Pleadings Flashcards
What is required in a pleading?
- 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
What is a motion craving oyer?
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
Are alternative pleadings permitted?
Yes–can plead alternative facts as to alternative parties if they arise from the same transaction or occurrence
May a court grant extension of time?
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
What are the pleading steps for GDC?
(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
Is a responsive pleading required in GDC?
No, but P can move for grounds of defense, in which case the court has discretion to require D to file responsive pleading
What is a motion for bill of particulars?
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
Must trial always go forward on “return date?”
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
Must original document be attached?
Yes, where the suit in GDC is brought on a written instrument, unless excused by court, statute, or for good cause
When may D object to venue in GDC?
Any time on or before the day of the trial
Must P allege jurisdiction in her pleading in CC?
No
Must P allege venue in her pleading in CC?
No
What must be included in P’s complaint in CC?
(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”)
May P join claims?
Yes–only if they arise from same transaction/occurrence
* Where P joins unrelated claims, this is a misjoinder
How long does D have to respond and how may she respond?
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
What is a motion for a bill of particulars?
Asks court to require P to amplify her pleading
* Must be made promptly
What is required for a motion objecting to venue?
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
What happens if process is not served within 1 year of commencement?
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
How may D challenge PJ?
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
How does D argue that service of process was improper?
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
What is a demurrer?
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
What may a demurrer not do?
Allege new facts (common example is forgetting to annex K to complaint–instead, file motion craving oyer)
What happens after a court sustains a demurrer?
Usually sustain without prejudice and allow time for amendment
When may D demur?
Before her answer OR at the same time
* If she files her answer before she demurs, she must seek court permission to demur
What is a special plea/plea in bar of recovery?
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
What does D put in her answer?
(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
With legal causes of action on Ks, can D plead equitable defenses (e.g., fraud, breach of warranty, or failure of consideration)?
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
What defenses must D raise through sworn pleading or affidavit (i.e., “verified”)?
(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
What if D files unsworn answer that should have been raised in a sworn pleading (e.g., agency status)?
P should move to strike defensive pleading within 7 days or it’s waived
Process in contract and account actions
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
Must P reply after D responds (whether by answer, demurrer, or otherwise)?
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
What is particular about amended complaint practice in VA?
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
When is relation back appropriate as to a cause of action?
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
When is relation back appropriate as to adding a new defendant?
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
