Joinder

Question 1

May a third-party beneficiary sue in his own right?

Answer 1

Yes–even if not mentioned in the contract

Question 2

How may P sue joint obligors/tortfeasors?

Answer 2

Can sue one, some, or all at her option
* Fact she may be barred as to one does not affect right to sue others
* Fact she settles with one does not have impact on right to sue others (but could reduce judgment by amount received in settlement)

Question 3

How may a partnership sue or be sued?

Answer 3

May sue or be sued in their individual names “doing business under the firm name X” OR in the partnership name

Question 4

How may an executor or administrator sue/be sued?

Answer 4

• If related to acts of decedent, in representative capacity (and case caption will indicate capacity)
• If related to acts by this person indivudally, can sue in either capacity, but can only be sued in individual capacity

Question 5

Who is a minor in VA?

Answer 5

Someone under 18 that hasn’t been emancipated

Question 6

How may a minor sue?

Answer 6

In her own name “by X, her next of friend”
* Court will not disturb choice of next friend unless conflict of interest or impropriety
* Judgment in favor of minor will not necessarily be distrubed for failure to sue through a next of friend

Question 7

How may a minor be sued?

Answer 7

In his own name, but can ask clerk OR the court to appoint GAL, who must be present throughout trial
* If no GAL appointed, but minor represented by lawyer who has entered appearance for him, judgment valid with one exception
* Exception is that minor must have GAL in suit to encumber minor’s land

Question 8

How may a person under disability be represented?

Answer 8

Typically there will be a formal incompetency proceeding resulting in appointment of a fiduciary (“committee”) to act for mentally incompetent person
* If a fiduciary is appointed, suit by or against person under disability will be by or against fiduciary

Question 9

What happens if no fiduciary is appointed for a person under disability?

Answer 9

• If plaintiff, a guardian sues or, if none, person sues in his own name through next friend
• If defendant, case proceeds in the same way as if person were a minor

Question 10

How may a convict sue or be sued?

Answer 10

• If in custody, cannot be sued individually–committee must be appointed
• If in custody, should not be able to sue and should have committee, but instituting suit waives failure to have committee appointed

Question 11

What happens if P or D dies?

Answer 11

Cause of action survives, and P’s executor should make a motion to substitute himself as plaintiff (“survival and revival”)
* If change in sivil status other than death (e.g., disability/convicted), case survives, but must be revived in representative’s name

Question 12

When must D file counterclaims?

Answer 12

• In CC, within 21 days of service of process on her
• In GDC, any time before trial (BUT CHECK SMJ)

Question 13

When is a counterclaim compulsory?

Answer 13

NEVER–not waived, and D has choice of whether to assert, even if transactionally related

Question 14

Must a counterclaim be transactionally related to P’s claim?

Answer 14

No–can be for any claim, under any theory, that D has against P

Question 15

Against whom must P assert counterclaims in order to be valid?

Answer 15

Must be against P or all Ps
* If A and B sue D and D files counterclaim against only A, A can demur, which will be sustained

Question 16

Must a counterclaim be served formally?

Answer 16

No–don’t need to serve a summons

Question 17

How long does P (“counter-defendant”) have to respond?

Answer 17

21 days

Question 18

May a counterclaim exceed P’s claim?

Answer 18

YES, but watch GDC jurisdictional limit
* If counterclaim for non-personal injury damages in GDC case exceeds $25,000, it cannot be asserted in GDC (would have to be separate case in CC)

Question 19

Is a cross claim compulsory?

Answer 19

No–always permissive

Question 20

Must a crossclaim be transactionally related to the underlying case?

Answer 20

Yes–same as federal

Question 21

Against whom may a crossclaim be asserted?

Answer 21

One of several co-parties
* Compare with state counterclaim rules

Question 22

What is unique about VA cross claims?

Answer 22

Historically, must have served with summons
* Present practice unclear–may be able to just mail or otherwise send as subsequent document
* Since no clear case law, note the historical rule

Question 23

In CC, how long does crossclaimant have to file?

Answer 23

21 days from service of process on him

Question 24

In GDC, when may crossclaim be asserted?

Answer 24

Any time before trial, but remember jurisdictional limits

Question 25

How long does cross-defendant have to respond?

Answer 25

21 days

Question 26

When is impleader appropriate?

Answer 26

When a defending party wants to join a third party from whom he will seek indemnity or contribution on the underlying claim against D

Question 27

What is D’s pleading called?

Answer 27

Third-party complaint

Question 28

When does D file third-party complaint?

Answer 28

Has a right to file not later than 21 days after he serves his first responsive pleading, otherwise needs leave of court
* In GDC, time is within 10 days after service, or up until trial date, whichever is earlier

Question 29

What must D do to institute impleader?

Answer 29

D (now “Third Party Plaintiff”) must serve process on TPD because TPD is being sued
* Third-party complaint and summons

Question 30

May P assert claims against TPD or vice-versa?

Answer 30

Yes–if they arise from the same transaction or occurrence as the underlying case

Question 31

Whom may a defending party implead?

Answer 31

Anybody that may owe him contribution or indemnity on the underlying case (e.g., duty may arise from K)

Question 32

May a tortfeasor seek contribution from a jointfeasor?

Answer 32

YES–if the tort is negligence and the case involves no moral turpitude
* However, cannot implead joint tortfeasor against whom P could not recover

Question 33

Does VA recognize necessary parties and who are they?

Answer 33

Yes–absentees who should be made to join in the case
* Defined the same as in federal court
* VA also has a statute that allows court to order joinder of parties as the ends of justice requires

Question 34

Does VA reocgnize the rule about indespensable parties that federal courts do?

Answer 34

Yes–may dismiss entire case rather than to proceed without absentee
* VA statute says no dismissal for nonjoinder without giving P chance to join A

Question 35

What is interpleader?

Answer 35

Where a stakeholder of real personal property or money knows that there are others who claim a right to it
* Stakeholder may interplead all claimants rather than go through several suits

Question 36

Does GDC have jurisdiction over interpleader actions?

Answer 36

Yes–can order interpleader as to property worth $25,000 or less
* Any amount for earnest money deposits in a land sale contract
* Cannot issue injunction against pursuing other related proceedings

Question 37

What is CC jurisdiction over interpleader actions?

Answer 37

Only option available if stake is worth more than $25,000
* CAN enjoin parties from litigating in other proceedings

Question 38

Is intervention available in GDC?

Answer 38

No–only in CC

Question 39

Is there a right to intervene in VA?

Answer 39

No–absentee must make a motion and decision within discretion of court

Question 40

What is the time limit to intervene?

Answer 40

No time limit prescribed, but watch for delay and prejudice

Question 41

What relationship is required to intervene?

Answer 41

Claim or defense must be related to the case
* Look for intervention that would allow the court to wrap up the entire dispute if allowed

Question 42

What is the procedure for intervention?

Answer 42

Petition for intervention filed with motion; if granted, intervenor-plaintiff files complaint and serves it formally with process
* If defendant-intervenor petition granted, they file answer