Joinder

Question 1

WHO HAS THE CAPACITY TO BE SUED? JOINDER

Question 2

can a third party beneficiary sue?

Answer 2

a third-party beneficiary can sue in their own right - even if they are not mentioned in the contract

Question 3

can P sue joint obligors and/or tortfeasors?

Answer 3

a Plaintiff can sue one of a joint obligor OR a tortfeasor - some of them, or all of them at her option
- fact that she may be barred as to one does not affect her right to sue others
- fact that she settles with one does not affect her right to sue the others (although judges against others can be reduced by amount received in settlement)

Question 4

can a partnership sue or be sued?

Answer 4

yes!
- partners can be sued in their individual names “doing business under the firm name XXXXX” OR
- the partnership can sue or be sued in its own name

Question 5

would a plaintiff suing a partnership want to sue the partnership itself or also at the individual partners?

Answer 5

both! would want to name partnership and individual partners as defendants - so she can execute judgment against individual partners

Question 6

what are the P’s options of the case relates to the acts of a DECEDENT?

Answer 6

if the case relates to acts of the decedent, an executor or administrator can sue OR be sued in REPRESENTATIVE CAPACITY.

**if the case relates to acts by this person individually –> the executor or administrator can sue in either capacity BUT must be sued in individual capacity

Question 7

who is a minor?

Answer 7

a minor is someone under age of 18 who has not been emancipated; lacks legal capacity because it is a minority

Question 8

as a Plaintiff - minor can sue in their own name, how?

Answer 8

“by ______(insert name of next friend), her next friend”.

The court will not disturb the choice of next friend UNLESS there is a conflict of interest or impropriety.

*a judgment in favor of a minor will not necessarily be disturbed for failure to sue through a next friend

Question 9

as a defendant - how can minor be sued?

Answer 9

a minor as defendant, can be sued in their won name, BUT the minor can ask the clerk or the court to appoint a GUARDIAN AD LITEM (for litigation)

Question 10

what is a guardian ad litem?

Answer 10

a guardian ad litem is a guardian for the purposes of litigation; must be present throughout the trial

Question 11

what happens if a child is not appointed a guardian ad litem?

Answer 11

if no guardian ad litem is appointed, but the minor is represented by a lawyer who has entered an appearance for him, the judgment will be valid, with one exception –>
— in suit to encumber minor’s land - minor must have a guardian ad litem

Question 12

what are the litigation options if a person who is under a DISABILITY has a substantial estate?

Answer 12

If a person under a disability has a substantial estate, there is usually a FORMAL INCOMPETENCY PROCEEDING –> which results in appointment of a fiduciary to act for the mentally incompetent person.

Such a fiduciary might be a “committee” or guardian or conservator. If such a fiduciary is appointed, suit by or against the person under disability will be by or against the fiduciary.

Question 13

what happens if no fiduciary has been appointed for a person under a disability?

Answer 13

if the person under a DISABILITY is the PLAINTIFF - a guardian sue or, if none, the person sues in their own name through his next friend

Question 14

what if the person under disability is a DEFENDANT?

Answer 14

IF THE PERSON under the disability is the DEFENDANT - the case proceeds in the same way as it would if the person were a minor

Question 15

when can a convict be sued/sue?

Answer 15

while the convict is in custody - he cannot be sued individually! A committee must be appointed!

Technically - the convict in custody should not be able to sue in his own stead and should have a committee (but instituting suit waives the failure to have a committee appointed)

Question 16

what happens if a plaintiff or defendant dies?

Answer 16

in VA - all causes of action survive the death of any plaintiff or defendant

i.e. - p sues D - while the case is pending - P dies. the cause of action survives, but the P’s executor will make a motion to substitute himself as the plaintiff

Question 17

what happens if a party to the case has some other change in civil status?

Answer 17

if a party to the case has some change in civil status, such as becoming mentally incompetent, falling under a disability, or is convicted and goes to jail - the case survives - but it must be revived in representative’s name

Question 18

COUNTERCLAIMS - what are they?

