Virginia Nonsuit Statute of Limitations and Tolling Rules

A voluntary nonsuit in Virginia tolls the statute of limitations on your claim back to the date you first filed, and after the court enters the nonsuit order you have at least six months to refile, even if the original limitations period has already run. That is the core rule under the Virginia nonsuit statute of limitations framework in Code § 8.01-229(E)(3), and it is the reason the nonsuit is treated as a safety valve rather than a surrender.

How Long You Have to Refile After a Nonsuit

Once the court enters the nonsuit order, you can recommence the action within whichever of the following is longest:

Six months from the date of the nonsuit order.
The original limitations period, with the time the nonsuited case was pending excluded from the calculation.
The limitations period under the death-of-a-party provision in § 8.01-229(B)(1), where that provision applies.

In most cases the six-month window is the one that controls, because by the time a case is nonsuited the original limitations period has usually expired or has very little time left. The whole point of the tolling rule is that the nonsuit does not kill the claim: you get six clean months to file again.¹

The six months runs from the date of the nonsuit order, not the date you announced the nonsuit in court, not the date opposing counsel was served, and not the date the clerk mailed anything. The order date is the trigger.

Contractual Limitations Periods Count Too

The tolling provision applies whether your deadline comes from a statute or from a contract. Insurance policies and commercial agreements often contain their own shortened limitations clauses, and those clauses get the same six-month-or-remaining-period treatment after a nonsuit.¹

Cross-Court Tolling

You do not lose the tolling benefit by changing court systems. The statute applies “irrespective of whether the action is originally filed in a federal or a state court and recommenced in any other court.” A case nonsuited in federal court can be refiled in Virginia state court within the six-month window, and the reverse is also true.¹

When the Nonsuit Must Be Taken

The tolling only helps if the nonsuit itself was timely. Virginia Code § 8.01-380 cuts off your right to nonsuit at three specific points:

When a motion to strike the evidence is sustained. You can still nonsuit while such a motion is pending, but once it is granted, the window closes.
When the jury retires to deliberate in a jury trial.
When the case is submitted to the court for decision in a bench trial.

Before any of those events, you have the right to nonsuit without explanation and without the court’s permission. After them, the opportunity is gone.²

You Get One Nonsuit as a Matter of Right

You are entitled to one nonsuit per cause of action against the same party automatically. The court must grant it if the timing rules are met.

A second or subsequent nonsuit on the same claim against the same party is a different matter. You need either the court’s permission, after reasonable notice to all defendants, or a stipulation from opposing counsel. When the court grants an additional nonsuit, it may assess costs and reasonable attorney fees against you. You must also disclose any prior nonsuit to the court, and the new order must reference the date and court of every previous nonsuit.²

Costs That Can Attach to a Nonsuit

A first, timely nonsuit is generally free. Two situations can trigger a cost order against you.

The first is a late-notice nonsuit. If you give notice of your nonsuit within seven days of trial or during trial itself, the court may require you to pay the defendant’s reasonable expert witness fees and travel costs incurred because of the late notice. The statute allows invoices and receipts to prove those costs without live testimony.²

The second is a second or subsequent nonsuit, as described above, where the court may award both costs and reasonable attorney fees.

Taking the nonsuit early avoids both risks. Waiting until the week before trial invites expert-fee reimbursement; using up the free nonsuit and seeking another invites fee awards.

When a Counterclaim Blocks the Nonsuit

Your right to nonsuit is not absolute. Under § 8.01-380(D), you cannot nonsuit without the defendant’s consent if the defendant has filed a counterclaim, cross-claim, or third-party claim arising out of the same transaction as your original claim, unless that counterclaim or cross-claim can remain pending for independent adjudication after your case is dismissed.²

If the counterclaim can stand on its own, the court may allow your nonsuit while keeping the counterclaim alive. If the two claims are so intertwined that the counterclaim cannot be resolved independently, you need the defendant’s agreement to leave.

Where You Must Refile

You generally must refile in the same court where the nonsuit was taken. Section 8.01-380(A) allows you to go elsewhere only if the original court lacked jurisdiction, venue was improper, good cause is shown, or you are refiling in federal court. If you pick the wrong venue for the refiled case, the court will not dismiss it; it will transfer the case to the proper venue on any party’s motion.²

That transfer rule matters. A venue mistake within the six-month refiling window will not destroy a claim that would otherwise be time-barred.

Calendaring the Deadline

Two dates belong on the calendar as soon as the nonsuit order is entered: six months from the order date, and the end of the original limitations period after excluding the time the nonsuited case was pending. Work to whichever date comes first, and build in a cushion. Missing the deadline when the original limitations clock has already run means the claim is permanently barred, and the tolling that made the nonsuit worth taking cannot be used twice.

Keep in mind that the nonsuit tolling can interact with other tolling rules in § 8.01-229, including the death-of-a-party provision in subsection (B)(1). Where more than one tolling rule applies, the plaintiff gets the benefit of whichever period is longer.¹

1
Virginia Code Commission. Virginia Code 8.01-229 – Suspension or Tolling of Statute of Limitations
2
Virginia Code Commission. Virginia Code 8.01-380 – Dismissal of Action by Nonsuit; Fees and Costs