When a Virginia clerk receives a letter between opposing lawyers that's been filed in the court file, does it count as a 'proceeding' that keeps a dormant lawsuit alive?

Plain-English summary

Virginia Code § 8.01-335(A) lets a court strike a case from its docket when no order or proceeding (other than a continuance) has happened for more than two years. The Wise County Clerk asked whether a letter between opposing counsel that gets filed with the clerk counts as a "proceeding," because the statute does not define the term and counsel routinely cc the clerk on correspondence about scheduling, discovery, and other matters.

Cuccinelli concluded that the answer depends on what is in the letter. A plain letter between counsel, filed with the clerk for record-keeping, does not by itself constitute a "proceeding"; letters between counsel are often exchanged with little or no procedural effect. But the contents may reveal that proceedings are actually ongoing. A copy of a deposition notice under Rule 4:5(b)(1), or a copy of an attorney-issued subpoena duces tecum under Rule 4:9(A)(2), would be filings that document active litigation steps. Those documents are themselves "proceedings" because they progress the action toward resolution. If the clerk has been made aware (through such a filing within the previous two years) that proceedings are happening, the clerk cannot use § 8.01-335(A) to dismiss the case as dormant.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the purpose of § 8.01-335(A)?
The opinion quotes the Supreme Court of Virginia: the section lets trial courts identify cases the litigants or their counsel are not interested in pursuing to a conclusion. It is a docket-management tool. The statute requires the clerk to notify the parties at least fifteen days before the dismissal so they can be heard.

How did the AG define "proceeding"?
The Code does not define the term, so the AG drew on Black's Law Dictionary (the regular and orderly progression of a lawsuit, any procedural means for seeking redress, an act or step that is part of a larger action) and on the Supreme Court of Virginia's description of a proceeding as "any step or means taken in the prosecution of or defense of an action." The AG concluded the term is broad but not all-inclusive; mere requests for information do not qualify.

Why is filing a copy of a letter not enough by itself?
Because the act of cc'ing the clerk on correspondence between lawyers is administrative. It does not advance the case. The statute targets dormancy, that is, the absence of actual litigation steps, and a passive filing does not show that something is happening.

What kinds of filed letters would tip the clerk off?
Anything reflecting an active procedural step. A deposition notice, an attorney-issued subpoena duces tecum, scheduling orders, discovery disputes, or motion practice all qualify. The clerk should look at the substance of the document, not just its form.

Background and statutory framework

Section 8.01-335(A) provides: "[e]xcept 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." The statute further requires the clerk to notify the parties in interest "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."

Subsection (B) gives the court the same power on a three-year horizon, and there it may dismiss without notice.

The AG drew his analytical framework from Black's Law Dictionary's multiple definitions of "proceeding" and its long list of examples (institution of the action, the pleadings, the taking of testimony, motions, the trial, the judgment, the appeal), and from the Supreme Court of Virginia's statement that a proceeding includes "any step or means taken in the prosecution of or defense of an action." The opinion noted the term is broad but not all-inclusive: it does not reach mere requests for information.

Citations

• Va. Code § 8.01-335(A) (two-year discontinuance with notice)
• Va. Code § 8.01-335(B) (three-year discontinuance without notice)
• Rules of the Supreme Court of Virginia, Rule 4:5(b)(1) (notice of deposition)
• Rules of the Supreme Court of Virginia, Rule 4:9(A)(2) (subpoena duces tecum)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-057-Kennedy.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

July 22, 2011

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Jack Kennedy
Clerk, Circuit Court of Wise County
Post Office Box 1248
Wise, Virginia 24293-1248
Dear Mr. Kennedy:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented
You inquire what constitutes a "proceeding" as the term is used in § 8.01-335(A) of the Code of Virginia. Specifically, you ask whether the filing with the Clerk of the Court of a letter to opposing counsel constitutes a "proceeding."

