Virginia Nonsuit Statute of Limitations and Tolling Rules

When you take a nonsuit in Virginia, the statute of limitations on your claim is paused as of the date you originally filed, and you get at least six months from the court’s nonsuit order to refile. Under Virginia Code § 8.01-229(E)(3), you can recommence the action within whichever is longer: six months from the nonsuit order, or the time left on your original limitations period with the pendency of the nonsuited case excluded. That protection is what makes the Virginia nonsuit statute of limitations rule so useful to plaintiffs, and it is why a nonsuit taken after the original deadline has already passed does not kill the claim.¹

The Six-Month Refiling Window

The tolling provision gives you three possible refiling periods, and you get the benefit of whichever is longest:

Six months from the date of the nonsuit order.
The original limitation period, with the time your nonsuited case was pending excluded from the count.
The limitation period under the death-of-a-party provision in § 8.01-229(B)(1), if applicable.

In most cases the six-month window is the one that matters. If your original limitations period expired while the nonsuited case was pending, or if it expires shortly after the nonsuit order, six months from the order is what saves the claim. The point of the statute is exactly that: the nonsuit is not supposed to become a trap that ends the case on the calendar.¹

Contractual Deadlines and Cross-Court Filings

The tolling applies whether your deadline comes from a statute or from a contract. A limitations clause in an insurance policy or commercial agreement is treated the same way after a nonsuit: six months from the order, or whatever remains on the contractual period, whichever is longer.¹

The tolling also crosses court systems. The statute says the tolling applies “irrespective of whether the action is originally filed in a federal or a state court and recommenced in any other court.” So a case nonsuited in federal court can be recommenced in Virginia state court, or vice versa, with the full benefit of the six-month window.¹

When You Can Still Take the Nonsuit

The tolling only matters if you actually get the nonsuit, and Virginia Code § 8.01-380 sets hard cutoffs. You lose the right to nonsuit once any of the following happens:

A motion to strike the evidence is sustained. You can still nonsuit while the motion is pending, but not after it is granted.
The jury retires to deliberate.
The case is submitted to the court for decision in a bench trial.

You have broad latitude through most of the trial process, but the window closes the moment the decision-maker starts weighing the evidence.²

One Nonsuit as of Right

You are entitled to one nonsuit per cause of action against the same party as a matter of right. If you meet the timing rules above, the court must grant it. No explanation is required.²

A second or subsequent nonsuit on the same claim against the same party is not automatic. You need either the court’s permission after giving reasonable notice to all defendants, or a stipulation from opposing counsel. If the court grants an additional nonsuit, it can assess costs and reasonable attorney fees against you. Your motion must disclose any prior nonsuit, and the new order must reference the date and court of every previous one.²

When a Counterclaim Blocks the Nonsuit

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

This restriction is easy to overlook. A plaintiff who assumes the exit ramp is always open can find themselves locked in once the defendant counterclaims. If the counterclaim can stand alone, the court may still let you nonsuit while keeping the counterclaim alive. If it cannot be resolved independently of your claim, you need the defendant to agree.

Costs the Court Can Impose

A nonsuit is usually free of financial penalty, but two situations can bring costs.

Nonsuits noticed within seven days of trial, or during trial itself, can trigger an order requiring 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. This exists because defendants often spend heavily preparing experts in the final days before trial.²

Second and subsequent nonsuits, which require court permission, can carry both costs and reasonable attorney fees. The first nonsuit carries no such risk.²

Where to Refile

You generally must refile in the same court where the nonsuit was taken. Section 8.01-380(A) allows refiling in a different court if the original court lacked jurisdiction, the venue was improper, good cause is shown, or you are filing in federal court. If you refile in the wrong venue, the court will not dismiss the case. It will transfer it to the proper venue on motion of any party.²

The transfer-not-dismiss rule matters because a dismissal for improper venue after a nonsuit could push you past the six-month refiling window and end the case. Virginia’s approach protects the claim from that outcome.

Wrongful Death and Overlapping Tolling

The nonsuit tolling can overlap with the death-of-a-party tolling in § 8.01-229(B)(1). If a personal representative files a wrongful death action, takes a nonsuit, and needs to refile, both the six-month nonsuit period and the death-of-a-party period apply, and the plaintiff gets whichever is longer.¹

Calendaring the Deadline

The six-month refiling window is a hard deadline. Miss it when the original limitations period has already expired, and the claim is permanently barred. The safer practice is to calendar two dates: six months from the nonsuit order, and the remaining time on the original limitations period (with the pendency of the nonsuited case excluded). Then work to the earlier of the two, with a margin built in.

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