Civil procedure

Question 1

To perfect an appeal of right

Answer 1

an appellant must file a notice of appeal with the circuit court clerk. The notice must state whether a transcript or statement of incidents of the trial is to be filed. The appellant must also file an appeal bond, a filing fee of $50, and state the contact information of opposing counsel, and whether a transcript will be filed. A copy of the notice of appeal also must be mailed or delivered to opposing counsel, and, if a transcript is to be filed, that a copy has been ordered from the court reporter.

Question 2

notice of appeal

Answer 2

must be filed with the clerk of the trial court within 30 days after entry of final judgment. The filing of the notice perfects the appeal. Copies of the notice of appeal and the certifi- cate must be delivered to all opposing counsel. Any transcript must be filed with the clerk of the trial court within 60 days after entry of final judgment. An appeal bond also must be filed with the notice of appeal. The filing fee is paid to the clerk for the court of appeals and is due when the notice of appeal is presented, but the clerk may file a notice of appeal even when the filing fee is received up to 10 days late. Once the trial record has been received by the Court of Appeals of Virginia, Bob will have 40 days to submit his opening brief.

Question 3

Basis for reversal on appeal

Answer 3

The trial court rulings preserved as a basis for reversal on appeal are those that have been objected to, with the grounds given for the objection. Except for good cause shown or to enable the court of appeals to attain the ends of justice, no ruling of the trial court will be considered as a basis for reversal unless the objection was stated with reasonable certainty at the time of the ruling. Husband cannot appeal any ruling in his divorce proceeding to which his attorney did not object.

Question 4

Rulings of trial court

Answer 4

The rulings of the trial court are initially brought before the appellate court in the appellant’s opening brief. The opening brief will contain the standards of review applicable to the case and assign- ments of error with references to the specific part of the record where the objection was preserved for review.

Question 5

doctrine of res judicata

Answer 5

precludes parties from relitigating the same cause of action (claims relating to the same conduct, transaction, or occurrence) when a valid, final judgment was previously entered. Res judicata encompasses four preclusive effects, each conceptually different, which a final personal judgment may have on subsequent litigation. These are merger, direct estoppel, bar, and collateral estoppel.

Question 6

doctrine of collateral estoppel

Answer 6

precludes parties to a prior action from litigating in a subsequent action any factual issue that was actually litigated and essential to a valid, final judgment in the prior action. For the doctrine of collateral estoppel to apply, four requirements must be met:
the parties to the prior and subsequent proceedings, or their privies, must be the same;
the factual issue sought to be litigated actually must have been litigated in the prior action;
the factual issue must have been essential to the judgment in the prior proceedings; and
the prior action must have resulted in a judgment that is valid, final, and against the party against whom the doctrine is sought to be applied.

Question 7

contractual provision designating a forum

Answer 7

for all contract disputes is not against public policy, and is enforceable. Contractual provisions limiting the place or court where potential actions between the parties may be brought are prima facie valid and should be enforced, unless the party challenging enforcement establishes that such provisions are unfair or unreasonable, or are affected by fraud or unequal bargaining power. In cases in which there is no place of preferred venue under Virginia Code, a suit may be brought in a permissible place of venue, which includes the place of defendant’s principal place of business, any place where defendant regularly conducts substantial business activities, the place where the cause of action arose, and the place where the delivery of the goods involved in a dispute were received.

Question 8

Amendment

Answer 8

No amendment may be made to any pleading after it is filed except with leave of court, which should be liberally granted.

Question 9

Leave to amend

Answer 9

Rule 15 provides that the court should freely grant leave to amend a pleading when justice so requires. That means that leave should be given unless there is some special reason not to do so, such as undue prejudice, futility, undue delay, or bad faith. The defendant should emphasize that the plaintiff will not suffer undue prejudice. The defenses do not involve additional incidents or parties beyond those already at issue in the plaintiff’s claim. Therefore, the defenses would not make the trial substantially different and probably would not require additional discovery. Prohibiting the defenses, by contrast, would risk that the dispute is not resolved on its true merits, which would frustrate the goals of Rule 15. Further, the defendant should contend that the attempted amendment was made as soon as the grounds for the defenses appeared. Finally, the amendments are not legally futile.

