Civ Pro Flashcards
If P properly brings suit in a state and a D moves to remove to fed court, andthe fed district has subject matter jurisdiction through diversity + >$75K, how can the P get a remand?
If one of the Ds is a resident of the original state. (Reasoning is the state will be more favorable to the D anyway.). Home court advantage rule.
Can the P’s spouse properly serve the D?
Sure, as long as over 18 and not a party to the case.
Can D file motion to dissmiss for improper service if D has been served but the proof of service was never recorded?
No. The plaintiff must provide proof of service of process to the court when service was properly made in the U.S. and not waived by the defendant. But a failure to prove service of process does not affect the validity of the service.
What must a D include in it’s answer to P’s claim?
An answer must include (1) admissions and denials, (2) motions that have not been waived, (3) affirmative defenses, and (4) compulsory counterclaims. Otherwise, these items will be waived.
What is collateral estoppel?
Collateral estoppel can be used offensively by the plaintiff in a second action to establish an issue against parties from the first action—with limited exceptions.
Collateral estoppel, also known as issue preclusion, is a legal doctrine in civil law that prevents (or “estops”) a person from relitigating an issue that has already been decided in a previous case. This doctrine is used to promote efficiency in the legal system and prevent the possibility of inconsistent verdicts by different juries or judges.
At what point in a claim is diversity determined?
At the time of filing. A move after the time of filing will not affect diversity jurisdiction.
In federal court, what governs personal jurisdiction?
Two things:
1) Constitutional due process requirements, and
2) state statutes regarding jurisdiction.
The bases for in personam jurisdiction are: (i) voluntary presence, (ii) domicile, (iii) consent, and (iv) the “long-arm” statute of the state where the federal district court sits.
How does a class action in fed court get settled?
Any certified class action can be settled, compromised, or voluntarily dismissed. When a settlement is proposed to the court, notice of the proposal must be provided to all class members who would be bound by it. This allows members to object to and opt out of the settlement before the court approves it. In addition, any proposed settlement must be approved by the court to be valid. The court may approve such a proposal only after it holds a hearing and issues findings that the settlement is fair, reasonable, and adequate.
What two areas of law do state courts have exclusive control over? (i.e. fed courts can’t hear these kinds of cases)
Federal courts cannot exercise diversity jurisdiction over cases that primarily involve probate matters or domestic relations. Instead, state courts have exclusive jurisdiction over these types of cases.
Where is venue proper when the D is a nonresident of the US?
When a defendant is a nonresident of the U.S., venue is proper in any federal judicial district.
After judgment is entered, how long does a party to have to make a motion for judgment as a matter of law?
28 days.
A motion for judgment as a matter of law is used to remove a case from the jury’s consideration when there is legally insufficient evidence for a reasonable jury to find in the nonmovant’s favor. The motion can be renewed within 28 days after the entry of judgment to seek to overturn an adverse verdict.
When can a federal court grant a preliminary injunction?
A federal court may grant a preliminary injunction when (1) the movant is likely to succeed on the merits, (2) the movant is likely to suffer irreparable harm in the absence of relief, (3) the balance of equities is in the movant’s favor, and (4) the injunction is in the best interests of the public.
This means no injunction if monetary damages are available.
When will a federal court exercise supplemental jurisdiction over a claim?
A federal court will generally exercise supplemental jurisdiction over a claim that falls outside of its original subject-matter jurisdiction if it shares a common nucleus of operative facts with a claim that arises within the court’s original subject-matter jurisdiction.
How many days does a party have to request a jury trial after the last pleading?
14 days
A party may secure a jury trial on any triable issue by (1) serving the other parties with a written jury trial demand no later than 14 days after the last pleading directed to that issue is served and (2) filing the jury trial demand with the court within a reasonable time after service of the demand.
When may a party NOT conduct an oral deposition without the court’s leave or the parties’ stipulation?
A party may conduct an oral deposition without the court’s leave or the parties’ stipulation unless (1) the deposition exceeds the 10-deposition limit, (2) the deposition is sought before the initial planning conference, or (3) the deponent was already deposed in the case.
What are the requirements for the Class Action Fairness Act?
The Class Action Fairness Act gives a federal court an alternative basis for subject-matter jurisdiction over a class action when (1) the class contains 100 members, (2) at least one class member is diverse from at least one defendant, and (3) the amount in controversy of the aggregated claims exceeds $5 million.
What’s the procedure for moving a court case from state to federal court?
It’s called REMOVAL. Generally Ds can get it with SMJ.
Procedurally: 30 days after service file signed notice of removal with a short and plain statement of reasons, including copies of complaint and summons served on party, with fed court. Promptly following, provide copy to adverse parties and state court. 30 days=if the last day is a weekend or holiday, then the next business day.
What is impleader?
The procedure in federal court for a defending party to make a claim against a non-party for all or part of the defending party’s liability on an original claim is “impleader.”
What factors does a court consider in a temporary injunction?
1: adequate remedy at law?
2: likely to succeed on the merits?
3: likely to suffer irreparable harm?
4: balance of equities tips in P’s favor?
5: relief is in public interest?
When can a D raise lack of personal jurisdiction as a defense?
Lack of personal jurisdiction is a defense that must be raised (1) in a pre-answer motion or (2) if no pre-answer motion is made, in the original answer or an answer amended as a matter of course (i.e., without the court’s permission). Otherwise, this defense is waived. Under FRCP 15, an answer can be amended once as a matter of course within 21 days:
In fed court, how can process be served?
Process can be served by (1) following the rules of the state where the court is located or where service is made, (2) delivering the summons and complaint to the defendant personally (or to his/her authorized agent), or (3) leaving the summons and complaint at the defendant’s dwelling with a resident of suitable age and discretion.
May an appellate court hear an appeal from an order granting or denying class action certification?
Yes, if filed with the clerk of the appellate court within 14 days after the order is entered. But it’s discretionary.
How does a D establish personal jurisdiction?
Personal jurisdiction can be established through the defendant’s express consent, implied consent, waiver, or appearance—i.e., by voluntarily appearing in court to litigate the merits of the case. (note: they can do it accidentally, like by appearing in court.)
When an issue is not clearly substantive or procedural and no federal law directly applies, when does Erie require that federal courts sitting in diversity apply state law?
