Pleadings

Question 1

What is the proper form for pleadings filed in Virginia?

Answer 1

All pleadings must state:

• In numbered paragraphs (not letters),
• The facts on which the party relies; OK if they clearly inform the opposing party of the true nature of the claim or defense.
• at least one individual lawyer must also be set forth and must sign. Law firm name OK.
• Documents that are basis of a claim or defense may be annexed as an exhibit, which makes them part of the pleading.

Question 2

Suppose a document that should be annexed to a pleading is not. What can the other party do?

Answer 2

File a motion craving oyer, which will require the other party to produce the document.

Question 3

What is required for an attorney to properly certify pleadings? What does this certification mean (what exactly is the attorney certifying)?

Answer 3

Attorney (or pro se party) must sign all pleadings, motions and other papers, certifying that:

(i) she has read it;
(ii) that to the best of her knowledge, information and belief (formed after reasonable inquiry), it is grounded in fact and law (or a good faith claim that the law should be modified); and
(iii) it is not for harassment or delay.

Question 4

What are the sanctions for violation of improper or wrongful certification of a pleading?

Answer 4

The attorney can be held liable for costs and attorneys fees incurred because of the improper action.

Question 5

What happens if the attorney refuses to sign or certify a document?

Answer 5

If attorney refuses to sign, the document can be stricken.

Question 6

Can you plead alternative faxts as to alternative defenses? Can these facts contradict themselves? What is this called?

Answer 6

Yes. A party can plead alternative facts as to alternative parties if they arose from the same transaction or occurence.

This is called an alternative pleading.

Question 7

Are time extensions for filing pleadings and motions available?

Who decides whether to grant extensions?

When are time extensions available?

What factors are considered when making the decision?

Are there any exceptions?

Answer 7

Yes.

The court, in the sound exercise of its discretion, may extend the time in which parties are required to file pleadings and motions. (Lack of sound exercise or discretion = an abuse of discretion).

It can do so even if the time for filing the document has passed.

It is a balancing test. The factors that are considered include:

1. Good faith of the moving party
2. Prejudice to the other party
3. Extenuating Circumstances
4. The merit of the proposed pleading

Exception:

The one motion for which time cannot be extended by the court is venue, unless the court extends the time to file a responsive pleading.

Question 8

What is the magic number in Virginia procedure?

Answer 8

21

Question 9

What are the rules for filing a pleading in General District Court?

How does the P initiate the case?

How is the D served? Who serves D?

What is included in the service?

What are the limitations on the return date?

Does D file a responsive pleading?

How do they compare to circuit court?

Answer 9

1. P obtains a civil warrant (printed form) from the clerk of the court, fills in the blanks regarding names of the parties and nature of the grievance. Instead, P can draft a tailored motion for judgment (complaint).
2. The civil warrant is directed to the sheriff or deputy, who then serves it on D. (Or, if P drafts his own motion for judgment, he can have an officer serve it, along with a notice of motion for judgment.)

The warrant (or notice of motion for judgment) tells D that he must appear in court on a certain day (“return date”) to respond.

– The return date cannot be more than 60 days or fewer than 5 days from service of process.

3. D generally does not file a responsive pleading. He and P show up on the return date and try the case. (Or, on return date, court may set a different trial date. Parties’ written statement, approved by the court, can set date.)

The rules are less formal than in Circuit Court.

Question 10

When in GDC, what type of motion should D file if D wants more details about P’s case after receiving the pleading?

Answer 10

If the pleading is vague, D can move for a bill of particulars.

Question 11

After D receives P’s pleading (motion for judgment or civil warrant), can D ever be made to file a responsive pleading?

Answer 11

Yes, the P can move for grounds of defense (answer).

Question 12

If the court orders P to file a bill of particulars or orders D to file grounds of defense and they fail to do so, what can happen?

Answer 12

The court can enter summary judgment against the party who failed to file.

