Adjudication Flashcards
A ____ is how a plaintiff voluntarily drops a case.
nonsuit
Say Plaintiff sues Defendant. At trial, Plaintiff decides to take a nonsuit. He has the right to do so ONCE without prejudice UNLESS any of these are true:
- The jury is retired from the bar;
- A nonjury case has been submitted to the court for decision;
- A motion to strike evidence is granted;
- A demurrer or special plea is fully argued and awaiting decision.
If a jury deadlocks and a court declares a mistrial, can Plaintiff take a nonsuit?
Yes.
Assume that Defendant had made a motion to strike Plaintiff’s evidence before the case was submitted to the jury. The court did not formally rule on the motion, but indicated its strong inclination that it will grant it. Can Plaintiff take a nonsuit?
Yes, because the court did not grant the motion.
What if the defendant had filed a claim in the case (counterclaim or crossclaim)? Can plaintiff take a nonsuit?
Only if the defendant agrees or if the defendant’s claim can be adjudicated independently.
After taking nonsuit, Plaintiff wants to refile against Defendant. Where must she refile the case?
In the same court unless the court lacks jurisdiction for venue; OR unless good cause is shown to litigate elsewhere.
Could a Plaintiff file a new case in federal court after taking nonsuit?
Yes, as long as there is SMJ.
When should a Plaintiff refile against Defendant after nonsuit?
Within 6 months or the limitations period, whichever is longer.
How many nonsuits are allowed as a matter of right?
One.
Additional nonsuits may be allowed by the court with…
notice to the other parties.
The party taking a nonsuit must inform the court of all previous nonsuits and that number must be…
reflected in the court order.
A party is in default if he…
fails to respond to an affirmative pleading within the allowed time.
Must a Plaintiff move for entry of default?
No. In Virginia, the court enters default automatically.
If a Defendant is in default, does she waive notice to further proceedings?
Yes, but notice will be given to counsel of record, if there is one.
If a Defendant is in default, does she waive a jury trial at further proceedings?
Yes.