(1) it would be outcome determinative—i.e., failure to apply it would result in forum-shopping or inequitable administration—and
(2) there is no contrary federal interest.
May a federal court impose additur?
NOPE.
What’s the deadline for filing an appeal in fed cout?
28 days.
When must a court clerk enter a default JUDGEMENT?
A court clerk must enter a default judgment when (1) the plaintiff’s claim is for a sum certain or a sum that can be made certain by calculation, (2) the plaintiff’s request for default judgment includes an affidavit establishing the amount due, (3) the defendant failed to appear, and (4) the defendant is not legally incompetent or a minor.
When does the Seventh Amendment guarantee a right to a jury trial?
The Seventh Amendment right to a jury trial applies to federal civil cases when the amount in controversy exceeds 20 dollars and a party asserts a legal claim (i.e., a claim seeking a monetary remedy). However, this right does not apply when a party asserts an equitable claim (i.e., a claim seeking a nonmonetary remedy).
When can you file for FRCP 11 sanctions against a party’s attorney?
A party cannot file a motion for sanctions until 21 days after serving that motion on the alleged violator. This safe-harbor rule gives a violator time to correct the violation (including withdrawing the offending motion).
What does the judge do in when a general verdict with special interrogatories has an inconsistent verdict and answers?
In a general verdict with special interrogatories, the jury decides which party should prevail and provides answers to questions on each factual issue. If the verdict and answers are inconsistent, the judge must (1) order a new trial, (2) direct the jury to further consider its answers and verdict, or (3) enter a judgment consistent with the answers.
What three kinds of verdicts are there in a jury trial?
A verdict is the jury’s determination of factual issues in a case. There are three types of verdicts—general verdicts, special verdicts, and general verdicts with special interrogatories—and the judge has the discretion to choose which verdict to use
When is a denied motion for summary judgement immediately appealable?
(Normally not appealable because not a final judgement).
A district court may certify an order for appeal by stating in writing that (1) there is a substantial difference of opinion on a controlling question of law and (2) an immediate appeal may materially advance the ultimate termination of the litigation.
When can a party request jury instructions?
A party may request jury instructions before or at the close of evidence unless the court sets an earlier, reasonable deadline (including pre-trial). Even after the close of evidence, a party can request instructions (1) on issues that could not reasonably have been anticipated by the deadline or (2) with the court’s permission.
What’s the difference between general venue and special venue?
When a plaintiff sues a federal officer or employee, proper venue depends on whether the defendant is sued for acting in (1) his/her individual capacity or (2) an official capacity or under color of legal authority.
When an officer or employee is sued in an individual capacity, the general venue statute applies. But when an officer or employee is sued in an official capacity or under color of legal authority, the special venue rules apply and venue is proper only where:
any defendant resides (residency-based venue) a substantial portion of the events giving rise to the suit occurred (events-based venue) or a substantial part of the property at issue is located (property-based venue) or the plaintiff resides, if no real property is involved.
Two requirements for a person to be a citizen of a state:
To be a citizen of a state, a person must be
(1) a citizen of the United States and
(2) a domiciliary of the state.
VA civ pro: What three things does a party’s signature certify when filing a pleading or a motion?
Every party filing a pleading or making a motion certifies that:
(i) He has read the pleading, motion, or other paper;
(ii) To the best of his knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and
(iii) It is not interposed for any improper purpose.
What is a demurrer?
Basically a state “motion to dismiss.”
In circuit court, when is a D in default?
A defendant in default in circuit court when the defendant fails to timely file a responsive pleading.
VA: How does a party make notice that an action has been filed that may affect a piece of real property?
The party may file a lis pendens with the real property records office where the real property is located.
When can a D plead laches as a defense?
Laches may be pled when the plaintiff delays in bringing an equitable claims to which no statute of limitations applies, and the delay (i) has worked to the disadvantage of the defendant or (ii) warrants the presumption that the plaintiff has waived his right to bring the claim.
Laches = implicit Statute of Limitations kinda
VA: Statute of limitations for personal injury?
Two years, regardless of type of damages
VA: Statute of limitations for adverse possession?
15 years
VA: statute of limitations for easement by prescription?
20 years
In VA, what should a lawyer do when she’s in a depo and her client is lying to the other side under oath?
when a lawyer knows that a client has committed perjury by lying under oath, the lawyer has a duty to take remedial measures. First, the lawyer should attempt to persuade the client to rectify the matter by revealing the fraud and testifying truthfully. If that fails, and the proceedings have not yet concluded, the lawyer must reveal the perjury.
VA: when may a D challenge the court’s personal jurisdiction?
While Virginia generally requires a defendant who wishes to challenge the court’s personal jurisdiction over him to file a special appearance, under Federal Rule of Civil Procedure (FRCP) 12(b), the lack of personal jurisdiction is among the defenses that are subject to a special rule. This defense must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer or within the time for amending the answer as of right, or the defense will be waived. A defendant must respond to a complaint either by an answer or by a pre-answer motion within 21 days of service of the complaint, unless the defendant seeks and is granted additional time in which to respond.
Although FRCP 12(b) states that a motion asserting the defense of lack of personal jurisdiction must be made before pleading if a responsive pleading is allowed, FRCP 12(h) provides that this defense is waived if a party fails to make it by a motion under this rule or include it in a responsive pleading (i.e., answer). Consequently, courts have concluded that, despite the language of FRCP 12(b), a motion to dismiss based on the lack of personal jurisdiction may be filed after an answer is filed when the answer pleads this defense.
What is VA’s long-arm statute?
Virginia’s long-arm statute—Among a defendant’s conduct that permits a Virginia court to acquire long-arm jurisdiction over that defendant, the following three situations are applicable under these facts—(i) causing tortious injury in Virginia by an act or omission outside Virginia, if the defendant regularly does business or derives substantial revenue from goods used or consumed or services rendered in Virginia; (ii) causing injury in Virginia to any person by breach of warranty expressly or impliedly made in the sale of goods outside Virginia when the defendant might reasonably have expected such person to use, consume, or be affected by the goods in Virginia (provided that he also regularly does business or derives substantial revenue from goods used or consumed or services rendered in Virginia); and (iii) using a computer or computer network located in Virginia.
