Parties & Claims: Joinder, Special Causes of Action and Statutes of Limitations Flashcards
Can a third-party beneficiary sue?
Yes. A third-party beneficiary can sue in his own right even if he’s not mentioned in the contract.
Can P sue joint obligors and tortfeasors?
In regards to joint obligors and tortfeasors, P can sue one of them, some of them, or all of them at her option. The fact that she may be barred as to one does not affect her right to sue the others. Also, 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).
Gomer is injured by the acts of joint tortfeasors Curly, Moe, and Larry. He sues only Larry. Can he later sue Curly and Moe?
Yes, suing Larry, and even getting a judgment against Larry, is not an election of remedies or a binding choice not to go after Curly and Moe. BUT, payment of judgment by one discharges all. The joint tortfeasors may sue each other for contribution.
Why might a Plaintiff suing a partnership want to name the partnership and individual partners as defendants?
So P can execute the judgment against the individual partners.
If the case relates to acts of the decedent, can an executor or administrator sue or be sued in representative capacity? What if the case relates to acts of the executor or administrator individualy?
If the case relates to acts of the decedent, sue or be sued in representative capacity. (The case caption indicates capacity.) If it relates to acts by this person individually (enter contract with accountant to figure estate taxes), can sue in either capacity but must be sued in individual capacity.
Who is considered a minor? What is required for a minor to sue? What is required for a minor to be sued? What happens if the requirements are not met?
A minor is someone under age 18.
– As plaintiff, sue in her own name “by somebody, her next friend.” Court will not disturb 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.
– As defendant, sue minor in his own name, but ask the clerk or the court to appoint a guardian ad litem (for litigation), who must be present throughout trial. 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: must have a guardian ad litem in a suit to encumber minor’s land.
P is injured when hit by a minibike ridden by Wild Kid, a minor. P files suit against Wild Kid in his own name and has process served properly. Wild Kid never makes an appearance. P takes Wild Kid’s default and gets a default judgment. Is the judgment valid?
No. Wild Kid is a minor and no guardian ad litem was appointed and not attorney represented him.
When there is a person under disability (lack of mental capacity) who wants to sue or is being sued, who is there representative? What happens if there is no such representative?
If he has a substantial estate, there is usually a formal incompetency proceeding which results in appointment of a fiduciary to act for the incompetent.
Such a fiduciary might be a “committee” or guardian or conservator. If there is a fiduciary, suit by or against the person under disability will be by or against the fiduciary.
What if there is no such fiduciary?
– If the person is plaintiff: her fiduciary sues or, if there is none, person sues in his own name through his next friend.
– If the person is a defendant: he is treated the same as a minor on the defendant side. As defendant, sue person under disability in his own name, but ask the clerk or the court to appoint a guardian ad litem (for litigation), who must be present throughout trial. If no guardian ad litem is appointed but the person under disability is represented by a lawyer who has entered an appearance for him, the judgment will be valid, with one exception: must have a guardian ad litem in a suit to encumber disabled person’s land.
Can a convicted sue or be sued individually?
While the convict is in custody, cannot sue him individually. Get a committee 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.
What is the general rule about the survival and revival of causes of action upon the death of any plaintiff or defendant?
In Virginia, all causes of action survive the death of any plaintiff or defendant. (Although death would seem to moot a cause of action for divorce.)
– P sues D. While the case is pending, P dies. The cause of action survives, but P’s executor will make a motion to substitute himself as the plaintiff.
– If party has some other change in civil status (e.g., becomes insane (under a disability), is convicted and goes to jail), case survives, but must be revived in representative’s name.
P sues D. While the case is pending, P dies. What happens to the cause of action?
The cause of action survives, but P’s executor will make a motion to substitute himself as the plaintiff.
Sharon sues Ozzie. While the case is pending, Ozzie is convicted and incarcerated. Can Sharon continue to pursue her case against Ozzie now that he’s in the slammer?
Yes. The claim survives but she must revive the case against Ozzie’s committee.
In Circuit Court, when must counterclaims be filed? when must counterclaims be filed in GDC?
In Circuit Court, D must file within 21 days of service of process on her.
In GDC, file anytime before trial.
Note: Remember, must be within subject matter jurisdiction.
In Virginia courts, are counterclaims complusory? What types of counterclaim can D make?
In Virginia courts, counterclaims are never compulsory. D has the choice of whether to assert it, even if it’s transactionally related.
Counterclaims need not be transactionally related to plaintiff’s claim. Can be for any claim, under any theory, that D has against P. (Same as rule under federal permissive counterclaims).
What is a counterclaim?
A claim by the D against the P. A party’s claim is a counterclaim if the defending party has (in the present action) made a claim against the claiming party.
David Epstein sues Sharon Stone for breach of contract. Sharon counterclaims for damages arising from a completely unrelated tort. OK?
