Glossary of Virginia Civil Procedure (final)
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- Who is subject to GENERAL PERSONAL JURISDICTION?
- Defendants with substantial ties (eg, they live here) are subject to general PJ; they can be sued in VA for claims that arise anywhere in the world.
- Long Arm Statute: what it does (generally) and what kind of jurisdiction it provides
- - provides for SPECIFIC jurisdiction
- What it does: you can sue a non-resident person or entity for something they did, or for an effect they caused, in Virginia
- Under what circumstances can you use/apply the Long Arm Statute? (7)
- To use the Long Arm Statute, the claim MUST ARISE from the D’s doing ONE (or more) of the following things in VA:
1. Causing tortuous injury in-state by an act or omission in-state.
2. Causing tortuous injury in-state by an act or omission OUT of state
3. Being party to a contract to supply services or things in VA
4. Having an interest in, uses, or possesses realty in VA (note that you DO NOT HAVE TO OWN IT – an interest is adequate.)
5. Transacting business in Virginia (NOTE that Virginia is a SINGLE TRANSACTION STATE. A single transaction with the state is enough to create jurisdiction under the Long Arm Statute – one business contact is adequate.)
6. Causing injury in VA by breach of warranty where the sale was out of state (this only works if the seller could reasonably foresee the effect instate and regularly does or solicits biz here or derives substantial revenue from goods consumed here)
7. Domestic relations - having maintained a matrimonial domicile in VA either at the time a claim for divorce or separate maintenance arose, or at the time of separation, or at the time the suit was filed.
- Non-Resident Motorist Act
- Provides for jurisdiction over over the OWNER OR OPERATOR of a motor vehicle that is involved in an accident in VA.
(Note that another basis of jurisdiction for this is the long arm - causing tortuous injury in-state by an act/omission in-state.)
- What is the Constitutional standard for personal jurisdiction?
- Standard: Does the D have such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and justice? (based on International Shoe; Burger King)
note: domicile, consent, or presence in the forum when served meet the test easily.
- Factors to apply to determine if the constitutional "minimum contacts" and "fair play & justice" test for PJ has been met:
- “My Parents Frequently Forgot to Read Children’s Stories”
- Look for SOME TIE btw the D and the forum. The tie/contact must result from PURPOSEFUL AVAILMENT (D must REACH OUT to the forum – D’s voluntary act)
- It must be FORESEEABLE that D could be sued in this forum
2. FAIR PLAY AND SUBSTANTIAL JUSTICE:
- RELATEDNESS btw this contact (above) and the claim. (Does claim asserted against D arise from D’s contact with the forum?)Relatedness not necessary if D has a substantial tie with the forum – then, there’s general PJ. Relatedness is esp. imp. if there’s a small amount of contact w/ forum (w/ long arm statute, automatically have relatedness
- CONVENIENCE for witnesses and parties. It's ok unless it puts D at a SEVERE disadvantage in the litigation (very tough to show)
- STATE’S INTEREST (Eg, in providing a forum for citizens)
- In Rem and Quasi In Rem Jurisdiction
- Disputes in which jurisdictional base is not the person, but person’s property.
- Statutory basis for in rem and quasi in rem jurisdiction:
- Attachment statute
- Constitutional test for in rem and quasi in rem jurisdiction:
- Depends on whether the dispute is related to the property attached.
• If yes, constitutionality satisfied by the presence of the property in the forum
• BUT if the claim is unrelated to the property attached, D’s contacts with the forum must satisfy the Int’l Shoe test
- What is the subject matter jurisdiction of the VA General District Courts and the Circuit Courts?
- GDC: jurisdiction is wholly statutory, and is basically legal, not equitable
CC: mainstream courts of GENERAL SMJ. These courts can hear ANY CIVIL ACTION, EXCEPT those for which exclusive jurisdiction is vested in another court.
- What is the primary type of case over which the GDCs have exclusive jurisdiction?
- Actions for monetary claims or claims to specific personal property of $4500 or less, exclusive of interest and attny’s fees. These MUST go to the GDC.
(Exam Tip: If the claim is for $4500 on the nose, it goes to the GDC.)
- What are some of the functions of the clerk of the CC?
- Clerk of the CC performs ministerial duties as well as quasi-judicial tasks, such as appting personal reps, guardians, and GALs.
Clerks also hear evidence re: whether a will should be admitted to probate.
- Are the CCs courts of record? What about the GDC?
- CC = court of record
GDC = court NOT OF RECORD
- Are there formal pleadings in GDC? Broad discovery rights? Jury? Injunctions?
- No formal pleadings, no broad discovery rights, no jury.
Injunctions can’t be granted (it’s for legal, not equitable relief)
Exception: can get an injunction to enforce state FOIA.
- Are there formal pleadings in CC? Broad discovery rights? Jury? Injunctions?
- Yes, there are formal pleadings, and discovery rights. There is a right to a jury, and injunctions may be granted.
- What kinds of cases MAY the GDC hear? (Eg, cases that can be heard either there OR in the CC)
- GDC may hear actions at law in tort or contract, or actions in detinue (for recovery of personal property or value thereof), if the amount in controversy is $15K or less ($15K on nose can go to GDC)
May hear interpleader cases if the stake is worth $15K or less (but no injunction)
GDC may hear unlawful detainer cases (where s/o wrongfully enters P’s realty or where tenant stays in possession of realty after their right has expired), if back rent, profits, and damage to property is $15K or less.
EXCEPTION: If the premises are used for biz, commercial, or agricultural purposes, it is OK for the GDC to hear the case REGARDLESS of amount in controversy.
- Can the GDC attach personal property?
- Yes, but only if the value is $15K or less
- What kinds of cases involving real property can the GDC hear?
- NONE. Have to go to Circuit Court if real property is involved!
- What is DETINUE?
- Actions for the recovery of personal property or its value (eg, a stereo).
NOT for real property!
- Which court(s) can hear detinue cases? Under what circumstances?
- GDC has exclusive jurisdiction in detinue cases if the amount in controversy is $4500 or less.
GDC *can* hear anything of $15K or less.
CC *can* hear anything over $4500.
CC MUST hear anything over $15K.
- RULE for removal of a case from GDC to CC:
- 1. Must be a case that could have originally been brought in CC
2. must be removed by DEFENDANT.
There is NO PLAINTIFF REMOVAL!!
- PROCEDURE for removal of a case from GDC to CC:
- 1. file with the GDC (NOT the CC!)an *affidavit of substantial defense* setting forth the defense on the merits (not just dispute on damages).
2. Pay WRIT TAX costs and deposit in the GDC.
3. GDC then sends the info to the CC
4. TIMING: File for removal on or before the RETURN DATE or WITHIN 10 DAYS AFTER THE RETURN DATE if the trial hasn’t yet started
(Exam tip: note that this is diff from removal in fed ct, where file in removal court)
- What is an AFDIDAVIT OF SUBSTANTIAL DEFENSE?
- A removal filing -- the defendant files this in the GDC to remove a case to CC.
The affidavit sets forth the defense on the merits (it does not not just set forth a dispute on damages).
- Special filing rule for tenants who file for removal in unlawful detainer cases:
- A tenant who removes must post a bond of up to one year’s rent and damages for unlawful occupancy.
- What is the timing for filing an affidavit of substantial defense to remove a case to CC?