Question 10

peremptory challenges

Answer 10

The exercise of peremptory challenges to prospective jurors must be on racially or ethnically neutral grounds.

Question 11

demurrer

Answer 11

demurrer challenges the legal sufficiency of a complaint (or counterclaim, crossclaim or third-party claim). no facts which would support a claim against him as a matter of law. In a civil case originating in the circuit court, an appeal can only be taken of a final judgment entered by the trial court. A ruling upon a demurrer is not a final order unless it dismisses the case.

Question 12

motion to dismiss

Answer 12

plaintiff’s allegations were factually sufficient to support plaintiff’s claims and, thus, whether the motion to dismiss should be denied. the Court followed Twombly and held that formulaic assertions of facts and conclusions would not suffice to allege a viable complaint. Moreover, in both Twombly and Iqbal the Court observed that the complaints lacked plausibility because the allegations were consistent with conduct for which defendants would not be liable. alleged detailed facts supporting the claim?

Question 13

electronically stored information

Answer 13

if electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court can enter a variety of sanctions. The exam taker should discuss the fact that the defendants failed to take reasonable steps to preserve the video, which qualifies as electronically stored information. The court has a range of sanctions for which Pete could argue, including the entry of judgment in favor of the party who is deprived of evidence.

Question 14

motion for relief or motion to vacate

Answer 14

motion for relief or motion to vacate the judgment under FRCP 60(b) based on newly discovered evidence. relief to a party from a final judgment…if granted, vacating the judgment and conducting further proceedings in which the plaintiff had the benefit of pursuing discovery to determine all evidence of the destruction of the video and cover up and to move for sanctions as a result.

Question 15

wrongful death

Answer 15

Every action for wrongful death must be filed in the name of the personal representative, not the deceased as in this case. 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. In Virginia, a wrongful death action must be filed within two (2) years of the date of death (not two years from the date of the accident).

Question 16

nonsuit

Answer 16

The right to take a nonsuit is clearly absolute under Virginia law as long as it is done before
a motion to strike the evidence has been sustained,
the jury commences deliberation, or
the action is submitted to the judge.

An order of a nonsuit is a final, appealable order, but only if a dispute exists as to whether the trial court properly granted the motion for a nonsuit.

Under Virginia procedural rules, a plaintiff has one nonsuit as a matter of right if done so timely. While the court has discretion with additional nonsuits, there is no language in the nonsuit statute qualifying the right to a nonsuit based on a trial continuance. The term, “the action,” in the nonsuit statute refers to the action then pending before the court, which means only the counts or claims remaining in a case at the time the nonsuit request is made. Claims that have been dismissed with prejudice are not part of a pending action.

Question 17

cannot nonsuit

Answer 17

Under Virginia procedural rules, a party cannot nonsuit a cause of action, without the consent of the adverse party who has filed a counterclaim, if the counterclaim arises out of the same transaction or occurrence as the claim of the party seeking to nonsuit. This rule does not apply if the counterclaim can remain pending for independent adjudication by the court.

Question 18

Summary judgment

Answer 18

Summary judgment should be granted if the record shows no genuine issue of material fact such that the moving party is entitled to judgment as a matter of law. Under that standard, the defendant should argue that the facts admitted by the plaintiff in her deposition, even taken in the light most favorable to her, show that she failed to…

Question 19

counterclaim

Answer 19

Defendant may plead as a counterclaim any cause of action the defendant has against the plaintiff whether or not it arises out of the same transaction that is the subject of the plaintiff’s complaint and whether it is in tort or contract. While a counterclaim arising out of the same transaction identified in plaintiff’s complaint will relate back to the date the complaint was filed for purposes of statute of limitations, there is no requirement that defendant’s counterclaim relate to the plaintiff’s complaint.

