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VA Civil Procedure > Pleadings > Flashcards

Pleadings Flashcards

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1
Q

what must all pleadings state?

A

all pleadings MUST state, in NUMBERED PARAGRAPHS, the facts on which the party relies

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2
Q

if the pleading informs the opposing party of the true nature of the claim or defense - is this ok?

A

YES! Pleading is ok

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3
Q

who must sign?

A

a law firm name is OK, but at least 1 individual lawyer must also be set forth and sign

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4
Q

what must be annexed as an exhibit on a pleading?

A

documents that are the BASIS of a claim or defense may be annexed as an exhibit - which makes them part of the pleading

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5
Q

what happens if a document that should have been annexed to a pleading is not? what can the other party do?

A

if a document that should be annexed to a pleading is not, the other party can make a MOTION CRAVING OYER

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6
Q

what is a motion craving over - and what does it do?

A

a motion craving oyer is a motion made by a party when a document should be annexed to a pleading and is not. If the motion is granted - it REQUIRES the other party t produce the document, which is treated as though annexed to the pleading?

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7
Q

what is the CERTIFICATE REQUIREMENT: –> what must an attorney (or pro se party) do regarding pleadings, motions, and other papers?

A

the attorney (or pro se party) must sign all pleadings, motions, and other papers, CERTIFYING that:
(1) they have read it;
(2) to the best of their knowledge, information, and belief (formed after reasonable inquiry), it is grounded in fact and law (or a good faith calm that the law should be modified); AND
(3) it is not for harassment or delay.

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8
Q

what happens if the certificate requirement is violated?

A

if the certificate requirement is violated, the attorney can be held liable for costs and attorney’s fees incurred because of an improper document.

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9
Q

what happens if the attorney refuses to sign?

A

if the attorney refuses to sign, the document can be stricken

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10
Q

can you ‘plead in the alternative’? (alternative pleading)

A

YES! You can plead alternative facts as to alternative PARTIES if they arise from the same transaction or occurrence

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11
Q

are extension of time for pleadings or motions allowed?

A

the court, in the sound exercise of its discretion, may extend the time in which parties are required to file pleadings and motions. It can do so even if the time for filing the document has passed.
**with one exception

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12
Q

Can a court condition an extension of time on the party’s posting a bond?

A

NOPE!

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13
Q

Can a court condition an extension of time on the party’s posting a bond?

A

NOPE!

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14
Q

what happens if a motion to file a late pleading is denied by the court - what happens?

A

the court’s ruling to deny a motion to file a late pleading is probably not an abuse of discretion as long as the judge considered these factors:
(1): good faith of the moving party
(2) any prejudice to the other party
(3) extenuating circumstances
(4) merit of proposed documents

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15
Q

what is the one motion for which time cannot be extended by the court?

A

a motion challenging VENUE - UNLESS the court extends the time to file a responsive pleading.

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16
Q

how does a plaintiff obtain a civil warrant in GDC?

A

P obtains a civil warrant (printed form) from the CLERK of the court AND fills in blanks (regarding names of parties, nature of grievance)

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17
Q

what can a plaintiff do alternative instead of obtaining a civil warrant? (GDC)

A

the plaintiff can draft a tailored motion for judgment (complaint)

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18
Q

what happens to the civil warrant after it is filed out by the plaintiff? (GDC)

A

the civil warrant is directed to the sheriff or deputy - who then serves it on the defendant

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19
Q

what happens to the P’s motion for judgment after they draft it? (GDC)

A

they can have an officer serve it, along with a notice of motion for judgment (GDC)

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20
Q

what does the ‘warrant’ or ‘notice of motion of judgment’ tell the defendant? (GDC)

A

it tells the defendant that he must appear in court on a certain day (“the return date”) to respond.

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21
Q

when is the “return date” (GDC)

A

the date on which the defendant must appear in court to respond to the P’s warrant/notice of motion of judgment cannot be more than 60 DAYS or fewer than 5 days
(so 5-60 days)

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22
Q

does a defendant file a ‘responsive pleading’ in GDC? (to the P’s ‘warrant’ / motion for judgment?