What is the exclusionary rule?
Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment may not be introduced at trial to prove guilt.
VA: what evidence may the Commonwealth produce in sentencing?
The Commonwealth may present victim impact testimony and the defendant’s prior criminal history (adult or juvenile). The Commonwealth must provide the defendant 14-days notice prior to trial of its intention to introduce copies of final orders evidencing the defendant’s prior criminal history, and must provide copies of any such final order evidence it intends to introduce at sentencing. The defendant may then introduce any relevant, admissible evidence related to punishment. The Commonwealth may then rebut with similar evidence.
VA: What if process is improper?
Never fear, VA has a curative statute. Basically the process just needs to reach the party, through any means, as long as it’s timely. Not true in divorce, or annulment.
VA: is there preferred venue for personal injury?
a personal injury lawsuit does not have preferred venue or mandatory venue, so any location in category B is good (where injury occurred, D lives, D’s agent lives etc)
How can a fed court establish personal jurisdiction over a foreign corporation that lacks minimum contacts with the forum state?
IF
1) P asserts federal-law claim
2) defendant is not subject to personal jurisdiction in any state court and
3) the exercise of jurisdiction would be consistent with the U.S. Constitution and federal laws—i.e., the defendant has minimum contacts with the United States as a whole.
[Note: state long arm statute only applies if D has minimum contacts with the state]
Name the 3 alternate ways a fed court can establish personal jurisdiction (besides long-arm statute):
(1) nationwide personal jurisdiction (federal statute authorizes nationwide service of process)
(2) bulge rule: party added to suit via impleader or required joinder; and served within 100 miles of fed court
(3) federal claim, no state-court jurisdiction (D not subject to any state court, i.e. foreign)
How does a fed court establish diversity jurisdiction in a class action case?
(1) NAMED opposing parties are citizens of different states; and
(2) any NAMED P’s good-faith claim exceeds $75K
(court can then exercise supplemental jurisdiction over other class members)
When can a fed court exercise supplemental jurisdiction?
A federal court may exercise supplemental jurisdiction over a claim that falls outside its original subject-matter jurisdiction if the claim shares a common nucleus of operative facts with a claim that arises under the court’s original jurisdiction.
This includes if there’s a federal question and then a state claim but no party diversity–if state claim from common nucleus, can be brought in under supplemental
If a fed court enters a judgment against a D, is that judgement enforceable by a fed court in another state even if D has no minimum contacts in the second state?
YES.
(Note: the Full Faith and Credit clause applies to state courts, not fed, so it’s not relevant here.)
What three ways in fed court is process served?
Process can be served by (1) following the rules of the STATE where the court is located or where service is made, (2) delivering the summons and complaint to the defendant personally (or to his/her authorized agent), or (3) leaving the summons and complaint at the defendant’s dwelling with a resident of suitable age and discretion.
According to the FRE, how many days for service of process after P files complaint?
90 days.
*The 90-day deadline for service of process applies to defendants in the U.S. For defendants in a foreign country, most federal courts require that process be served with due diligence.
Under FRE, how long does a party have for a RESPONSE to an amended pleading?
Under Federal Rule of Civil Procedure 15, a party may amend its original pleading (e.g., complaint) once as a matter of course (i.e., without the court’s permission). When this occurs, a response to the amended pleading (e.g., answer) generally must be made by the later of the following deadlines:
The time remaining to respond to the original pleading—e.g., an answer is generally due within 21 days after service of process 14 days after the service of the amended pleading*
Under the FRE, how long does a party have to respond to a pleading?
21 days after SERVICE of process
In FRE, when fed court certifies a class action of prejudicial risk (i.e. separate actions by individual class members would create a risk of inconsistent decisions), is the court required to notify all class members?
No.
In “prejudicial risk” and “final equitable relief” class actions, a court may—but is not required to—provide notice to class members, who do not have a right to opt out and file separate suits.
What three kinds of class actions can a fed court certify>?
A federal court has the power to certify (i.e., authorize) the following types of class actions:
(1) Prejudicial risk – when separate actions would create a risk of inconsistent decisions regarding the parties or impairing absent class members’ interests (notice to all class members not required)
(2) Common question – when common questions of law or fact predominate over individual questions and a class action is the best method to fairly and efficiently adjudicate the dispute (notice to all class members not required)
(3) Final equitable relief – when injunctive or declaratory relief is appropriate because the opposing party's actions generally apply to the whole class (notice to all class members IS required)
What are the mandatory pretrial disclosures, and when are they due?
(1) The name, address, and phone number of each witness, separately identifying witnesses expected to testify at trial and those who may be called if the need arises
(2) The designation of witnesses whose testimony will be presented by deposition, including a transcript of the pertinent parts of any deposition that was not taken stenographically (i.e., by shorthand)
(3) All documents and exhibits, separately identifying items expected to be offered as evidence and those that may be offered if the need arises
These pretrial disclosures must be made at least 30 days before trial.
What are the expert testimony disclosures, and when are they due>?
*Identity of expert witnesses, due ≥ 90 days before trial
- Expert’s written report, due ≥ 90 days before trial
- If no report, subject matter & summary of testimony, due as court orders or parties stipulate
What are the 4 initial mandatory disclosures, and when are they due?
(1) Persons with relevant information [14 days after initial planning conference]
(2) Items in party’s possession that support claim/defense [14 days after initial planning conference]
(3) Computation of damages & supporting material [30 days after post-conference service or joinder]
(4) Relevant insurance policies [as court orders or parties stipulate]
Under the FRCP, is a report created by an expert witness who is NOT going to testify discoverable?
No.
Facts known and opinions held by an expert not expected to testify, including the expert’s identity, are privileged and not discoverable unless:
--that information relates to a court-ordered physical or mental examination or --exceptional circumstances make it impracticable to obtain the information by other means—e.g., a party dies and cannot be evaluated.
In the FRCP, What’s the dead line for requesting a jury trial?
Any party may secure the right to a jury trial in a civil action on any legal claim where the amount in controversy exceeds $20 by (1) serving the other parties with a written jury demand no later than 14 days after the last pleading is served and (2) filing the demand with the court within a reasonable time after serving it.
What are the exceptions under FRCP when an appeal can be made BEFORE a final judgment?