Question 20

right to a jury

Answer 20

While a defendant has the right to a trial by jury under the Sixth Amendment, he does not have a constitutional right to demand a trial by a judge. No constitutional right is violated by the government’s ability to veto the right of a defendant to waive a jury trial.
A juvenile has the same rights to waive a jury trial as an adult.

Question 21

waiver of right to a jury

Answer 21

A jury trial may only be waived with the consent of the defendant, the Commonwealth, and the court. when a juvenile is 16 years of age or older and is charged with a felony, the juvenile court shall conduct a preliminary hearing and if the court finds probable cause it will certify the charge to the grand jury. If the court finds probable cause, the court loses jurisdiction over the charge and any ancillary charges, and the Commonwealth may seek direct indictment. An indictment cures any error or defect in the juvenile court proceeding.

Question 22

federal question

Answer 22

Federal courts have subject matter jurisdiction over federal question claims that assert federal law as the basis for the claim and relief sought.

Question 23

diversity jurisdiction

Answer 23

Diversity has two requirements. First, there must be complete diversity of citizenship, i.e., every party on the plaintiff’s side must be a citizen of a different state from every party on the defendant’s side. Second, the amount in controversy must exceed $75,000 exclusive of interests and costs. The amount-in-controversy requirement follows the legal certainty test, under which a case will meet the requirement unless the court can say, to a legal certainty, that the plaintiff cannot recover more than $75,000 exclusive of interest and costs.

Question 24

amount-in-controversy requirement

Answer 24

Whether the amount-in-controversy requirement has been met is, as noted, governed by the legal certainty test. Under that test the court must conclude that the required amount (more than $75,000 exclusive of interests and costs) is at issue unless the court can determine to a legal certainty that the plaintiff will be unable to recover more than $75,000 exclusive of interests and costs

Question 25

Limited liability companies’ citizenship

Answer 25

Limited liability companies’ citizenship is determined by the citizenship of each member of the LLC.

Question 26

Supplemental Jurisdiction

Answer 26

Supplemental Jurisdiction statute allows federal courts that have jurisdiction based on, for instance, a federal question claim to hear another claim such as the VA one here if the additional claim arises from the same common nucleus of operative facts as the main, jurisdiction-invoking claim.

Question 27

removal

Answer 27

removal statutes provide only for removing a case filed in state court.

Question 28

remand

Answer 28

(1)if the case originated in state court, (2) had been removed to U.S. District Court, and (3) was then remanded because of some defect in the removal process. However, even that is not called “removal” (instead called “remand.”)

Question 29

indispensable party

Answer 29

Under Rule 12, a defending party can move to dismiss for failure to join an indispensable party. If the plaintiff has failed to sue a person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction, that person must be joined as a party if: [i] In that person’s absence, the court cannot accord complete relief among existing parties, or [ii] That person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may impair or impede that person’s ability to protect the interest, or leave an existing party subject to a substantial risk of incurring multiple or inconsistent obligations because of the interest.

Question 30

third-party complaint

Answer 30

third-party complaint under Federal Rule of Civil Procedure 14. That Rule provides that a defending party may, as a third-party plaintiff, serve a complaint on a non-party who is or may be liable to it for all or part of the claim against it.

Question 31

Which law

Answer 31

As to procedure and the federal court’s practice in proceedings, it would still be appropriate to use Federal jury instructions, so long as they do not address substantive state law. In diversity cases and, more to the point, cases in which the federal court has supplemental jurisdiction over state-law claims, settled principles of federalism (most often associated with the Erie doctrine) require that the federal court apply state substantive. In a jury trial, that would mean to give instructions on Virginia substantive law.

Question 32

venue

Answer 32

venue would be proper where either of the defendants resides, or where a defendant has appointed a registered agent to receive process, or where the cause of action arose.

Question 33

object to venue

Answer 33

A defendant must object to this venue within 21 days (or within the period of extension of time for filing responsive pleadings). A defendant must also set forth where he believes venue to be proper.

Question 34

plea of misjoinder

Answer 34

If the court finds D2’s plea has merit, D2 will be dismissed from the case and the case will continue against D1 only.