Pleadings

Question 1

What is required in a pleading?

Answer 1

• Must state, in numbered paragraphs, facts on which party relies
• OK if it clearly informs opposing party of the true nature of the claim or defense
• At least 1 individual lawyer must be set forth and sign
• Documents that are the basis of a claim or defense may be annexed as an exhibit, which makes them part of the pleading

Question 2

What is a motion craving oyer?

Answer 2

Where a document should be annexed to a pleading but is not, motion craving oyer, if granted, requires party to produce the document, treated as though annexed to pleading

Question 3

Are alternative pleadings permitted?

Answer 3

Yes–can plead alternative facts as to alternative parties if they arise from the same transaction or occurrence

Question 4

May a court grant extension of time?

Answer 4

Yes–in the sound exercise of its discretion, may extend time in which parties are required to file pleadings and motions even if the time for filing document has passed
* The court cannot condition an extension of time on the party’s posting a bond
* Exception is that the court cannot grant extension for motion challenging venue, unless the court extends time to file responsive pleading

Question 5

What are the pleading steps for GDC?

Answer 5

(1) P obtains civil warrant or motion for judgment
(2) Warrant (or motion for judgment) directed to sheriff or deputy for service
* Warrant tells D he must appear on a certain day (“return date”) to respond
* Return date cannot be more than 60 days or fewer than 5 days after service of process

Question 6

Is a responsive pleading required in GDC?

Answer 6

No, but P can move for grounds of defense, in which case the court has discretion to require D to file responsive pleading

Question 7

What is a motion for bill of particulars?

Answer 7

When D wants more details about P’s case
* Discretion of court
* If court orders and P fails to do so, can grant summary judgment

Question 8

Must trial always go forward on “return date?”

Answer 8

No-party may move for continuance, which is in court’s discretion
* If party does not move before return date, motion must be denied unless she shows continuance is in the best interest of justice

Question 9

Must original document be attached?

Answer 9

Yes, where the suit in GDC is brought on a written instrument, unless excused by court, statute, or for good cause

Question 10

When may D object to venue in GDC?

Answer 10

Any time on or before the day of the trial

Question 11

Must P allege jurisdiction in her pleading in CC?

Answer 11

No

Question 12

Must P allege venue in her pleading in CC?

Answer 12

No

Question 13

What must be included in P’s complaint in CC?

Answer 13

(1) Statement of relief desired (“prayer”)
(2) Must separately identify punitive damages if applicable
(3) Statement of relief for damages (may be called “ad damnum clause”)

Question 14

May P join claims?

Answer 14

Yes–only if they arise from same transaction/occurrence
* Where P joins unrelated claims, this is a misjoinder

Question 15

How long does D have to respond and how may she respond?

Answer 15

D has 21 days after service of process upon her and may pursue any of the following:
(1) Motion for bill of particulars
(2) Motion objecting to venue
(3) Move to dismiss (through special appearance) for failure to serve process within 1 year of commencement
(4) Challenge PJ
(5) Motion to quash process
(6) Demurrer
(7) Special Plea or Plea in Bar of Recovery
(8) Answer

Question 16

What is a motion for a bill of particulars?

Answer 16

Asks court to require P to amplify her pleading
* Must be made promptly

Question 17

What is required for a motion objecting to venue?

Answer 17

Must state (1) why venue is improper and (2) what places it would be proper
* Must be filed within 21 days after service of process unless court extends time in which to file responsive pleading
* Even if D doesn’t state where venue is proper, court may nonetheless transfer to proper venue through inherent powerq

Question 18

What happens if process is not served within 1 year of commencement?

Answer 18

D may move dismiss, which is a special appearance
* If P did not use due diligence in trying to serve, case is dismissed with prejudice
* If P did use due diligence, motion is denied and D must respond within 21 days of denial

Question 19

How may D challenge PJ?