Answer 18

they are claims against an opposing party

Question 19

counterclaims - when must they be filed in CIRCUIT court?

Answer 19

in circuit court, defendant must file any counterclaims within 21 days of service of process on her

Question 20

counterclaims - when must they be filed in GDC?

Answer 20

counterclaims in GDC can be filed ANY TIME before TRIAL (must have SMJ)

Question 21

is a counterclaim compulsory?

Answer 21

a counterclaim is NEVER compulsory - the defendant has the choice of whether to assert it - even if it’s transactionally related

Question 22

must a counterclaim be transactionally related to the P’s claim?

Answer 22

No! it need not be transactionally related to Plaintiff’s claim - it can be for any claim, under any theory, that the defendant has against the plaintiff

Question 23

who is a counterclaim against?

Answer 23

a counterclaim is against a plaintiff or all plaintiffs jointly

Question 24

does a counterclaim need to be served formally?

Answer 24

no! they do not need to be served formally (so don’t need to serve a summons)

Question 25

how many days does a plaintiff have to respond after a counterclaim is served?

Answer 25

after a counterclaim is served - the plaintiff (now a counter-defendant) has 21 days in which to respond

Question 26

can a counterclaim exceed P’s claim?

Answer 26

Yes!!! a counterclaim can exceed the P’s claim
***BUT keep an eye out for GDC jurisdictional limit - if the counterclaim is for non-personal injury damages in a GDC case exceeds $25,000 - it CANNOT be asserted in GDC - it would be a separate case in the circuit court

Question 27

what are cross claims?

Answer 27

a claim against a co-party

Question 28

are cross-claims permissive or compulsory?

Answer 28

crossclaims are permissive - never compulsory

Question 29

does a crossclaim have to be transactionally related to the underlying case?

Answer 29

yes! cross-claim must be transactionally related to the underlying case (same as federal)

Question 30

who can a cross claim be asserted against?

Answer 30

cross claims can be asserted against one of several co-parties (same as federal)

Question 31

how is a cross claim different from federal?

Answer 31

a cross-claim is different from federal: historically you needed to serve a crossclaim with a summons - this might no longer be true, so all you need to do is MAIL IT or otherwise SEND IT AS A SUBSEQUENT DOCUMENT (to be safe tho - follow old practice)

Question 32

when must a cross claimant file a crossclaim?

Answer 32

a cross claimant must file crossclaim within 21 days of service of process on them.

BUT REMEMBER - GDC - crossclaim may be asserted ANY time before trial –> remember the jurisdictional limitation on GDC

Question 33

how many days does the defendant have to respond to a cross-claim?

Answer 33

the defendant has 21 days in which to respond!

Question 34

what is an impleader action?

Answer 34

an impleader action - a defendant party wants to join a third party from whom he will seek indemnity or contribution on the underlying claim against D

Question 35

what is the D’s pleading called when they are submitting an impleader action?

Answer 35

it is called a THIRD-PARTY COMPLAINT

Question 36

when does the defendant file the third-party complaint?

Answer 36

the defendant has a RIGHT to file no later than 21 DAYS after he serves his first responsive pleading

after the 21 days - needs leave of court

Question 37

when does the defendant file the third-party complaint in GDC?

Answer 37

the D has within 10 days after service OR up until trial date, whichever is earlier

Question 38

what is the defendant called when he files a third party complaint?

Answer 38

he is called the “third party plaintiff”

Question 39

what else must the defendant do after filing the third party complaint?

Answer 39

the defendant must also serve process on the third-party defendant because the TPD is being sued.

Question 40

what does process in a third party complaint look like?

Answer 40

the process would consist of
(1) the third party complaitn
(2) a summons

Question 41

what about claims by the OG plaintiff against the TPD // claims by TPD against the Plaintiff?

Answer 41

such claims are OK if they arise from the same transaction or occurrence as the underlying claim

Question 42

VA law on contribution among joint tortfeasors

Answer 42

a defending party can implead anybody who may owe hm indemnity or contribution on the underlying claim.

