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Virginia Civil Procedure > Joinder > Flashcards

Joinder Flashcards

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Civil Procedure 1L flashcards
1
Q

What’s the rule regarding third party beneficiaries to contracts?

A

A third-party beneficiary can sue in his own right even if he’s not mentioned in the K.

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2
Q

What is the joint tortfeasor rule?

A
  • P can sue one D,
  • some of the Ds, or
  • all of Ds at her option.
  • The fact that she may be barred as to one does not affect her right to sue the others.
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3
Q

What is the rule regarding settlements against one defendant when there are multiple defendants?

A

The fact that she settles with one does not affect her right to sue the others

(although judgment against others can be reduced by amount received in settlement).

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4
Q

What is the rule regarding suing executors or administrators?

A
  • If the case relates to acts of the decedent, you can sue or be sued in representative capacity.
  • If it relates to acts by this person individually (enter contract with accountant to figure estate taxes), you can sue in either capacity but must be sued in individual capacity.
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5
Q

What does the survival and revival doctrine hold?

A
  1. If P dies while case pending, executor moves to substitute as P;
  2. If a party has change in civil status, e.g. incompetent/jail, case is revived in representative’s name.
  3. If D is incarcerated while the case is pending, P will revive the case against D’s committee.
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6
Q

In Circuit Court, D must file counterclaim within __ days of service of process on her.

A

21

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7
Q

Does a P need to be formally served D’s counterclaim?

A

No.

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8
Q

After the counterclaim is served, P (counter-defendant) has __ days in which to respond.

A

21

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9
Q

What is a nonsuit?

A

voluntary withdrawal or dismissal of a case.

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10
Q

What crossclaim rules are the same as federal?

A
    1. Permissive, never compulsory
    1. Must be transactionally related to the underlying case
    1. Can be asserted against one of several co-parties (different from state counterclaim).
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11
Q

What crossclaim rules are different from federal?

A
  • historically, you have needed to serve the cross-claim with a summons.
  • This might no longer be true, so all you need is to mail it or otherwise send it as a subsequent document
  • But there is no clear case law. To be safe, we should follow the old practice.
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12
Q

For CC, the cross-claimant must file cross-claim within…

A

21 days of service of process on him.

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13
Q

For GDC, the cross-claimant must file cross-claim…

A

anytime before trial.

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14
Q

The cross-defendant has __ days in which to respond.

A

21

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15
Q

When does impleader occur?

A

As in federal court, a defending party wants to join a third party from whom he will seek indemnity or contribution on the underlying claim against D.

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16
Q

What is the impleading defendant’s complaint called?

A

Third-party complaint.

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17
Q

As in federal practice, must serve process on third-party defendant. Here, process would consist of:

A

Third-party complaint and summons.

18
Q

Can P sue the third-party defendant and vice versa?

A

Yes, if the claims arise from the same transaction or occurrence as the underlying case.

19
Q

A defending party can implead anybody who…

A

may owe him indemnity or contribution on the underlying claim.

20
Q

What is interpleader?

A
  • A holder of real property or personal property (including money) knows that there are others who claim a right to it.
  • Rather than go through several suits, he wants to interplead – to force them to litigate in a single proceeding.
  • Stakeholder can claim that he should be able to keep the property.
21
Q

Circuit court is the only place to go for an interpleader if…

A

the stake is worth more than $25,000. The court can enjoin parties from litigating in other proceedings.

22
Q

What are the other intervention rules?

A
  • No time limits prescribed.
  • Discretion of the court (watch delay and prejudice).
  • 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.
  • File petition for intervention. If granted, then the intervenor-plaintiff would file a complaint and serve it formally with process.
  • Defending parties then respond as they would to any complaint. If granted, the intervenor-defendant files an answer in intervention.
23
Q

How do you sue an incompetent?

A

If he has a substantial estate, there is a formal proceeding appointing fiduciary to act for the mentally incompetent person.

Then, you sue the fiduciary that was appointed (i.e., committee - french, guardian, conservator)

24
Q

Hoe is an incompetent sued without a fiduciary?

A

Any judgment is invalid, unless both:

  1. incompetent represented by a lawyer who entered an appearance for her
  2. Suit is not to encumber incompetent’s land
25
Q

How does an incompetent sue?

A

Either:

  • Guardian sues
  • Incompetent sues in own name, by next friend
26
Q

What if a minor is sued without a guardian ad litem?

A

Any judgment is invalid, unless both:

  • Minor represented by a lawyer who entered an appearance for her
  • Suit is not to encumber minor’s land
27
Q

How does the class action work in Virginia?

A

It doesn’t, there is no such thing in Virginia

28
Q

When P files a complaint, that tolls the statute of limitations for what?

A
  • P’s claim
  • Counterclaims arising from same T/O
  • Crossclaims arising from same T/O
29
Q

In what name does a minor bring suit?

In what name is a minor suied?

A

She should sue in her own name, by John Doe, her next friend

She should be sued in her own name, but P should ask the court to appoint a guardian ad litem

30
Q

What is different in Virginia regarding counterclaims?

A
  • They are never compulsory
  • Don’t need to be transactionally related to original claim
  • Must be against P or all Ps jointly
31
Q

How does a convict sue and be sued while in custody?

A

Should be done through a committee

If convict is suing, he waives committee if he does so without one

32
Q

If D filed a counterclaim or crossclaim, can P take a nonsuit?

A

Only if:

  • D agrees
  • D’s claim can be adjudicated independently
33
Q

When must an impleader action be filed?

A

Circuit Court

  • 21 days after service

GDC

  • Earlier of:
    • 10 days after service
    • Trial date
34
Q

What is intervention?

Is it allowed in GDC?

Circuit Courts?

A

When a third party wants to join a pending case

Allowed in Circuit Court but not GDC

Always permissive, never mandatory

35
Q

When can a tortfeasor seek contribution from joint torteasors?

A

So long as:

  • Tort is negligence
  • Does not involve moral turpitude
  • P could have recovered against the tortfeasor
    • E.g., P cannot sue employer under worker’s compensation
36
Q

If P is suing partners in the partnership, who must be named in the complaint?

A

Either:

  • Individual names doing business under firm name
  • Firm name

You probably want both so you can have an alternative source for collecting judgment

37
Q

What is different in Virginia regarding necessary and indispensable parties?

A

Same as in Federal courts, except under Virginia Code:

  • Necessary parties include parties “as the ends of justice require”
  • There is no such thing as indispensable parties in Virginia
38
Q

Can the GDC hear interpleader cases?

A

Yes, but only if either:

  • Stake is worth $25,000 or less
  • Earnest money deposit in a land sales contract

(And no injunction is available)

39
Q

Can the amount of a counterclaim exceed the amount of P’s original claim?

A

Yes, but if in GDC, watch out for the jurisdictional limit (i.e., $25K)

40
Q

When can a D implead after the statute of limitations?

A

If P files within 30 days of end of SOL, D can implead within 60 days after SOL

Virginia Civil Procedure (16 decks)

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