Virginia: Special Cases – a Lawyer’s Nonsuit

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On February 25, 2014, in an unpublished per curiam decision, the United States Court of Appeals for the Fourth Circuit vacated and remanded the dismissal of a sexual harassment lawsuit by the United States District Court for the Eastern District of Virginia in Rice v. Alpha Security, Inc., No. 13-1644. In Rice, Plaintiff nonsuited of right in State Court without serving, vacated that nonsuit, effected service more than 1 year after filing, and was removed to and dismissed in Federal Court for untimely service in State Court.  Id. at 1-5.

Plaintiff in Rice unsuccessfully argued that the period of nonsuit before its vacation should not count toward the 1-year service window. Id. at 7-8. However, the Fourth Circuit held that removal to Federal Court allowed Plaintiff to correct defective service within 120 days because her State Court action was not necessarily “dead” despite her failure to service within 1 year, since (theoretically, if not practically) she still may have been able to obtain a second nonsuit by consent. Id. at 8-13.