Past Essay's Flashcards
Facts
GB- a New York corporation with its principal place of business in Kentucky,
WB- a Delaware corporation with its principal place of business in Dinwiddie County, Virginia
entered into a written contract
October of 2023 A dispute arose over the timeliness of the delivery
GB sued WB in the Circuit Court for the City of Richmond, alleging breach claiming damages in
the amount of $50,000.
WB promptly filed a notice of removal and other appropriate papers to remove the case to the
United States District Court for the Eastern District of Virginia in Richmond
The jury returned a verdict in favor of WB
On January 15, 2024, Good Bourbon filed a motion for relief from the judgment, alleging that the judgment was void because the court lacked jurisdiction over the controversy
(a) Was the court correct in applying Virginia law? Explain fully.
(b) Before trial, on what grounds might Good Bourbon have reasonably moved to have the case remanded to state court for lack of diversity jurisdiction, and what should have been the likely outcome of each? Explain fully.
(c) Should the court grant Good Bourbon’s motion for relief from the judgment, and if so, what relief should be granted?
a. DWBI- answer site Eerie but just do a venue argument maybe they said any answer correct
b. Before trial, Good Bourbon could have moved to remand the case to state court based requirements for diversity of jurisdiction 1. complete diversity of citizenship and 2. that the amount in controversy exceeds $75,000 exclusive of interests and costs.
Here, each P is a citizen of different states from
each defendant. The parties are corporations. Under § 1332, a corporation is a citizen of every state in which it is incorporated and the state in which the corporation has its principal place of business.
- did not exceed $75K AIC
c. Here, GB- is incorporated in New York and has its PPB in Kentucky.
WB incorporated in Delaware and PPB Dinwiddie County, Virginia.
First way to remove:
- Each completely diverse from each defendant and thus complete diversity exists.
- The second requirement of the diversity statute is that the amount in controversy “exceed the sum or value of $75,000 exclusive of interests and costs.”
-The test for where the amount in controversy requirement: Can the court say to a legal certainty that the amount in controversy does not exceed $75,000 exclusive of interests in controversy.
Here, GB sought only $50,000 in its complaint.
The date for determining whether the requirement is met is the time of the filing of the complaint. At that point the District Court ought to be able to say to a legal certainly that less than the required amount in controversy was at.
The $30,000 would not be added to the $50,000 to satisfy the amount in controversy (1) because the
time of filing is the point at which the requirement is met or not, and (2) the amount sought in the counterclaim appears to be more a set-off of the $50,000, seeking to offset Good Bourbon’s claim—not something that adds to the amount of the overall claim.
Second way to remove: In- state removal Provision
a civil action removable solely on the basis of diversity jurisdiction cannot be removed if any properly joined defendant is a citizen of the state where the action is filed.
In this case, WB is a citizen of Virginia (its principal place of business is in Dinwiddie County, Virginia), and the case was filed in Virginia state court.
Therefore, WB should not have removed the case under this rule
B & C -residents of New York,
bought two tickets to travel from NY to NC on Acme bus.
purchased the tickets from a kiosk in NYC through 3rd party app “T”
Bus crashed in Caroline County, Virginia,
B injured and C was killed.
Couldn’t sue ACME
B filed two lawsuits against T Circuit Court for the City of Richmond, Virginia,
Suit 1 styled Brenda Coleman v. Togo Ticketing and sought damages for Brenda’s personal injuries (the Personal Injury Suit).
suit 2 was styled Cody Coleman, deceased v. Togo Ticketing and sought damages for Cody’s wrongful death (the Wrongful Death Suit)
Both lawsuits were properly served on T
T filed an Answer to the Complaint + MTD for improper venue together
Togo was inco & PPB in NY
After filing its Answer, T established through discovery that it has no employees, officers, or agents in Virginia and that it conducts no business in Virginia.
T filed MTD for lack of personal jurisdiction.
