Case 1:16-cv-00540-AJT-MSN Document 37 Filed 07/28/17 Page 13 of 20 PageID# 3269 2. Whether Res Judicata Bars Any Claims in This Action Under Virginia law, a valid res judicata defense claim has three elements: (1) there was a final judgment issued on the merits of a prior suit; (2) there is identity of parties between the prior and present suits; and (3) the claim was brought in the prior proceeding or arose out of the same conduct, transaction, or occurrence as the subject of the prior proceeding. See Lee v. Spoden, 776 S.E.2d 798, 804-06 (Va. 2015). The first issue is whether the dismissal with prejudice of Davison’s Petition constitutes a final judgment on the merits of Plaintiff’s case. Under Virginia law, as a general rule, a dismissal of a defendant or claim “with prejudice” constitutes “an adjudication on the merits, and final disposition, barring the right to bring or maintain an action on the same claim or cause.” Reed v. Liverman, 458 S.E.2d 446, 447 (Va. 1995). Furthermore, a dismissal with prejudice generally “is as conclusive of the rights of the parties as if the suit had been prosecuted to a final disposition adverse to the plaintiff.” Id. However, the words “with prejudice” must “be considered in light of the circumstances in which they are used.” Id. There is nothing about the circumstances of this case that leads the Court to conclude that the state court’s dismissal was anything other than a resolution that constituted a final adjudication on the merits. Cf. Shutler v. Augusta Health Care for Women, P.L.C., 630 S.E.2d 313, 316 (Va. 2006) (“[W]hen an attorney lacked his client’s authorization to consent to the dismissal of claims ‘with prejudice,’ the trial court was correct in treating the dismissal without prejudice.”). In the state court proceedings, Davison admitted that no “justiciable controversy” remained for the court to decide, Defs.’ Mem. Supp., Ex. 1 (“Petitioner’s Motion for Nonsuit”) ¶ 7(a), and that he had “no reason to believe LCSB will issue another ban in bad faith,” id., Ex. 1 ¶ 16. At the hearing on his motion to non-suit his Petition, Davison willingly agreed specifically 13