Yes. The counterclaim can be for anything. D has broader joinder rights than P.
A and B, as joint holders, sue D to recover on a negotiable note. D files a counterclaim against A for personal injuries caused in a skateboarding accident. A demurs. Result?
Demurrer sustained because counterclaim must be against all plaintiffs jointly.
When a suit has multiple plaintiff’s, can D bring a counterclaim against only one of the plaintiffs?
No. A counterclaim must be against all plaintiffs jointly.
Must P be served formally with summons for counterclaims brought by D?
No. P need not be served formally.
After a counterclaim, how many days does P have to respond?
- After the counterclaim, P (counter-defendant) then has 21 days in which to respond.
Can a defendant’s counterclaims exceed the plaintiff’s claim?
Counterclaim can exceed plaintiff’s claim.
NOTE: But watch GDC jurisdictional limit. If counterclaim for damages in a GDC case exceeds $25,000, it cannot be asserted in GDC.
What is a cross-claim?
A claim against a co-party. A cross-claim is a claim asserted between codefendants or coplaintiffs in a case and that relates to the subject of the original claim or counterclaim. The rules are mostly the same as federal crossclaims.
Are cross-claims compulsory?
What types of claims can be brought as cross-claims?
Can a cross-claim be asserted against one of several co-parties?
No. Cross-claims are permissive, never compulsory (same as federal).
The cross-claim must be transactionally related to the underlying case (same as federal).
Cross-claims can be asserted against one of several co-parties (same as federal).
How are cross-claims in Virginia state court different from cross-claims in federal court?
Virginia rules are different from federal rules because historically, a party needed to serve the cross-claim formally – cross claim with summons (or get waiver of formal service). There is some argument that this is no longer true, that all you need is to mail it or otherwise send it as a subsequent document – page 15 (top)). But there is no clear case law. To be safe, should follow the old practice.
When must a party (cross-claimant) file the cross-claim in Circuit Court? GDC?
In Circuit Court, the cross-claimant must file cross-claim within 21 days of service of process on him.
In GDC–anytime before trial. (Remember the jurisdictional limitation on GDC.)
When must a cross-defendant respond to a the cross-claimant’s cross claim?
The cross-defendant has 21 days in which to file responsive pleading, demurrer, plea, etc.
What is an impleader? What is D’s pleading called? When are such claims allowed?
As in federal court, an impleader is when a defending party wants to join a third party from whom he will seek indemnity or contribution on the underlying claim against D.
D’s pleading is called a third party complaint.
Such claims are OK if they arise from the same transaction or occurrence as the underlying case.
When does a defending party file an impleader?
Has a right to do so not later than 21 days after he serves his first responsive pleading. After that, he needs leave of court. GDC–Within 10 days after service or up until trial date, whichever is sooner.
When there is an impleader in Virginia state court, how is process served on a third-party defendant?
When there is an impleader in Virginia state court, process would consist of a third-party complaint and summons.
What is Virginia law on contribution among joint tortfeasors?
In Virginia, a defending party can implead anybody who may owe him indemnity or contribution on the underlying claim. There are various ways the duty to indemnify or contribute arises, e.g., contract.
When a defending party impleads another person who may owe him indemnity or contribution on an underlying claim, how does the duty to indemnify or contribute arise?
One of the most important ways is with contribution among joint tortfeasors.
– Tortfeasor can seek contribution from joint tortfeasor if the tort is negligence and involves moral turpitude
– BUT, even then, cannot implead a joint tortfeasor against whom PLAINTIFF could not recover. This limitation applies only in impleading a joint tortfeasor.
Who is considered a necessary party under Virginia law?
An absentee who:
- Without A, the court cannot accord complete relief amont existing parties (worried about multiple suits);
- A’s interest may be harmed if he is not joined (practical harm); OR
- A claims an interest which subjects a party (usually D) to multiple obligations.
This is the same as in federal court. But a VA statute also allows the court to order joinder as the ends of justice requires. Court has enormous discretion here.
In Vriginia courts, what happens to a case when a necessary is not joined?
Virginia state courts do not dismiss for nonjoinder. Though there is a rule that is like the federal rule and allows dismissal for nonjoinder of necessary parties, no reported case has ever applied it.
More importantly, there is a statute that clearly says there will be no dismissal for nonjoinder. The statute takes precedence over the rule. So if cannot join absentee, case keeps going. Thus, there is no such thing as “indispensable.”
What is an interpleader? What’s an example?
An interpleader allows a plaintiff to initiate a lawsuit in order to compel two or more other parties to litigate a dispute. An interpleader action originates when the plaintiff holds property on behalf of another, but does not know to whom the property should be transferred.
Example: A holder of money or some piece of property 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.