A

D generally DOES NOT file a responsive pleading. D and P show up on the ‘return date’ and try the case
OR
on return date -court may set a different trial date

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23
Q

may the parties set the date of the new trial? (GDC)

A

the parties’ written statement, approved by the court, can set the date

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24
Q

can a plaintiff ever be made to file a responsive pleading? (GDC)

A

YES! P can move for grounds of defense – whether to require the grounds for defense is in the discretion of the court

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25
Q

what can the D do if they want more details about the P’s case? (GDC)

A

The D can file for a BILL OF PARTICULARS - which is discretionary with the court (GDC)

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26
Q

what happens if the court orders a P to file a bill of particulars OR orders the D to file grounds of defense – and they fail to do so? (GDC)

A

The court can enter summary judgment against the party failing to file

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27
Q

does the trial always have to go forward on the “return date”? (GDC)

A

Nope! A party MAY move for a continuance, the granting of which is in the court’s discretion

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28
Q

what if a party moves for a continuance AFTER/on the return date (i.e. did not move before return date)? (GDC)

A

the motion must be denied - UNLESS the party shows that the continuance is in the best interest of justice

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29
Q

what is a requirement if a suit is brought on a WRITTEN document? (GDC)

A

if a suit is brought on a written document - the ORIGINAL document must be tendered to the court - UNLESS excused by the court by (a) statute; or (b) for good cause)

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30
Q

when can a defendant object to venue? (GDC)

A

the defendant can object to venue ANY TIME ON OR BEFORE the day of trial

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31
Q

what does VA call civil cases? (CC)

A

VA has abolished the distinctions between cases “at law” and cases “at equity” – now all civil cases are called “CIVIL ACTIONS” - regardless of whether they involve legal or equitable causes of action. (***does not mean distinction between law and equity is not important - still is!)

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32
Q

how does a plaiting start a case in CC?

A

a plaintiff starts a case by filing a “COMPLAINT”

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33
Q

what if a P is suing for mandamus, prohibition, or certiorari?

A

then the platiniff starts the case by filing a “PETITION”

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34
Q

what must P’s “complaint” or “petition” contain?

A

the P’s pleading must contain:
1) the name of the court
2) names and addresses of the parties
3) signature of lawyer
4) statements of facts in numbered paragraphs, and
5) must clearly inform the defendant of the true nature of the claim

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35
Q

Must a P have to allege JURISDICTIOn in their initial pleadings (“complaint” or “petition”)?

A

NO!

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36
Q

Must a P have to allege VENUE in their initial pleadings (“complaint” or “petition”)?

A

NO!

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37
Q

Must a P make a statement of relief desired in their initial pleadings (“complaint” or “petition”)? (CC)

A

Yes - might be called the “prayer”

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38
Q

what is a statement of relief for damages sometimes called? (CC)

A

an AD DAMNUM CLAUSE

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39
Q

what must be identified separately in the prayer for relief? (CC)

A

Punitive damages!

40
Q

Can the plaintiff join claims arising from the same transaction or occurrence?

A

yes! Plaintiff may join claims arising from the same transaction or occurrence - it is very limited

41
Q

can a plaintiff join unrelated claims?

A

nope! this would be a misjoinder of claims or of actions

42
Q

when must a defendant respond to the P’s complaint?

A

the defendant must respond to the complaint within 21 days after service of process upon them

43
Q

how does the defendant respond to the P’s complaint?

A

a) Motion for bill of particulars
b) motion objecting to venue
c) move to dismiss bc P did not serve process within 1 year of commencement
d) challenge PJ
e) Motion to quash process
f) demurrer
g) special plea or “plea in bar of recovery”
h) answer
i) equitable defenses to legal actions
**Generally can pursue these in any order she wants - or can rise them simultaneously

44
Q

what is a ‘motion for bill of particulars’?

A

a motion for bill of particulars ask the court to require the plaintiff to “AMPLIFY THEIR PLEADING.”

45
Q

when must a motion for bill of particulars be made?

A

it must be made ‘promptly’

46
Q

what must a D’s motion objecting to venue state?

A

a motion objecting to venue must state:
(1) why venue is improper; and
(2) what places would be proper

47
Q

when must D’s motion objecting to venue be done?

A

the motion objecting to venue must be TIMELY - it must be filed (written) within 21 DAYS after service of process - UNLESS the court extends the time in which to file a responsive pleading

48
Q

what can happen if D files a defective motion objecting to venue (i.e. it does not state what venues would be proper)

A

the court can nonetheless transfer to a proper venue

49
Q

D’s motion to dismiss through special appearance

A

if the Plaintiff does not have process served within 1 year of commencement, the D can move to dismiss –> through a special appearance

50
Q

what can happen when a D files a motion to dismiss through special appearance?