Injunction (grant/denial)
Certification by district court
Class action certification
Appointment of receiver
Admiralty case
Collateral-order doctrine
Bankruptcy cases (certain orders)
Mandamus (petition for writ)
Patent infringement order (only accounting left)
Mnemonic: In Certain Circumstances, An Appeal Can Be Made Prematurely
Under the FRCP, when is an appeal timely?
A notice of appeal must generally be filed with the district court clerk within 30 days after the entry of final judgment or an immediately appealable order.
Which Amendment would authorize Congress to pass an anti-human trafficking law?
Section 1 of the Thirteenth Amendment prohibits all government and private entities from engaging in slavery or involuntary servitude—e.g., forcing someone into involuntary employment based on physical or legal threats. And the Section 2 enforcement clause gives Congress the power to enact legislation to eliminate slavery and involuntary servitude. Therefore, the Thirteenth Amendment alone would be sufficient to support a Supreme Court ruling upholding the constitutionality of a federal statute that criminalizes involuntary employment.
When does a federal court have federal question jurisdiction over a cause of action arising under state law?
A federal district court does not have federal question jurisdiction over a cause of action arising under state law unless the court determines that the interpretation or application of state law may affect the outcome and the federal issue or interest is important enough to justify the exercise of jurisdiction. In order for federal question jurisdiction to exist when the cause of action is based in state law, the court must determine whether the state-law claim necessarily stated a substantial and disputed federal issue that a federal court could adjudicate without disturbing the balance of federal and state judicial responsibilities.
For establishing jurisdiction and venue, does a corporation have contacts with a state through the actions of an independant contractor it’s hired?
NOOOOO. it has to be through their employee. Independent contractors do not tie down the corporation.
What’s the exception for when there’s federal jurisdiction in a case involving state law (not diversity?)
The Supreme Court has also recognized the application of federal common law when a “uniquely federal interest” is at stake and a significant conflict exists between that interest and the operation of state law.
Under the UCC, is new consideration required to amend a contract?
NO.
The UCC, rejecting the preexisting duty rule, does not require consideration in order for the good-faith modification of a contract to be valid.
What are the diversity and amount in controversy requirements to establish jurisdiction in a federal statutory interpleader action?
For diversity jurisdiction in a federal statutory interpleader action, the value of the property at issue must only be $500 or more, and any two adverse claimants must be citizens of different states.
What evidence is needed to rebut a movant’s prima facie showing that summary judgment is appropriate?
Once the movant makes a prima facie showing that summary judgment is appropriate, the burden of proof shifts to the opposing party to set forth SPECIFIC EVIDENCE showing the existence of a genuine issue of fact for trial. (Note: opposing party can’t just use an affidavit saying they intend to call an eyewitness at trial. need the specific evidence, i.e. the statement from the eyewitness herself.)
If there’s a problem with a juror’s answer on voir dire, what must a party show to get a new trial?
To obtain a new trial, a party must demonstrate that a juror failed to answer honestly a material question on voir dire, and show that a proper response would have provided a valid basis for a challenge for cause.
What can Circuit Courts do that general district can’t? (VA)
– only circuit courts have jury trials
– amounts sued for in excess of $25,000 for actions to recover specific personal property
–circuit courts do generally have exclusive jurisdiction over amounts sued for in excess of $50,000.
In VA: P files breach of contract but doesn’t attach the contract to the plea. What motion should D make?
A motion “craving oyer” in Virginia seeks a court order compelling the plaintiff to produce a document mentioned in, but not attached to the complaint that is essential to the complaint. If the motion is sustained, the document becomes part of the plaintiff’s complaint and the defendant can rely on the document in a demurrer.
How can a fed court get jurisdiction over a foreign defendant who has no minimum contacts?
1- must be federal question
2- minimum contacts with the entire United States, so the exercise of personal jurisdiction would be consistent with the U.S. Constitution and federal laws.
3- no state court could exercise jurisdiction over the defendant.
In a class action case with diversity jurisdiction, how can the court exercise jurisdiction over claims that do not exceed 75L
When diversity jurisdiction exists over at least one named plaintiff’s claim in a class action, a court may exercise supplemental jurisdiction over claims that do not satisfy the amount-in-controversy requirement.
Is there a Full Faith and Credit type action available when a judgement is entered in federal court?
Yes. A judgment entered by a federal court with personal jurisdiction over the defendant can be enforced by a federal court in another state—even if the defendant does not have minimum contacts with that state.
How can process be served in fed court?
Process can be served by (1) following the rules of the state where the court is located or where service is made, (2) delivering the summons and complaint to the defendant personally (or to his/her authorized agent), or (3) leaving the summons and complaint at the defendant’s dwelling with a resident of suitable age and discretion.
How long do you have to respond to an amended pleading? (fed court)
Unless the court orders otherwise, a responding party generally must respond to an amended pleading within (1) the time that remains to respond to the original pleading or (2) 14 days after service of the amended pleading, whichever is later.
P’s burden of persuasion in a conversion case? (in VA)
preponderance of the evidence
P’s burden of persuasion in a fraud action? (in VA)
Clear and convincing evidence
P’s burden of persuasion in IIED? (in VA)
Clear and convincing evidence
P’s burden of persuasion to establish punitive damages? (in VA)
Clear and convincing evidence
In VA, does a lawyer have to turn over all work product to a client who fires her even if the client hasn’t paid?
YES. Under the Virginia rules, papers produced as work product must be turned over to the client when the representation is terminated. This duty to return papers to the client exists even when the client has not paid the lawyer’s fee.
In VA, is opinion testimony admissible for character evidence?
NO.
Virginia does permit the introduction of character evidence in the form of reputation testimony for both substantive and impeachment purposes, Virginia does not permit the introduction of character evidence in the form of opinion testimony for either substantive or impeachment purposes.
In VA, what’s the SOL for breach?
For an action based on an oral contract, the statute of limitation is three years. The statute of limitations begins to run upon the breach of the contract.
How long does a party taking a nonsuit have to refile (assuming SOL has expired?
A party taking a nonsuit may refile within the later of six months from the date of entry of the order granting the nonsuit or within the original period of limitations, which ignores the filing of the action that was nonsuited.