- D must file for removal on or before the RETURN DATE (or WITHIN 10 DAYS AFTER THE RETURN DATE if the trial hasn’t yet started.)
- After D removes a case, can the P amend their complaint? Can they increase the amount in controversy?
- YES. After D removes, P can seek leave to amend, and can go over $15K if granted leave.
- Is there a right to appeal from the GDC to the CC?
- YES. There is an absolute right to appeal, IF the amount in controversy is more than $50.
note: the individual filing for appeal must have more than $50 in contoversy.
- PROCEDURE for appeal from the GDC to the CC?
- 1. File a written notice of appeal w/ clerk of GDC w/in 10 days of judgment
2. Post bond and pay writ tax in GDC w/in 30 days of judgment (10 days in unlawful detainer cases)
3. Once the case is appealed, P can seek leave to amend to increase her claim to over $15K.
NB: Seeking a rehearing at GDC does not increase these time requirements.
- When the CC hears an appeal, what is the standard of review?
- CC hears the case de novo (remember that the GDC is not a court of record).
- What is venue?
- Where in VA – which specific court(s)/districts – can a given case be heard?
- Will contractual forum selection clauses be enforced in VA?
- YES - VA Courts will enforce a K provision that a case must be filed in a particular place IF it is "fair and reasonable"
- What are the 2 categories of venue in VA?
- Category A
- What is Category A venue?
- Cases that involve local actions, writs, injunctions, or wills.
1. ** Local Actions – cases about land: for the recovery, partition, or judicial sale of land, to establish boundaries to land, for unlawful entry or detainer, to subject land to a debt, to quiet title or remove and encumbrance.
(VENUE RULE: Local actions must be brought in the locality where the land, or any part thereof, is located.)
2. Wills – VENUE RULE: cases to establish or impeach a will should be brought where the will was probated, or if not yet probated, where it COULD HAVE BEEN offered for probate.
3. Writs - VENUE RULE: For mandamus, prohibition, or certiorari, venue lays at the place where the proceeding to which the writ relates is located.
4. Injunctions - VENUE RULE: Where subject proceeding or judgment is pending or was rendered, or where the subject act is to be done, is being done, or is apprehended to be done.
- What is Category B venue?
- Anything that doesn’t fall under Category A.
- Where D resides or has her principal place of employment
- Where the cause of action, or any part thereof, arose (For K case, this = where the K arose OR where it was breached)
- Where D has a registered office or agent
- Where D regularly conducts substantial biz activity (must be substantial. Being a UW chairperson in county doesn’t count)
- To recover personal property, where the property is located
- In case against fiduciary appted under court order, where fiduciary qualified
- PROCEDURE for objecting to venue in GDC (timing)
- For GDC, can object to venue on or before the day of trial.
- PROCEDURE for objecting to venue in CC
- To object to venue in CC, must FILE the motion w/in 21 days after service of process. (Mailing date not ok – must be FILED)
- UNLESS the court extends time to file a responsive pleading
- What does the court do if D timely and correctly objects to venue?
- Court will transfer to a proper venue UNLESS it finds good cause to keep the case
Court generally won’t dismiss if venue is improper.
- Can a court move a case from one proper venue to another proper venue?
- YES. Can do so upon motion by D, but court has to find good cause
This is discretionary: court weighs choice of forum against other factors (eg agreement of the parties, or avoidance of substantial inconvenience for parties/witnesses)
NB: VA SC found abuse of discretion when TC refused to transfer from place where D had place of employment to place where claim arose, where P worked, and where witnesses were located
- How do we determine venue when there are multiple defendant, each of for whom proper venue is different?
- RULE: If venue is ok for one D, it’s ok for ALL defendants.
Subrule: if one D is entitled to Category A venue, the case MUST go there. (Category A trumps Category B!)
- What is the venue rule if there are 4 Defs, all with different venue options -- 2 are Category B, and 2 are Category A venue?
- Venue lies in one of the 2 Category A venue courts. (Category A trumps B in venue choices among multiple defendants)
- Assume there are 2 Ds from different counties -- A and B. The case is brought in County A, and then P voluntarily dismisses the claim against the D who resides in County A. What happens?
- Probably nothing .... but the procedure is as follows:
The D from County B can object to venue in County A.
Can do so only w/in 10 days of the dismissal of the other def, AND:
the remaining D must show that the former D was joined improperly, or joined only to create venue (tough standard!)
- Where does venue lie if all Ds are non-residents?
- Where the P resides.
BUT: If there is a VA co-defendant, venue must be proper as to her.
- If a non-resident sues in VA on a claim arising out of state, can D move for dismissal?
- YES. If D moves for it, the court MAY dismiss w/o prejudice on stated conditions (eg that D not raise certain defenses)
- What is "process" (as in "service of process")?
- A summons and a copy of the complaint.
- What is the "summons" called in VA?
- GDC = “warrant” or “notice of motion for judgment”
Circuit Court = the “summons”
- Who may serve process?
- Process may be served by an adult civilian who is not interested in the case, or by the sheriff or deputy.
An officer may serve in her city or county and in contiguous localities.
- How does service on individuals differ in VA from federal service of process?
- VA follows the *descending order rule" for service.
- What is the descending order rule?
- Relates to service of process on an individual.
RULE: You can only move down the ladder of types of process ONLY if one of the higher forms of service is IMPOSSIBLE.
- What are the 3 types of indivudual service of process in VA?
- 1. Personal/actual service
2. Substituted service
3. Posted service
- What is personal/actiual service? (rule)
- Deliver process directly to D
Favored form of sevice; this MUST be tried and found unavailable before you try any other form of service of process.
- What is substituted service? (rule)
- 2nd in th descending order rule for service.
RULE – 3 steps:
1. You need to serve at defendant’s usual abode
2. You need to serve a member of D’s family who is at least age 16 and who is NOT a guest or temporary sojourner, AND
3. You need to tell the substitute the purpose of the document(s)
- What is posted service? (rule)
- If personal and substituted service are NOT POSSIBLE:
1. POST a copy of process on D’s FRONT DOOR, and
2. at least 10 days before taking a default judgment, MAIL process to the D and certify to the clerk that you did the mailing
In CC, P, in mailing the copy of the pleading to D, should also state that upon default, and after 10 days from mailing, default judgment may be sought.
- What happens if service is improperly left (eg, with a 10 year old son?)
- Process is ok IF D ACTUALLY and TIMELY received it
= the curing statute. (“cure” the problem)
Cases when curing statute NEVER applies: Divorce and Annulment
- What is the curing statute?
- Bad service of process is still ok if the D ACTUALLY and TIMELY received it.
- Process for what kinds of cases can never be "cured" by the curing statute?
- Is there waiver of process by mail in VA?
- PROCESS for waiver of process by mail:
- P CAN request by mail that a D waive formal service of process
Mail 2 copies of the process AND the waiver form AND a return envelope postage prepaid.
- Is there immunity from service in VA?
- Yes and no.
If D is in-state as a witness in another civil case, D is NOT immune from service.
BUT there is immunity for s/o summoned to appear before the GJ or in a criminal case.
Court can deny immunity if it would thwart efficient administration of justice.
- How do we serve process on domestic corporations?
- All corps incorporated in VA or qualified to transact biz in VA must designate a registered agent to receive service of process.
