§ 8.01-380.Dismissal of action by nonsuit; fees and costs.
Chapter 13. Certain Incidents of Trial · Last amended 2022 · Last verified July 16, 2026
In one sentenceThis section governs a Virginia plaintiff’s right to take a nonsuit before the case reaches the jury or the court for decision, limits a party to one nonsuit of right per cause of action or party absent additional leave, allows cost-shifting for late notice or extra nonsuits, and coordinates nonsuit with tolling, counterclaims, and appeals from general district court.
A.A party shall not be allowed to suffer a nonsuit as to any cause of action or claim, or any other party to the proceeding, unless he does so 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. After a nonsuit no new proceeding on the same cause of action or against the same party shall be had in any court other than that in which the nonsuit was
taken, unless that court is without jurisdiction, or not a proper venue, or other good cause is shown for proceeding in another court, or when such new proceeding is instituted in a federal court. If after a nonsuit an improper venue is chosen, the court shall not dismiss the matter but shall transfer it to the proper venue upon motion of any party.
B.Only one nonsuit may be taken to a cause of action or against the same party to the proceeding, as a matter of right, although the court may allow additional nonsuits upon reasonable notice to counsel of record for all defendants and upon a reasonable attempt to notify any party not represented by counsel, or counsel may stipulate to additional nonsuits. The court, in the event additional nonsuits are allowed, may assess costs and reasonable attorney fees against the nonsuiting party. When suffering a nonsuit, a party shall inform the court if the cause of action has been previously nonsuited. Any order effecting a subsequent nonsuit shall reflect all prior nonsuits and shall include language that reflects the date of any previous nonsuit together with the court in which any previous nonsuit was taken.
C.If notice to take a nonsuit of right is given to the opposing party within seven days of trial or during trial, the court in its discretion may assess against the nonsuiting party reasonable witness fees and travel costs of expert witnesses scheduled to appear at trial, which are actually incurred by the opposing party, solely by reason of the failure to give notice at least seven days prior to trial. The court shall have the authority to determine the reasonableness of expert witness fees and travel costs. Invoices, receipts, or confirmation of payment shall be admissible to prove reasonableness without the need to offer testimony to support the authenticity or reasonableness of such documents, and may, in the court's discretion, satisfy the reasonableness requirement under this subsection. Nothing herein shall preclude any party from offering additional evidence or testimony to support or rebut the reasonableness requirement.
D.A party shall not be allowed to nonsuit a cause of action, without the consent of the adverse party who has filed a counterclaim, cross claim or third-party claim which arises out of the same transaction or occurrence as the claim of the party desiring to nonsuit unless the counterclaim, cross claim or third-party claim can remain pending for independent adjudication by the court.
E.A voluntary nonsuit taken pursuant to this section is subject to the tolling provisions of subdivision E 3 of § 8.01- 229.
F.Upon the timely perfection of an appeal from a judgment of a general district court, pursuant to § 16.1-106, a party may suffer a nonsuit as otherwise set forth in this section, and such nonsuit shall annul the judgment of the general district court.
Plain-English Summary
A nonsuit lets a Virginia plaintiff walk away from a case without it counting as a loss on the merits, and start over if the statute of limitations allows. Section 8.01-380 sets the rules for when that reset button can be pushed. A party has to take the nonsuit before a motion to strike the evidence has been sustained, before the jury retires, or before the case has been submitted to the court for decision — once the case has reached that point, it is too late.
The right to a nonsuit is not unlimited. Each party gets one nonsuit of a given cause of action, or against a given opposing party, as a matter of right. Beyond that, a court can allow additional nonsuits, but only with reasonable notice to counsel of record and a reasonable attempt to reach any self-represented party, or if counsel stipulate to it — and the court may make the nonsuiting party pay costs and attorney fees for that extra chance. A party taking a nonsuit has to tell the court about any earlier nonsuit of the same claim, and the order has to reflect that history.
The section also protects the other side from being blindsided. If notice of a nonsuit of right comes within seven days of trial or during trial itself, the court can make the nonsuiting party cover reasonable witness fees and travel costs the opposing party incurred because of the late notice, with invoices and receipts admissible on their own to show those costs are reasonable. And a party cannot nonsuit out from under a counterclaim, cross-claim, or third-party claim arising from the same transaction without the other side’s consent, unless that claim can stand on its own for independent adjudication.
Two provisions tie nonsuit into the rest of the Code: a voluntary nonsuit is subject to the tolling rules in § 8.01-229, and a party who timely appeals a general district court judgment under § 16.1-106 can still take a nonsuit, which annuls that general district court judgment.
Frequently Asked Questions
By what point in the trial must a plaintiff take a nonsuit as a matter of right?
Before a motion to strike the evidence has been sustained, before the jury retires from the bar, or before the action has been submitted to the court for decision.
How many nonsuits can a party take of the same cause of action as a matter of right?
Only one, though the court may allow additional nonsuits upon reasonable notice to counsel of record and a reasonable attempt to notify unrepresented parties, or upon stipulation by counsel, and may assess costs and attorney fees for the additional nonsuits.
What happens if a party gives notice of a nonsuit within seven days of trial or during trial?
The court, in its discretion, may assess against the nonsuiting party the reasonable witness fees and travel costs of expert witnesses incurred by the opposing party solely because notice was not given at least seven days before trial.
Can a plaintiff nonsuit a claim that a defendant has filed a counterclaim against?
Not without the adverse party’s consent if the counterclaim, cross claim, or third-party claim arises from the same transaction or occurrence, unless it can remain pending for independent adjudication.
What happens to a general district court judgment if a party nonsuits after a timely appeal?
Upon timely perfection of an appeal from a general district court judgment under § 16.1-106, the party may still take a nonsuit, and that nonsuit annuls the general district court’s judgment.
Amendment History
Code 1950, §§ 8-220, 8-244; 1954, cc. 333, 611; 1977, c. 617; 1983, c. 404; 1991, c. 19; 2001, c. 825; 2004, c. 362; 2007, cc. 179, 367; 2013, cc. 274, 366; 2014, c. 86; 2022, c. 206.
Source & verification. Section text and amendment history are
reproduced verbatim from the Code of Virginia, published by the
Code of Virginia, Virginia Division of Legislative Automated Systems. Last verified July 16, 2026.
· Official source
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