Termination of the Case Without Trial

Question 1

If P takes a nonsuit and wants to refile, when can he do so?

Answer 1

Within 60 months or SOL period, whichever is longer

Question 2

What is different in Virginia regarding default?

Answer 2

It is entered automatically

Question 3

When can P take a nonsuit without prejudice?

Answer 3

Only once, and only if the following is true:

• At time of motion:
  
  • Jury not retired from bar
  • jury case not submitted for decision
  • Motion to strike evidence wasn’t granted
  • Demurrer or special plea was not:
    
    • Fully argued
    • Awaiting decision

Question 4

If D filed a counterclaim or crossclaim, can P take a nonsuit?

Answer 4

Only if:

• D agrees
• D’s claim can be adjudicated independently

Question 5

What is different in Virginia regarding summary judgment?

Answer 5

Not granted if:

1. Conflict in pleadings
2. Based on affidavits
3. Based on depositions (unless all parties agree)
4. Divorce or annulment case

Question 6

If a party files within the statute of limitations, but then takes a nonsuit after the statute has run, can he refile?

Answer 6

Yes. He can refile within the later of:

• 6 months
• End of statute of limitations

Question 7

If the court enters nonsuit, is it appealable if:

• D does not object
• D objects

Answer 7

No objection

• No appeal (it is without prejudice)

Objection

• Appeal (as to whether nonsuit should have been granted)

Question 8

What is a nonsuit?

Answer 8

Plaintiff decides to drop the case.

Question 9

A defendant in default is not entitled to notice of any further proceedings in the case, including notice to take depositions, except…

Answer 9

that written notice of any further proceedings shall be given to counsel of record, if any. The defendant in default is deemed to have waived any right to trial of issues by jury.

Question 10

What is the rule regarding granting the defendant in default to respond?

Answer 10

Prior to the entry of judgment, for good cause shown the court may grant leave to a defendant who is in default to file a late responsive pleading.

Question 11

What is the procedure to get a default judgement?

Answer 11

Plaintiff moves for judgement to be entered (except for divorces and annullments)

Question 12

What will the court do if the plaintiff receives a default judgement for unliquidated damages?

Answer 12

the court shall hear evidence and fix an amount.

Question 13

What is the plaintiff’s other option for damages in a default judgement?

Answer 13

the plaintiff can demand a trial by jury, in which event, a jury shall be impaneled to fix the amount of damages.

jury cannot determine the facts

Question 14

What can D do if h is present at a default judgement damages hearing?

Answer 14

he may not offer proof or argument on the issues of liability, but may

(i) object to the plaintiff’s evidence regarding damages,
(ii) offer evidence regarding the quantum of damages,
(iii) participate in jury selection if a jury will hear the damage inquiry,
(iv) submit proposed jury instructions regarding damages, and
(v) make oral argument on the issues of damages.

Question 15

A defendant can receive relief from a default judgement within __ days.

Answer 15

21

Question 16

What does the court consider when deciding to relieve the defendant from the default judgement?

Answer 16

• The extent and causes of the defendant’s delay in tendering a responsive pleading
• whether service of process and actual notice of the claim were timely provided to the defendant, and
• the effect of the delay upon the plaintiff.

Question 17

A default judgement cannot be challenged by the defendant after __ days.

Answer 17

21