A tale of two lawsuits - Judge Moon dismisses time-barred case without prejudice

In Payne v. Brake, Judge Moon of the W.D. Va. reached two very interesting conclusions.

First, he held that in the case before him, there was no tolling of the statute of limitations, because it was filed before and not after the entry of the nonsuit order in an earlier case between the same parties, and therefore there was no tolling under Va. Code 8.01-229(E)(3).

Second, he held that it was appropriate for the case to be dismissed WITHOUT prejudice, because in light of the nonsuit order in the first case, there was still time for the filing of a third case within the statute of limitations, as tolled by operation of 8.01-229(E)(3).

I had a somewhat similar case. In case no. 1, two plaintiffs were misjoined. On the same day as a hearing where the Court ruled the plaintiffs were misjoined, case no. 2 was filed for one of the plaintiffs. Some time later, the order dismissing (or dropping) the misjoined plaintiff was entered. I argued that there was no tolling for case no. 2, because it was filed before the dismissal of case no. 1, and therefore did not meet the requirements of Va. Code 8.01-229(E)(1). Alas, the case went away before there was a ruling on this argument, which is essence that the second case was untimely because it was filed too soon.