T filed a Demurrer, arguing that the suit was not brought by the proper party, and a Plea in Bar, arguing that the statute of limitations had expired, so the Wrongful Death Suit should be dismissed with prejudice
a) In the Personal Injury Suit, how should the court rule on Togo’s Motion to Dismiss for lack of personal jurisdiction?
(b) In the Personal Injury Suit, how should the court rule on Togo’s Motion to Dismiss for improper venue and what, if any, action should the court take?
(c) In the Wrongful Death Suit, how should the court rule on Togo’s Demurrer on the ground that the Wrongful Death Suit was not brought by the proper party?
A. T MTD for lack of personal jurisdiction denied.
Based on Facts VA lacks PJ over T
- T has no contacts with the VA. INC & PPB in NY
- It has no employees, officers, or agents in Virginia and conducts no business in Virginia.
- There is no long-arm jurisdiction as jurisdiction over a non-resident can only be exercised if the out-of-Commonwealth tortfeasor caused tortious injury in the Commonwealth by an act or omission outside the Commonwealth, if the non-resident regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue form goods used or consumed or services rendered, in the Commonwealth. None exists here.
But T has waived its right to object to PJ by entering a general appearance in the case by filing an answer and conducting discovery.
B. T MTD for improper venue should be denied.
Venue is not jurisdictional in Virginia and no case shall be dismissed on that basis.
However, a party may object to venue as being improper venue.
A defendant must file an objection to venue (not a motion to dismiss as T did here) within 21 days of service of process upon the defendant.
In its pleading, a defendant must set forth where it believes venue to be proper (Caroline County). The court should sustain a properly raised objection and transfer the case to Caroline County Circuit Court, a court of proper venue.
C. T demurrer should be sustained.
A demurrer challenges the legal sufficiency of a complaint .
Here, the complaint is filed by an improper party and cannot legally stand.
Every action for wrongful death must be filed in the name of the personal representative, not the deceased as in this case. The action should be styled: Brenda Coleman, personal representative of the estate of Cody Coleman v. Togo Ticketing.
Filing suit in the name of the deceased in this case is a legal nullity, and therefore any attempt by the plaintiff to amend or substitute the proper party should be denied.
D. T plea in bar based of the SOL should be granted.
In Virginia, a wrongful death action must be filed within two (2) years of the date of death (not two years from the date of the accident).
In this case the decedent died on Jan 1, 20.
Suit was filed against T on Jun 30 21, and why this well within the two-year statute of limitation, because the designated plaintiff was a legal nullity, this was is equal to there being no filing and consequently the statute of limitations ran out. The WD claim is time barred.
P & D- neighbors in Fairfax County, Virginia.
Paula agreed to sell Dennis baseball card, but then changed her mind and refused to sell it.
P granted continuance b/c family emergency
Six months later, coincidentally, P & D- car accident
P properly filed suit in Fairfax County against D claiming negligence
D filed a counterclaim against P- claiming that Paula breached agreement
Paula MTD the counterclaim on misjoinder grounds.
The Court denied her motion.
At trial, P admitted that she was on her cell phone at the time of the collision.
At the close of Paula’s case, Dennis moved to strike Paula’s claim because she admitted facts that show contributory negligence .
The judge made clear that he agreed with D and that he was inclined to grant D motion.
he asked P if she had anything else to say before he ruled,
P requested a nonsuit.
Dennis moved to deny 3 grounds:
- P nonsuit request too late
- Second, D pending counterclaim barred the taking of a nonsuit.
- Third, Paula could not take a nonsuit because she had earlier sought and been granted a continuance of the trial.
a. Did the Court correctly deny Paula’s Motion to Dismiss the counterclaim?
(b) How should the Court rule on Dennis’ claim that Paula’s nonsuit request came too late because she waited until Dennis moved to strike her claim and after the Court had indicated that it would grant Dennis’ motion? Explain fully.
(c) How should the Court rule on Dennis’ claim that the pending counterclaim barred the taking of a nonsuit?
