Civ Pro 1-110 Flashcards
What documents can the court consider on a motion for summary judgment?
All pleadings, retrial orders, admissions, interrogatories, and other documents.
Can a party rely on a deposition in support of a MSJ?
No, unless (1) all parties agree, (2) action is between business entities & the amount at issue is $50k or more, or (3) π is seeking punitive damages.
When is there no right to a jury trial?
(1) Damages are for $20 or less; (2) equitable action.
When must a demand for a jury be made?
Within 10 days of the last pleading, or the right is waived.
When must objections to irregularity of jury be made?
Before the jury is sworn unless leave of court; irregularity must be intentional or cause injustice.
What is the number of jurors for claims of $25k or less?
5 jurors.
What is the number of jurors for claims over $25k?
7 jurors.
What is the minimum amount of jurors if both parties consent?
3 jurors.
Must a jury be unanimous in VA?
Yes, unless it is a 3-person jury.
What motion does a party file when the evidence is insufficient to support a verdict for opposing party?
A motion to strike evidence.
When can a party file a motion to strike evidence?
∆ can file at the conclusion of π’s evidence; or at the conclusion of evidence by all parties.
Can π take additional nonsuits?
Yes, by consent of opposing party or leave of court.
What are post verdict motions?
Motion to set aside verdict / motion for judgment notwithstanding the verdict (JNOV), motion for new trial.
A court will grant a motion to set aside the verdict when ___
verdict is plainly wrong or not supported by credible evidence
When would a court grant a motion for new trial?
Newly discovered evidence and to modify damages awarded by jury.
What is needed for a new trial based on newly discovered evidence?
Evidence (1) was discovered after the end of trial, (2) is material and would produce opposite result, and (3) could not have been discovered before trial with reasonable diligence.
When can a court grant relief after 21 days of final judgment?
Relief from default judgment, clerical mistake, failure to notify party of final order, or service by publication.
What is a writ of fieri facias (execution) used for?
to reach personal property to collect a judgment
Who issues a writ of fieri facias?
Clerk of Court gives to sheriff.
How does a sheriff reach tangible property?
Sheriff levies property creating a lien and sells property at public auction.
Can a sheriff break into a dwelling to levy property?
Sheriff can enter dwelling during the day.
How does a sheriff reach intangible property?
Sheriff delivers writ of fieri facias (execution) creating lien; lien is enforced through garnishment
Can a lien of a property held by tenancy by the entirety be subject to claims of creditors?
No, it is immune from claims of creditors of just one spouse until divorce.
Is there a minimum amount to appeal a case from GDC to CC?
Yes, $20.
What is the process for ∆ to appeal to a circuit court?
Written notice to GDC within 10 days; furnish an appeal bond.
What is the procedure to appeal from CC to Court of Appeals?
Appellant must file notice of appeal within 30 days of final order.
What must an appellant do after final order and when?
File statement of facts and transcript within 60 days of entry of final order.
When must an opening brief be filed in the Court of Appeals?
Within 40 days of the trial court clerk filing the record with the CoA.
When must appellee’s brief be filed?
Within 25 days of appellant’s brief.
When must a reply brief be filed in the CoA?
Within 14 days
What is the jurisdiction of the Supreme Court of VA?
Appeals by petition, finals orders of State Corporation Commission (SCC), and attorney Disciplinary Board.
Is there a minimum amount in controversy for the Supreme Court of VA?
Yes, $500.
What is the deadline if appealing a trial court order to the Supreme Court of VA?
90 days after entry of the order.
What is the deadline for appealing a Court of Appeals order?
30 days after entry of judgment.
When must an appellant file an opening brief in the Supreme Court of VA?
Within 40 days after the certificate of appeal was issued.
What is an action in detinue?
To recover specific personal property unlawfully withheld & damages.
What are the elements of an action in Detinue?
(1) π has a right to property and to immediate possession, (2) property can be identified and has value, and (3) ∆ is in possession of property.