Can personally serve the registered agent or any officer or director
If registered agent can’t be found at registered office, then serve the clerk of the State Corporation Commission.
- How do we serve process on foreign corporations?
- If the corp is registered to do biz in VA, can serve any officer, director, or registered agent.
If can’t find agent, can serve clerk of the State Corporation Commission
If not registered to do biz here, or has not appointed a registered agent, can serve an officer, a director, OR any agent of the corp in VA.
If none can be found, serve 2 copies of process and affidavit of corp’s last known address on the clerk of the State Corporation Commission.
- What is the procedure for service under the Non-Resident Motorist Act?
- 1. Serve the Commissioner of Motor Vehicles
2. Give affidavit of due diligence and D’s non-residence
3. If affidavit is false, there is no jurisdiction.
- What is the procedure for service under the Long Arm Statute?
- Option 1: Serve the Sect’y of the Commonwealth
- Sect’y then mails copy of process by registered or certified mail.
- P must make affidavit setting forth:
1. D is a non-resident (or can’t be found w/ due diligence) AND
2. D’s last known address
- Secretary then files a Certificate of Mailing in Court.
- Service is deemed complete when this certificate is filed!
Option 2: P can arrange for personal service out of state by one authorized to serve process there (must have basis for PJ under the long arm statute)
- When is service by publication allowed?
- Never available in personam - only used in cases concerning rights to property (eg partition) or status (eg, ex parte divorce)
It is only ok if P gives affidavit that he has used due diligence to find D, but w/o success.
- What is the procedure for service of process by publication? (aka - constructive service)
- Only ok if P gives affidavit that he has used due diligence to find D, but w/o success.
D has 50 days in which to respond to a complaint
ALTERNATELY, in non-in-personam case, P can ask sheriff in D’s county to serve process on D. If does so, D must respond w/in 21 days.
- What is "Proof of Service"? What else is it called?
- Aka the "Return."
It is a report to the court by the officer who served process, relating what was done to effect service. This is usually used when personal service was not successful.
- What is the procedure for a Return (Proof of Service)?
- 1. The return must state the reason for failing to serve personally
2. Note that b/c it’s by an officer, it’s prima facie evidence that what’s stated is true.
3. The report can also be made by affidavit by a civilian (that case, it’s mere evidence of service, not prima facie evidence)
[this might matter in a default, where need proof D was served]
4. The report should be filed within 72 hours of serving process.
5. Proof of service is signed by the person accepting service, and indicates the jurisdiction and state where it was accepted.
- When is a case formally commenced?
- The case is commenced by FILING of the suit, NOT by perfection of service.
Filing TOLLS the S of L .... BUT P must serve process w/in 12 months of filing, or else she can’t win judgment (unless shows due diligence)
- Basic form of a pleading:
- 1. All pleadings must state in NUMBERED PGPHS the FACTS on which the party relies.
2. Must clearly inform the opposing party of the TRUE NATURE of the claim or defense.
(this is known as FACT PLEADING, and VA requires it)
3. At least one lawyer has to be named and sign it
4. ** Documents that are the basis of a claim or defense can be annexed to the pleading as an exhibit, which MAKES THEM PART OF THE PLEADING
- How does a P file a case in GDC?
- Two ways for Ps to file cases:
1. P obtains a CIVIL WARRANT. Fill in blanks OR
2. P drafts a tailored MOTION FOR JUDGMENT (complaint).
Either way, if venue is improper, have to tell D of right to object.
Which optin the P chooses affects the summons:
- use a warrant if you use a warrant;
- use a notice of motion for judgment if it’s a MFJ
- What is a complaint called in CC?
- What kind of pleading does VA require -- fact or notice pleading?
- FACT pleading.
- What is a motion craving oyer?
- A type of motion that asks that the other party be forced to produce a given document.
Usually used in response to a pleading that does not have an important document attached to it.
Once produced as a result of the motion craving oyer, the doc os treated as if it is annexed to the pleading.
- If a document that should be annexed to a pleading is NOT, the other party should.....?
- Make a motion craving oyer.
- What is an attorney certificate?
- 1. Attny as to sign everything (pleadings, motions, etc), certifying that:
• She read it
• To the best of her knowledge, information, and belief, it is grounded in fact and law (or good faith claim the law should be modified) AND
• It’s not for harassment or delay
- Is there any penalty for violating the requirements of an attorney certification?
- YES - sanctions.
Can include costs, including attny fees, incurred b/c of the improper document.
Court can strike a document if the attny refuses to sign it.
- Is alternative pleading allowed? If yes, what's the rule?
RULE: you can plead alternative facts as to alternative parties IF they arise from the SAME transaction or occurrence.
- Can a court grant an extension of time to file certain documents/motions?
1. With one exception, the court in the sound exercise of its discretion may extend the time in which parties are required to file
Can do so EVEN IF the time for filing the doc has passed
Standard of review: abuse of discretion. C of A won’t second guess unless it’s really out of the ballpark
Can’t condition an extension of time on the party’s posting of bond.
** The ONE MOTION for which TIME CANNOT BE EXTENDED BY THE COURT = VENUE, UNLESS the court extends the time to file a responsive pleading. You can’t get an extension of time for a motion objecting to venue, BUT if the court extends time to file a responsive pleading, then you get extra time to object to venue
- What is the one type of motion for which the court CANNOT grant an extension of time to file?
UNLESS court extends the time to file a responsive pleading. You can’t get an extension of time for a motion objecting to venue, BUT if the court extends time to file a responsive pleading, then get extra time to object to venue.
- What's the "magic #" in VA procedure?
- What is a Return Date?
- When a civil warrant is directed to sheriff or deputy, who then serves it on D (or, if P drafts own motion for judgment, can have an officer serve it, along with notice of motion for judgment), the *warrant tells D that she must appear in court on a certain day.*
THIS IS THE RETURN DATE to respond.
- What are the rules for timing of Return Dates?
- Rule: The return date cannot be more than 60 days or fewer than 5 days from the date of service!
Return date is also important to removal right.
- Does D files a response to a warrant or motion for judgment?
- Can, but usually doesn't in GDC. If did, it would be called a responsive pleading.
P & D usually just show up in the return date and try the case. Court may set a diff trial date on the return date.
- What can D do if D wants more details about the P's case after receiving the warrant/motion for judgment?
- D can move for a *Bill of Particulars*
(this is a motion)
- What is a Bill of Particulars?
- What D files if if D wants more details about the P's case after receiving the warrant/motion for judgment.
- Can a D be MADE to file a responsive pleading?
- YES. P can move for a *Grounds of Defense* (this is basically an answer)
- What is a Grounds of Defense?
- A motion that can be made by a P to force D to file a repsonsive pleading.
- What happens if a motion is made for a bill of particulars or a grounds of defense, and the P or D does not respond?
- The court can order summary judgment against the party who failed to file.
- Can the court grant a continuance? How and when?
- Yes -
A party may move for a continuance, and granting is in the court’s discretion.
If a party doesn’t move for a continuance before the return date, the motion must be denied UNLESS the party shows continuance is in the best interests of justice.
- Special rule fo suits brought based on a written instrument:
- The ORIGINAL DOCUMENT must be tendered to the court unless excused by the court by statute or for good cause.
- How does a plaintiff file a case in Circuit Court?
- By filing a *Complaint*
- What must the complaint contain?