Question 13

Does the trial always have to go forward on the return date?

Answer 13

No. A party may move for a continuance, the granting of which is in the court’s discretion. If a party does not move before return date, though, the motion must be denied unless she shows continuance is in the best interests of justice.

Question 14

When can D object to venue?

Answer 14

Can object to venue anytime on or before the day of trial.

Question 15

If the suit is brought on a written instrument, what is required?

Answer 15

If the suit is brought on a written instrument, the ORIGINAL document must be tendered to the court unless excused by the court by statute or for good cause.

Question 16

In Circuit Court, what is P’s pleading called? What is the effect of the pleading and what must it include?

Answer 16

The P’s pleading is called a complaint.

The effect is that P starts the case by filing the compliant.

(If P is suing for mandamus, prohibition, or certiorari, it is called a “petition.”)

– It must contain the name of the court, names and addresses of the parties, signature of lawyer, statement of facts in numbered paragraphs, must clearly inform D of the true nature of the claim.

Does not need to allege jurisdiction or venue, but P must make a statement of relief desired (a prayer).

Question 17

In Circuit Court, what is a statement of relief for damages sometimes called?

Answer 17

An ad damnum clause, which means the relief sought is damages.

Question 18

In Circuit Court, what must be identified separately in the prayer for relief?

Answer 18

Punitive damages.

Question 19

Barney sues Otis for damages from a car collision in Circuit Court. Regarding negligence, he alleges that “Otis’s negligence in driving his car proximately caused plaintiff’s injuries.” He fails to allege that Otis was drunk and driving on the wrong side of the road. Is the allegation of negligence OK? What else is required?

Answer 19

Yes, you may allege negligence and proximate cause generally.

Even though that’s true, P must still allege all elements of a cause of action for negligence. Still must address other elements like duty.

Question 20

Family Guy buys a new TV. It explodes in his apartment. He claims that the TV manufacturer is liable for breach of contract, breach of warranty, and negligence. He wants to recover for the value of the TV, damage to his apartment and personal injuries. Can Family Guy do all that in a single case?

Answer 20

Yes, you can join claims arising from the same transaction or occurrence. If join unrelated claim then this is called misjoinder of claims.

Question 21

In Circuit court, must D respond to the compliant? Is there a time requirement for reponses? If so, what type of motions can the D file to meet the requirement?

Answer 21

D must respond to the complaint within 21 days of service of process upon him.

There are several ways in which to respond. Basically, she can pursue these in any order she wants (subject to a couple of exceptions we’ll see), or can raise them simultaneously. (Tougher than Federal Court)

(a) Motion for bill of particulars. Asks the court to require the other side to amplify her pleading. Similar to federal motion for more definite statement. Must be made “promptly.” (See Fed. P. 14)
(b) Motion objecting to venue. Must state this: (1) Why venue is improper and (2) What places would be proper.
(c) Motion to quash process
(d) Special Appearace - challenge to personal jurisdiction
(e) Special plea.
(f) Answer.
(g) Equitable defenses to legal actions
(h) Demurrer

Question 22

In Circuit Court, when must the D’s response be filed to be considered timely?

Answer 22

Filed (so it must be written) within 21 days after service of process unless the court extends the time in which to file a responsive pleading.

Question 23

D files a defective motion objecting to venue (it did not state what venues were proper). Can the circuit court nonetheless transfer to a proper venue?

Answer 23

Yes, it has power to transfer even if motion is defective.

Question 24

In Circuit Court, what must a motion objecting venue state?

Answer 24

Must state this:

(1) Why venue is improper AND
(2) What places would be proper.

Question 25

If D wants to challenge personal jurisdiction in Circuit Court, what must he do?

Answer 25

To challenge personal jurisdiction, D must make a “special appearance,” in which she asserts that the court lacks personal jurisdiction (or that service of process was never made).

