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
