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Pay dispute properly dismissed for not mediating.

Byline: Rebecca M. Lightle

A contract employee who said only that he would "not be opposed" to mediation, but didn't actually request it, didn't satisfy a condition precedent for suing. In light of his previous non-suit after months of litigation, the circuit court had discretion to dismiss his breach-of-contract actionwith prejudice.

Background

In September 2015, Plaintiff George Primov sued Defendant Serco Inc. for breach of his employment agreement. Primov sought about $61,015 in unpaid compensation he asserted was due under the agreement. The agreement also contained a mediation provision:

"The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by confidential mediation. If the dispute has not been resolved by mediation within 60 days of a written request to mediate made by one of the parties, then either party may bring suit in the state or federal courts located in Fairfax County, Virginia."

In January 2016, Serco demanded that Primov non-suit the action in part because he had not complied with the mediation provision. Primov responded that he "would not be opposed" to mediation and that Serco "should consider the bad publicity that likely will result should this lawsuit proceed." Primov ultimately non-suited the action on the day of trial.

In December 2016, he filed this lawsuit, based on the same pay dispute. The circuit court sustained Serco's plea in bar on grounds that Primov had failed to satisfy a condition precedent to suit. It dismissed the complaint with prejudice. Primov has appealed on grounds that merits dismissal was an unduly harsh remedy.

Condition precedent

A contract's condition precedent to initiating legal action is enforceable in Virginia. Here, the parties' contract clearly requires a written request to mediate prior to bringing suit on the contract. Based on Primov's failure to abide by that term, dismissal was a disposition within the circuit court's discretion. It is undisputed that Primov denied Serco the benefit of its bargain. And rather than being in its initial stages, as in other cases involving a less harsh result, this was a case in which extensive discovery had been conducted in the first suit. Because there is no evidence that the circuit court failed to consider a relevant factor or considered any irrelevant factor in exercising its discretion, it did not abuse its discretion by dismissing, rather than staying, this action.

Dismissal with prejudice

The circuit court also did not err in dismissing the action with prejudice, rather than without prejudice.

Unlike a plea of the statute of limitations or sovereign immunity, a party not in compliance with a condition precedent could later satisfy the condition and then file a new action or claim. Thus, a dismissal without prejudice, stay, or abatement would be the most suitable remedies for non-compliance with a contractual condition precedent for filing a lawsuit, provided such remedies do not unfairly prejudice the opposing party.

But here, evidence supports dismissal with prejudice. Primov had the opportunity to fully litigate his claim in the first suit. He filed that action without requesting mediation and, after being made aware of the condition precedent, continued litigating for another five months before non-suiting on the trial date. Primov then failed to request mediation before filing the current suit. Considering the efforts expended in the first suit and Primov's repeated failures to comply with the mediation provision, the circuit court did not commit a clear error of judgment by dismissing with prejudice.

Affirmed.

Primov v. Serco Inc., Record No. 171381, Aug. 23, 2018. SCV (Goodwyn), from Fairfax Cir. Ct. (White). VLW No. 018-6-062, 11 pp.

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Title Annotation:Primov v. Serco Inc., Fairfax Circuit Court, Virginia
Author:Lightle, Rebecca M.
Publication:Virginia Lawyers Weekly
Date:Sep 7, 2018
Words:606
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