A

a) if the P did not use diligence in trying to serve process - the case is dismissed WITH PREJUDICE;
b) if the plaintiff did use due diligence in trying to serve process – D’s motion to dismiss is DENIED

51
Q

what must D do if their motion to dismiss for failure to bring service of process within 1 year - is denied?

A

the D must then respond to the P’s pleading within 21 days of the denial of the motion

52
Q

when must Defendant raise lack of PJ?

A

the D must raise lack of PJ before doing anything that ENGAGES THE MERITS

**if the D raises PJ at the same time (or after) engaging the merits - it is WAIVED

53
Q

if the D makes a “general appearance” - can they still plead lack of PJ defense?

A

if D makes a “general appearance” - they waive the PJ defense (must raise PJ before doing anything that engages the merits)

54
Q

Can D raise PJ at the same time (or after) engaging the merits?

A

Nope! If D raises PJ at the same time (or after) engaging the merits - it is waived

55
Q

what constitutes “general appearance”?

A

Any conduct that engages in the merits of the case, including:
- answer
- demurrer
- special pleas
- counterclaim
- cross-claim
- third-party claim
- conducting discovery (except as allowed by court on jurisdictional issue)
- seeking a ruling on the merits
- participating in proceedings related to the merits

56
Q

Can D raise PJ issue if she raises it at the same time as a motion objecting to “venue” and for transfer?

A

Yes! D does not waive PJ if raises at the same time as a motion objecting to venue.

she would waive PJ if she raised it after making the motion objecting to venue

57
Q

D’s motion to quash process

A

to argue that SERVICE OF PROCESS was IMPROPER (or that there was a problem with the issuance of process or with the return) –> the defendant would make a motion to QUASH PROCESS

58
Q

when is a service-related defense (i.e. motion to quash) waived?

A

a service-related defense is waived if the D makes a GENERAL APPEARANCE!

59
Q

can the D make a service-related defense SIMULTANEOUSLY with a pleading responding to the merits?

A

yes! it is ok to fill a service-related defense either before or with a response to the merits

60
Q

a D can bring a Demurrer - what is a demurrer?

A

a demurrer tests the SUFFICIECY OF A PLEADING that seeks AFFIRMATIVE RELIEF

61
Q

what can a Demurrer be used to challenge?

A

it can be used to challenge:
a) misjoinder of claims
b) lack of subject matter jurisdiction (SMJ)
c) failure to state a cause of action (main use!)

62
Q

why can a Demurre not be used to challenge?

A

lack of Personal jurisdiction! A demurrer is a “general appearance” and waives PJ

63
Q

what must a demurrer specifically plead?

A

a demurrer pleading must say specifically why the Plaintiff’s pleading is insufficient

**can’t just state “P’s pleading is insufficient as a matter of law// or that it fails to state facts showing that P is entitled to relief”

64
Q

may a D allege new facts in a demurrer?

A

nope! a demurrer may not allege new facts

65
Q

a demurrer can be ___ by a court?

A

a Demurrer can be either:
a) SUSTAINED; or
b) OVERRULED

(as opposed to motions which are ‘granted’ or ‘denied’

66
Q

what happens if a demurrer is sustained by the court?

A

if a demurrer is sustained - the court will usually sustain it WITHOUT prejudice - and set a time for amendment

67
Q

when can a D file a demurrer?

A

a D can file a demurer BEFORE there answer or AT THE SAME TIME

68
Q

what happens if D files their answer BEFORE they file a demurrer?

A

if D files their answer BEFORE they file a demurrer - then they cannot demur without court permission - need court permission!!!

69
Q

what is a “special plea” or “plea in bar of recovery”

A

“Special please” are what we would call AFFIRMATIVE DEFENSES in federal courts - such as statute of limitations or resjudicata

70
Q

when can a “special plea” be raised?

A

a special plea may be raised separately, as a motion to dismiss OR stated like an affirmative defenses in the answer

71
Q

what do “special pleas” contain?

A

they present a single set of facts that - if true - would obviate the need to proceed further with the action

72
Q

How does a D file an ANSWER?

A

In their answer, D must put:
(1) responses to allegations of the complaint (admit, deny, state lack of knowledge) in NUMBERED paragraphs; and
(2) affirmative defenses - ‘special pleas’

73
Q

what is a general denial, and is it allowed by the court?

