The Virginia demurrer: state every ground, because unstated ones are not considered

Virginia kept the demurrer where most states replaced it with a motion to dismiss, and the difference is more than a name. The demurrer carries a specificity requirement with a hard consequence: grounds you do not state are not merely weak, they cannot be considered at all.

The rule of specificity

Va. Code § 8.01-273(A):

In any suit in equity or action at law, the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted may be made by demurrer. All demurrers shall be in writing and shall state specifically the grounds on which the demurrant concludes that the pleading is insufficient at law. No grounds other than those stated specifically in the demurrer shall be considered by the court. A demurrer may be amended as other pleadings are amended.

Four requirements in one paragraph.

In writing. No oral demurrers.

Specific grounds. Not "the complaint fails to state a cause of action" — the particular respects in which it fails.

And the sanction is exclusion. "No grounds other than those stated specifically in the demurrer shall be considered by the court." A ground omitted is unavailable at the hearing, however obviously correct it might be. Judges cannot supply it and you cannot argue it.

But it can be amended. A demurrer is amended as other pleadings are, so a defective one is fixable — subject to the serial-pleading limit below.

Where the demurrer sits among responses

Rule 3:8(a) lists what a defendant may file:

Pleadings in response under this Rule – other than an answer – are limited to the following, and are deemed responsive only to the specific count or counts addressed therein: a demurrer, plea, motion to dismiss, motion for a bill of particulars, motion craving oyer, and a written motion asserting any preliminary defense permitted under Code § 8.01-276.

Note the middle clause: a demurrer is responsive only to the counts it addresses. Demurring to counts one and two leaves counts three and four unanswered, and the answer deadline for those keeps running.

The serial-pleading limit

This is the provision that punishes a piecemeal approach. Rule 3:8(a1):

Limitation on Serial Pleading. — After filing any pleading or pleadings as an initial response to a complaint or amended complaint, a defendant may not, without leave of court for good cause shown, file a demurrer, plea, or motion described in subsection (a) except as provided under subsection (b) of this rule or under another rule of court or statute that expressly allows such a pleading or motion to be filed at any other time without leave of court.

So the structure is: everything you intend to file as an initial response goes in at once. Filing a demurrer first and a plea in bar three weeks later requires leave of court on good cause.

Read together with § 8.01-273's specificity rule, the message is consistent — Virginia expects the whole of your threshold attack, in writing, in one filing.

Rule 3:18(e) confirms that combining is permitted:

Separate or combined filings. — Answers, counterclaims, cross-claims, pleas, demurrers, affirmative defenses and motions may all be included in the same filing if they are separately identified in both the caption and the body of the filing.

The condition matters: separately identified in both the caption and the body.

What happens after the ruling

Rule 3:8(b):

Response After Demurrer, Plea or Motion. — When the court has entered its order overruling all motions, demurrers and other pleas filed by a defendant as a responsive pleading, such defendant must, unless the defendant has already done so, file an answer within 21 days after the entry of such order, or within such other time as the court may prescribe.

Twenty-one days, from entry of the order — and note the condition: the order must overrule all of them. A partial ruling does not start this clock.

Preserving your position on appeal

§ 8.01-273(B) solves a problem that would otherwise force an unpleasant choice on the plaintiff:

Wherever a demurrer to any pleading has been sustained, and as a result thereof the demurree has amended his pleading, he shall not be deemed to have waived his right to stand upon his pleading before the amendment, provided that (i) the order of the court shows that he objected to the ruling of the court sustaining the demurrer and (ii) the amended pleading incorporates or refers to the earlier pleading. On any appeal of such a case the demurree may insist upon his earlier pleading before the amendment, and if the same be held to be good, he shall not be prejudic[ed] …

Both conditions are mechanical and both are easy to miss:

1. The order must show your objection. Not your brief, not the transcript — the order.
2. The amended pleading must incorporate or refer to the earlier one.

Do both and you can amend to keep the case alive while preserving the argument that the original pleading was fine. Miss either and amending waives it.

And the deadline that follows a sustained demurrer

Worth reading alongside Rule 1:1(c), which makes an order sustaining a demurrer with leave to amend by a date dispositive of those claims if the amendment is not filed in time — even without the word "dismissed." A missed amendment deadline is not a slip that can be cured later; it can end the claim and start Virginia's 21-day jurisdictional clock running.

How Virginia compares

A short checklist

1. Put every ground in writing, specifically. Anything not stated will not be considered.
2. File all your threshold responses together. A later demurrer, plea or motion needs leave on good cause.
3. If you combine filings, identify each separately in the caption and in the body.
4. Check which counts you demurred to. The demurrer answers only those; the rest still need a response.
5. After an order overruling everything, file the answer within 21 days of entry.
6. If your demurrer is sustained and you amend, do both preserving steps — get the objection into the order, and refer to the earlier pleading in the amendment.
7. Calendar any amendment deadline the order sets. Missing it can dispose of the claim under Rule 1:1(c).
8. Remember a demurrer can be amended — a defective one is fixable, subject to the serial-pleading limit.

Where these rules live

• Va. Code § 8.01-273 — Demurrer; form; grounds to be stated; amendment.
• Rule 3:8 — Answers, Pleas, Demurrers and Motions.
• Rule 3:18 — General Provisions as to Pleadings.
• Rule 1:1 — Finality of Judgments, Orders and Decrees.

This page explains what the statute and rules say. It isn't legal advice, and the sufficiency of a particular pleading is developed in case law this site doesn't cover.