Importance of Filing a Motion to Dismiss Upon Plaintiff’s Failure to Serve Within 12 Months of Filing

Anna G. Zick, Esquire
February 4th, 2015
By: Anna G. Zick, Esquire

Pursuant to Rule 3:5, no judgment can be entered against a defendant who was served with process more than one year after the filing of the complaint, unless the court makes a finding that the plaintiff exercised due diligence to have timely service on the defendant. Absent a finding of due diligence, if service has not been effected within a year, the court “shall dismiss the action with prejudice.” Va. Code § 8.01-277.

Prior to the 2006 amendments, a defendant could only move to dismiss pursuant to Va. Code § 8.01-277 once service of processes had actually been effected. See Gilpin v. Joyce, 257 Va. 579, 515 S.E.2d 124 (1999). Thus, if it was known that a case had been filed against a client more than a year ago, but there had been no service, there was no mechanism to have the case dismissed under Rule 3:5.

After the 2006 amendments, Va. Code § 8.01-277(B) provides “a person, upon whom process has not been served within one year of commencement of the action against him, may make a special appearance, which does not constitute a general appearance, to file a motion to dismiss.” It is incumbent upon defense counsel to monitor service of process and to file a motion to dismiss after a year has passed.

Va. Code § 8.01-277(B) goes on to state that “[n]othing herein shall prevent the plaintiff from filing a nonsuit under § 8.01-380 before the entry of an order granting a motion to dismiss pursuant to the provisions of this section.” Thus, defense counsel should expect a nonsuit order to be forthcoming upon filing a motion to dismiss for failure to timely serve.

It remains important to file the motion to dismiss after the passage of a year, however, to prevent the plaintiff from delaying the case indefinitely. For example, in a personal injury case where a plaintiff seeks damages for injuries arising from an October 1, 2012 accident, a plaintiff may wait to file until November 30, 2014. According to Rule 3:5, the defendant must be served with process by November 30, 2015. If service is not effected, and no motion to dismiss is filed by a defendant monitoring the status of the service, the plaintiff may be able to wait months before taking a nonsuit. Upon taking the nonsuit, the plaintiff will have six months to refile, and an additional 12 months to serve.

If a nonsuit is entered for the plaintiff fifteen months after filing the original complaint, the plaintiff refiles within six months, and the defendant is served within a year, the defendant is without a remedy to challenge the timeliness of filing or service. See Clark v. Butler Aviation, 238 Va. 506, 385 S.E.2d 847 (1989)(noting that a plaintiff had six months to file from the date of entry of a nonsuit that was taken more than a year after filing but before the court had ruled on the motion to dismiss). Thus, in order to prevent delay, a defendant must be proactive and file a motion to dismiss pursuant to Va. Code § 8.01-277(B) if he has not been served with process within one year of commencement of the action.


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