Termination of the case without trial Flashcards
Termination of the case without trial: overview:
1) nonsuit
2) Default and default judgment
3) summary judgment
what is a “nonsuit”?
a nonsuit is how the plaintiff voluntarily drops the case
when can a Plaintiff take a ‘nonsuit’?
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
can a Plaintiff move for a nonsuit while the jury is deliberating?
No! If it does so, it must be denied - (#1 - the jury is retired from the bar!)
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?
Yes! Because the court did not grant the motion to strike the evidence
can a P take a nonsuit if the D had filed a claim in the case (i.e. counterclaim, crossclaim, etc)?
Only if:
a) the defendant agrees; or
b) the defendant’s claim can be adjudicated independently
If after taking a nonsuit, P wants to refile against D. Where must P refile the case?
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
Can the P file the new case in federal court?
Yes - assuming that there is federal SMJ
When should a Plaintiff re-file against Defendant?
within 6 months or the limitations period - WHICHEVER IS LONGER
how many nonsuits does the Plaintiff get?
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
what does it mean when a party is in “default”?
a party is automatically in DEFAULT if they fail to respond to an affirmative pleading within the allowed time
how is a default entered?
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)
If the Defendant is in default - what do they waive?
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)
if plaintiff moves for a DEFAULT JUDGMENT and the damages are not liquidated - what happens?
the Plaintiff may move for a “hearing on damages”
is there a jury at the ‘hearing on damages’ that is requested by the Plaintiff?
there may be if the Plaintiff requests it; but D has waived it - so P would have to request it
if D defaulted but shows up at the ‘hearing on damages’ - can they introduce evidence that shows that Defendant should not be liable?
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)
What can the Defendant do at the ‘hearing for damages’?
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)
what is summary judgment?
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
what standard do VA courts use for summary judgment?
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
who can move for summary judgment?
any party!
Evidence on a SJ motion: Can a party base a summary judgment motion on deposition testimony?
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)
can a party base a summary judgment motion on affidavits?
No provision allows it - so the court does NOT look at evidence proffered by the parties in the same way a federal court does
May a ‘conflict’ in the pleadings regarding a material fact create a ‘triable’ issue? (biggest difference from federal court)
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)
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)
difference between 1) default and 2) default judgment?
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