(d) How should the Court rule on Dennis’ claim that because Paula had earlier sought and been granted a continuance of the trial, she could not take a nonsuit?
A. Court correctly denied P MTD counterclaim.
The issue is whether D counterclaim must arise out of the same transaction identified in P complaint.
Under Virginia procedural rules, counterclaims are permissive. More specifically, a defendant may plead as a counterclaim any cause of action the defendant has against the plaintiff whether or not it arises out of the same transaction that is the subject of the plaintiff’s complaint and whether it is in tort or contract.
Here, P filed a against Dennis for a car accident.
Dennis asserts a CC against P based on breach of K, c
Paula moved to dismiss MTD CC
Applying the applicable rules, Dennis was permitted to assert his claim against P even though it does not arise out of the same transaction as her tort claim. This is not a misjoinder of claims.
Therefore, the court correct.
B. The Court should rule against D on his claim that P nonsuit request came too late.
Under Virginia procedural rules, a party may take a nonsuit during trial before a motion to strike the evidence has been sustained or before the jury retires from the bar.
Here, D moved to strike P case after she presented her evidence based on her admitting contributory negligence.
While the judge indicated he agreed with Dennis’ position and was inclined to grant the motion, he asked Paula if she had anything else to say before he ruled. Paula moved for the nonsuit before the judge ruled.
Therefore Dennis’ motion to strike had not been sustained and the Court should rule that Paula’s nonsuit request did not come too late.
C. The Court should rule against Dennis on his claim that the pending counterclaim barred the taking of the nonsuit.
The issue is whether the counterclaim can be adjudicated independently of Paula’s claim.
Under Virginia procedural rules, a party cannot nonsuit a cause of action, without the consent of the adverse party who has filed a counterclaim, if the counterclaim arises out of the same transaction or occurrence as the claim of the party seeking to nonsuit. This rule does not apply if the counterclaim can remain pending for independent adjudication by the court.
First, his counterclaim for breach of contract does not arise out of the same transaction or occurrence as Paula’s claim for personal injuries in connection with the car accident.
Second, it is clear the counterclaim, which is based on Paula’s breach of K, can be adjudicated independently from Paula’s tort action. Therefore, the court should rule against Dennis on this argument.
D. The Court should rule against Dennis on his claim that Paula could not take a nonsuit due to her earlier trial continuance.
The issue is whether a continuance of trial implicates a plaintiff’s right to a nonsuit.
Under Virginia procedural rules, a plaintiff has one nonsuit as a matter of right if done so timely. While the court has discretion with additional nonsuits, there is no language in the nonsuit statute qualifying the right to a nonsuit based on a trial continuance.
M MTD all three counts on the ground that the statute of limitations had run,
The court granted M motion as to Counts I and III and dismissed those counts with prejudice. The court denied M plea of the statute of limitations as to Count II.
After the jury was empaneled and both sides gave their opening statements, F sensed that the jury believed F had, in fact, invented evidence Count II was based. F moved to nonsuit the entire case, including Counts I and III. The trial judge ruled that F could not nonsuit Counts I and III but entered the nonsuit as to Count II.
Did the court err in refusing to permit Frank to nonsuit Counts I and III, and in permitting him to nonsuit Count II? Explain fully.
The court did not err in refusing to permit Frank to nonsuit Counts I and III, and in permitting him to nonsuit Count II.
This question raises the issue of whether Frank could nonsuit claims that had previously been dismissed with prejudice.
Under Virginia law, a plaintiff may take one nonsuit as a matter of right within certain limitations. A party shall not be allowed to suffer a nonsuit as to any cause of action or claim unless he does so before a motion to strike the evidence has been sustained or before the jury retires from the bar or before the action has been submitted to the court for decision.
The term, “the action,” in the nonsuit statute refers to the action then pending before the court, which means only the counts or claims remaining in a case at the time the nonsuit request is made. Claims that have been dismissed with prejudice are not part of a pending action.
