In the United States, a voluntary nonsuit is a motion taken by the plaintiff to release one or more of the defendants from liability. So, for example, if a plaintiff wishes to give up on the lawsuit, he or she can file a nonsuit as to all defendants with the court, and all proceedings will stop. Alternately, if a plaintiff settles with one of several defendants, he or she can file a nonsuit as to that one. A nonsuit is a right of the plaintiff, but it may be prevented if the defendant has pleaded for affirmative relief.
The law in the United States was established as early as 1828 when the Supreme Court ruled:
- A nonsuit, may not be ordered by the Court, upon the application of the defendant, and cannot as we have had occasion to decide, at the present term, be ordered in any case without the consent and acquiescence of the plaintiff
De Wolf v. Rabaud 26 U.S. 476, 497 (U.S. 1828).
A compulsory nonsuit is a decision by a court that a case cannot proceed to trial, either on substantive or procedural grounds. Depending on which grounds the nonsuit is entered, the plaintiff may or may not be able to file his case again.
In the U.S. Federal Rules of Civil Procedure, the term does not appear, but a dismissal under Rules 12 and 41 has a similar effect.
- Often, the term "nonsuit" will appear in older U.S. cases. The meaning of the term in most of these older cases is the same as described for the United Kingdom (see below). This is because most colonies, upon separation from England, still used English common law (as no U.S. or State-specific laws had yet been passed). Modernly, this type of motion is known as a "motion of dismissal".
In Virginia, which does not follow the Federal Rules, a nonsuit is known by that name. A nonsuit is simply an agreement by the plaintiff not to proceed in that suit against that defendant, and is not a bar to bringing a future action against the same defendant. There are restrictions on when a Virginia nonsuit may be taken, and only one nonsuit may be taken against a party on a cause of action as a matter of right. Within the limitations, a plaintiff has an absolute right to one nonsuit. A Virginia plaintiff who takes a nonsuit may bring a new action against the same defendant(s) on the same subject matter within six months, regardless of the operation of the Statute of Limitations. The difference between a Federal Rule 41 dismissal and a Virginia nonsuit is more a matter of form than substance, although the Virginia statute does not require the consent of the defendant and can be taken at later stages in the proceeding.
A nonsuit is often taken by a plaintiff who anticipates a judgment or ruling that "imparts finality" against him, who wants to avoid the adverse judgment and preserve at least the possibility of prevailing on the merits of his case in the future.
In law, a non-suit was a judgment against a plaintiff in a civil action for failure to prosecute the case or to introduce sufficient evidence. This occurred at trial, usually after the plaintiff had closed his or her case, but before the defendant adduced evidence. A nonsuit was typically sought on application by the defendant.
The term is now obsolete in UK civil procedure.
- E.g., Muse v. Farmers Bank, 68 Va. (27 Gratt.) 252 (1876); Coffman v. Russell, 18 Va. (4 Munf.) 207 (1814).
- Va. Code § 8.01-380.
- Nash v. Jewell, 227 Va. 230, 315 S.E.2d 825 (1984).
- Va. Code § 8.01-229.
- Scoggins v. Douglas, 760 F.2d 535 (4th Cir. 1985).
- E.g., Newton v. Veney, 220 Va. 947, 265 S.E.2d 707 (1980).
1981 No. 1687 (L.20) COUNTY COURTS PROCEDURE The County Court Rules 1981
Failure by plaintiff to prove claim 2.—(1) If the plaintiff appears at the hearing of an action or matter but fails to prove his claim to the satisfaction of the court, it may, without prejudice to any other power, either nonsuit him orgive judgment for the defendant.