In VA, how long does a circuit court judgment last? How long does a district court judgment last?
A circuit court judgment dated on or after July 1, 2021, is enforceable for 10 years from the date of the judgment, but a circuit court judgment dated before July 1, 2021, is enforceable for 20 years from the date of the judgment. The time limit for enforcement of a general district court judgment is 10 years from the date of the judgment,
Where is venue proper in a federal civil action?
In general, venue in a federal civil action is proper in only one of the following judicial districts: (i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located, or (ii) a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located. (Note: only one D need object to venue)
In fed court, does proper service of an answer follow the rules of the forum state?
No. unlike service of process, the federal rules do not provide for service of an answer in accord with the law of the state in which the federal court sits.
Let’s say D doesn’t respond to an allegation, so the court takes the issue as admitted, and then in a second case the same issue is in play again. Does D get a chance to litigate it, or does res judicata apply?
D gets to litigate. In order for issue preclusion to apply, one of the requirements is that the issue must have been actually litigated in the prior action.
Can the P request a jury trial if there’s a cross claim from D seeking damages?
Yes
Let’s say D gets a removal to fed court, P gets a remand to state. Can D appeal the removal to the fed appellate court?
Nope. Specifically forbidden–lack jx.
In VA, what’s the deadline to file a demurrer?
As a responsive pleading, a demurrer must be filed within 21 days of service of the complaint
In VA, what’s a demurrer?
Basically a motion to dismiss.
In VA, what’s an aggressive pleading?
An aggressive pleading is a pleading that asserts a claim for relief. Examples: Complaint, counterclaim, cross-claim, third-party complaint
In VA, what’s a defensive pleading?
A defensive pleading is a pleading that responds to an aggressive pleading. Examples: Answer, plea of the statute of limitations, plea of res judicata, plea of payment
In VA, What damages are there for wrongful death?
Damages include recovery for:
i) Sorrow, mental anguish, and solace
ii) Compensation for loss of deceased’s income, services, protection, care, and assistance
iii) Medical expenses attributable to the injury that resulted in the deceased’s death;
iv) Reasonable funeral expenses
v) Punitive damages
In VA, what cases can be appealed to VA Ct App. as a matter of right?
(i) Final judgment, order or decree of a circuit court (except those appealable as of right to the Supreme Court of Virginia)
(ii) Final decision of a circuit court reviewing a decision of a state administrative agency
(iii) Final decision of the Worker’s Compensation Commission
(iv) Interlocutory decree or order from the circuit court
(v) Civil contempt
In VA, what cases may be appealed to the VA Supreme Court?
(i) A final decision, judgment, or order of a circuit court involving a petition for a writ of habeas corpus
(ii) Any final finding, decision, order, or judgment of the state corporation commission
(iii) A judgment by three-judge panel of the circuit court disciplining an attorney
(iv) A decision by circuit court punishing professional corporation or LLC for willful failure to comply with ethical standards or applicable statutes
(i) Any final decision by the Court of Appeals
(ii) An order of a circuit court granting or refusing to grant an injunction
(iii) An order of a circuit court granting nonsuit when there is a dispute over the correctness of the trial court’s action in granting a nonsuit
In VA< what is the effect of filing an appeal with the wrong appellate court?
The appellate court must transfer the matter to the correct appellate court. The appeal should not be dismissed.
In VA, What must be included in the assignment of error included in any petition for appeal?
Each assignment of error must include an exact reference to the page(s) of the transcript, written statement of facts, record, or appendix where the alleged error has been preserved.
In VA, What must a notice of appeal include?
A statement of whether any transcript or statement of facts, testimony, and other incidents of the case will be filed.
in VA, When must an appeal bond be filed?
When the appeal is of right to the Court of Appeals of Virginia, the appeal bond must be filed with the notice of appeal in the trial court.
In VA, When and where must a transcript of the trial be filed?
In the trial court within 60 days of the order being appealed
When must an appeal be filed with the VA Supreme Court?
Within 90 days of the date of entry of the order being appealed
In either VA appellate court, what is the standard of review for the trial court’s factual findings by the judge or jury?
The appellate court will give deference to the circuit court’s factual findings and view the facts in the light most favorable to the prevailing party in the trial court.
VA civ pro: to serve process to a family member living at D’s home, how old must the family member be?
If delivery of process to the defendant is not possible, process may be delivered to a family member age 16 or over, not to a temporary sojourner, at the defendant’s usual place of abode, and the server must explain the purport of the papers.
VA: how long after filing complaint does P have to effect service of process?
A plaintiff has one year after filing a complaint in which to effect service of process. If a defendant is not served within one year of the plaintiff’s filing suit, unless the plaintiff used due diligence in trying to get service, the court is prohibited from entering judgment against the defendant and the action is dismissed with prejudice.
VA: SOL for libel, defamation, slander
1 year
VA: SOL for wrongful death
2 years
VA: SOL to enforce a note
6 years
VA: catch-all SOL
2 years
VA: SOL personal injury
2 years
VA: SOL tortious injury to property
5 years
VA: SOL contracts claim
4 years for goods. Written non-UCC (real property, services): 5 years. Oral non-UCC: 3 years.
VA: SOL back rent
5 years from rent due date
VA: SOL to enforce trust, mortgage, lien
10 years from date due. 20 years if no date.
VA: SOL prescriptive easement
20 years
VA: SOL adverse possession
15 years
VA: SOL to enforce a judgment
Now, 10 years. If judgement before July 1, 2021, then 20 years
VA: SOL to will probate challenge
6 months
VA: SOL parent’s recovery for curing minor’s personal injury
5 years
VA: SOL sexual abuse of a minor
20 years
In what VA court can you file a contacts case for $10K?
Either! GDC has concurrent original jurisdiction with the circuit court where the amount claimed in a breach of contract action is more than $4,500 and does not exceed $25,000, excluding any claim for interest, attorney’s fees, and costs.
In VA, is there a preferred forum in an action to recover personal property?
No.
In actions to recover or partition personal property, whether tangible or intangible, there is no preferred (Class A) forum.
In VA, is there a preferred forum for injunctive relief?
