Legal Question in Civil Litigation in Virginia

Re: Plaintiff failure to show on return date

Under Virginia law, a plaintiff has one non-suit as a matter of right, "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."

My guess is the Judge determined this was the best course of action in your case given the untimely absence of the plaintiff's attorney. This procedural mechanism utilized by the plaintiff will not likely help you on appeal or counter-suit.

Re: Plaintiff failure to show on return date

The one thing that is not clear from your question is what the attorney asked for. If the attorney asked for a non-suit (which means the case is dismissed but it can be re-filed (restarted from the beginning all over again), then the judge had no choice under Virginia law but to do that. On the other hand, if the attorney asked for a "continuance" (rescheduling) or didn't ask for anything in particular, then the judge acted improperly in granting a non-suit. Arguing to one judge that another judge acted improperly might not get you very far, but it is at least something to explore. You can look in the file in the court to see exactly what the attorney's Fax said.

Re: Plaintiff failure to show on return date

The other responses you've gotten explained about nonsuits va code sxn 8.01-380; and if the guy did in fact ask for a nonsuit (check the file and look at the fax yourself - in fact, get the clerk to sell you a copy) then, yes, the court was obligated to grant it. but if it did not (i.e., it asked for a continuance which was clearly not granted, or any relief other than the magic word, nonsuit) then the dismissal was, i would argue, WITH prejudice, regardless of what the court ordered pursuant to the va sup. ct rule quoted below. Move to dismiss on the ground of res judicata (things already adjudicated) if there was not a valid nonsuit. also, a failure to get a copy of the document to you on or before the day of filing made the filing invalid. you're entitled to notice.

otherwise, read up on the fair debt collection practices act.

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(c) If the defendant, but not the plaintiff, appears on the trial date and:

(1) The defendant admits owing all or some portion of the claim, the Court shall dismiss the action without prejudice to the right of the plaintiff to refile; but if

(2) The defendant denies under oath owing anything to the plaintiff, the Court shall enter judgment for the defendant with prejudice to the right of the plaintiff to refile.

Failure of Plaintiff to Appear., RULE 7B:8 (2000)

Re: Plaintiff failure to show on return date

While a nonsuit requested over the phone may be unusual, it is not illegal. In VA, the plaintiff is entitled as a matter of right to one nonsuit, and if suit is re-filed within 6 months the statute of limitations is tolled. So what happened is perfectly legal.