- 1. name of court
2. names and addresses of parties
3. signature of lawyer
4. statement of facts in numbered pgphs
5. must CLEARLY INFORM D of the TRUE NATURE OF THE CLAIM
6. P does NOT have to allege jurisdiction
7. P does NOT have to allege venue
8. P DOES have to make a statement of RELIEF DESIRED (PRAYER for relief)
When ask for damages, sometimes called AD DAMNUM clause.
PUNITIVE DAMAGES MUST BE IDENTIFIED SEPARATELY in the prayer for relief!! (in a separate pgph)
- Does the complaint in CC have to allege jurisdiction?
- Does the complaint in CC have to allege venue?
- What is an AD DAMNUM clause?
- When a P asks for damages in a complaint, this clause is called an ad damnum clause.
- Can a P ask for punitive dmages in a complaint?
- What special rule applies if a P asks for punitive damages in the complaint?
- PUNITIVE DAMAGES MUST BE IDENTIFIED SEPARATELY in the prayer for relief!! (in a separate pgph)
- How specifically do you have to allege the cause of action in a complaint?
- Rule: can allege negligence and proximate cause GENERALLY, but you must allege ALL THE ELEMENTS of the CAUSE OF ACTION
(eg, if don’t mention that negligence in a car accident included drunk driving, but you do mention negligence and proximate cause, this is ok.)
- What claims can be joined when the P makes a complaint?
- Rule: can join any claims that arise from the same T/O
(NB: this is far more limited than the federal rule, where anything can be joined)
If you join an unrelated claim, that is called MISJOINDER OF CLAIMS (might show up under a the term “multifariousness” - technically, this is misjoinder on an equitable claim.)
- How long does D have to respond once served with process (complaint)?
- D must respond w/in 21 days of service of process.
If service is on an agent apptd by law, it’s 21 days from when the agent files the certificate of complaince.
- What are D's options for ways to respond once they are served w/ process?
- Several ways to respond, which can be pursued in ANY ORDER, or simultaneously:
1. Motion for Bill of Particulars
2. Motion objecting to venue
3. Special Appearance to challenge PJ
4. Motion to Quash Process
6 **SPECIAL PLEA ** (a.k.a. Plea in Bar of Recovery)
8. Equitable Defenses to Legal Actions
- Definition and Procedure for a Motion for a Bill of Particulars
- i. Asks court to require the other side to amplify her pleading.
ii. Similar to federal motion for a more definite statement
iii. Timing: must be made “promptly"
- Procedure for a Motion objecting to Venue
- 1. Must state WHY VENUE IS IMPROPER
2. Must state WHAT PLACES WOULD BE PROPER
3. Must be TIMELY – filed w/in 21 days after service of process unless court extends time in which to file responsive pleading
4. Court still has the power to transfer to proper venue if the response objecting to venue lacks some of the above info.
- Procedure for a Special Appearance to challenge Personal Jurisdiction:
- To challenge personal jurisdiction, D has to make a “special appearance” in which D asserts that the court lacks PJ or that service of process was NEVER made.
**This issue MUST be raised first and by itself, or else the defense is waived!!**
If you join this w/ another defense, you have made a general appearance, and you have waived PJ.
- Motion to Quash - Definition and Procedure:
- Argues that SERVICE was IMPROPER (or that there was a problem with issuance of process or with the return)
Defects in process or service are waived if the D makes a general appearance (an appearance for any purpose other than to challenge the service of process on D) - this includes appearance to file a pleading going to merits of the case or asserting a defense. It also includes appearance to file a motion for a bill of particulars
It is ok to file the motion to quash simultaneously w/ a pleading responding to the merits - BUT this CAN’T be done if making a motion arguing no PJ or no service
- What is a demurrer?
- A motion that tests the sufficiency of a pleading that seeks affirmative relief (eg a complaint)
- What can a demurrer be used to challenge?
- iCan be used to challenge:
1. misjoinder of claims
2. lack of SMJ
3. failure to state a cause of action (this is the MAIN reason a demurrer is used)
4. CANNOT be used to challenge lack of PJ!
NB: CANNOT just say pleading is insufficient as a matter or law! Have to state *specifically* why pleading is insufficient
- Can a demurrer allege new facts?
Instead of pleading new facts not alleged in the pleading, make a motion craving oyer.
- WHEN can a demurrer be filed?
- Timing: demurrer can be filed before a responsive pleading, or at the same time
If you file your answer before you demur, you
cannot demur UNLESS you first get court permission
- Special Plea - definition and procedure:
- a.k.a. Plea in Bar of Recovery
Called an affirmative defense in fed ct
Eg, S of L; RJ; statute of frauds
May be raised separately, as a motion to dismiss, OR can state it like an affirmative defense in an answer in a responsive pleading
Advantage: presents a single set of facts which, if true, obviate need to proceed further with action
- Answer -- definition and procedure
- The basic responsive pleading.
Same as in fed ct re: what you put in the answer:
1. responses to allegations of the complaint (admit, deny, state lack of knowledge)
2. in numbered pgphs
3. affirmative defenses (called special pleas in VA)
To raise the S of L defense, D could move to dismiss, or could assert in her answer the plea of S of L.
- Equitable Defenses to Legal Actions - definition and procedure
- In legal actions on contracts, D CAN plead equitable defenses (failure of consideration, fraud in the inducement, breach of warranty, unconscionability) and they can diminish the P’s claim (this is common law RECOUPMENT)
Statute in VA: D can raise these defenses in an action at law on a K and recover damages for them, BUT a court CANNOT REFORM OR RESCIND THE CONTRACT (that would be affirmative relief. You can file a counterclaim for that)
- For some defenses, D must raise them in a SWORN pleading or affidavit -- which ones?
- i. Lack of genuineness of handwriting
ii. Lack of corp/partnership/agency status (including employment rapport)
iii. Lack of ownership or operation of property or instrumentality
- If a defense should have been raised in a sworn pleading/affidavit, but wasn't, what then?
- P should object to the lack of verification w/in 7 days of the filing
- if P fails to object, then P WAIVES the objection!
- there are special statutes in VA, passed to help vendors collect on Ks -- what is entailed (procedure)?
- In an action at law on a K, seeking payment of $, P can file with her complaint (or civil warrant/motion for judgment if in GDC) an affidavit stating:
1. the amount of the claim
2. that the amount is justly due, and
3. the date from which she seeks interest
After being served w. the process and affidavit together, the court enters judgment for P IF the D fails to plead under oath that P is not entitled to the $
If the D DOES plead under oath that P is not entitled to the $, then P is entitled to a continuance if she moves for it.
- General rule for what P has to do once D has responded:
whatever D has said in her plea, motion, answer, etc. is automatically deemed to be denied by P
EXCEPTION to the rule: if D pleads new matter in her defensive response, AND requests that P respond to the new matter, P has 21 days in which to admit or deny the new matter in a document called A REPLY
- What is a REPLY?
- If D pleads new matter in her defensive response, AND requests that P respond to the new matter, P has 21 days in which to admit or deny the new matter in a document called A REPLY
- What do you do if D files a responsive pleading and it is legally insufficient?
- CANNOT vfile a demurrer! (A demurrer only lies against OFFENSIVE pleadings.)
Instead, you file a *motion to strike the pleading.*
- What is a Motion to Strike the Pleading?