Here, the court dismissed Counts I and III with prejudice after Marshall moved to dismiss the claims on the grounds that the statutes of limitations had run.
Then, Frank moved to nonsuit the entire case after opening statements were delivered to the jury.
At that time, Counts I and III were no longer pending and were not subject to nonsuit. Not only had they been submitted to the court for decision, the court had made the decision, dismissing both counts with prejudice.
Thus, Frank was not entitled to nonsuit claims that had already been decided and the trial court did not err in refusing to permit Frank to nonsuit Counts I and III.
The action that was properly subject to Frank’s nonsuit request was comprised only of Count II, the claim that was still remaining after Counts I and III were dismissed.
therefore the court did not err in permitting Frank to nonsuit Count II.
written K & Oral K SOL rules
Specifically, in actions on any contract that is in writing and signed by the party to be charged thereby, the action must be brought within five years after the cause of action has accrued.
However, in actions upon a contract that is in writing and not signed by the party to be charged, the action must be brought within three years after the cause of action accrued.
T & S Partnership,
Susan handle the financial affairs
Ten months ago, with T knowledge, S arranged for a short-term loan for the partnership t
.
Business far below expectations for several months. S disappeared,
Pursuant to a judgment against the partnership, Sheriff of Hampton who properly levied on the inventory and cash at the coffee shop.
Tony checked the records in the Hampton General District Court Clerk’s Office and learned that Lighthouse Bank had brought an action against Partnership to collect on the balance of the note and that personal service of a Motion for Judgment had been made on Susan as a partner of Buckroe Partnership.
T had not been served and had no knowledge of the court proceedings.
A default judgment in favor of Lighthouse Bank in the plus interest, attorney’s fees and costs was entered against the partnership 15 days ago.
In searching through the partnership’s correspondence and business records, T found a letter from Lighthouse Bank to S written after the lawsuit was filed in GDC, but before default judgment was taken, in which Lighthouse Bank confirmed the parties’ agreement to continue the case to allow Susan the opportunity to obtain legal counsel.
Tony learned that Lighthouse Bank did not advise the court of the agreement to continue the trial and Lighthouse Bank obtained default judgment in Susan’s absence on the scheduled trial date.
T also found evidence of service of process on Susan thirty days earlier in another action brought against the partnership.
This action was filed in Hampton Circuit Court by JJ-injured during a slip and fall accident while inside the business .
Tony learned from the Clerk of the Circuit Court that Susan had not filed responsive pleadings to the JJ action and that a hearing was scheduled the following day for entry of default judgment and determination of damages.
(a) What remedies are available, if any, to the partnership in the Hampton General District Court regarding the Lighthouse Bank action and are they likely to succeed?
(b) Can the Lighthouse Bank judgment be appealed by the partnership?
(c) May the partnership’s attorney participate in the Jones action in the Circuit Court default judgment hearing?
(d) What actions might the partnership’s attorney reasonably take regarding the Jones’ action?
A. The 10 day period to appeal the GDC judgment has passed, so the Partnership can not appeal.
Va Code grants the GDC the authority, on motion made within 30 days from the judgment, to, within 45 days of the judgment, to reopen the matter.
so long as the motion is made within 2 years from the date of the judgment, the Court can vacate the judgment on the ground of fraud on the Court.
Here there was evidence that the parties had agreed to a continuance and plaintiff’s counsel had not disclosed this.
The court should vacate the judgment.
B. The judgment is not appealable b/c the 10 day period to note the appeal has passed.
[c & d] Yes, in the Circuit Court, the defaulting defendant is entitled to appear at the hearing, and fully participate in the damages hearing. The Circuit Court can grant leave to the defendant in default to file late responsive pleadings and cure the default.
A is a Hawaii corporation with its headquarters located in Kailua, Hawaii.
Stores in Virginia City of Charlottesville and the City of Norfolk.
A has an attorney in Fairfax County, to serve as its registered agent.
P, a resident of the City of Richmond, Virginia, slipped and fell
J, the Aloha Market manager on duty at the time Phillip fell.