How does π petition the court for pretrial seizure of property? (What must be in the petition)
(1) description of the property, (2) π’s claim, (3) alleged facts supporting attachment, and (4) π must post a bond. can be ex parte.
What is a claim in distress?
Landlord’s claim to recover rent by proceeding against tenant’s personal property
What is the SOL for a claim in distress?
5 years
What court has jx over a claim in distress?
GDC has exclusive jx
What is a partition proceeding?
2 or more owners disagree about the use of property and one seeks to divide it fairly (if convenient / practical) or sell and divide the proceeds
Which court has jx over a partition proceeding?
Circuit Court
What is an ejectment?
Remedy at law to determine title to land; π must prove right to possess; can seek a writ of eviction to recover possession and damages.
What is an unlawful entry or detainer?
Remedy at law to determine right to possession (NOT title); if possession was originally lawful, π must make written demand before filing suit.
What court has jx over an ejectment?
Circuit Court has exclusive jx
What does a writ of mandamus do?
Compels a public official to perform a ministerial duty imposed by law; must be no adequate remedy at law
How to initiate a writ of mandamus?
by petition under oath stating grounds
What court has jx over an unlawful entry or detainer?
GDC & CC
When does π file a suit under the VA Tort Claims Act (VTCA)?
Sooner of (i) when claim denied or (ii) 6 months after giving notice; but no later than 18 months from filing the claim or within 2 years after cause of action accrued.
Is there a cap on damages under VTCA?
Yes, the greater of $100k or insurance coverage; no punitive damages allowed.
What are medical malpractice review panels?
May be requested within 30 days of ∆’s response; opinion of panel is admissible but NOT conclusive.
What court has jx over a writ of mandamus?
CC, Court of Appeals, Supreme Court; GDC only for FOIA
What does a writ of prohibition do?
Prohibits public official from exceeding authority (same as mandamus).
What does a writ of quo warranto do?
Determines whether ∆ holds public office; initiated by AG or any other interested person.
What is a declaratory judgment?
Judicial determination of rights and duties; not a preferred method of proceeding if cause of action has matured.
What can an owner do when govt has taken property without proper condemnation proceedings?
Use declaratory judgment to determine if there was a taking without compensation.
How many additional days does a party have if there were served by mail?
3 additional days.
Can a party amend pleadings?
Yes, with leave of court
Depositions can be used in court against a party who had reasonable notice of taking the depo if
witness is (1) deceased, (2) 100 miles from trial, (3) unable to attend due to age, illness, infirmity, or imprisonment, (4) unable to be subpoenaed, or (5) a judge/otherwise prevented
What is a misjoinder?
joining of parties in a single action who should not be sued together
When can a misjoinder be dismissed?
at any time as justice requires
What is nonjoinder?
omission of a party who ought to be joined
How can parties be added?
on motion within 21 days of filing the complaint; or the court can add a party at any time
A necessary party can be joined if:
(1) complete relief cannot be granted in his absence, or (2) his absence impedes his ability to protect his interest
What should the court do if a necessary party cannot be joined?
decide if the action should be dismissed bc the absent party is indispensable
What is interpleader?
a person holding property subject to competing claims joins all claimants to decide who is entitled to the property
SOL - personal injury
within 2 years of injury
SOL - UCC contracts for sale
within 4 years
When is the SOL tolled if the person is a minor?
until minority ends
Is the SOL tolled if the person is disabled?
