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VA Procedure > Pleadings - Circuit Court > Flashcards

Pleadings - Circuit Court Flashcards

1
Q

To commence a civil action in Circuit Court, a plaintiff must file …

A

a complaint.

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2
Q

A complaint must contain:

A
  1. The name of the court;
  2. Names and addresses of the parties;
  3. Signature of the lawyer;
  4. Statement of the facts in numbered paragraphs; and
  5. Must clearly inform the defendant of the true nature of the claim.
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3
Q

Must the plaintiff make a statement of relief desired?

A

Yes; it might be called a prayer.

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4
Q

A statement of relief for damages is sometimes called:

A

An ad damnum clause.

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5
Q

What must be identified separately in the prayer for relief?

A

Punitive damages.

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6
Q

The joining of unrelated claims is called…

A

misjoinder of claims or actions.

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7
Q

A defendant must respond to a complaint…

A

within 21 days after service of process upon her.

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8
Q

A motion for bill of particulars…

A

asks the court to require the plaintiff to amplify her pleading.

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9
Q

When must a motion for bill of particulars be made?

A

“promptly”

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10
Q

A motion objecting to venue must state:

A

(1) why venue is improper and;
(2) what places would be proper.

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11
Q

A motion objecting to venue must be made within:

A

21 days after service of process (unless the court extends the time in which to file a responsive pleading).

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12
Q

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

A

Yes. The court has the power to transfer.

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13
Q

If the plaintiff does not have process served within ____ of commencement, the defendant can move to dismiss, which is a _______.

A

1 year; special appearance.

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14
Q

If a plaintiff does not use diligence in trying to serve process, the case is

A

dismissed with prejudice.

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15
Q

If the defendant wants to challenge personal jurisdiction, they must do so…

A

before doing anything that engages the merits of the case. If she raises PJ at the same time (or after) engaging in the merits, the defense will be waived.

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16
Q

Defendant is sued and responds with an answer in which she asserts lack of PJ. Defendant has waived the defense. Why?

A

The answer alone engages the merits.

[note – different from FRCP].

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17
Q

Defendant is sued and requests (or agrees to) an extension of time in which she can respond, has she waived PJ?

A

No, an extension of time is not a general appearance.

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18
Q

A defendant (does/does not) waive PJ if she raises it at the same time as a motion objecting to venue and for transfer.

A

does not

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19
Q

A defendant (does/does not) waive PJ if she raises it after making a motion objecting to venue.

A

does

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20
Q

Defendant is sued and responds with a motion to transfer venue, which they label a “special appearance.” Has the defendant waived PJ?

A

Yes, because she raised venue first.

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21
Q

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

A

A motion to quash process.

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22
Q

Service-related defenses (are/are not) waived if the defendant makes a general appearance.

A

are

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23
Q

Is it okay to file a motion to quash process (challenging service of process) simultaneously with a pleading responding to the merits?

A

Yes, it is OK to file before or with response to the merits.

24
Q

A _____ tests the sufficiency of a pleading that seeks affirmative relief.

A

demurrer

25
Q

Can a demurrer be used for a misjoinder of claims?

A

yes

26
Q

Can a demurrer be used for the lack of SMJ?

A

yes

27
Q

Can a demurrer be used for lack of PJ?

A

NO – a demurrer is a general appearance and waives personal jurisdiction.

28
Q

Can a demurrer be used for the failure to state a cause of action?

A

Yes, this is the main use.

29
Q

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

A

That will be ineffective, Defendant must state specifically why Plaintiff’s pleading is insufficient.

30
Q

A demurrer (can/can not) allege new facts.

A

can not

31
Q

Suppose the Defendant thinks the case should be arbitrated because of a clause in the contract, but the plaintiff failed in her complaint to mention the arbitration clause or annex the contract. What must the defendant do?

A

File a motion craving oyer.

[D may not use a demurrer here because that would allege a new fact].

32
Q

While motions are typically “granted,” or “denied,” what terminology is used for demurrers?

A

“Sustained” or “overruled.”

33
Q

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

A

Usually, sustain without prejudice and set time for an amendment.

34
Q

When must a defendant file a demurrer?

A

Before her answer or at the same tme.

35
Q

What happens if a defendant files her answer before she demurs?

A

She will have to seek court permission to demur.

36
Q

In Virginia, a ___________ is synonymous with an “affirmative defense” in federal court.

A

A special plea or a “plea in bar of recovery.”

37
Q

An answer by a defendant must include:

A
  1. Responses to allegations of the complaint (admit, deny, state lack of knowledge) in numbered paragraphs, and
  2. Affirmative defenses, which are called special pleas.
38
Q

Plaintiff sues defendant. Defendant wants to raise the defense of Statute of Frauds. How can he raise this?

A

Defendant must assert special pleas in his answer (or else waived);

Alternatively, he could move to dismiss.

39
Q

After the court has overruled all demurrers, pleas, and motions, the defendant will be ordered to file her motion within _____.

A

21 days, or such time as the court directs.

40
Q

For legal causes of action in contracts, equitable defenses such as failure of consideration, fraud in the inducement, breach of warranty, or unconscionability, for example, are called ______ in Virginia.

A

common law recoupment

41
Q

The common law recoupment statute in Virginia makes it clear that a Defendant may raise these defenses in a damages action on a contract and can recover damages for them. However, under this statute, a court may not:

A

Reform or rescind a contract, or compel the conveyance of land.

42
Q

Certain defenses must be raised in a ________, that is, made under oath or “verified.”

A

sworn pleading or affidavit

43
Q

What are some pleadings that must be sworn?

A
  1. Lack of genuineness of handwriting;
  2. Lack of corporate, partnership, or agency status;
  3. Lack of ownership or operation of property or instrumentality.
44
Q

Plaintiff sues Draper, alleging that Sterling was working for Draper when he (Sterling) ran over Plaintiff. 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 status). What should Plaintiff do?

A

File a motion to strike the defensive pleading within 7 days after filing.

45
Q

What if plaintiff fails to strike a defensive pleading for lack of the document being sworn within 7 days?

A

The plaintiff waives the objection.

46
Q

In an action on a contract seeking payment of money, the plaintiff can file with his complaint an affidavit stating:

A
  1. The amount of his claim;
  2. That the amount is justly due; and
  3. The date from which he he seeks interest.
47
Q

After being served with the process and affidavit together, what happens if the defendant fails to plead under oath that the plaintiff is not entitled to money?

A

Judgment is entered for the plaintiff.

48
Q

What if the defendant does plead under oath that the plaintiff is not entitled to the money?

A

The plaintiff is entitled to a continuance if she moves for it.

49
Q

When a defendant responds, generally whatever the defendant pled in his motion, answer, plea, etc. is automatically deemed ____ by the plaintiff.

A

denied

50
Q

However, if the defendant pleads a new matter in his defensive response and expressly requests that the plaintiff respond to the new matter, then the plaintiff…

A

has 21 days in which to admit or deny that new matter in a document called a “reply.”

51
Q

Distinct to Virginia [from federal], there is never a _______ amend.

A

a right to

52
Q

What must a party do to amend a pleading in Virginia?

A

Seek leave of court.

53
Q

If a party files an amended pleading without getting leave of court, what is the effect of that pleading?

A

It will have no legal effect, it is a nullity.

54
Q

Amendments will be allowed liberally by the court to…

A

further the ends of justice.

55
Q

Generally, the court will consider whether allowing an amendment would:

A
  1. Unduly delay proceedings;
  2. Prejudice a party; or
  3. Whether the amendment would be futile.

VA Procedure (17 decks)

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