THIS ISSUE MUST BE RAISED FIRST AND BY ITSELF, OR ELSE THE DEFENSE IS WAIVED.

IF YOU RAISE THIS WITH OR AFTER ANOTHER RESPONSE IT IS CALLED A GENERAL APPEARNCE & IS WAIVED.

Question 26

To argue that service was improper (or that there was a problem with issuance of process or with the return), what motion would D make?

What happens if D makes a general appeance while challenging defects in process or service of process?

Answer 26

A motion to quash process for defective service of process/service of process was wrong.

Defects in process or service of process are waived if D makes a general appearance, which is basically an appearance for any purpose other than to challenge the service of process on D.

Question 27

In Circuit Court, what does a general appearance include?

Answer 27

• filing a pleading going to the merits of the case or asserting defenses
• filing a motion for bill of particulars

Question 28

In Circuit Court, is it OK to file the motion to quash process simultaneously with a pleading responding to the merits?

Answer 28

Yes, that is not a general appearance.

Question 29

What is a demurrer? When can it be used?

Answer 29

Tests sufficiency of a pleading that seeks affirmative relief. Can it be used to challenge the following:

• Misjoinder of claims
• Lack of subject matter jurisdiction
• Failure to state a cause of action

BUT NOT for lack of personal jurisdiction because this has to be a special appearence first and by itself.

Question 30

In circuit court, in a negligence action, P failed to allege that D owed any duty to P. Fails to state a cause of action. D files a demurrer, what is the result?

Answer 30

The demurrer is sustained because P left out the elements. P can’t skip elements. There is a failure to state a cause of action.

Question 31

What if demurrer says that P’s pleading is “insufficient as a matter of law” or “fails to state facts showing P is entitled to relief”?

Answer 31

This is no good. D must state the problem specificaly.

Question 32

In Circuit court, D files a demurrer that states that P failed to allege the employment relationship and that employee acted within the scope of his employment when he injured P, in suing employer for tort of employee, what is the result?

Answer 32

P fails to state a cause of action. Demurrer sustained.

Question 33

Can a demurrer allege new facts?

Suppose D thinks the case should be arbitrated because of a clause in the contract but P failed in her complaint to mention the arbitration clause or annex the contract. What should D do?

Answer 33

No. Demurrer may not allege new facts.

D should file a motion craving oyer, which will require the other party produce the document.

Question 34

What is a motion craving oyer?

Answer 34

A motion craving oyer can be filed to require the other party produce the document.

If a document that should be attached to the pleadings is omitted, the defendant can file a “motion craving oyer”, which requests the annexation of that document. If granted, the document will be attached to, and will become part of, the complaint itself.

Question 35

Motions are “granted” or “denied.” What do we usually say about demurrers?

Answer 35

They are sustained or overruled.

Question 36

If a demurrer is sustained, what does the court do?

Answer 36

Usually it sustains without prejudice and sets a time for amendment. It gives P a second shot.

Question 37

Defendant can file a demurrer before her answer or at the same time. What happens, though, if D files her answer BEFORE she demurs?

Answer 37

She can’t demur unless the court allows her.

Question 38

What is a special plea? How can it be raised?

Answer 38

It is a “plea in bar of recovery.” What we would call affirmative defenses in federal court, e.g., statute of limitations, res judicata.

– Special plea may be raised separately, as a motion to dismiss, or stated like affirmative defenses in the answer. Advantage is that they present a single set of facts which, if true, obviate the need to proceed further with the action.

Question 39

P sues D. D wants to raise the defense of statute of frauds (because their contract should’ve been in writing). How can he raise this?

Answer 39

It is a special plea. It can raise it in a motion to dismiss or answer. If the D doesn’t assert it, then he risks waiver of the defense.

Question 40

What is an answer?

What does D put in her answer?

Answer 40

It is the basic reponse to a pleading.