In a proceeding to award an injunction, the preferred (Class A) forum is the same court (i.e., circuit or district) in the county or city in which the judgment was rendered or such proceeding is pending. When the injunction is not sought in connection with a judgment or proceeding in a trial court, the preferred forum is the circuit court of the county or city in which the act is to be done, or being done, or is apprehended to be done, or where the proceeding is pending.
In VA, is there a preferred forum for annulment or divorce?
YES.
In suits for annulment, affirmance, or divorce, the preferred (Class A) forum is the county or city in which the parties last cohabited, or at the option of the plaintiff, in the county or city in which the defendant resides, if the defendant is a resident of the Commonwealth. In cases in which an order of publication may be issued against the defendant, venue may also be in the county or city in which the plaintiff resides.
In VA, is the opinion of a medical malpractice review panel admissible in the trial?
YES. A medical malpractice review panel constitutes an additional procedural step that may be requested by a party to a medical malpractice action. The opinion of a medical malpractice review panel is admissible at trial as evidence, but it is not conclusive evidence.
Note: The request for review must be made within 30 days from the defendant’s filing of responsive pleadings.
Rule statement for appealing a case in VA:
Final decisions by the circuit court in both criminal and civil cases are appealable to the court of appeals as of right.
Rule statement for SOL personal injuries of a minor in VA:
The statute of limitations for a civil action seeking recovery for personal injuries is two years, regardless of the theory of recovery. The cause of action in a personal injury action generally begins to run when the injury is received. There is tolling provision for infancy (i.e., minority). If a person entitled to bring an action is an infant at the time the cause accrues, the period of limitations does not start to run until the disability is removed. In Virginia, the age of majority is 18 years of age.
In VA, may a court consider oral depositions in a summary judgment motion?
NO.
In ruling on a motion for summary judgment, the court can consider all the pleadings, pretrial orders, admissions, interrogatories, and documents produced. However, discovery depositions under Rule 4:5 (oral depositions) may not be used as a basis for sustaining a motion for summary judgment, unless all parties to the action agree.
-oral depositions from discovery may not be used as a basis for sustaining a motion for summary judgment unless all parties to the action agree. Although answers to requests for admissions may be used, an oral deposition generally may not support a motion for summary judgment.
VA rule statement on preserving an issue for appeal:
To preserve an issue for appeal, a prompt objection to the trial court’s action must be made, stating the grounds for the objection. Failure to do so will result in the issue being waived except (i) if the issue goes to the jurisdiction of the trial court, (ii) for good cause shown, or (iii) to attain the ends of justice. Generally, excluded testimony is made part of the record when the lawyer offering the testimony, outside the presence of the jury, makes a proffer or summary what it is believed the witness will say and the other side does not object to the accuracy of the summary.
In VA, which party may file for summary judgement?
Eithe rP or D, or both.
In VA, what kinds of suits can GDC hear up to $25,000 ONLY?
- debt, fines, K breach, property damage $25K or less
In VA, what kinds of suits can GDC hear up to $50,000?
Personal injury, wrongful death
In VA, what’s the $ cap for small claims in GDC?
$5,000
In VA GDC, what’s the $ cap for personal property partition?
$20-$25,000
Can VA GDC hear cases on unlawful detainer?
Yes
Can VA GDC hear cases on interpleader?
Yes (and earnest money deposit for real estate purchase doesn’t count against $ cap)
Can VA GDC hear cases on FOIA?
Yes
Does VA GDC have juries?
No
Does VA GDC have jurisdiction over a distress warrant?
Yes: and exclusive jx. Amt of $ doesn’t matter.
What is a distress warrant in VA?
Landlord’s claim for rent. GDC has exclusive jx.
Which VA court has exclusive jx over partition of real property?
Circuit court.
Is a GDC a court of record in VA?
Nope, which is why an appeal gfets a trial de novo
When can you motion for a new trial in GDC, and how long till court must rule on it?
30 days after judgment can make motion for new trial. Court has 45 days for hearing and ruling on the motion AFTER JUDGMENT DATE.
What are appeal rights in VA Juvenile and domestic relations district court?
Same as GDC.
In VA CCs, whta’s the $ for civil claims?
> $4,500
In VA what court has excluisive jx over equitable relief?
CC
In VA what court has excluisive jx over real property disputes?
CC
In VA what court has exclusive jx over decedent’s estates?
CC
In VA, where are all jury trials held?
CC
In VA, do GDC cases include costs, interest, and attorney fees for calculating $ cap?
Nope
In VA, preferred venue: marriage related actions?
where parties last cohabitated or where D resides within VA; if D is non-resident of VA, where P resides
In VA, where is preferred venue for wills?
Where will was or will be probated (usu decedent’s residence)
In VA, where is preferred venue for Virginia Tort Claims Act?
Where claimant resides, where act occurred, or Richmond if outside VA
In VA, where is preferred venue for land?
Where land is
In VA, where is preferred venue for distress?
where premises are, or where liable goods are
In VA, In VA, where is preferred venue for injunction?
CC where judgment rendered or pending (including if was GDC judgment)
In VA, where is preferred venue for writs of mandamus, prohibition, cert?
where the record is
In VA, where is preferred venue for writ of quo warranto?
where any D resides (challenges person’s right to hold public or corporate office)
In VA, where is preferred venue for attachment?
Where the property is that is owed
In VA, where is preferred venue for disbarring or suspending an attorney?
where D resides, works, resides or works at time of bad thing, or related cases
In VA, where is preferred venue for administrative decisions?
where affected party lives, where affected property is, or where bad thing happened
In VA, where is preferred venue for taxes?
Where you live, work, own property. Richmond for refunds
In VA, where is preferred venue for Public contract bonds
location of project
In VA, where is preferred venue for transportation district contracts?
any place partly or wholly in the district
In, what are (some of) the 14 causes of action with preferred venues (Class A)?
marriage-related
wills
Virginia Tort Claims ACt
land
distress
injunction
attachment
writ of mandamus, prohibition, or cert
writ of quo warranto
attorney disbarment or suspension
administrative decisions
taxes
public contract bonds
transportation district contracts
In VA, what are the permissible venues (Class B) for an action?