J was called to the front, investigated the incident, and gave Phillip a copy of the report signed by him as manager on duty.
P filed a Complaint in the Circuit Court for the City of Richmond on June 30, 2020, naming both Jack and Aloha Market as defendants
P wife,is a Richmond Deputy Sheriff. Sherrill personally served the Complaint and Summons on Jack at A’s Charlottesville store on February 10, 2021, while she and Phillip were visiting.
J immediately forwarded the suit papers to Aloha Market’s corporate headquarters in Hawaii, where they were received a few days later.
[a] Were Jack and Aloha Market each properly served with the Complaint and Service of Process? Explain fully.
[b] Was Service of Process on both Jack and Aloha Market effective? Explain fully.
[c] Was Phillip’s lawsuit timely filed and within the applicable statute of limitations? Explain fully.
[d] Assume for this question only that Aloha Market challenges venue. Is it likely to succeed, and if so, what venue or venues would be appropriate? Explain fully.
[e] Assume for this question only that Jack believes he is not a proper defendant. How should he seek dismissal from the case and is he likely to succeed? Explain fully.
[a] Service on Jack.
Service on Jack was improper.
A sheriff may only serve the summons and complaint in her county/city or in a contiguous county/city.
In addition, papers must be served by “any person of age 18 years or older and who is not a party or otherwise interested in the subject matter of the controversy.
Service on Aloha Market.
Service on Aloha Market was improper.
Aloha Market is incorporated and has its principal place of business in Hawaii. It is a foreign corporation which has properly registered to do business in Virginia. As such, process may be served on “any officer, director, or registered agent of the foreign corporation.” Process in this case can be attained by serving Mabel, its registered agent in Fairfax County.
[b] Service of process on both Jack and Aloha Market was effective. Both defendants received the summons and complaint [the process] in a timely manner (within a year of filing of the lawsuit). Therefore, improper service does not matter since Jack and Aloha market actually received the papers.
[c] personal injury, whatever the theory of recovery,…shall be brought within two years after the cause of action accrues.
[d] A case seeking damages for personal injuries does not fall In this case venue would be proper where either of the defendants resides, or where a defendant has appointed a registered agent to receive process, or where the cause of action arose. The fact pattern is silent as to where Jack resides, but assuming the he resides in the City of Charlottesville, Phillip may file his lawsuit in the City of Charlottesville or Fairfax County, where Mabel, the registered agent for Aloha Market is located. The City of Charlottesville is also a proper venue because that is where the cause of action arose.
The City of Richmond is an improper venue. A defendant must object to this venue within 21 days (or within the period of extension of time for filing responsive pleadings). A defendant must also set forth where he believes venue to be proper. See Va. Code §8.01-264. It is likely that the defendants will seek transfer to the City of Charlottesville, as that is where the cause of action arose, and where the witnesses are likely located. Although Fairfax County is a permissible venue, it is unlikely that either defendant will seek transfer to that venue, since the only nexus that Fairfax County has to this case, is that is where the registered agent for Aloha Market is located.
E. If Phillip’s cause of action does not set forth a valid cause of action again against Jack as a matter of law, Jack should file a demurrer, which tests the legal sufficiently of the complaint.
In this case the demurrer is likely to be sustained. If Phillip’s cause of sets forth a valid cause of action, Jack could proceed by initiating discovery. Through the use of interrogatories, requests for admission and depositions, Jack may be able to establish that Phillip has no facts which would support a claim against him as a matter of law. He then may file a motion for summary judgment
Unless there are facts which suggest that Jack is somehow legally liable to Phillip, the court is likely to grant Jack’s motion for summary judgment.
The fact pattern suggests that Jack believes he is an “improper” defendant. Perhaps the facts intimate he was improperly joined as a party. If that be the case, Jack should file a plea of misjoinder. If the court finds Jack’s plea has merit, Jack will be dismissed from the case and the case will continue against Aloha Market only.
