Pleadings Flashcards
is there an automatic right to amend a pleading in Virginia?
No, Virginia does not allow automatic amendments. A party must obtain court permission, which is usually granted liberally unless:
It unduly delays proceedings.
It prejudices a party.
The amendment would be pointless.
What elements must be shown for the filing date of an amended complaint to relate back to the initial filing?
i) The cause of action must arise out of the same conduct, transaction, or occurrence in the initial pleading.
(ii) The new party must have had notice of the action within the legally provided time.
(iii) The amendment must not prejudice the opposing party’s defense.
(iv) The new party must have known the action would have been brought against them but for a mistake in identity.
What is a misnomer?
A misnomer is a mistake in the name, not the person.
How should a lawsuit be titled for a minor?/ what is the age of majority?
Child Name], a minor, who sues by her next friend, [Parent Name], Plaintiff v. [Defendant Name], Defendant.
The age of majority in Virginia is 18.
What is the purpose of a demurrer?
To test the legal sufficiency of a plaintiff’s pleading.
It is not a final order.
What issues can a demurrer challenge?
Misjoinder of claims: Yes.
Lack of subject matter jurisdiction: Yes.
Failure to state a cause of action: Yes (primary use).
Lack of personal jurisdiction: No, it constitutes a general appearance and waives PJ.
What is a motion craving oyer?
A motion that petitions the court to include necessary documents in the record for making a decision.
What defenses are waived if not initially pleaded?
Personal jurisdiction.
Statute of limitations defense.
How to Properly challenge PJ?
To challenge PJ, file a motion to dismiss for lack of PJ or make a special appearance clearly indicating the challenge.
When is the right to take a nonsuit absolute?
Before:
A motion to strike the evidence is sustained.
The jury commences deliberation.
The case is submitted to the judge.
Is an order of nonsuit appealable?
An order of nonsuit is a final, appealable order, but only if there is a dispute about whether the trial court properly granted the nonsuit.
What factors does the court consider when granting leave to file late pleadings?
Reason for the delay.
Prejudice to the opposing party.
Good faith of the moving party.
Existence of a substantial defense (e.g., contributory negligence).
Promptness of the moving party.
What happens if a defendant is in default?
Defaulting defendant admits liability.
Can no longer challenge liability but can:
Object to plaintiff’s evidence regarding damages.
Offer evidence regarding damages.
Is not entitled to further notice, except:
Notice must be given to counsel of record.
Posting and mailing requirements must be met before default judgment.
What is required for an out-of-state attorney to sign pleadings in Virginia?
A pleading must be signed by:
A pro se litigant, or
At least one Virginia-licensed attorney of record.
Pleadings are invalid unless signed by local counsel.
Must a court allow a party to file late pleadings?
The decision whether to grant leave to file late pleadings is a discretionary call by the trial court and the trial court’s ruling will not be disturbed unless the SCV finds the trial court abused its discretion.
the trial court may grant relief from a default judgment if the party shows good cause.
