Pleadings-CC Flashcards
Virginia has abolished the distinctions between cases…
“at law” and “at equity.” Now all civil cases are called civil actions regardless of whether they involve legal or equitable causes of action.
What is a summons called in CC?
Summons
How does P start the case in Circuit Court?
File either a: Complaint or Petition (if suing for a writ)
What must a complaint/petition contain?
- Name of court
- Names of parties
- addresses of parties
- Signature of lawyer
- Statement of facts (in numbered paragraphs)
What may a complaint/petition contain?
Prayer for relief, including:
- Ad damnun clause (amt. of money damages sought)
- Separate identification of punitive damages
A complaint/petiton does not need to contain:
- Allegation of jurisdiction
- Allegation of venue
What happens if P joins unrelated claims?
- This is called misjoinder.
- Not allowed in VA.
- D can file a demurrer.
If process is not served within one year of commencement, what options does D have?
- D makes a motion to dismiss
- special appearance.
- If P did not do due diligence with service, the case is dismissed with prejudice.
- If P did use due diligence, the motion is denied
- D must respond within 21 days of the denial of the motion.
A demurrer can either be…
sustained or overruled.
What does D put in her answer?
It’s like an answer in federal court.
- Responses to allegations of the complaint (admit, deny, state lack of knowledge) in numbered paragraphs and
- affirmative defenses, which they call special pleas.
- general denial
- one sentence long – it denies all the allegations of the complaint.
If P fails to object to lack of verification within 7 days of service of D’s answer, what happens?
Objection waived.
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?
They have no legal effect until the court grants leave.
If P files suit before the SOL, can she amend to add new defendants after the SOL has run?
No.
What will courts consider when deciding whether to allow leave to amend?
- 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.
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
Relation back when adding new defendant is ONLY appropriate when…
- new party had 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
Other amendment issues are…
same as in federal court.
When does P have to respond to D’s response?
Only if D inserts new facts into the case and expressly requests that P respond to them
Then P has 21 days to respond in a reply
How can a special plea be raised?
- Separately
- As a motion to dismiss
- In the answer
With regard to personal jurisdiction, what requires a special appearance, and what is okay for a general appearance?
No personal jurisdiction or service was never made - special appearance
Service was improper - general appearance is okay, but waived if not brought up at beginning
In Circuit Court, how does D respond to P’s complaint?
A number of options:
- Motion for bill of particulars__
- Motion objecting to venue__
- Special appearance to challenge personal jurisdiction
- Motion to quash process__
- Demurrer__
- Special plea__
- Answer__
When is D required to raise a defense in a sworn pleading or affidavit?
Defenses based on:
- Lack of genuineness of handwriting
- Lack of corporate or partnership agency status
- Lack of ownership or operation of property/instrument
What is common law “recoupment”?
When D pleads equitable defenses in legal claims on contracts (e.g., failure of consideration, fraud in the inducement, breach of warranty, etc.)
When is D required to file her answer?
Within 21 days after the court has overruled all demurrers, pleas, and motions
How does D raise a statute of limitations defense?
Special plea
When P files a complaint, that tolls the statute of limitations for what?
- P’s claim
- Counterclaims arising from same T/O
- Crossclaims arising from same T/O
What happens if D responds without raising a special plea?
It is waived
In Circuit Court, how does D challenge personal jurisdiction?
Must make a special appearance
Must be raised first and by itself, or waived (that would be called a general appearance)
What would D files to argue lack of SMJ?
Demurrer
What if a demurrer says that P’s pleading is “insufficient as a matter of law” or “fails to state facts showing P is entitled to relief”?
This is not good enough - P must specifically state why the complaint is not good enough
What is a special plea?
This is Virginia’s version of the affirmative defense
In Virginia, when can you amend the pleadings?
Only if you get leave to amend
This is not the case in Federal court
In Circuit Court, what are the requirements for a motion objecting to venue?
Must state:
- Why venue was improper
- What venue is proper
Must be timely (i.e., within 21 days of service)
To argue that service was improper, what motion would D make?
Motion to quash process
What happens if P joins unrelated claims?
This is misjoinder, and it is unique to Virginia
If a demurrer is sustained, what does a court do?
Sustains without prejudice and sets a time for amendment
In addition to common law recoupment, when can D raise equitable defenses in a legal contract action?
Under Virginia Code, but the court cannot:
- Reform the contract
- Rescind the contract
- Compel the conveyance of land
When should D file a demurrer with respect to when she files an answer?
Demurrer must be filed before the answer
If D’s response is somehow inadequate, what does P file?
A motion to strike the pleading
Not a demurrer - that is only in response to causes of action
What do special statutes in Virginia do to help vendors collect on contracts?
If P files with his complaint (in Circuit Court) or civil warrant/motion for judgment (in GDC) an affidavit stating:
- Amount of claim
- Amount is justly due
- Date from which he seeks interest
And D does not plead under oath that P is not entitled to the money, then judgment entered for P
Deadline for:
- Answers
- All discovery responses
- Counter/Crossclaims
21 days
- BUT, can’t be less than 28 days after D is served with complaint.
- 3 extra days for mailing
- Follow same counting rules as federal court
