General

Does the statute of limitations toll because I didn’t know that I could file a lawsuit or because I didn’t know the name of the defendant?

NO!

No, unless the defendant has actually obstructed you from filing suit by direct or indirect means through improper means. Your ignorance of the law or feeling overwhelmed with life is not enough to prevent the statute of limitations from tolling.  When you don’t know the identity of the defendant you can file suit naming a fictitious “John Doe” but you have to identify the identity of the defendant and amend the suit before the running statute of limitations.

Not knowing your right to file suit is not a reason to extend the statute of limitations

You must identify the "John Doe" defendant before the statute of limitations runs - so file your suit early!

Neither the Virginia legislature nor the Virginia Supreme Court have provided a procedural mechanism for tolling the statute of limitations for “John Doe” actions with the only explicit statutory authority for “John Doe” pleading in Virginia cases involving an unknown owner or operator of motor vehicles in uninsured motorist cases in the context of uninsured motorist cases, Va. Code § 38.2-2206(E)&(G), or unless the defendant obstructed the filing of the action using any direct or indirect means to actually obstruct the filing of an action, Va. Code Ann. § 8.01-229(E)

Up to 3 years tolling when action filed against John Doe owner or operator of motor vehicle.

In order to toll the statute of limitations against an unknown defendant owner or operator of a motor vehicle, the plaintiff must still file the lawsuit within the statute of limitation period.  Va. Code Ann. § 38.2-2206(G) states in pertinent part, “The bringing of an action against an unknown owner or operator as John Doe shall toll the statute of limitations for purposes of bringing an action against the owner or operator who caused the injury or damages until his identity becomes known.”  However, even in those circumstances there are limits to the tolling.  The statute continues, “In no event shall an action be brought against an owner or operator who caused the injury or damages, previously filed against as John Doe, more than three years from the commencement of the action against the unknown owner or operator as John Doe in a court of competent jurisdiction.”  Further, service of the suit must be timely made on the clerk of the court in which the action is brought under Va. Code Ann. § 38.2-2206(E)

Exception - Uninsured Motor Vehicle Insurance

Up to 3 years tolling when action filed against John Doe owner or operator of motor vehicle.

Virginia Supreme Court Rule 3:2 and § 8.01-290 requires the complaint include the name of all the parties.

Rule 3:2(b) of the Virginia Supreme Court requires that “The complaint shall be captioned with the name of the court and the full style of the action, which shall include the names of all the parties. The requirements of Code § 8.01-290 may be met by giving the address or other data after the name of each defendant. § 8.01-290 entitled, “Plaintiffs required to furnish full name and last known address of defendants, etc.” states, 

Upon the commencement of every action, the plaintiff shall furnish in writing to the clerk or other issuing officer the full name and last known address of each defendant and if unable to furnish such name and address, he shall furnish such salient facts as are calculated to identify with reasonable certainty such defendant. The clerk or other official whose function it is to issue any such process shall note in the record or in the papers the address or other identifying facts furnished. Failure to comply with the requirements of this section shall not affect the validity of any judgment.

John Doe defendants must be identified prior to the running of the statute of limitations. Virginia Rules of the Supreme Court makes no specific provision for “John Doe” pleading. The Rules contemplate a named party.  Virginia Courts have ruled that “Plaintiff’s exercise of due diligence to identify the potential defendants does not invoke the provision permitting service of process more than one year after filing. See Carroll v. Smith, 8 Va. Cir. 222, 223 (1986).”  Conley v. Bishop, 32 Va. Cir. 236, 237 (Cir. Ct. 1993).  Amending a pleading to substitute the name of the defendant for “John Doe” will not  “relate back” to the time of the original filing under Virginia’s misnomer statute.  Id.  The Circuit Court in Carroll v. Smith, 8 Va. Cir. 222 (1986), held that substituting the real name for a “John Doe” defendant does not fall within the ambit of Virginia’s misnomer provision.  Misnomer does not apply because the amendment is not to correct a mistake in name but in the identity of the person, thus misnomer is not appropriate for mistake in the identity of the person. See Rockwell v. Allman, 211 Va. 560, 179 S.E.2d 471 (1971). This is in keeping with Federal Courts in Virginia that hold naming fictitious “John Doe” defendants in a complaint amounts to a change of parties and is not permitted beyond the limitation period. Bruce v. Smith, 581 F. Supp. 902, 905 (W.D. Va. 1984). 