A

a “general denial” is one sentence long - it denies all the allegations of the complaint. Such a denial is generally NOT allowed by court rule

74
Q

when must the defendant file their answer?

A

after the court has overruled all demurrers, please and motions, the defendant will be ordered to file her answer within 21 DAYS or such time as the court directs

75
Q

with legal cause of action on a claim (i.e. contracts) - can the defendant plead equitable defenses? (such was failure of consideration, fraud in the inducement, breach of warranty, unconscionability)

A

yes! the defenses could diminish P’s claim – “common law recoupment”

76
Q

can D raise defenses in a damages action on a contract?

A

Yes - a statute in VA makes it clear that the D can raise these equitable defenses in a damages action on a contract and can recover damages for them (even in excess of P’s claim)

77
Q

what can court NOT order under the VA statue (that allows D to raise equitable defenses in a contracts case)?

A

the court cannot reform or rescind a contract OR compel the conveyance of the land

78
Q

what must a defendant file if they want to raise some defenses?

A

if the plaintiff wants to raise any of the following defenses - they must do so in a SWORN pleading or affidavit (under oath)

Pleadings that must be sworn:
a) lack of genuine of handwriting
b) lack of corporate or partnership or agency status (includes employment relationship)
c) lack of ownership or operation of property or instrumentality

79
Q

what are some defenses/pleadings that must be sworn?

A

Pleadings that must be sworn:
a) lack of genuine of handwriting
b) lack of corporate or partnership or agency status (includes employment relationship)
c) lack of ownership or operation of property or instrumentality

80
Q

what are these ‘sworn’ pleadings or affidavits sometimes called?

A

they are sometimes called “verified”

81
Q

what happens if P alleges a claim, to which D files an UNSWORN answer with a defense that should have been raised in a sworn pleading

A

then Plaintiff can make a motion to strike the D’s defensive pleading

82
Q

when does P have to make a motion to strike the D’s defensive pleading?

A

within 7 days!

83
Q

what happens if P fails to object to the lack of verification within 7 days?

A

Then Plaintiff waives this objection

84
Q

Special statutes in VA re: contract and account actions

A

special statutes in VA were passed to help vendors collect on contracts

85
Q

In an action on a contract seeking payment of money - what must the P do?

A

the Plaintiff must file with his complaint (or motion for judgment or civil warrant in GDC) and an affidavit stating
(1) the amount of his claim
(2) that the amount is justly due; and
(3) the date from which he seeks interest

86
Q

after the defiant is served with process and the affidavit together (stating P’s action on contract seeking payment of money) - what must D do?

A

the D must plead under oath that the P is not entitled to the money. If the D does so - then the Plaintiff is entitled to a continuance if she moves for it

87
Q

what happens if the D fails to plead under oath that the P is not entitled to the money?

A

then judgment is entered for the plaintiff

88
Q

after the D responds to the P’s pleading - must the plaintiff do anything?

A

No, as generally whatever the D says in their plea/motion/answer is automatically deemed DENIED by the P (with one exception)

89
Q

what must the P do if the D pleads a new matter in their defensive response and expressly requests that the P respond to the new matter?

A

then the P has 21 days in which to admit or deny that the new matter in a document called a “REPLY”

90
Q

what are P’s options if D’s answer is insufficient legally?

A

then the P can’t file a demurrer (since they only lie against pleadings that assert a cause of action); the P wold instead file a motion to strike the pleading

91
Q

AMENDING PLEADINGS - do parties have a right to amend pleadings in VA?

A

No! there is never a right to amend, a party must get leave to amend.

92
Q

what happens if a P files an ‘amended complaint’ without getting leave to amend?

A

then it has NO LEGAL EFFECT

93
Q

when will amendment usually be allowed?

A

amendment will be allowed liberally to FURTHER THE ENDS OF JUSTICE.

Generally, the court will consider whether allowing the amendment would
a) unduly delay proceedings; or
b) prejudice a party; or
c) whether the amendment would be futile

the trial court decision will be upheld unless it is an abuse of discretion

94
Q

when is “relation back” appropriate in VA?

A

Other amendment issues (for example, to conform to evidence) are the same as in federal court.

Exception: RELATION BACK is appropriate IF
(1) the amended document concerns the same transaction or occurrence as the original,
(2) the party seeking amendment has been reasonably diligent, and
(3) the other party is not substantially prejudiced

95
Q

what about relation back when adding a new defendant?

A

the new party had to have 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

VA Civil Procedure (14 decks)

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