Parties & Causes of Action Flashcards
Third Party Beneficiaries: Capacity to Sue or Be Sued
A third-party beneficiary can sue in his own right even it he’s not mentioned in the contract.
Joint Obligors and Tortfeasors: Capacity to Sue or Be Sued
A plaintiff can sue one of a joint obligor or tortfeasor, some of them, or all of them.
Even if she were to settle with one does not affect her right to sue others.
Partnerships: Capacity to Sue or Be Sued
Partners can sue or be sued in their individual names “doing business as X” OR the partnership can sue or be sued in its own name.
Executor or Administrator: Capacity to Sue or Be Sued
If the case relates to acts of the decedent, an executor or administrator can sue or be sued in representative capacity.
Minors: Capacity to Sue or Be Sued
A minor as plaintiff: A minor can sue in her own name “by X, her next friend.”
A minor as defendant: A minor can be sued in his own name, but the minor can ask the clerk or the court to appoint a guardian ad litem, who will be present for trial.
*Must have guardian ad litem (not a lawyer) to encumber minor’s land.
Person Under Disability: Capacity to Sue or Be Sued
If a person under a disability has a substantial estate, there is usually a formal competency proceeding which results in appointment of a fiduciary to act for the mentally incompetent person.
If the person under a disability is the plaintiff, a guardian sues or, if none, the person sues in his own name through his next friend.
If the person under disability is the defendant, the case proceeds in the same way as it would if the person were a minor.
Convicts: Capacity to Sue or Be Sued
While the convict is in custody, he cannot be sued individually. A committee must be appointed.
Survival and Revival: Capacity to Sue or Be Sued
In Virginia, all causes of action survive the death of any plaintiff or defendant.
If a party has some other change in civil status (i.e., mentally incompetent, falls under disability, etc.) the case survives, but it must be revived in the representative’s name.
Counterclaim (Claim Against an Opposing Party)
Kep points to remember:
1) In CC, the defendant must file any counterclaims within 21 days of service of process. In GDC, counterclaims can be filed at any time before trial.
2) A counterclaim is never compulsory. The defendant has the choice of whether to assert it, even if it is transactionally related.
3) A counterclaim need not be transactionally related to plaintiff’s claim. It can be for any claim, under any theory.
4) A counterclaim is against plaintiff or all plaintiffs jointly.
5) A counterclaim need not be served formally
6) After the counterclaim is served, the plaintiff has 21 days to respond.
7) A counterclaim can exceed plaintiff’s claim(s). But watch for the jurisdictional limits.
- If a counterclaim 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 circuit court.
Crossclaim (Claim Against a Co-Party)
Crossclaims are mostly the same as in federal court:
1) A crossclaim is permissive, never compulsory
2) A crossclaim must be transactionally related to the underlying case
3) A crossclaim can be asserted against one of several co-parties
4) Historically, you have needed to serve the crossclaim with a summons. You may be able to mail it or send it as a subsequent document.
5) The cross claimant must file crossclaim within 21 days of service of process on him. In GDC, the crossclaim may be asserted any time before trial.
6) The cross-defendant has 21 days in which to respond.
Impleader
A defending party wants to join a third party from whom he will seek indemnity or contribution on the underlying claim against Defendant.
Impleader: Defendant’s Pleading
- The Defendant’s pleading is called the third-party complaint.
- The Defendant has a right to file no later than 21 days after he serves his first responsive pleading. After that, he needs leave of court.
Impleader: Third-Party Plaintiff
The Defendant is called the “third-party plaintiff” and must serve process on the third-party defendant (TPD) because they are being sued.
Process consists of = third-party complaint + summons
Impleader Claims
In Virginia, claims against a third-party defendant are ok if they arise from the same transaction or occurrence as the underlying case.
Contribution Among Joint Tortfeasors
Virginia law on contribution among joint tortfeasors - a defending party can implead anybody who may owe him indemnity or contribution on the underlying claim.
- you cannot implead a joint tortfeasor against whom plaintiff could not recover.
