Pleadings

Question 1

Basics

Answer 1

(1) Must be numbered in paragraphs and state the facts which you are relying on.
(2) At least one attorney’s name must be on the pleading and they must sign.
(3) Documents which are part of claim or defense must be annexed to the pleading.

Question 2

Motion Craving Oyer

Answer 2

If there is a document that should have been attached to a pleading but wasn’t, the other party can make this motion and if granted it requires the other party to produce the document and it is treated as being annexed to the pleading.

Question 3

Attorney Certificate

Answer 3

Attorneys or pro se parties must sign all pleadings, motions, or other papers certifying that:
1) they have read it and
2) that to the best of their knowledge information and belief it is grounded in fact or law (or in good faith that the law should be modified) and
3) it is not for harassments or delay,

You can be held liable for sanctions and attorneys fees for an improper document.

Question 4

General District Court

Answer 4

Rules are less formal.

1) P obtains a civil warrant from the clerk and fills in the blanks regarding the parties and nature of grievance.

2) Civil warrant is served on D by Sherriff or deputy

3) The warrant tells D he must appear in court on a certain day.

4) D generally does not file a responsive pleading. He and P show up on the specified date and try the case.

5) No discovery. Instead if D wants more details about P’s case they can move for a bill of particulars. This is at the discretion of court.
- Similarly if P wants the grounds of D’s defense they can move for grounds of defense. Also discretionary.

• If the court orders a bill of particulars or order D to file grounds for defense and they fail to comply, the court can enter summary judgment against the party failing to file.

6) If the suit is brought on a written instrument, the original document must be tendered to the court unless excused by the court by statute or for showing of good cause.

7) Can object to venue anytime on or before day of trial.

Question 5

Circuit Court Complaint

Answer 5

Must have:
1) Name of court, names of parties, statement of facts numbered, must clearly inform D true nature of the claim.

2) Must make a prayer of relief.
- A statement of relief for damages is sometimes called an Ad Damnum Clause.
- Punitive damages MUST be identified separately in the prayer for relief.

Does not need to allege jurisdiction or venue.

Can join multiple claims arising from same transaction and occurrence. Ex. P buys new tv, the tv explodes in his house causing injury to P. They can sue for breach of contract, warranty, and negligence all in one suit.

Question 6

How many days does D have to response to P’s complaint?

Answer 6

21 from service upon them.

Question 7

Ways D can respond to complaint

Answer 7

1) Motion for Bill of particulars

2) Motion objecting to venue

3) Process Not served within one year.

4) Motion to Quash Process

4) Motion Challenging PJ

5) Demurrer

6) Special Plea

7) Answer

8) Equitable defense to legal actions.

Question 8

Motion for Bill of particulars

Answer 8

Ask the court to require P to amplify her pleading. This motion must be made promptly.

Question 9

Motion objecting to venue

Answer 9

Must state why venue is improper and what other venue would be proper.
- Must be timely filed. W/i 21 days of service.
- If D files a defective motion (ex. forgets to include what venues are proper) court still has power to transfer.

Question 10

Motion - Process not served within one year

Answer 10

D makes a motion for special appearance. If P did not use due diligence in trying to serve D then the case is dismissed with prejudice. If due diligence was used then motion is denied and D must respond in 21 days.

Question 11

Motion Challenging PJ

Answer 11

If D makes a “general appearance” she waives this defense.

General appearance is any conduct that engages in the merits of the case. This includes: an answer, demurrer, special please, counterclaim, cross claim, third party claim, conducting discovery (except as allowed by court on a jurisdiction issue) seeking a ruling on the merits, participating in proceedings on the merits.

D must raise lack of PJ BEFORE doing anything that engages the merits. If they raise it at the same time or after engaging the merits, it is waived.

Ex. If defendant files an answer and in the answer they assert lack of PJ. they have waived the defense.

If D is sued and they respond with a motion to transfer venue, they have waived PJ.

Question 12

Motion to Quash Service of Process

Answer 12

Saying that service of process was improper..

Same as with PJ. This defense is waived if it D makes a general appearance. However this defense can be made before or with a response to merits.

Question 13

Demurrer

Answer 13

Tests sufficiency of pleadings that seeks affirmative relief.

Ex. It can bring up misjoinder of claims, lack of subject matter jurisdiction, failure to state a cause of action (main use)

Examples of failure to state cause of action:
- in negligence claim, P fails to state duty owed by D
- In suing employer for tort, P fails to state employer/employee relationship

A demurrer must specifically state why pleadings are insufficient. It cannot just say “fails to state facts showing P is entitled to relief” or “ pleading is insufficient as a matter of law.”

Demurrer cannot allege new facts.

Must be filed before answer or at the same time. if not filed before or at the same time as answer then cannot be filed without court permission.

Demurrers are sustained or overruled. Not granted or denied.

Once the court has overruled all demurrers pleas and Motions then D will be ordered to file answer in 21 days or however much time court gives.

Question 14

Special Plea

Answer 14

Affirmative defenses like res judicata or statute of limitations, or statute of frauds.

May be raised separately, as a motion to dismiss, or stated like affirmative defenses in the answer.

Question 15

Answer

Answer 15

Includes:
(a) responses to allegations of complaint (admit, deny, lack of knowledge)
(b) in numbered paragraphs
(c) affirmative defenses

A general denial is one sentence long and it denies all of the allegations of the complaint.

Question 16

Equitable Defenses to Legal Actions

Answer 16

Defenses like failure of consideration, fraud in inducement, breach of warranty, unconscionability

Question 17

Special Sworn Pleading Requirement

Answer 17

If D wants to raise any of the following defenses, they must do so in a SWORN pleading or affidavit., ie under oath.

• Lack of genuineness of handwriting
• Lack of corporate partnership or agency status
• lack of ownership or operation of property or instrumentality

If D files an unsworn pleading for one of these defenses, P can move to strike pleading within 7 days after D files. If P does not object within 7 days, they waive objection.

Contract & Account Actions: In an action on a contract seeking payment of money, plaintiff can file with his complaint an affidavit stating the amount of his claim, that the amount is justly due and the date from which he seeks interest.
- D must plead under oath that P is not entitled to money,

Question 18

Does Plaintiff have to respond to Defendant’s answer?

Answer 18

No, generally whatever D says in their plea, motion, answer etc. is automatically deemed denied by P so plaintiff doesn’t have to do anything.

Exception: If D pleads a new matter in his response and expressly requests that P respond to the new matter then P has 21 days to admit or deny the new matter in a document called a reply.

Note: If D’s answer is insufficient legally, P cannot file a demurrer (since they only are for pleadings which assert a cause of action). Instead P would file a Motion to Strike the pleading.

Question 19

Amending Pleadings

Answer 19

in VA you NEVER have a right to amend. You MUST request leave from the court to amend.

if an amendment is filed without leave of court, the amendment has no legal effect. They are nullities.

Note: If you want to amend to add new parties, you must get leave to amend before the statute runs.

Amendments will be allowed liberally to further the ends of justice. The court considers whether allowing the amendment would unduly delay the proceedings, or prejudice a party, or whether the amendment would be futile. The trial court’s decision will be upheld unless it is an abuse of discretion.

Question 20

Relation Back - Amendment

Answer 20

Allowed if the amended document concerns the same transaction or occurrence as the original, the party seeking the amendment has been reasonably diligent and the other party is not substantially prejudiced.

Exception: When adding a new defendant, new party had to have notice within the limitations period of the action and knew or should have known that but for the a mistake concerning identity, they would have been named in the original pleadings.