Failure to Properly Serve Incarcerated Convict Within One Year of When the Suit Was Filed Results in Dismissal of Lawsuit With Prejudice

Steven W. Bancroft, Esquire
August 23rd, 2010
By: Steven W. Bancroft, Esquire and Wesley D. Allen, Esquire

In a recent wrongful death case, the defendant was an incarcerated convict, the Arlington County Circuit Court dismissed, with prejudice, a $2 million compensatory claim, with an additional punitive damages claim, finding the plaintiff failed to properly serve the incarcerated defendant within one year of when the suit was filed.

This case arose out of an automobile/motorcycle accident with alcohol involved that resulted in the death of the decedent. As a result, the defendant was convicted of a felony and sentenced to a 20-year term, 5 years suspended. The Administrator of the Estate of the decedent filed an initial wrongful death suit against the defendant which it later non-suited. In the initial suit, the defendant was represented by Steven W. Bancroft, who had entered an appearance on his behalf.

Approximately a month after the Court entered a nonsuit order in the matter, the plaintiff re-filed its wrongful death lawsuit. Plaintiff attempted to serve the incarcerated convict via private process server, but failed to fully comply with Virginia Code § 8.01-297, which sets forth the two-prong test on how to properly serve an incarcerated convict. Pursuant to the Virginia Code, in order to properly serve an incarcerated convict: (1) service shall be served on the convict by delivering it to the officer in charge of such jail or institution whose duty it shall be to deliver it to incarcerated convict; and (2) “subject to [Virginia Code] § 8.01-9, a guardian ad litem shall be appointed for him.” Va. Code Ann. § 8.01-297 (2010) (emphasis added).

In the instant case, the plaintiff’s counsel filed an Affidavit with the Court that the incarcerated convict had been personally served with the Complaint and Summons by a private process server within a month after filing its lawsuit. However, the plaintiff failed to have a guardian ad litem or committee appointed, pursuant to Virginia law. When defendant’s former counsel discovered the defective attempt at service upon his former client, he wrote to the plaintiff’s counsel and advised of the defect and provided the Virginia Code sections setting forth the statutorily-mandated provisions regarding service upon an incarcerated convict. Having heard nothing further from the plaintiff’s counsel, the defendant’s former counsel sent a second letter to the plaintiff’s counsel 3 weeks later.

Thirteen months passed and the plaintiff’s counsel took no action to correct the defective attempt at service. In fact, the plaintiff’s counsel failed to ever contact the
defendant’s former counsel concerning this matter. Pursuant to Virginia Code § 8.01-277(B), the defendant’s former counsel entered a “special appearance” on behalf of his former client to move that the lawsuit be dismissed with prejudice on the grounds that the plaintiff failed to serve process upon the incarcerated defendant within one year of the commencement of the action, pursuant to the statutorily-mandated method.

At the hearing on the defendant’s Motion to Dismiss, the plaintiff’s counsel argued that he did not have to have a guardian ad litem or committee for the incarcerated convict, relying upon Virginia Code § 8.01-9(B). This Code section sets forth that when a party under a disability is represented by an attorney duly licensed to practice in Virginia, who has entered a record of appearance for the defendant, no guardian at litem or committee needs to be appointed. The Court held that the plaintiff’s counsel erroneously assumed that the defendant’s former counsel had entered an appearance on behalf of the incarcerated defendant, and that defendant’s former counsel did not take any action to mislead the plaintiff’s counsel to the conclusion that he was acting as the defendant’s current counsel.

Judge Kendrick of the Arlington County Circuit Court recognized the harsh remedy set forth by Virginia Code § 8.01-277(B) for failure to properly serve a defendant with service of process within one year of filing the plaintiff’s lawsuit; however, the Court reasoned that it was constrained by Virginia law. After considering the facts of this case, the Court concluded the defendant’s motion was well-taken in that the Plaintiff failed to properly serve the incarcerated defendant within one-year of re-filing its wrongful death action, and accordingly dismissed the matter with prejudice. No request was made for a second nonsuit.

For more information on the above case, please contact Steven Bancroft, (703) 385-1000.


This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More