Joinder Flashcards
What’s the rule regarding third party beneficiaries to contracts?
A third-party beneficiary can sue in his own right even if he’s not mentioned in the K.
What is the joint tortfeasor rule?
- 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.
What is the rule regarding settlements against one defendant when there are multiple defendants?
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).
What is the rule regarding suing executors or administrators?
- 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.
What does the survival and revival doctrine hold?
- If P dies while case pending, executor moves to substitute as P;
- If a party has change in civil status, e.g. incompetent/jail, case is revived in representative’s name.
- If D is incarcerated while the case is pending, P will revive the case against D’s committee.
In Circuit Court, D must file counterclaim within __ days of service of process on her.
21
Does a P need to be formally served D’s counterclaim?
No.
After the counterclaim is served, P (counter-defendant) has __ days in which to respond.
21
What is a nonsuit?
voluntary withdrawal or dismissal of a case.
What crossclaim rules are the same as federal?
- Permissive, never compulsory
- Must be transactionally related to the underlying case
- Can be asserted against one of several co-parties (different from state counterclaim).
What crossclaim rules are different from federal?
- 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.
For CC, the cross-claimant must file cross-claim within…
21 days of service of process on him.
For GDC, the cross-claimant must file cross-claim…
anytime before trial.
The cross-defendant has __ days in which to respond.
21
When does impleader occur?
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.
What is the impleading defendant’s complaint called?
Third-party complaint.
As in federal practice, must serve process on third-party defendant. Here, process would consist of:
Third-party complaint and summons.
Can P sue the third-party defendant and vice versa?
Yes, if the claims arise from the same transaction or occurrence as the underlying case.
A defending party can implead anybody who…
may owe him indemnity or contribution on the underlying claim.
What is interpleader?
- 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.
Circuit court is the only place to go for an interpleader if…
the stake is worth more than $25,000. The court can enjoin parties from litigating in other proceedings.
What are the other intervention rules?
- 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.
How do you sue an incompetent?
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)
Hoe is an incompetent sued without a fiduciary?
Any judgment is invalid, unless both:
- incompetent represented by a lawyer who entered an appearance for her
- Suit is not to encumber incompetent’s land
How does an incompetent sue?
Either:
- Guardian sues
- Incompetent sues in own name, by next friend
What if a minor is sued without a guardian ad litem?
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
How does the class action work in Virginia?
It doesn’t, there is no such thing in Virginia
When P files a complaint, that tolls the statute of limitations for what?
- P’s claim
- Counterclaims arising from same T/O
- Crossclaims arising from same T/O
In what name does a minor bring suit?
In what name is a minor suied?
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
What is different in Virginia regarding counterclaims?
- They are never compulsory
- Don’t need to be transactionally related to original claim
- Must be against P or all Ps jointly
How does a convict sue and be sued while in custody?
Should be done through a committee
If convict is suing, he waives committee if he does so without one
If D filed a counterclaim or crossclaim, can P take a nonsuit?
Only if:
- D agrees
- D’s claim can be adjudicated independently
When must an impleader action be filed?
Circuit Court
- 21 days after service
GDC
- Earlier of:
- 10 days after service
- Trial date
What is intervention?
Is it allowed in GDC?
Circuit Courts?
When a third party wants to join a pending case
Allowed in Circuit Court but not GDC
Always permissive, never mandatory
When can a tortfeasor seek contribution from joint torteasors?
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
If P is suing partners in the partnership, who must be named in the complaint?
Either:
- Individual names doing business under firm name
- Firm name
You probably want both so you can have an alternative source for collecting judgment
What is different in Virginia regarding necessary and indispensable parties?
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
Can the GDC hear interpleader cases?
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)
Can the amount of a counterclaim exceed the amount of P’s original claim?
Yes, but if in GDC, watch out for the jurisdictional limit (i.e., $25K)
When can a D implead after the statute of limitations?
If P files within 30 days of end of SOL, D can implead within 60 days after SOL
