Pleadings

Question 1

Pleadings Form

Answer 1

All pleadings must state, in numbered paragraphs, the facts on which the party relies/ A pleading is OK if it clearly informs the opposing party of the true nature of the claim or defense.
At least 1 individual lawyer must also be set forth and sign.

Question 2

Attorney Certificate

Answer 2

The attorney (or a pro se party) must sign all pleadings, motions, and other papers, certifying that:
(1) she has read it
(2) to the best of her knowledge, information and belief, it is grounded in fact and law and
(3) it is not for harassment or delay

Question 3

One Motion that Cannot be Extended?

Answer 3

Motion Challenging Venue

Question 4

Magic Number in Virginia Civil Procedure

Answer 4

21

Question 5

Pleading Rules in General District Court

Answer 5

Plaintiff obtains a civil warrant (printed form) from the clerk of the court and fills in the blanks regarding names of the parties and nature of the grievance.
- The civil warrant is directed to the sheriff or deputy, who then serves it on the defendant.
- The warrant tells the defendant that he must appear in court on a certain day to respond.
- The return date cannot be more than 60 days or fewer than 5 days after service.

Question 6

General District Court: Responsive Pleading

Answer 6

The defendant generally does not file a responsive pleading.

Question 7

Bill of Particulars

Answer 7

If the defendant wants more details about the plaintiff’s case they can move for a bill of particulars - this is discretionary with the court.
- If the court orders the plaintiff to file a bill of particulars or orders the defendant to file grounds of defense and they fail to do so, the court can enter summary judgment against the party failing to file.

Question 8

General District Court: Venue

Answer 8

The defendant can object to venue any time on or before the day of trial.

Question 9

Circuit Court: Plaintiff’s Pleading

Answer 9

A plaintiff starts the case by filing a “complaint.” If the plaintiff is suing for mandamus, prohibition, or certiorari, it is called a “petition.”

Question 10

Circuit Court: Plaintiff’s Pleading Must Contain and Allege (Or Not Allege)

Answer 10

Pleading Must Contain:
1. Name of the Court
2. Names and Addresses of the parties
3. Signature of Lawyer
4. Statement of Facts in Numbered Paragraphs
5. Must clearly inform the defendant of the true nature of the claim.
6. Must make a statement of relief desired - called a prayer.

Plaintiff does not need to allege jurisdiction.
Plaintiff does not need to allege venue.

Question 11

Circuit Court: Damages in Plaintiff’s Pleading

Answer 11

Must make a statement of relief desired - called a prayer.

An ad damnum clause is a statement of relief for damages.

Punitive damages must be identified separately in the prayer for relief.

Question 12

Circuit Court: Combining Claims

Answer 12

Plaintiff can join claims arising from the same transaction or occurrence - this is very limited.

Question 13

Circuit Court: Defendant’s Response

Answer 13

The defendant must respond to the complaint within 21 days after service of process. Several ways to Respond:
1. Motion for Bill of Particulars
2. Motion Objecting to Venue (must be timely - filed within 21 days after SOP)
3. Process Not Served within 1 year of commencement - defendant can move to dismiss
4. Challenge personal jurisdiction
5. Motion to Quash Process
6. Demurrer
7. Special plea or “Plea in Bar of Recovery”
8. Answer
9. Equitable Defenses to Legal Actions

Question 14

Defendant Makes General Appearance (CC)

Answer 14

If the defendant makes a “general appearance,” she waives the defense of personal jurisdiction.

A general appearance is any conduct that engages the merits of the case. This includes an answer, demurrer, special pleas, counterclaim, cross-claim, third-party claim, conducting discovery, seeking a ruling on the merits, and participating in proceedings related to the merits.

Question 15

Circuit Court: Challenging Personal Jurisdiction

Answer 15

Defendant must raise lack of personal jurisdiction before doing anything that engages the merits. If she raises personal jurisdiction at the same time (or after) engaging the merits, it is waived.
- Defendant does not waive PJ if she raises it at the same time as a motion objecting to venue and for transfer.
- Defendant DOES waive PJ if she raises it after making the motion to objecting to venue

To challenge personal jurisdiction, some call it a “motion to dismiss for lack of PJ,” some a “special appearance.”

Question 16

Motion to Quash Process

Answer 16

To argue that service of process of process was improper or that there was a problem with issuance of process or with the return, defendant would make a motion to quash process.
- Defense is waived if the defendant makes a general appearance.
- OK to file before or with response to merits.

Question 17

Demurrer

Answer 17

A demurrer tests the sufficiency of a pleading that seeks affirmative relief. Can be used to challenge the following:
1. Misjoinder of Claims
2. Lack of Subject Matter Jurisdiction
3. Failure to State A Cause of Action

NOTE: Demurrer is a general appearance and therefore waives personal jurisdiction.

Question 18

Special Plea or “Plea in Bar of Recovery”

Answer 18

These are like affirmative defenses in federal court, such as statute of limitations or res judicata. A special plea may be raised separately, as a motion to dismiss, or stated like affirmative defenses in the answer.

Question 19

Defendant’s Answer Must Contain

Answer 19

1. Responses to allegations of the complaint (admit, deny, state lack of knowledge) in numbered paragraphs
2. Affirmative Defenses - which are called special pleas

After the court has overruled all demurrers, pleas and motions, the defendant will be ordered to file her answer within 21 days or

Question 20

Plaintiff’s Reply To Defendant’s Answer

Answer 20

After the defendant responds, generally, whatever the defendant says is automatically deemed denied by the plaintiff, so they don’t have to do anything.

Only exception is if Defendant pleads new matter in his defensive response and expressly requests the Plaintiff to respond.
- Plaintiff has 21 days to “admit” or “deny”

If Defendant’s answer is legal insufficient, Plaintiff cannot file a demurrer but can file a motion to strike the pleading.

Question 21

Amending Pleadings

Answer 21

There is never a right to amend. A party must get leave to amend.