- What the P files in response to a legally insufficient responsive pleading by the D.
- Is there a right to amend a pleading in VA?
- NO. Must have court permission to amend.
(diff from fed. practice)
- What is the rule on the court allowing for amendment of pleadings?
- Amendment is allowed liberally to further the ends of justice.
Court looks to whether amendment would UNDULY DELAY proceedings or PREJUDICE A PARTY
Abuse of discretion standard.
- When is relation back allowed when a party has permission to amend?
- Relation back is appropriate if:
1. the amended document concerns the same transaction or occurrence as the original,
2. the party seeking amendment has been reasonably diligent, AND
3. the other party is not substantially prejudiced
- Can 3rd party beneficiaries join a case is they are not mentioned in the relevant K?
- YES. They can sue in their own right.
- If there are joint obligors or tortfeasors, does the P have to sue all of them at once?
P can sue one, some, or all of them at her option.
The fact that she may be barred as to one, OR the fact that she settles with one, does NOT affect her right to sue the others (but in the latter case, judgment against others can be reduced by the amount received in settlement)
If you sue one of the joint tortfeasors, you can later sue the other two. This is true even if you got a judgment against the first tortfeasor. BUT payment of judgment by one discharges all! (Eg, You can only collect on the judgment once)
- There are special statutes in VA, passed to help vendors collect on contracts. Describe what these statutes do and how they work.
- In an action at law on a K, seeking payment of $, P can file with her complaint (or civil warrant if in GDC) an affidavit stating:
1. the amount of the claim
2. that the amount is justly due, AND
3. the date from which she seeks interest
After being served w. the process and affidavit, the court enters judgment for P IF the D fails to plead under oath that P is not entitled to the $
If D DOES plead under oath that P is not entitled to the $, then P is entitled to a continuance if she moves for it.
- What does the P have to do after D responds to a complaint?
General rule: After D responds, P doesn’t have to do anything! Whatever D has said in her plea, motion, answer, etc. is automatically deemed to be denied by P.
EXCEPTION to the rule: if D pleads new matter in her defensive response, AND requests that P respond to the new matter, P has 21 days in which to admit or deny the new matter in a document called A REPLY
- What should P do if D's responsive pleading is legally insufficient?
- File a *motion to strike the pleading*.
NB: CANNOT file a demurrer -- a demurrer only lies against OFFENSIVE pleadings.
- What is a motion to strikethe pleading?
- What P files if a D's responsive pleading is legally insufficient.
- Is there a right to amend pleadings?
There is NEVER A RIGHT TO AMEND in VA -- you HAVE to get court permission (major difference btw VA and fed practice)
- If a party wants to amend a pleading, can they? When is it allowed/not allowed?
- Yes, with court permission.
Amendment is allowed liberally to further the ends of justice.
Court looks to whether amendment would UNDULY DELAY proceedings or PREJUDICE A PARTY
Abuse of discretion standard.
Exam tip: if there's a question of amendment, it will almost always be allowed.
- Does Virginia recognize the relation back doctrine for amendment of pleadings? If yes, what is the rule?
- Yes. BUT in VA, relation back is appropriate ONLY if:
1. the amended document concerns the same transaction or occurrence as the original,
2. the party seeking amendment has been reasonably diligent, AND
3. the other party is not substantially prejudiced.
- Can 3rd party beneficiaries join in a claim?
- YES - 3rd party beneficiaries can sue in their own right even if they’re not mentioned in the K at issue.
- If there are joint obligors or tortfeasors, does P have to sue all of them at once? What is the rule on this?
- P can sue one, some, or all of them at her option!
The fact that she may be barred as to one, OR the fact that she settles with one, does NOT affect her right to sue the others
BUT if she settles with one, judgment against others can be reduced by the amount received in settlement
If you sue one of the joint tortfeasors, you CAN later sue the other two. This is true even if you got a judgment against the first tortfeasor. BUT payment of judgment by one discharges all! (You can only collect on the judgment once.)
- If P is suing a partnership, who should she sue and why?
- Name the partnership AND the individual partners as Ds so P can execute against the partners INDIVIDUALLY
- If a case involves a claim related to a decendent, who should the P sue?
- If the case relates to acts of a decedent, the executor/administrator can be sued in their representative capacity
If the case relates to individual acts of the person (eg, the executor entered into a K with an accountant to figure estate taxes), they can SUE in either capacity, but must BE SUED in their individual capacity.
- What if P is a minor -- can she file a suit against a D? If so, how?
- YES -
Sue in her own name “by _______, her next friend”
(If you win, the judgment won’t necessarily be upset if you don’t do this right)
- Can a P sue a minor? How?
- If child is a D, that minor is sued in their own name. P must ask the clerk to appoint a guardian ad litem.
• GAL must be present thruout trial
• If GAL isn’t present, but a lawyer has entered and appearance and represented the minor, the judgment is still valid UNLESS it’s a suit to encumber a minor’s land.
• If a minor never makes an appearance, there’s no lawyer or GAL, and there’s a default judgment, the judgment is NOT valid. (Lesson: if there's no GAL, make sure there's a lawyer.)
- What if the P or D is under a disability (lack of mental capacity)? Can they sue or be sued? How?
- YES, they can be involved in lawsuits, through a COMMITTEE.
If there’s a substantial estate, usually have a formal incompetency proceeding. The proceeding results in apptmt of a “committee,” guardian, or conservator.
• if there’s a committee, the suit will be by or against the committee -- *the committee stands in the person’s shoes. She brings the case and is the defendant in the case*
• if there’s no committee: if you’re P, and there’s no committee, sue the guardian. If there's no guardian, sue in the incompetent’s name by his next friend.
If you’re the D, treat it exactly like the incompetent is a minor.
- Can a convict who is in custody sue or be sued? If so, how?
- While a convict is IN CUSTODY, you can’t sue her individually. Instead, you must get a committee appointed.
While in custody, she lacks the ability to sue or be sued in her own name.
- Do claims survive the death of a P and/or D?
- YES. (Survival and Revival)
- If a P or D dies, what it the procedure to keep the claim/case alive?
- Survival and Revival:
The claim SURVIVES the death of the P/D, but the case might have to be REVIVED with another party
P or D's executor should make a motion to substitute herself as the P/D.
- What happens if the P or D has a change in status or capacity?
- Survival and Revival -
If a P has a change in civil status (eg, goes insane, or is convicted and goes to jail), the case survives, but the claim must be revived in rep’s/executor’s/ committee’s name.
The CLAIM SURVIVES THE CHANGE IN CAPACITY
- What is a counterclaim? (basic definition)
- A claim against an opposing party.
- When can a counterclaim be filed in CC?
- D must file any counterclaims w/in 21 days of service of process on her
- When can a counterclaim be filed in GDC?
- D can file a counterclaim at anytime before trial.
REMEMBER: the claim must be within the SMJ of the court!! $ amounts.
- Are counterclaims compulsory?
- NO. (Diff from fed ct)
Counterclaims in VA are NEVER compulsory. D has choice of whether to assert counterclaims, even if they are transactionally related.
- What kind of claims can a D file as counterclaims? Rule:
- Counterlcaims can be for *any claim, under any theory, that D has against P*.
They need not be transactionally-related to the P’s claim.
Short version: you can counterclaim can be for ANYTHING.