Where D lives or works
Where corporate D has principal office or place of business
D’s registered office/agent for process
Where D regularly conducts substantial business activity (if practical nexus between forum and location of parties and evidence)
Where cause of action arose
Where goods were delivered, for delivery of goods
Where property and evidence of property is located for recover or partition personal property; if neither applies, where P resides
Action against court-appointed fiduciary–where fiduciary qualified
Improper message: where message transmitted, delivered, accept for delivery, or misdelivered
In VA, where are fallback preferred venues
where D has property or debts owing to him subject to seizure by any civil process
no Ds in VA? where P lives
In VA, where is venue proper for multiple parties?
–preferred venue for any D
–wherever venue is proper for a resident D, or
–wherever venue is proper for any party
In VA, how long to file for improper venue? CC? GDC?
CC: 21 days of service
GDC: file on or before trial date
When transfer proper in divorce or annulment?
Court may transfer to proper preferred venue on own motion within 60 days of service of process on all parties
VA appellate review standard for forum non conveniens?
abuse of discretion
When are forum-selection provisions in contracts rebutted in VA?
showing of unfairness, unreasonableness, fraud, or unequal bargaining power
VA court’s three options in response to a motion for forum non conveniens:
1) transfer w/i VA
2) dismiss action w/o prejudice if brought by non-resident, action was outside VA, and there’s a better forum outside VA
3) retain: if one of the parties opposes transfer/dismissal, court may retain action for good cause (party agreement, compliance, avoiding substantial inconvenience)
In VA, who sues on behalf of a kid?
“next friend”
In VA, is it joint and several liability?
Yes. Contribution is permitted when a wrong results from negligence and does NOT involve moral turpitude
VA GDC: how does notice work?
Serve complaint, motion for judgment, or warrant (no summons!) w/i 21 days.
VA CC responsive pleading to process deadling?
21 days
In VA, how do you post service?
Post on main entrance of place of abode, mail copy to D, and file certificate of mailing in the clerk’s office
Name some domestic relations issues VA’s long-arm statute covers:
– having conceived or fathered a child in VA
– having spousal or child support obligations to someone domiciled in VA
– having maintained matrimonial domicile in VA at time relevant to divorce if the other party resides in VA
Name some tortious conduct covered by VA”s long-arm statute:
– causing tortious injury by an act or omission in VA
– causing tortious injury in VA by an act or omission outside VA if D regularly does business in VA or gets lots of $ from services rendered in VA
Name some merchanty / business conduct covered by VA’s long-arm statute
– transacting any business in VA
– contracting to supply services or things in VA
– causing injury in VA by breach of warranty in goods sold outside VA if D reasonably expected goods in VA and regularly does business or derives substantial revnue in VA
– contracting to insure any person, property, or risk in VA
– using a computer or computer network located in VA
– Having an interest in, using, or possessing real property in VA
– incurring taxes or fines to VA gov’t
In VA, when is service of process by publication ok?
1) party foreign corp or nonresident;
2) diligent search didn’t not locate;
3) sheriff can’t serve for 21 days;
4) unknown parties might be interested; OR
5) service is made on more than 10 Ds who represent like interests with those not served
In VA, how long does D get to file response if D waives service?
60 days in VA, 90 days outside VA
In VA GDC< must D file an answer?
No
In VA when must demurrer be filed?
before or same time as other responsive pleadings
In VA, define motion for a bill of particulars?
seeks court order compelling a party to elaborate any pleading that does not provide adequate notice of a claim or defense
In VA what is a motion craving oyer?
compel P to produce essential document mentioned in complaint but not attached
In VA can you amend a pleading without leave of court?
NO but liberally granted
In VA, when may a party be added?
within 21 days of filing complaint. Court can also add whenever necessary
Does VA permit separate actions for personal injury and property damages from the same occurence?
Yes
Does VA allow a party to join contract and tort claims in single suit?
ONLY IF same transax or occurrence
What’s SOL med mal claim for infant for injury or wrongful death?
2 years OR until 10th birthday
In VA, how do you get a non-party to a deposition?
You have to subpoena a non-party.
In VA, how many depositions can you do?
No limits, and no time limit (in FRCP only 7 hr day)
In VA, how many days to demand a jury?
10 days after last pleading
In VA, how many jurors? GDC? CC?
GDC: 5 jurors
non-GDC: 7 jurors
If D and P consent, 3 jurors ok, and they need not be unanimous
In VA, when are jury instructions given?
Before closing arguments
In VA, who are commissioners in chancery?
appointed for equitable matters: hold evidentiary hearings, research law, report recommendations to court which is given a lot of weight. party can object within 10 days
In VA, what’s a motion to strike evidence?
In a jury trial, party may move to strike all evidene presented by opposing party when evidence is insufficient to support a verdict for opposing party. at the end of P’s presentation or both parties’ presentation.
In VA, when may P take a nonsuit?
–right to take first any time before motion to strike is sustained, before jury retires, or before action is submitted to court for decision
–addi’l nonsuits need party consent or leave of court
In VA, where do you reinstitute an action?
Same court you were at before (unless good reason)
In VA, when and what is JNOV?
after jury, up to 21 days after judgment entry. = motion to set aside the verdict as contrary to evidence. Granted only when verdict is plainly wrong or not supported by credible evidence.
In VA, 6 forms of relief AFTER the 21-day post-judgment time period has passed?
1) relief from default judgment (fraud, void, accord satisfaction, D was military)
2) clerical mistake
3) failure to notify party of a final order
4) service by publication: usu w/i 2 years
5) independent action to enjoin enforcement of a judgment (shouldn’t be enforced; good defense; fraud /mistake; absence of fault or negligence on D’s part; no adequate remedy at law
6) bill of review (vacate or modify final equitable order; based on error of law or newly discovered evidence; must file within 6 MONTHS of final order)
What is writ of fieri facias in VA?
Used to reach personal property to collect a judgment. Sheriff levies and sells at public auction. Or garnishment, if intangible
How is an out-of-state judgment enforced in VA?
Uniform Enforcement of Foreign Judgments Act applies; file copy of foreign judgment in any VA CC
In VA, is there claim preclusion on a mechanic’s lien?
Nope. you can sue twice.
In VA, what’s dentinue?
recovering specific personal property
What is the writ of mandamus in VA?
compels public official to perform a purely ministerial duty imposed by law
What is the writ of prohibition in VA?
prohibits public official from exceeding authority (GDC may only enforce FOIA)
What is the writ of quo warranto?
