Primov v. Serco, Inc., 817 S.E.2d 811

Primov sued Serco in Dec. 2016 for breach of an employment agreement alleging Serco underpaid danger/hardship "uplifts" while he worked in Afghanistan; he sought ~$61,014.80.
The Employment Agreement included a Mediation Provision requiring a written request to mediate and that, if mediation failed within 60 days, either party could then sue in Fairfax County courts.
Primov previously filed a substantially similar suit (Initial Action) in Sept. 2015, litigated through discovery, and voluntarily nonsuited on the scheduled trial date in Aug. 2016 without having requested mediation.
Serco filed a plea in bar arguing Primov failed to satisfy the contractual condition precedent (no written request to mediate) before filing the Current Action; Serco attached deposition testimony showing Primov had not sent a pre-suit claim in the Initial Action.
The circuit court held Primov’s Feb. 1, 2016 letter (saying he “would not be opposed” to mediation) was not a written request to mediate, sustained the plea in bar, and dismissed the complaint with prejudice.
On appeal Primov argued dismissal with prejudice was an abuse of discretion and the court should have stayed the case or dismissed without prejudice; the Supreme Court of Virginia affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the circuit court abused its discretion by dismissing with prejudice for failure to satisfy a contractual condition precedent to suit	Primov: dismissal with prejudice was too harsh; court should allow the case to proceed, stay proceedings for 60 days for mediation, or dismiss without prejudice	Serco: Mediation Provision was a mandatory condition precedent; Primov never made the required written request to mediate and deprived Serco of its bargain; dismissal appropriate	Court: Enforceable condition precedent; trial court did not abuse discretion in dismissing with prejudice given prior litigation, repeated noncompliance, and prejudice to Serco

TC MidAtlantic Dev., Inc. v. Commonwealth, 280 Va. 204 (2010) (compliance with contractual pre-suit notice is a condition precedent to suing)
Landis v. North American Co., 299 U.S. 248 (1936) (courts have incidental power to stay proceedings to manage their dockets)
Morrison v. Bestler, 239 Va. 166 (1990) (mandatory procedural preconditions warrant varying sanctions; remedy depends on circumstances)
Hechler Chevrolet, Inc. v. General Motors Corp., 230 Va. 396 (1985) (trial court may deny amendment or reconsideration when it would only reargue a decided question)
Gilbreath v. Brewster, 250 Va. 436 (1995) (plea in bar can result in dismissal with prejudice as a final disposition)