Pleadings Flashcards
by filing a pleading or making a motion, you verify that
read the pleading, after reasonable inquiry it is well grounded in fact and good law, and not being filed for an improper purpose
every pleading must be…
signed by a pro se litigant or attorney admitted to practice in virginia
by statute, a signature defect
can be cured within 21 days after it is brought to the attention of the offending party
punitive damages
must be able to show egregious willful or wanton conduct
punitive damages are capped at
300k
Circuit court– initial pleading called
complaint
GDC– initial pleading called
complaint, motion for judgment, or form
responsive pleading is called
answer
answer must be filed..
within 21 days of service of process
Counterclaim
claim by d against a plaintiff
In Va, all counterclaims are
optional and do not need to arise from same t/o
crossclaim
a claim by d against d; must arise from same t/o
third party claim
claim from d against a new 3d party
aggressive pleading
asserts a claim for relief
defensive or responding pleading
responds to aggressive pleading
responsive pleadings- gdc
no need to respond just show up; unless court requires it
if responsive pleading asserts a new matter and expressly requests a reply
other side must reply within 21 days after denying or admitting new matter or new allegations are deemed admitted
motion for bill of particulars
responsive pleading asking the court to compel other side to provide more information
within 21 days avoids default judgment
Demurrer
responsive pleading that contends that even if all facts are true it does not state a cause of action as a matter of law
if court grants demurrer, p can file an amendment that must
incorporate all allegations in original complaint
a demurring party admits all facts pled by plaintiff, but
does not admit conclusions of law set forth by plaintiff
Motion craving oyer
made to require the document being sued to be produced at the pleading stage
motion to strike
challenges the sufficiency of defendant’s pleading
motion to set matter for hearing on bill and answer
only equity claims; p asks court to consider whether answer is sufficient to make a defense
affirmative defenses and plea in bar
if valid, will bar plaintiff’s claim
d must plead and prove..
an affirmative defense
affirmative defenses that are responsive pleadings and stop the 21 day clock
SOL and laches; res judicata (claim preclusion), collateral estoppel; contributory negligence; SOF
Default occurs when defendant does not
appear or reply
GDC- nonapearrance
treated as default; waives admissability of evidence
if neither p nor d appear,GDC…
dismisses w/o prejudice
if d appears and p does not…
dismisses w/o prejudice
if d fails to file a responsive pleading in circuit court, he is in
default
what does d give up?
right to further notice unless there is counsel of record, right to request a jury trial
D may still appear to contest
damages and bring evidence on this
counterclaim
d asserts claim against p
does it need to arise from same t/o?
no; statute of limitations may still apply for that claim
if it does arise from same t/o, sol is tolled by claim of plaintiff
plaintiff must file a responsive pleading to counterclaim
within 21 days of service or is deemed in default
cross-claim
d asserts a claim against co-defendant
these must arise from same t/o
co-d must file a responsive pleading within
21 days of service or be in default
third party claim
defendant brings a third party to the suit on the theory that third party owes defendant indemnification or contribution
litigants may mix
contract and tort claims and alternative theories so long as same t/o
splitting a cause of action
p can file separate suits for pi and property damage, even if same t/o
amendments to pleadings
trial courts are mandated to liberally grant leave to amend unless amendment would result in prejudice to responding party
Filing Late pleadings
judge has discretion to allow a party to file a late pleading even if default judgment is entered if court still has jdx and it is not more than 21 days from final order
interpleader
there may be competing claims so stakeholder files an interpleader action to decide who is entitled to the property
intervention
file a petition to intervene in a pending proceeding
lis pendens
gives notice to the world that there is a suit presently pending which may affect the use of land