yes, until disability ends
SOL - If a conservator or guardian is appointed, suit must start:
(1) before the expiration of the SOL, or (2) within 1 year of appointment, whichever is later
If an action is dismissed without determination of merits, the SOL ___
is tolled for the time the action was pending
Third party π’s claim for indemnification / contribution: If an action is brought within 30 days of the end of the SOL period, ___
SOL is suspended for 60 days to add new parties for indemnification / contribution
If changing / adding a claim, tolling relates back to initial filing if:
(1) claim arose out of the same transaction or occurrence, (2) amending party was reasonably diligent, and (3) parties opposing amendment will not be substantially prejudiced
If changing a party, tolling relates back to initial filing if:
(1) claim arose out of the same transaction or occurrence, and new party (2) had notice within the time limit, (3) will not be prejudiced, and (4) knew / should have known he was the proper party
How should the SOL be raised as a defense?
it must be pled as an affirmative defense
What is within the scope of discovery?
any non-privileged, relevant matter
Must items of discovery be admissible?
no, not if reasonably calculated to lead to discovery of admissible evidence
Discovery can be limited if:
unreasonably cumulative, party had ample opportunity to obtain info, or unduly burdensome / expensive
Are trial preparation (work product) materials discoverable?
only if party has substantial need and cannot obtain material by other means
Are non-testifying experts discoverable?
No, unless exceptional circumstances make it impracticable to obtain facts / opinions by other means
What is discoverable about testifying experts?
(1) their identity, (2) subject matter on which they will testify, (3) substance, and (4) summary of grounds for their opinion
What must a claim of privilege or work product protection include?
(1) the protection claimed, and (2) describe the protected material / communications
If a party is trying to protect from annoyance, embarrassment, undue burden or expense, what must they file?
a motion for a protective order; include certification of good faith attempt to confer
Are stipulations permitted in discovery?
Yes, unless the court orders otherwise
If an earlier response was incomplete / incorrect
party has duty to supplement
if π seeks to take a deposition before deadline for ∆ to file a responsive pleading,
leave of court is needed unless (1) ∆ is served notice of taking deposition, or (2) deponent is leaving VA and will be unavailable
When is the timing for depositions?
any time after commencement of action
Where must a party be deposed?
(1) county/city where suit is pending, (2) adjacent county/city, (3) place agreed upon, or (4) place designated by court for good cause
Where must a nonparty be deposed?
(1) county/city where deponent resides, is employed, or has a principal place of business, (2) place agreed upon by witness and parties, or (3) place designated by court for good cause
Does a party require a subpoena for a deposition?
No, a party only requires reasonable notice of time and place of a deposition
Does a nonparty require a subpoena for a deposition?
Yes, a nonparty must be subpoenaed in order to appear
Objections in depositions
must be noted on the record but deposition continues and testimony is taken
Can depositions be written?
yes, depositions can be written or oral
Depositions can be used in court if witness is
(1) deceased, (2) 100 miles from trial, (3) unable to attend due to age, illness, or imprisonment, or (4) unable to be subpoenaed
What are interrogatories?
answers under oath
When must interrogatories be filed?
within 21 days of service along with any objections
What is the limit on interrogatories?
30 question limit including subparts unless authorized by court
When do requests for admissions have to be answered?
within 21 days of service of request, along with any objections; ∆ has at least 28 days after service of complaint
What is the limit for admissions?
limit of 30 requests, but admission of genuineness of documents are unlimited
How can a party enforce discovery?
a party may move for an order to compel discovery if they have attempted to resolve dispute
What can the court do to enforce discovery?
deem matters admitted, strike pleadings, hold in contempt, grant default judgment, and order payment of attorney fees
What happens if ∆ fails to file a responsive pleading within 21 days of service (or 60/90 days if waived)?
Default can occur
What relief can ∆ seek from default?
leave of court to file a late responsive pleading if ∆ can establish good cause for failure to file
How long does a ∆ have to move to set aside judgment?
within 21 days after entry of a default judgment
What is a motion for summary judgment?
party argues that there is no genuine dispute about any material fact
When can a motion for summary judgment be filed?
anytime after responsive pleadings
What party can file a motion for summary judgment?
either party
Notice of removal to federal court based on diversity jx must be done within ___
30 days of ∆ receiving a copy of the initial pleading / service of summons
