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Can't You Get Rid of that Lawsuit? It's Just Sitting There.


Authored by Attorney Ned Nicholas

A plaintiff files but does not serve a complaint.  Filing the complaint stops the clock on the statute of limitations, but until the plaintiff causes the complaint to be formally "served" on the defendant, there is no obligation to file an answer.  So the lawsuit does not move forward.  If the plaintiff takes no action to have the complaint served, is there any way to get the lawsuit dismissed?

Until 2006 the answer was "maybe not." But in that year the legislature amended the Virginia Code to provide that if the complaint is not served within a year, a defendant may file a motion to dismiss.  If the court finds that the plaintiff did not "exercise due diligence" to have the complaint served, then the lawsuit will be dismissed "with prejudice," meaning that the claim is gone forever.

The Code section is a step forward.  At least now there is a clear way to get an abandoned lawsuit off the court's docket and off the defendant's court "record." But the remedy is only effective if the plaintiff does not want to pursue the claim.  If the plaintiff wants to keep the claim, it may "nonsuit" the lawsuit and start over.  Nonsuit means to voluntarily dismiss "without prejudice." That means the plaintiff may file another complaint asserting the same claim.

Why does the law allow plaintiffs to preserve claims that have languished for more than a year? Probably because the law generally leans toward not dismissing with prejudice claims for reasons other than that the claim has no merit.  And there are some legitimate reasons for filing but not serving a complaint.

If you have a dormant case pending against your company you may want to contact your lawyer about having it dismissed.  Also, there are other implications of failing to serve a complaint within a year.  Your lawyer can fill you in on those.


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