It’s like an answer in federal court. (i) Responses to allegations of the complaint (admit, deny, state lack of knowledge) in numbered paragraphs and (ii) affirmative defenses, which they call special pleas. So to raise the statute of limitations defense, D could move to dismiss or could assert in her answer the plea of statute of limitations.

Question 41

If the court has overruled all demurrers, pleas and motions, what will D be ordered to do?

Answer 41

D will be ordered to file her answer within 21 days or such time as the court directs.

Question 42

With legal causes of action on contracts, can D plead equitable defenses, e.g., failure of consideration, fraud in the inducement, breach of warranty, or unconscionability?

What is this called?

Answer 42

Yes, and these can diminish the Ps claim.

This is called common law recoupment.

Question 43

In addition to the common law recoupment (equitable defenses to legal actions), a statute in Virginia makes it clear that D can raise these defenses in a damages action on a contract and can recover damages for them (even in excess of plaintiff’s claim). BUT, under this statute, what can the court not order?

Answer 43

The court cannot reform or rescind the contract or compel conveyance of land.

Question 44

What are the special sworn pleading requirements? When are these requirements applicable?

Answer 44

If D wants to raise any of the following defenses, he must do so in a SWORN pleading or affidavit, i.e., he must do so under oath. Such sworn documents are sometimes called “verified.”

– Lack of genuineness of handwriting.

– Lack of corporate or partnership or agency status (which includes employment relationship).

– Lack of ownership or operation of property or instrumentality.

Question 45

P sues Draper, alleging that Sterling was working for Draper when he (Sterling) ran over P. Draper files an unsworn answer, in which he denies that Sterling was working for him at the time of the accident. That defense should have been raised in a sworn pleading (lack of agency relationship). What should P do?

Answer 45

P should make a motion to strike the pleading within 7 days after the filing.

If P fails to object to lack of verificaiton within 7 days of D’s filing, the P waives the objection.

Question 46

After D responds to P’s pleading, does P have to do anything?

Are there any exceptions?

What is this called?

Answer 46

Generally, whatever D says in his plea, motion, answer, etc. is automatically deemed denied by P, so P doesn’t have to do anything.

The only exception is if D pleads new matter in his defensive response and expressly requests that P respond to the new matter. Then, P has 21 days in which to admit or deny that new matter in a document called a “reply.”

Question 47

If D’s answer is somehow insufficient legally, P can’t file a demurrer (since they only lie against pleadings that assert a cause of action). What does P file?

Answer 47

A motion to strike the pleading.

Question 48

What is the biggest difference in Virginia practice from federal practice for amending pleadings?

Answer 48

In Virginia, there is never a right to amend pleadings.

Question 49

P files suit against D. Then, without court permission, P files an “amended complaint,” which D answers. What is the effect of the “amended complaint” and the answer to it?

Answer 49

Neither the amended compliant or the answer have any legal effect. They are annulty. Neither exists in the eyes of the law.

Question 50

P sues D on May 10. D answers on May 20. P moves to amend on June 10 to add new defendants. With her motion, P files her proposed amended complaint. The statute of limitations as to the new defendants runs on June 15. On June 20, the court grants the motion for leave to amend. What happens? The statute of limitations ran as to the new defendants – they cannot be sued. Why?

Answer 50

P did not get leave to amend before the statute ran, even though the amended complaint was proposed before the statute ran.

Question 51

When is an amended compliant allowed? What considereations does the court take into account?

Answer 51

Amendment will be allowed liberally to further the ends of justice.

Generally, court will consider whether allowing amendment would unduly delay proceedings or prejudice a party, or whether the amendment would be futile.

Trial court decision will be upheld unless it’s an abuse of discretion.

Question 52

When is relation back appropriate in state court? Are there any exceptions?

Answer 52

Relation back is appropriate 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.

Exception: Relation back when adding new defendant – new party had to have notice within limitations period of the action and knew or should have known that but for a mistake concerning identity, she would have been named originally.