Determines whether a D holds public office; jury trial; AG or any interested party
Where does a corporate official get deposed, when the corporation is a party?
Unless the parties agree otherwise, a deposition may be taken of a party or witness designated to testify for a corporation or similar entity in the county or city where the suit is pending or in an adjacent county or city.
For deposing non-parties, deposition should be where they live or where corp has principal place of business
In VA, can a P appealing from GDC increase the amount sought for personal injury above the $50K GDC cap?
Only when THE DEFENDANT appeals a general district court judgment, the court may permit the plaintiff to amend her complaint to increase the amount in controversy to an amount greater than the jurisdictional limitation on a general district court action seeking monetary relief. When the plaintiff appeals a general district court judgment, a similar amendment is prohibited.
VA SOL for detinue (basically adverse possession for personal property)?
In Virginia, the maximum statute of limitations period for bringing a detinue action is five years.
In General District Court, when must the initial suit papers for an unlawful detainer action be served?
In the general district court, in an unlawful detainer action, the initial suit papers must be served at least 10 days before the return date, which is the first date that the case is on the court’s docket.
What is Rule 1:1 in VA Civ Pro?
Rule 1:1 imposes a STRICT 21-day jurisdictional limit on a Virginia court’s power over a case after entering final judgment, ensuring finality unless changes are made within a short window.
In interpreting Rule 1:1, the Virginia Supreme Court has stated that the 21-day period will not be tolled by any post-trial motion, and that the only way a judge can re-start the 21-day period is through an express modification, vacation, or suspension of the order.
After a default judgment is entered against a D, may the D participate and introduce evidence as to damages?
In Virginia, a default judgment is entered in Circuit Court against the defendant when the defendant fails to file a responsive pleading within 21 days of service. If a default judgment is entered, the defendant may participate and introduce evidence relating to damages but may not introduce evidence as to liability if a damages hearing is ordered. The defendant also waives any right to future notice of proceedings, but if there is counsel of record for the defendant, notice must be sent to the defendant’s counsel regarding such future proceedings. These rules apply in Circuit Court regardless of whether a jury is impaneled to decide the issue of damages.
When does a D waive its right to object to PJ in VA? And when can PJ be challenged?
A D waives its right to object to personal jurisdiction by entering a general appearance in the
case, including filing an answer and conducting discovery. (discovery, if ordered by the court to adjudicate any objection to personal jurisdiction, does not of itself, waive personal jurisdiction).
personal jurisdiction can be challenged at any time (unless waived),
In VA, how do you challenge improper venue?
Venue is not jurisdictional in Virginia and no
case shall be dismissed on that basis. However, a party may object to venue as being improper venue. A defendant must file an objection to venue within 21
days of service of process upon the defendant. In its pleading, a defendant must set forth where it believes venue to be proper. The matter shall be heard promptly by the court. The court should sustain a properly raised objection under the facts of this case, and transfer the case to a court of proper venue
In VA, how do you title a case to recover for wrongful death?
An action for wrongful death must be filed in the name of the personal representative, not the deceased as in
this case. The action should be styled: Brenda Coleman, personal representative of the estate of Cody Coleman v.
Togo Ticketing. Filing suit in the name of the deceased in this case is a legal
nullity, and therefore any attempt by the plaintiff to amend or substitute the proper party should be denied.
This means the complant was never filed AT ALL (for purposes of SOL)
In VA, does the P have a duty to mitigate damages in a personal injury action by submitting to reasonable medical treatment?
Yes
In VA, how do you establish a prima facie case of negligence?
Four elements are required to establish a prima facie case of negligence: (1) a duty on the part of the defendant
to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury; (2) a
breach of that duty by the defendant; (3) the breach is the actual and proximate cause of the plaintiff’s injury; and (4) the
plaintiff suffered injury as a result. The proximate cause of an event is that act or omission which, in natural and
continuous sequence, unbroken by an efficient intervening cause, produces the event, and without which that event
would not have occurred. A plaintiff must prove a connection sufficiently close or reasonably foreseeable that it is fair
and just to require the defendant to pay for the wrong done.
Ok if two courts are running two similar cases, and Court A resolves the issue, how to you decide what preclusion laws to apply in determing if case in Court B is precluded?
It’s weird but you apply the preclusion laws of the COURT THAT DECIDED first, not the court where the undecided case is being held.
How long post judgment for JMOL?
28 days
Fed service: ok to leave with 17 year old roommate?
Yes. “a resident of suitable age and discretion.” no family relationship or age minimum
VA: steps to appeal from GDC to CC
notice of the appeal needs to be made within 10 days after entry (signed by the judge) of the order or judgment being appealed, and a plaintiff who appeals from the GDC’s judgment on his claim must, within 30 days from the date of the judgment, pay the writ tax and court costs for the circuit court.
If a party fails to reply to a request for admission within 30 days, then it counts as a yes for that action. Does it count as a “yes” for other court actions, including different parties?
NOPE. it only counts in the one specific case.
In VA, what is a demurrer?
A demurrer is a responsive pleading that challenges the sufficiency of the form, style, allegations, or appropriateness of an aggressive pleading. A demurer contends that the aggressive pleading does not state a cause of action or that such pleading fails to state facts upon which relief demanded can be granted. Challenges the sufficiency of a pleading.
In VA, what is a motion to strike a pleading and what is its relationship to a demurrer?
A motion to strike a pleading is used to test the sufficiency of a defensive pleading such as an answer, plea of the statute of limitations, plea of payment, or demurrer. While it raises the same type of sufficiency issue as a demurrer, it is used only against a defensive pleading, not counterclaims.
In VA, how does a landlord evict a non-paying tenant?
An unlawful detainer action is an action at law by which the owner of real property can regain possession from a person who is in wrongful possession of the property. The most common use is by landlords seeking to evict a tenant.
What is an ejectment?
ejectment is a legal claim to try title to land and to establish that the movant is the holder of title to the land. If the landlord brought an action for ejectment and won, the remedy would be a writ of possession from the court directing the sheriff to deliver possession to the plaintiff. This may indirectly lead to the eventual removal of the tenant from the property, but an ejectment action alone would not be sufficient.
