Termination of the case without trial

Question 1

Termination of the case without trial: overview:

Answer 1

1) nonsuit
2) Default and default judgment
3) summary judgment

Question 2

what is a “nonsuit”?

Answer 2

a nonsuit is how the plaintiff voluntarily drops the case

Question 3

when can a Plaintiff take a ‘nonsuit’?

Answer 3

he can take a nonsuit while at trial. He has a right to do so ONCE WITHOUT PREJUDICE (meaning he has a right to refile the case) - UNLESS any of these are true:
(1) the jury is retired from the bar; or
(2) a nonjury case has been submitted to court for decision; or
(3) a motion to strike evidence is granted; or
(4) a demurrer or special plea is fully argued and awaiting decision

Question 4

can a Plaintiff move for a nonsuit while the jury is deliberating?

Answer 4

No! If it does so, it must be denied - (#1 - the jury is retired from the bar!)

Question 5

what about if the D made a motion to strike P’s evidence BEFORE the case was submitted to the jury - and the court did NOT formally rule on the motion, but indicated its strong inclination that it will grant it. Can the P take a nonsuit now?

Answer 5

Yes! Because the court did not grant the motion to strike the evidence

Question 6

can a P take a nonsuit if the D had filed a claim in the case (i.e. counterclaim, crossclaim, etc)?

Answer 6

Only if:
a) the defendant agrees; or
b) the defendant’s claim can be adjudicated independently

Question 7

If after taking a nonsuit, P wants to refile against D. Where must P refile the case?

Answer 7

P must refile the new case in the same court UNLESS the court lacks jurisdiction or venue, OR unless good cause is shown to litigate elsewhere

Question 8

Can the P file the new case in federal court?

Answer 8

Yes - assuming that there is federal SMJ

Question 9

When should a Plaintiff re-file against Defendant?

Answer 9

within 6 months or the limitations period - WHICHEVER IS LONGER

Question 10

how many nonsuits does the Plaintiff get?

Answer 10

the Plaintiff only gets ONE nonsuit as a MATTER OF RIGHT.

Others can be allowed by the court with NOTICE to the other parties.

The party taking a nonsuit MUST inform the court of all previous nonsuits AND that number must be reflected in the court order

Question 11

what does it mean when a party is in “default”?

Answer 11

a party is automatically in DEFAULT if they fail to respond to an affirmative pleading within the allowed time

Question 12

how is a default entered?

Answer 12

a default is a NOTATION ON THE DOCKET SHEET

The COURT enters default AUTOMATICALLY (different from federal court where P must move for the entry of default)

Question 13

If the Defendant is in default - what do they waive?

Answer 13

defendant waives:
1) notice to further proceedings - but notice will be given to counsel of record if there is one. (**also remember posted service - where D can be served by posting notice on front door and then mail it- and on the mailed one - you had to warn D about possibility of default judgment)

2) jury trial at further proceedings (such as if Plaintiff were to move for entry of default judgment)

Question 14

if plaintiff moves for a DEFAULT JUDGMENT and the damages are not liquidated - what happens?

Answer 14

the Plaintiff may move for a “hearing on damages”

Question 15

is there a jury at the ‘hearing on damages’ that is requested by the Plaintiff?

Answer 15

there may be if the Plaintiff requests it; but D has waived it - so P would have to request it

Question 16

if D defaulted but shows up at the ‘hearing on damages’ - can they introduce evidence that shows that Defendant should not be liable?

Answer 16

nope! The defendant can appear at the ‘hearing on damages’ and litigate DAMAGES - but not liability (bc once in default - you are liable - question is HOW MUCH are you liable for)

Question 17

What can the Defendant do at the ‘hearing for damages’?

Answer 17

the defaulting defendant can:
a) object to evidence regarding the Plaintif’s damages
b) cross-examine witnesses
c) offer evidence on damages (but not as to liability)

Question 18

what is summary judgment?

Answer 18

summary judgment is used when the party is arguing there is no need to have a trial because there is no dispute of material fac

Question 19

what standard do VA courts use for summary judgment?

Answer 19

the same standard as federal courts! the moving party must show that:
(1) there is no genuine dispute on a material fact; and
(2) the moving party is entitled to judgment as a matter of law

Question 20

who can move for summary judgment?

Answer 20

any party!

Question 21

Evidence on a SJ motion: Can a party base a summary judgment motion on deposition testimony?

Answer 21

Yes, but only if ALL parties agree (different from federal court where the court views the evidence in the light most favorable to the NONmoving party, and the parties proffer the evidence, including deposition testimony)

Question 22

can a party base a summary judgment motion on affidavits?

Answer 22

No provision allows it - so the court does NOT look at evidence proffered by the parties in the same way a federal court does

Question 23

May a ‘conflict’ in the pleadings regarding a material fact create a ‘triable’ issue? (biggest difference from federal court)

Answer 23

yes! A conflict in the pleadings regarding a material fact creates a triable issue. SO if the pleadings show a dispute of material fact, summary judgment is denied (different from federal court - where they look at whether evidence that was ‘under oath’ showed a dispute in the pleadings)

Question 24

So if the pleadings, admissions, and orders show there is no genuine dispute of material fact, the court may grant summary judgment. Rare in Virginia. (not a question)

Question 25

difference between 1) default and 2) default judgment?

Answer 25

default is a notation on the court’s docket sheet, whereas a default judgment is what the plaintiff needs in order to enforce the default / recover relief