EXAM NOTE: This is MUCH BROADER than the P’s right to join claims!
- If there is more than one P in a case, what is the Rule for Ds who want to file counterclaims?
- Counterclaim has to be against the P or ALL P’s JOINTLY
If there’s more than one P, counterclaim must be against ALL Ps jointly!
(Odd rule – not true in fed ct.)
- Does a counterclaim need to be served formally?
- How long does a P have in which to respond to a counterclaim?
- 21 days
- Can a counterclaim exceed a P's claim?
- YES (but watch out for SMJ and $ amounts)
- What is a cross-claim?
- A claim against a co-party.
- Are cross-claims compulsory?
They are ALWAYS permissive. NEVER compulsory.
- When can a cross-claim be filed (RULE):
- Must be transactionally- related to the underlying case (same as fed ct)
It can be asserted against one of several co-parties.
- Does process have to be formally served on the cross-defendant?
- YES. Must serve a summons with the cross-claim attached.
- When does a cross-claim have to be filed in CC?
- Cross-claimant must file the claim w/in 21 days of service of process on him.
- When does a cross-claim have to be filed in GDC?
- Cross-claim can be filed anytime before trial.
- When must a cross-defendant file a response to a cross-claim?
- Cross-defendant has 21 days in which to file a responsive pleading, demurrer, plea, etc.
- What is impleader?
- A defending party wants to join a 3rd party from whom he will seek indemnity or contribution on the underlying claim against D (same as fed ct)
- If D wants to implead, what is the relevant pleading called, and when must it be filed in CC? In GDC?
- D’s pleading is called a "Third Party Complaint"
The Third Party Complaint must be filed not later than 21 days after the D serves his first responsive pleading. (After that time, need leave of court to file.)
Timing in GDC: 3rd party complaint must be filed w/in 10 days after service OR up to the trial date, whichever is earlier.
- If a 3rd party is impleaded, must service be formally served on them?
- YES. Process would consist of a 3rd Party Complaint AND a Summons
- When can a party be impleaded?
- If the claim arises from the same T/O as the underlying case.
- RULE for impleading joint tortfeasors:
- A tortfeasor can seek contribution from a joint tortfeasor if the tort is negligence AND involves NO MORAL TURPITUDE.
BUT even then, can’t implead a joint tortfeasor against whom the P could not recover (limitation applies ONLY in impleading joint tortfeasors)
- What is a "necessary and indispensible party"?
- Absent party is FORCED to join the case
Same definition as in fed ct - an absentee who meets ANY of the following tests is necessary:
1. W/o absentee, court can’t afford complete relief (worried about multiple suits)
2. absentee’s interest may be HARMED if she is not joined (practical harm) OR
3. Absentee claims an interest which subjects a party (usually D) to multiple obligations
NB: joint tortfeasors ARE NOT NECESSARY PARTIES
- Can a court order joinder “as the ends of justice require”?
- YES -- by statute!
- Does the court dismiss for non-joinder?
- NO -- (diff from fed ct.)
VA RULE: if you can’t join an absentee, the case keeps going (Eg, there’s no such thing as “indispensable”)
There’s a Rule allowing dismissal for nonjoinder, but it has never been applied because there’s a statute clearly stating no dismissal for nonjoinder. statute takes precedent over the rule.
- What is interpleader?
- When a holder of $ or apiece of property knows that there are others who claim a right to it, they can interplead those who might claim the right in order to
avoid going thru several suits. This forces the possible Ps to litigate in a single proceeding.
- When can the GDC order interpleader?
- GDC can order interpleader as to $ or personal property worth $15K or less, but can’t issue an injunction against parties from pursuing other related proceedings
(NB: GDC can’t hear real property cases – those have to go to CC)
- When can the CC order interpleader?
- CC is the only place to go if the stake is worth more than $15K OR if the stake is realty in any amount.
Court CAN grant an injunction stopping litigation of related matters in other proceedings.
- What is intervention?
- When an absentee wishes to join a pending case (eg, they want to INTERVENE)
- When can intervention be allowed in GDC? In CC?
- No intervention in GDC – intervnetion allowed only in CC.
There is NO intervention of right – all permissive, and discretionary w/ the court
There are NO time limits- it is in the discretion of court (watch for delay and prejudice)
A claim or defense in intervention must be related to the case! (It must be germane to the case.)
- What is the procedure for intervention?
- The party wishing to intervene files a petition for intervention – they have to ask permission.
If granted, intervenor-plaintiff would file a complaint and serve it formally with process.
Defending parties then respond as they would to any complaint.
If granted, the intervenor-defendant files an answer in intervention.
- What is an "answer in intervention"?
- If a plaintiff successfully intervenes, a defendant then can respond with an answer in intervention.
- What is a "petition for intervention"?
- WHat a party wishing to intervene files asking the court for permission to intervene.
- What does a successful intervenor-plaintiff do once intervention is granted?
- File a complaint and serve it formally with process.
Defending parties then respond as they would to any complaint.
- What does a successful intervenor-defendant do once intervention is granted?
- File an answer in intervention.
- List 9 special causes of action in Virginia.
- 1. Wrongful death
2. Declaratory judgments
3. Partition of realty
4. Med Mal
5. Action to Establish Boundaries
7. Unlawful detainer
9. Enforcement of arbitration agreements and awards.
- Wrongful death (basic defintion)
- An action brought by a decedent's representative ..... (finish)
- Who are the beneficiaries of a wrongful death action (in order)?
- 1. Surviving spouse, children, and grandchildren;
2. If there are no children or grandchildren, then to the surviving spouse and parents of the decedent;
3. If no SS, children, or grandchildren, it goes to the parents and siblings of the decedent.
(NB: In all cases, the award can include another relative of the decedent who was part of the decedent’s household and dependent on the decedent for support)
- Who decides how much each beneficiary gets in a wrongful death action?
- The jury
- What kind of damages can be awarded in a wrongful death action? (Be specific)
- “Fair and Just” damages can be recovered.
Fair and Just categories include:
1. Sorrow, anguish, and lost companionship
2. Services and income provided by the decedent
3. Medical and funeral expenses
4. Punitive damages (only if there was wanton or willful misconduct)
NB: 3 and 4 must be separately stated in the verdict; 1 and 2 can be lumped in the verdict
- What happens if an accident victim is injured, sues, and then dies? What kind of damages can/cannot be recovered?
- The claim survives; substitute personal rep. as P and sue for wrongful death
The beneficiaries cannot recover for the pain and suffering of the decedent
But Punitive damages CAN be recovered if there is wanton or willful misconduct
If D dies before the judgment, there are NO PUNITIVE DAMAGES from D’s estate!
- Are declaratory judgments available in GDC? In CC?
- Available in CC ONLY.
- Why would someone bring an action for a declaratory judgment?
- Litigant wants a declaration of rights in a situation where there is actual controversy (it’s not just an advisory opinion)
In that or a later proceeding, she can seek consequential relief: damages at law or injunction at equity
EXAMPLE: If a state highway dept paves over part of P’s land, and state did nothing to compensate P, P can sue for a declaration of compensation due.
1. There’s an actual controversy
2. She can seek compensation
3. She can seek a declaratory judgment and ENFORCE IT AS DAMAGES
- In what situations do we usually see an action to compel partition of property?
