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: Virginia Qui Tam Law

New Opinion from the U.S. District Court for the Western District of Virginia interprets Virginia's Nonsuit Statute in the qui tam context

By Zachary A. Kitts

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A new opinion by Chief Judge Jones in the U.S. District Court for the Western District of Virginia interprets Virginia's nonsuit statute as tolling the statute of limitations on a retaliation claim under 31 U.S.C. 3730(h). To my knowledge, this is the first time a federal court has interpreted Virginia's unique nonsuit statute in the context of a 3730(h) claim. The case is United States ex rel Herndon v. Appalachian Regional Community Head Start, Inc., Civil Case No. 2:07cv0003 (W.D. Va.).

Virginia's nonsuit statute, which is found at Virginia Code 8.01-380, allows a civil plaintiff to voluntarily "nonsuit" his action one time, at any time prior to the case's submission to a jury, or to the court if the matter is being decided by a bench trial.
Simply stated, the nonsuit constitutes a dismissal without prejudice, and the plaintiff then has the longer of six months from the date the nonsuit order was entered, or until the actual statute of limitations period runs, to refile his or her suit.

Virginia Supreme Court opinions have made it clear that this is an absolute right, and that no condition can be placed upon a plaintiff's right to one nonsuit. As one might imagine, the nonsuit can be a powerful tactical tool if used by a plaintiff to its full potential.

Congratulations to Abingdon lawyer and TAF Member Mark T. Hurt for this victory.

Zachary A. Kitts
Cook & Kitts, PLLC

Full post as published by Virginia Qui Tam Law on September 30, 2008 (boomark / email).