Time is not your friend!

Misnomer does not apply to correct the identity of the defendant!

Relation Back Doctrine Does NOT Apply

Generally 2 year statute of limitations for personal injuries and most torts

Generally speaking, the applicable statute of limitation for a personal injury action “whatever the theory of recovery . . .” is “two years after the cause of action accrues . . .” Virginia Code Section 8.01-243(A).  The cause of action “shall be deemed to accrue and the prescribed limitation period shall begin . . . from the date the injury is sustained . . .”  Virginia Code Section 8.01-230

Tolling of the statute of limitations during criminal proceedings

The tolling provisions for the statute of limitations is controlled by Va. Code Ann. § 8.01229.  One of the lesser known tolling provisions is the suspension of limitations during criminal proceedings. Va. Code Ann. § 8.01229 (K)

Suspension of limitations during criminal proceedings. —  In any personal action for damages, if a criminal prosecution arising out of the same facts is commenced, the time such prosecution is pending shall not be computed as part of the period within which such a civil action may be brought. For purposes of this subsection, the time during which a prosecution is pending shall be calculated from the date of the issuance of a warrant, summons or capias, the return or filing of an indictment or information, or the defendant’s first appearance in any court as an accused in such a prosecution, whichever date occurs first, until the date of the final judgment or order in the trial court, the date of the final disposition of any direct appeal in state court, or the date on which the time for noting an appeal has expired, whichever date occurs last. Thereafter, the civil action may be brought within the remaining period of the statute or within one year, whichever is longer.

If a criminal prosecution is commenced and a grand jury indictment is returned or a grand jury indictment is waived after the period within which a civil action arising out of the same set of facts may be brought, a civil action may be brought within one year of the date of the final judgment or order in the trial court, the date of the final disposition of any direct appeal in state court, or the date on which the time for noting an appeal has expired, whichever date occurs last, but no more than 10 years after the date of the crime or two years after the cause of action shall have accrued under § 8.01-249, whichever date occurs last.

Statute of Limitations Tolled by Defendant Obstructing the Filing of an Action!

Another often overlooked tolling is when the defendant uses direct or indirect means to obstruct the filing of an action described in Va. Code Ann. § 8.01-229(E)

Obstruction of filing by defendant. —  When the filing of an action is obstructed by a defendant’s (i) filing a petition in bankruptcy or filing a petition for an extension or arrangement under the United States Bankruptcy Act or (ii) using any other direct or indirect means to obstruct the filing of an action, then the time that such obstruction has continued shall not be counted as any part of the period within which the action must be brought.

Anonymous Publisher of Internet Defamation - statute tolled.

Another exception is for a publisher of defamatory statements on the internet when either anonymous or under a false identity – then the statute of limitations is tolled in Virginia until the identity o the publisher is discovered or should have been discovered if you had used due diligence  to discovery the publisher’s true identity.

§ 8.01-247.1. Limitation on action for defamation, etc.

Every action for injury resulting from libel, slander, insulting words, or defamation shall be brought within one year after the cause of action accrues.

If a publisher of statements actionable under this section publishes anonymously or under a false identity on the Internet, an action may be filed under this section and the statute of limitations shall be tolled until the identity of the publisher is discovered or, by the exercise of due diligence, reasonably should have been discovered.

The plaintiff’s ignorance or simply being overwhelmed by life is not sufficient to suspend the operation of the statute of limitations. Foster v. Rison, 58 Va. (17 Gratt.) 321 (1867); Bickle v. Chrisman, 76 Va. 678 (1882); Matthews & Co. v. Progress Distilling Co., 108 Va. 777, 62 S.E. 924 (1908).  Where the defendant obstructs the filing such as in the case of fraud involving moral turpitude and not merely mistake or an “innocent” misrepresentation or constructive fraud the limitation may be tolled. A defendant must intend to conceal the discovery of the cause of action by means of trick or artifice, actually taking steps to concealed it from the plaintiff in order for the exception to apply. Richmond Redevelopment & Hous. Auth. v. Laburnum Constr. Corp., 195 Va. 827, 80 S.E.2d 574 (1954); Hawks v. DeHart, 206 Va. 810, 146 S.E.2d 187 (1966).

You cannot simply sit on your rights - just because life is overwhelming will not extend the deadline to file suit!