- 2 situations:
1. co-owner, tenant in common, joint tenant, etc. wants to be free of the other owner. Bring suit to compel partition of the real property.
2. A creditor of one of the co-owners who has a lien on the co-owners interest in the land, wants to have that portion of the land sold to satisfy his debt.
- What are the 3 methods of partition of property?
- 1. division in kind
(court divides the property btw interested parties, so everyone gets some land);
2. partition by allotment (court lets one or more of the co-owners have the land, and orders them to pay off the others. Some get land, others just get $;
3. partition by sale
(if division in kind and allotment ARE NOT FEASIBLE, court orders sale of the land and court splits the proceeds. This is not favored. (The fact that certain land may be worth more as a single tract than if it were partitioned is irrelevant. FEASIBILITY is the key.))
- Describe the procedure relatd to filing a med mal suit.
- W/in 30 days after a responsive pleading is filed, either side may request review by a med mal review panel, which consists of judges, attnys, and health care providers (panel established by VA SC)
The request for the panel stays the tort action, and the panel decides the case. Parties can accept the panel decision or can resume the tort action.
If the tort action is resumed, panel’s opinion is admissible in evidence, but is not conclusive. (Panel members may testify.)
Opinion or record before the panel must include evidence of the standard of care
In discovery, can ask panel members about their deliberative process.
The statute applies to cases against health care providers, which includes many people in addition to MDs.
- WHat is an action to etablish boundaries?
- Exactly what it sounds like: Basically a declaratory judgment (but not called that) to establish boundaries btw contiguous adjoining lands.
The action is non-tortious (so no rents or damages). The order just describes the boundary.
Category A venue.
- Where can an action to establish boundaries be brought? GCD? CC?
- ONLY in CC.
- What is an ejectment?
- P is out of possession of real property, and wants to eject the person possessing the land.
The object is to try title and obtain possession, so P must show a superior right to possession.
P may seek rents and profits in the same action
D can get offset for improvements she made to the property.
Category A venue.
- Where can an ejectment be tried (which courts?)
- CC ONLY.
- What is unlawful detainer?
- Landlord ousting tenant and recovering possession of realty. LL can recover back rent and can recover for damage to the property.
- Where can unlawful detainer cases be tried?
- Category A venue
Available in both GDC (if amount less than $15K, or unlimited amount if the premises are used for commercial, business, or agricultural purposes) and CC.
- What kind of later suits does an action for ejectment bar?
- None (unless RJ/CE apply in a given case.
Rule: Ejectment actions are fairly informal, so a judgment doesn’t bar a later suit for ejectment, trespass, or later-accruing rents.
- What requirements must P meet in order to being an action in detinue?
- P must have:
1. an interest in AND
2. a right to
- One common scenario in which detinue is used:
- often used for sellers to recover property under conditional sales Ks when the buyer fails to pay but keeps the item.
- Where can an action in detinue be heard (court)?
- Available in GDC if the controversy doesn’t exceed $15K
Also available in CC, but exclusive GDC if it’s for $4500 or less.
- In an action in detinue, can the P get immediate possesssion of property? If so, how?
- *** pre-trial seizure is possible.
P can get immediate possession EX PARTE (w/o notice to the other side) by verified petition:
1. describing the property and showing the P’s right to it
2. showing the risk that the property will be damaged, hidden, or removed AND
3. posting bond of double the value of the property
(D can get property back in meantime by posting bond and giving notice to P or her attorney.
(NB: sheriff cannot enter D’s house forcible to seize the property)
- Which court(s) can hear actions related to the enforcement of Arbitration Agreements and Awards?
- CC ONLY
CC has jurisdiction to determine on a timely petition whether there is an arbitration agreement and to order arbitration.
- What happens if a contract is silent on the issue of arbitration, and one party brings an action in CC?
- The Court will determine whether the dispute is subject to arbitration.
- What type(s) of relief can be awarded in CC for actions brought related to arbitration agreements/awards?
- 1. A party to arbitration may petition CC for *confirmation* of arbitration award, and Court can enter an order embodying the award, OR
2. A party may ask the CC to vacate or modify an award, upon proper grounds (eg, can vacate for fraud, corruption, or if arbitrators acted beyond their power.)
- What is laches, and how is it applied?
- Related to the statute of limitations and whether a P has slept on her rights.
The doctrine of laches applies in EQUITY (not for actions at law).
Issue is whether P has sued in a timely fashion, which is up to the judge.
In theory, judge may decide the P is timely, even if S of L has already run, b/c P did not sleep on her rights
Laches MIGHT bar a claim at equity even if the S of L has not run (this never hapens)
RULE: usually laches follows the S of L….but the judge has leeway.
- Do statutes of limitation apply at law, equity, or both?
(watch for laches in actions in equity)
- When does a statute of limitations start to run?
- General rule – the statute starts to run from ACCRUAL of the claim - e.g., from the date of the injury or breach, NOT from date when a P discovered the harm, or when a reasonable person would have discovered it.
- What are the exceptions to the general rule that a statute of limitations begins to run when the claim accrues?
- 1. Fraud**, mistake, or undue influence –
• S of L starts running from when a reasonable person would have discovered the harm
2. Malicious prosecution –
• S of L begins to run when the underlying case ends
3. Contribution –
• S of L begins to run when one pays more than her fair share
4. Malpractice thru continuous treatment/service
• the claim accrues at the END OF A RELATED COURSE OF TREATMENT.
- What is the S of L for personal injuries?
- 2 years
- What is the S of L for nonphysical personal torts (eg, malivious prosecution)
- 2 years
- What is the S of L for fraud?
- 2 years
- What is the S of L for wrongful death?
- 2 years
NB: Claim is barred if the decedent was injured more than 2 years before his death, and he died from those injuries before ever bringing suit
- What is the S of L for defamation?
- 1 year
- What is the S of L for property damage?
- 5 years
For nuisance claims, if it’s a continuous nuisance, S of L would start when the nuisance started. If the nuisance is intermittent, though, there could be a different claim (and diff 5 yr statute) each time the nuisance started up again.
- What is the S of L for property damage for sales covered by the UCC?
- 4 years-
this is for the property as to which there was a breach of warranty
IF have UCC property, and there’s a breach of warranty, you have 4 years. But if the property exploded and damaged OTHER property, that property is under a FIVE year S of L.
- What is the S of L for written contracts?
- 5 years
- What is the S of L for unwritten contracts?
- 3 years
- What is the S of L for unlawful detainer?
- 3 years from the detention
- What is the procedure for raising a Statute of Limitations defense?
- Raising the S of L is a special pleading.
If you don’t raise it, you may waive it.
D does NOT have to plead the specific statute.
Must FILE the case (NOT serve process) BEFORE the statute runs. Filing TOLLS THE STATUTE.
In GDC, if the P uses a warrant, toll from the time that the P files D’s address and pays the process fee to the clerk
If P takes a non-suit (voluntary dismissal) after filing a case against D, P has a right to refile w/in 6 months or the limitation period, whichever is LONGER (only works if first case was filed before the original statute ran)
- What is "tolling" a S of L?
- To “toll” the statute means to STOP it from running.
When a claim accrues, the statute starts to run. If after 2 years, eg, you haven’t sued, you are barred. But ticking may be stopped before this point – tolling.
