Pleadings - Part C

Question 1

Pleading and the affirmative defense

Answer 1

It is not always necessary to plead an affirmative defense

Question 2

Burden of proof and the affirmative defense

Answer 2

Burden of proof is always with the defendant

Question 3

What is an example of an affirmative defense that need not be pled?

Answer 3

Failure to mitigate damages

Question 4

What are the affirmative defenses that are responsive pleadings and will shut off the 21 day clock? (13)

Answer 4

SOL and latches, res judicata, collateral estoppel, contributory negligence, SOf, Accord and satisfaction, assumption of risk, discharge in bankruptcy, fraud, illegality, release, workers compensation, and estoppel (not exhaustive)

Question 5

Mutuality of estoppel and Virginia

Answer 5

Virginia requires mutuality of a estoppel in that a party may not rely on res judicata or collateral estoppel unless he would have been bound had the judgment been adverse to him

this is different than the MBE

Question 6

What is mutuality of estoppel?

Answer 6

The doctrine that provides generally that a judgment in a prior litigation will preclude litigation of a matter any subsequent action only were both parties to that subsequent action are bound by prior judgment

Question 7

What is a default judgment?

Answer 7

A final judgment then may be issued against the defendant in default

Question 8

How does default occur?

Answer 8

It occurs when the defendant does not appear or respond to a complaint within the required time.

Question 9

Nonappearance by defendant in GDC

Answer 9

If a defendant does not appear the judge will treat this failure to appear as a default

Question 10

What are the consequences of the defendants default in GDC?

Answer 10

Waiver of all objections to the admissibility of evidence

Question 11

What happens if neither defendants nor plaintiff appears

Answer 11

The GDC judge dismisses the action without prejudice

Question 12

What happens if the defendant appears but the plaintiff does not in the case is not before the court for trial

Answer 12

The judge dismisses the action without prejudice

Question 13

What happens if the defendant but not the plaintiff appears on the trial date and the defendant admits to owing any portion of the plaintiffs claim

Answer 13

The judge dismissed the case without prejudice

Question 14

What happens if the defendant but not the plaintiff appears on the trial date and the defendant denies owing plaintiff anything

Answer 14

The judge must dismiss the case with prejudice (final ruling for the def)

Question 15

What happens if defendant fails to file a responsive pleading within 21 days in CC?

Answer 15

Will be found in default

Question 16

What are the consequences of default in CC? (3)

Answer 16

-the defendant gives up the right to any further notice of Proceedings unless there is a counsel of record in which case the counsel of record is entitled to notice
-waives the right to request a jury trial
-if the claim is for an unliquidated amount, the court is to hear evidence and fix the amount at a damages hearing (in CC, if the defendant appears at the hearing on damages, defendant is entitled to fully participate in the damages hearing, including by raising evidentiary issues regarding the amount of damages (but not by raising issues of liability)

Question 17

What happens with a counterclaim that does arise out of the same transaction?

Answer 17

The sol with regard to the counterclaim is tolled by commencement of the plaintiffs claim (sol will apply for a counter claim that does not arise out of same transaction)

Question 18

Counterclaim being more than what the plaintiff sued for

Answer 18

It may be more than what the plaintiff sued for

Question 19

What’s must a plaintiff do with a counterclaim?

Answer 19

Must file a responsive pleading to the counterclaim within 21 days of service or is deemed to be in default

Question 20

What must a co-def do with a cross-claim?

Answer 20

Codefendant must file a responsive pleading to the cross-claim within 21 days of service or be in default (admitting the allegations in the cross claim)