Motion to Dismiss in Virginia Circuit Court – At A Glance

Use this At A Glance Guide to learn the Virginia Supreme Court Rules related to bringing a motion to dismiss in Virginia Circuit Courts. For more detailed information, please see the SmartRules Motion to Dismiss Guide for the court where your action is pending.

There are no provisions of the Virginia Supreme Court Rules that set forth the grounds for a motion to dismiss. Grounds found in statutory law include: lack of subject matter jurisdiction and lack of an indispensable party. Va. Code 8.01-276. Challenges to personal jurisdiction may be brought by motion to quash. Va. Code 8.01-277.

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. Upon finding that the plaintiff did not exercise due diligence to have timely service and sustaining the motion to dismiss, the court shall dismiss the action with prejudice. Upon finding that the plaintiff did exercise due diligence to have timely service and denying the motion to dismiss, the court shall require the person filing such motion to file a responsive pleading within 21 days of such ruling. Nothing 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. Nothing in this subsection shall pertain to cases involving asbestos. Va. Code 8.01-277.

No action or suit shall abate or be defeated by the nonjoinder or misjoinder of parties, plaintiff or defendant, but whenever such nonjoinder or misjoinder shall be made to appear by affidavit or otherwise, new parties may be added and parties misjoined may be dropped by order of the court at any time as the ends of justice may require. Va. Code 8.01-5(A). Nothing in this section shall be construed to permit the joinder of any insurance company on account of the issuance to any party to a cause of any policy or contract of liability insurance, or on account of the issuance by any such company of any policy or contract of liability insurance for the benefit of or that will inure to the benefit of any party to any cause. Va. Code 8.01-5(B).

A demurrer, plea, motion to dismiss, and motion for a bill of particulars shall each be deemed a pleading in response for the count or counts addressed therein. V.S.C.R. 3:8(a).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

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