NB: Minority or being of unsound mind can toll the statute
- What are the rules for S of Ls and children? (Include special medmal rule)
- RULE: the statute does not start to run until they are no longer a minor.
If s/o injured an unemancipated 14 year old (tort), the statute starts to run when the child turns 18, OR when she is judicially emancipated
Special rules for tolling in medmal cases: Minority does NOT toll the statute in medmal if the child was 8 or older when the claim accrued. The claim must be asserted w/in 2 years. If the child was under 8, she may sue until her 10th bday.
- If an unknown motorist is involved in an accident, what is the S of L rule for filing a suit against them?
- RULE: A case may be brought against an unknown owner/operator of a vehicle as a “john Doe” – if that is done, the S of L will be tolled for 3 YEARS to give P a chance to learn D’s ID.
If the intended D has knowledge of the action w/in S of L period, an amendment to specifically name her after statute has run may be deemed timely.
- What is the general statute of limitations tolling rule for counterclaims and cross-claims?
- RULE: For counterclaims and cross-claims that arise from the same T/O as P’s claim, P’s filing of the case tolls the statute for those claims.
- What is the S of L rule for Impleader?
- If P files case w/in 30 days of the expiration of the S of L, D may implead for up to 60 days past the statute’s expiration
- What kind of discovery is allowed in GDC?
- Basically none.
A party can, at trial, compel someone to attend through a subpoena or subpoena duces tecum, addressed to parties or non-parties
Should file subpoena request at least 15 days before trial. After that, must show good cause.
- What kind of discovery is allowed in CC?
- The rules largely mirror those of federal court.
Differences from federal practice:
1. There are NO REQUIRED DISCLOSURES
2. For everything for which you have 30 days in fed ct, you get 21 days in state practice. (eg, 21 days to respond to interrogatories)
3. Max # of interrogatories that may be served w/o court permission = 30 (including sub-parts)
4. No rule limit on # of depositions (in fed court, can't take more than 10, or depose s/o more than twice)
5. No request for production to seek info from non-parties (can use a subpoena duces tecum
6. requested material for discovery must be relevant to the subject matter of the pending action (this is broader than fed cts – where it must be relevant to a claim or defense). Relevant means “reasonably calculated to lead to admissible evidence.”
In state courts, discovery is narrower in divorce, habeas corpus, and eminent domain cases.
7. general power to limit discovery if requests are repetitive, unduly burdensome, or if the info is more easily available from another source. (also true in fed court)
- Explain the procedure for obtaining a subpoena duces tecum for CC.
- The subpoena should be requested in writing from the clerk of the court, with notice to all parties.
(An attorney can issue a subpoena ducem tecum IF it is signed by the attorney as an officer of the court.)
File a copy with the parties AND with the court.
- How are interrogatories handled in CC?
- Interrogatory answers are signed under oath by the party; objections are signed by the lawyer. (same as fed ct)
- Hypo: There’s a car accident, and the 2 eyewitnesses are foreigners about to return home. The victim is unconscious, and you are the spouse. It’s important to preserve the eyewitness testimony. What can you do?
- 2 options:
1. become the spouse’s committee, and sue the driver. then depose the 2 witnesses (usually, you'd need a court order to take depositions w/in 21 days of filing a case. BUT NOT if witnesses are abt to leave jurisdiction!)
2. file a verified petition in Circuit Court where Dan resides seeking *perpetuation of testimony*. Court can order this, even though no suit has been filed!
- Can a party seek discovery of the other side's insurance coverage in CC?
- YES. A party CAN seek discovery of the other side’s insurance coverage, even if it couldn’t be admitted at trial (In fed ct, this is part of required disclosure!)
- What happens if P serves a Request for Admission on the D, and D refuses to respond, stating that the request is a Q to be determined by the jury?
- D has FAILED to deny, so it can be treated as an ADMISSION
RULE: if get a request for admission, you HAVE to admit or deny. A failure to do so constitutes an admission.
- Can a P get info about a D’s net worth and gross earnings?
- Yes, if punitive damages are at stake.
Why: They are RELEVANT. We don’t know what it will take to punish D if we don’t know what s/he has.
- Can a party respond to an interrogatory by referring the requesting party to documents in which the answers can be found?
- Yes, but the referral must provide SUFFICIENT DETAIL about where the info can be found.
- What is the CC rule about how documents requested in discovery must be provided to the other party (in what format)?
- RULE: In producing docs, they must be presented as kept in the usual course of biz or organized and labeled to correspond w/ categories in the request.
- List three ways that a case can terminate without a trial.
- 1. Nonsuit
2. Default/Default judgment
3. Summary judgment
- What is a nonsuit?
- When the P decides to drop the case.
- When can a P take a nonsuit?
- RULE: At trial, P has a right to take a nonsuit once w/o prejudice, UNLESS any of these is true:
1. the jury is retired from the bar (they’re deliberating), OR
2. a non-jury case is submitted to the court for decision, OR
3. a motion to strike the evidence is sustained (granted), OR
4. a demurrer or special plea is fully argued and awaiting decision.
- Can the P move for a nonsuit if the jury deadlocks and the court declares a mistrial?
- YES - none of the four rule exclusions is met.
- Can P move for a nonsuit if P made a motion to strike evidence before the case was submitted to the trier of fact, and the court did not formally rule on the motion, but indicated a strong inclination that it would sustain it?
- If the D has filed a claim in a case (counter or cross claim), can the P take a non-suit>
- YES, BUT ONLY IF D agrees OR if D’s claim can be adjudicated independently.
- What are the rules if P takes a nonsuit, but then decides to refile the case (including timing)?
- P must refile in the same court, UNLESS it lacks jurisdiction or venue, OR unless good cause is shown to litigate elsewhere.
BUT the new case CAN be filed in fed court (assuming Fed SMJ)
P should refile against D within 6 months or the limitations period, whichever is longer.
- Define Default.
- Default = failure to respond to an affirmative pleading w/in the allowed time
- What does a defaulting party WAIVE?
- 1. notice to further proceedings (But notice will be given to counsel if there is one.)
2. objections to admissibility of evidence at further proceedings
3. jury trial at further proceedings (further proceedings = if damages are unliquidated, P moves for a hearing on damages. This is tried to the court, unless P requests a jury)
- If a party defaults, can they later appear in a further proceeding to litigate? If yes, what can/cannot be litigated?
- If a party defaults, they can appear in a further proceeding to litigate DAMAGES, but CANNOT litigate LIABILITY.
They have defaulted, so they are liable. Only Q left is how much.
D also cannot object to evidence regarding P’s injuries.
- If D removes a case from GDC to CC, and then P files an amended complaint (eg, seeking higher damages), does the D have to do anything?
- YES - the D MUST respond anew!
- What are the differences in summary judgment procedure in VA Cts vs in Fed Cts?
- Same standard as fed practice, but a few important differences:
1. Summary Judgment NOT AVAILABLE in divorce or annulment
2. NO provision for using affidavits!***
3. Depositions can ONLY be used as part of the motion if all parties agree!!
4. Most important difference: pleading a fact can create a triable issue!
RULE: If there’s a dispute of fact IN THE PLEADINGS, then you cannot get summary judgment!!
- Can you get summary judgement if there's a dispute of fat in the pleadings?
- NO! Any dispute of fact, even in the pleadings, is fatal to summary judgment.
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