Response
It is my opinion that the determination of whether a particular filing qualifies as a "proceeding" under § 8.01-335(A) requires a review of its specific contents. It further is my opinion that when an attorney files a copy of a letter to opposing counsel with the Clerk of Court, such a filing does not constitute a "proceeding" under § 8.01-335, but that the filed letter may indicate that there are other ongoing proceedings pending in the action, thereby foreclosing the discontinuance of the action.

Applicable Law and Discussion
Section 8.01-335(A) provides: "[e]xcept 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." The statute further provides that the "clerk of court shall notify the parties in interest if known, or their counsel of record ... 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."

I note that § 8.01-335(B), which permits the court to strike and dismiss from its docket an action in which there has been no order or proceeding for more than three years, also uses the term "proceeding." In that instance, however, "the court may dismiss cases under this subsection without any notice to the parties."

The Supreme Court of Virginia has noted that the purpose underlying § 8.01-335(A) is "to enable trial courts to identify cases which litigants or their counsel are not interested in pursuing to a conclusion." The statute "gives trial courts the discretionary authority to order law actions, dormant for more than two years, struck from their dockets[,]" and further "provides a device designed to benefit the trial courts in setting cases for trial and expediting litigation[.]"

"Proceeding" is not defined in § 8.01-335. Nor is the term generally defined elsewhere in the Code of Virginia. In the absence of a statutory definition, words are to be interpreted according to their plain meaning.

Black's Law Dictionary offers several definitions:

1. The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment.
2. Any procedural means for seeking redress from a tribunal or agency.
3. An act or step that is part of a larger action.
4. The business conducted by a court or other official body; a hearing.

In a different context, the Supreme Court of Virginia found that the term "proceeding" includes "anything done in the cause, except an order of continuance; meaning any step or means taken in the prosecution of or defense of an action." The Court concluded that the term was "broad enough to cover any act, measure, step or all steps in a course taken in conducting litigation, civil or criminal." Accordingly, the term "proceeding" does not simply refer to a formal action that provides a complete remedy, but also to procedural steps that are part of that larger action.

Black's Law Dictionary provides numerous examples of actions constituting a proceeding. These include:

(1) the institution of the action; (2) the appearance of the defendant; (3) all ancillary or provisional steps, such as arrest, attachment of property, garnishment, injunction ... (4) the pleadings; (5) the taking of testimony before trial; (6) all motions ... (7) the trial; (8) the judgment; (9) the execution; ... (11) the taking of the appeal ... (12) the remittitur, or sending back of the record to the lower court ... (13) the enforcement of the judgment, or, for a new trial ....

Although "proceeding" is clearly broad in its scope, it is not all-inclusive. For example, it does not extend to mere requests for information.

Applying these definitions and the purpose of the statute to your inquiry, a letter between counsel does not become a "proceeding" simply because one of the attorneys filed it with the Clerk. Letters between counsel are often exchanged with little or no effect. Nonetheless, the contents of the letter may indicate that proceedings are ongoing in the case. For example, a copy of letter constituting a notice of depositions pursuant to Supreme Court Rule 4:5(b)(1) or an attorney-issued subpoena duces tecum under Rule 4:9(A)(2) could be filed in the Clerk's office. Clearly, because such procedural devices progress an action towards final judicial resolution, they constitute "proceedings."

In these, or similar potential instances, the letter demonstrates that the matter remains active. Therefore, irrespective of any requirement of the court or Clerk to act, if the Clerk has been made aware of such proceedings via the filing of the letter, then the Clerk may not employ § 8.01-335(A) to discontinue the action, provided those proceedings have occurred within the previous two years.

Conclusion
Accordingly, it is my opinion that the determination of whether a particular filing qualifies as a "proceeding" under § 8.01-335(A) requires a review of its specific contents. It further is my opinion that when an attorney files a copy of a letter to opposing counsel with the Clerk of Court, such a filing does not constitute a "proceeding" under § 8.01-335, but that the filed letter may indicate that there are other ongoing proceedings pending in the action, thereby foreclosing the discontinuance of the action.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General