Question 43

in what ways can the duty to indemnify or contribute arise?

Answer 43

in various ways - through contract, contribution among joint tortfeasors

Question 44

contribution among joint tortfeasors

Answer 44

a tortfeasor can seek contribution from a joint tortfeasor IF the tort is NEGLIGENCE - and the case involves NO moral turpitude

Question 45

when can you not implead a joint tortfeasor?

Answer 45

you cannot implead a joint tortfeasor against whom plaintiff could not recover (i.e. against who the plaintiff would not be able to sue against - i.e. employee suing employer - because of workers comp)

Question 46

OTHER PARTY JOINDER DEVICES:

Answer 46

a) necessary party
b) indispensable party
c) interpleader
d) intervention
e) class action

Question 47

a) necessary party - who is a necessary party?

Answer 47

Necessary parties are absentees who should be made to join the case.

Question 48

can VA order joinder of parties?

Answer 48

VA has a statute that allows the court to order joinder of parties as the ends of justice requires

Question 49

when is a party indispensable?

Answer 49

if the absentee cannot be joined (i.e. no PJ over her) - the court may decide to dismiss the entire case rather than to proceed without the absentee.

**if the court decides to dismiss the case - we call the absentee “indispensable”
**treat it the same as FEDERAL COURT LAW

Question 50

va statute - re: no dismissal re joinder

Answer 50

in VA there is a state that says there is no dismissal for nonjoinder without giving the P a chance to join (but no case law saying that court cannot dismiss if it determines that an absentee who cannot be joined is indispensable)

**just means to treat the case the same as if in federal court

Question 51

what is an interpleader action?

Answer 51

an interpleader action is when a holder (“the stakeholder”) or REAL personal property oR money know that there are others who claim a right to the property (“the claimants”)

rather than go through several suits, the stakeholder wants to interpleader to litigate all claims in a single proceeding. the stakeholder can claim that he should be able to keep the property

Question 52

how does a party interplead in GDC?

Answer 52

in GDC - the court can order interpleader as to property worth $25,000 or less OR in any amount (even over $25,000) for earnest money deposit in a land sale contract.

It cannot issue an injunction against purchasing other related proceedings.

Question 53

how does a party interplead in Circuit Court?

Answer 53

if the state is more than $25,000 - the parties can go to Circuit Court.

The circuit court can enjoin parties from litigating in other proceedings

Question 54

how does an absentee intervene?

Answer 54

if an absentee wishes to join a pending case - intervention is ONLY available in CIRCUIT COURT

Question 55

is there ever a right to intervene in state court?

Answer 55

Nope!! the absentee must make a motion and the decision is within the discretion o the court

Question 56

when must an absentee intervene?

Answer 56

there is no time limit prescribed - but watch for delay and prejudice

Question 57

must the intervenor’s claim or defense be related to the case?

Answer 57

yes! the claim or defense in intervention must be related to the case. The court may be able to wrap up the entire dispute by allowing intervention

Question 58

what is the procedure for intervention?

Answer 58

a petition for intervention must be filed with the motion

If the petition is granted - then the intervenor-plaintiff would file a complaint and serve it formally with process.

The defending parties then respond as they woudl to any complaint.

Question 59

what is the process for a defendant intervenor?

Answer 59

a defendant intervenor whose petition to intervene is granted would file an ANSWER in iNTERVENTION

Question 60

how do class actions work in VA?

Answer 60

there are no class actions!!!

Question 61

payment of judgment by one join tortfeasor has what effect?

Answer 61

payment of judgment by one tortfeasor will DISCHARGE all of the other remaining possible claims (cannot collect more than once for a judgment)

Question 62

when MUST a minor have a guardian ad litem?

Answer 62

in a suit to encumber the minor’s land - representation by lawyer who has entered an appearance for him is not enough - and judgment will not be valid

Question 63

if a plaintiff brings an action against a minor in their own name, and has process served properly, but the minor never makes an appearance - will a default judgment be proper?

Answer 63

no!! he is a minor and no guardian ad litem nor attorney was representing him - so judgment is invalid