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VA Civil Procedure > Pleadings-CC > Flashcards

Pleadings-CC Flashcards

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Civil Procedure 1L flashcards
1
Q

Virginia has abolished the distinctions between cases…

A

“at law” and “at equity.” Now all civil cases are called civil actions regardless of whether they involve legal or equitable causes of action.

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2
Q

What is a summons called in CC?

A

Summons

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3
Q

How does P start the case in Circuit Court?

A

File either a: Complaint or Petition (if suing for a writ)

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4
Q

What must a complaint/petition contain?

A
  • Name of court
  • Names of parties
  • addresses of parties
  • Signature of lawyer
  • Statement of facts (in numbered paragraphs)
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5
Q

What may a complaint/petition contain?

A

Prayer for relief, including:

  • Ad damnun clause (amt. of money damages sought)
  • Separate identification of punitive damages
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6
Q

A complaint/petiton does not need to contain:

A
  • Allegation of jurisdiction
  • Allegation of venue
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7
Q

What happens if P joins unrelated claims?

A
  • This is called misjoinder.
  • Not allowed in VA.
  • D can file a demurrer.
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8
Q

If process is not served within one year of commencement, what options does D have?

A
  • 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.
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9
Q

A demurrer can either be…

A

sustained or overruled.

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10
Q

What does D put in her answer?

A

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.
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11
Q

If P fails to object to lack of verification within 7 days of service of D’s answer, what happens?

A

Objection waived.

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12
Q

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?

A

They have no legal effect until the court grants leave.

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13
Q

If P files suit before the SOL, can she amend to add new defendants after the SOL has run?

A

No.

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14
Q

What will courts consider when deciding whether to allow leave to amend?

A
  • 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.
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15
Q

Relation back is appropriate if…

A
  • 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
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16
Q

Relation back when adding new defendant is ONLY appropriate when…

A
  • 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
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17
Q

Other amendment issues are…

A

same as in federal court.

18
Q

When does P have to respond to D’s response?

A

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

19
Q

How can a special plea be raised?

A
  • Separately
  • As a motion to dismiss
  • In the answer
20
Q

With regard to personal jurisdiction, what requires a special appearance, and what is okay for a general appearance?

A

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

21
Q

In Circuit Court, how does D respond to P’s complaint?

A

A number of options:

  1. Motion for bill of particulars__​
  2. Motion objecting to venue__​
  3. Special appearance to challenge personal jurisdiction
  4. Motion to quash process__​
  5. Demurrer__​​
  6. Special plea__​​
  7. Answer__​
22
Q

When is D required to raise a defense in a sworn pleading or affidavit?

A

Defenses based on:

  • Lack of genuineness of handwriting
  • Lack of corporate or partnership agency status
  • Lack of ownership or operation of property/instrument
23
Q

What is common law “recoupment”?

A

When D pleads equitable defenses in legal claims on contracts (e.g., failure of consideration, fraud in the inducement, breach of warranty, etc.)

24
Q

When is D required to file her answer?

A

Within 21 days after the court has overruled all demurrers, pleas, and motions

25
Q

How does D raise a statute of limitations defense?

A

Special plea

26
Q

When P files a complaint, that tolls the statute of limitations for what?

A
  • P’s claim
  • Counterclaims arising from same T/O
  • Crossclaims arising from same T/O
27
Q

What happens if D responds without raising a special plea?

A

It is waived

28
Q

In Circuit Court, how does D challenge personal jurisdiction?

A

Must make a special appearance

Must be raised first and by itself, or waived (that would be called a general appearance)

29
Q

What would D files to argue lack of SMJ?

A

Demurrer

30
Q

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”?

A

This is not good enough - P must specifically state why the complaint is not good enough

31
Q

What is a special plea?

A

This is Virginia’s version of the affirmative defense

32
Q

In Virginia, when can you amend the pleadings?

A

Only if you get leave to amend

This is not the case in Federal court

33
Q

In Circuit Court, what are the requirements for a motion objecting to venue?

A

Must state:

  • Why venue was improper
  • What venue is proper

Must be timely (i.e., within 21 days of service)

34
Q

To argue that service was improper, what motion would D make?

A

Motion to quash process

35
Q

What happens if P joins unrelated claims?

A

This is misjoinder, and it is unique to Virginia

36
Q

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

A

Sustains without prejudice and sets a time for amendment

37
Q

In addition to common law recoupment, when can D raise equitable defenses in a legal contract action?

A

Under Virginia Code, but the court cannot:

  • Reform the contract
  • Rescind the contract
  • Compel the conveyance of land
38
Q

When should D file a demurrer with respect to when she files an answer?

A

Demurrer must be filed before the answer

39
Q

If D’s response is somehow inadequate, what does P file?

A

A motion to strike the pleading

Not a demurrer - that is only in response to causes of action

40
Q

What do special statutes in Virginia do to help vendors collect on contracts?

A

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

41
Q

Deadline for:

  • Answers
  • All discovery responses
  • Counter/Crossclaims
A

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

VA Civil Procedure (16 decks)

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