Answer 19

Through a “special appearance”
* If D makes a “general appearance,” she waives (any conduct that engages merits of defense, like a demurrer or objecting to venue)
* D must raise lack of PJ before doing anything engaging merits
* D may raise at the same time as motion objecting to venue and for transfer, but waived if she raises after motion objecting to venue

Question 20

How does D argue that service of process was improper?

Answer 20

Motion to quash process
* Waived if D makes general appearance
* OK to file motion to quash process simultaneously with a pleading responding to the merits–can file before or with response to merits

Question 21

What is a demurrer?

Answer 21

Tests the legal sufficiency of a pleading that seeks affirmative relief–can be used to challenge:
* Mistjoinder of claims
* Lack of SMJ
* Failure to state a cause of action
* Cannot use for lack of personal jurisdiction–this is a general appearance and waives PJ
* Pleading must say specifically why it is insufficient

Question 22

What may a demurrer not do?

Answer 22

Allege new facts (common example is forgetting to annex K to complaint–instead, file motion craving oyer)

Question 23

What happens after a court sustains a demurrer?

Answer 23

Usually sustain without prejudice and allow time for amendment

Question 24

When may D demur?

Answer 24

Before her answer OR at the same time
* If she files her answer before she demurs, she must seek court permission to demur

Question 25

What is a special plea/plea in bar of recovery?

Answer 25

An affirmative defense (e.g., SOL or res judicata)
* May be raised separately, as a motion to dismiss, or stated like affirmative defenses in the answer

Question 26

What does D put in her answer?

Answer 26

(1) Responses to allegations of the complaint in numbered paragraphs and (2) affirmative defenses (i.e., special pleas)
* After the court has overruled all demurrers, pleas and motions, D will be ordered to file her answer within 21 days or such time as the court directs

Question 27

With legal causes of action on Ks, can D plead equitable defenses (e.g., fraud, breach of warranty, or failure of consideration)?

Answer 27

Yes–these can diminish P’s claim and are called common law recoupement
* D can raise defenses in damages action on K and recover damages for them (even in excess of P’s claim)
* BUT the court cannot reform or rescind K or compel conveyance of land

Question 28

What defenses must D raise through sworn pleading or affidavit (i.e., “verified”)?

Answer 28

(1) Lack of genuineness of handwriting
(2) Lack of corporate or partnership or agency status (includes employment relationship)
(3) Lack of ownership or operation of property or instrumentality

Question 29

What if D files unsworn answer that should have been raised in a sworn pleading (e.g., agency status)?

Answer 29

P should move to strike defensive pleading within 7 days or it’s waived

Question 30

Process in contract and account actions

Answer 30

P can file his complaint with an affidavit stating: (1) amount of his claim; (2) amount justly due; and (3) date from which he seeks interest
* If D fails to plead under oath that P is not entitled to the money, judgment for P
* If D does plead under oath that P is not entitled to the money, P entitled to continuance if she moves for it

Question 31

Must P reply after D responds (whether by answer, demurrer, or otherwise)?

Answer 31

No–deemed denied by P
* Exception is that if D pleads new matter in defensive response and expressly requests P respond to new matter (P would have 21 days)
* If D’s answer is insufficient legally, P does NOT file a demurrer, but instead files a motion to strike the pleading

Question 32

What is particular about amended complaint practice in VA?

Answer 32

There is never a right to amend–must get leave
* If fails to get leave, the effect of a purported “amended complaint” (and any answer) is NONE (they are nullities)
* Courts will generally allow amendment to “further the ends of justice” unless it would unduly delay proceedings or prejudice a party, or amendment would be futile
* Trial court decision upehld unless it’s abuse of discretion

Question 33

When is relation back appropriate as to a cause of action?

Answer 33

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

Question 34

When is relation back appropriate as to adding a new defendant?

Answer 34

New party must have had notice within the limitations period of the action and knew or should have known that but for a mistake concerning identity, she would have been named originally