders and Decrees.
- Rule 3:8 — Answers, Pleas, Demurrers and Motions.
This page explains what the statute says. It isn't legal advice, and the interaction between a nonsuit and the limitations period is fact-specific and developed in case law this site doesn't cover.