Motion to Dismiss For Failure to Prosecute in Virginia

Understanding the Purpose and Significance of a Motion to Dismiss for Failure to Prosecute

“A court has inherent authority to administer cases on its docket." (See Shah v. Shah (2019) 70 Va.App. 588, 593; Schaeffer v. City of Fairfax, No. 0914-22-4, at *2 n.2 (Va. Ct. App. Apr. 18, 2023).)

“Dismissal for want of a diligent prosecution should be imposed only where there has been an unreasonable delay, and usually after proper warning.” (See Nash v. Jewell (1984) 227 Va. 230, 235.)

Procedural Steps Involved in Filing a Motion to Dismiss for Failure to Prosecute

Section 8.01-335 of the Code of Virginia governs certain cases struck from dockets after a certain period.

The Rule states that “except as provided in subsection C, any court in which is pending an action, wherein for more than two years there has been no order or proceeding, except to continue it, may, in its discretion, order it to be struck from its docket and the action shall thereby be discontinued.” (See Va. Code § 8.01-335(A).)

“However, no case shall be discontinued if either party requests that it be continued. The court shall thereafter enter a pretrial order pursuant to Rule 4:13 controlling the subsequent course of the case to ensure a timely resolution of that case. If the court thereafter finds that the case has not been timely prosecuted pursuant to its pretrial order, it may strike the case from its docket.” (See id.)

“The clerk of the court shall notify the parties in interest if known, or their counsel of record at his last known address, at least fifteen days before the entry of such order of discontinuance so that all parties may have an opportunity to be heard on it. Any case discontinued under the provisions of this subsection may be reinstated, on motion, after notice to the parties in interest if known or their counsel of record, within one year from the date of such order but not after.” (See id.)

“Any court in which is pending a case wherein for more than three years there has been no order or proceeding, except to continue it, may, in its discretion, order it to be struck from its docket and the action shall thereby be discontinued. The court may dismiss cases under this subsection without any notice to the parties. The clerk shall provide the parties with a copy of the final order discontinuing or dismissing the case. Any case discontinued or dismissed under the provisions of this subsection may be reinstated, on motion, after notice to the parties in interest, if known, or their counsel of record within one year from the date of such order but not after.” (See Va. Code § 8.01-335(B).)

“If a civil action is pending in a circuit court on appeal from a general district court and (i) an appeal bond has been furnished by or on behalf of any party against whom judgment has been rendered for money or property and (ii) for more than one year there has been no order or proceeding, except to continue the matter, the action may, upon notice to the parties in accordance with subsection A, be dismissed and struck from the docket of the court.” (See Va. Code § 8.01-335(C).)

“Upon dismissal pursuant to this subsection, the judgment of the general district court shall stand and the appeal bond shall be forfeited after application of any funds needed to satisfy the judgment.” (See id.)

“Any court in which is pending a case wherein process has not been served within one year of the commencement of the case may, in its discretion, order it to be struck from the docket, and the action shall thereby be discontinued.” (See Va. Code § 8.01-335(D).)

“The clerk of the court shall notify the plaintiff or his counsel of record at his last known address at least 30 days before the entry of an order of discontinuance so that the plaintiff may have an opportunity to show that service has been timely effected on the defendant or that due diligence has been exercised to have service timely effected on the defendant.” (See id.)

“Upon finding that service has been timely effected or that due diligence has been exercised to have service timely effected, the court shall maintain the action on the docket and, if service has not been timely effected but due diligence to effect service has been exercised, shall require the plaintiff to attempt service in any manner permitted under Chapter 8 (§ 8.01-285 et seq.) of this title.” (See id.)

“Nothing herein shall prevent the plaintiff from filing a nonsuit under § 8.01-380 before the entry of a discontinuance order pursuant to the provisions of this subsection. Nothing in this subsection shall apply to asbestos litigation.” (See id.)

Standard of Review in Deciding a Motion to Dismiss for Failure to Prosecute

“A trial court has the power to dismiss an action pending before it.” (See Collins v. Shepherd (2007) 649 S.E.2d 672, 680.)

“A trial court's decision to deny a motion to dismiss involves a purely legal determination. Therefore, we review its decision de novo on appeal.” (See Young v. Commonwealth (2007) 273 Va. 528, 533, 643 S.E.2d 491, 493; Figueroa v. Commonwealth, Record No. 0149-14-3, at *3 (Va. Ct. App. Apr. 7, 2015).)

Legal Precedents and Case Law on a Motion to Dismiss for Failure to Prosecute

It is well settled that "[d]ismissal of an action with prejudice is a drastic punishment and should not be invoked except in those cases where the conduct of the party shows deliberate and contumacious disregard of the [commission's] authority." (See Republic Servs. of Va. v. Candio, Record No. 0352-15-4, at *4-5 (Va. Ct. App. Oct. 27, 2015).)

It is also well settled that the plain meaning of Section 8.01-335 “is that any action in which there is no activity by the parties for three or more years may be removed from the court's docket, either by dismissal or discontinuance. Thereafter the court may reinstate the case on motion but only within one year of the dismissal or discontinuance. Thus, the statute creates a rare exception to the rule that a circuit court loses jurisdiction over a case 21 days after entering a final order.” (See Conger v. Barrett (2010) 280 Va. 627, 632.)