VA Civil Procedure Flashcards
GDC has exclusive jurisdiction over this $ amount for money claim/breach of contract/damage to property:
Exclusive jurisdiction less than $4,500
GDC has concurrent jurisdiction between these $ amount with Circuit Court:
Concurrent jurisdiction $4,500 not to exceed $25,000
GDC has concurrent jurisdiction with circuit court for personal injury/wrongful death action between these amounts:
Concurrent jurisdiction $4,500 not to exceed $50,000
Small claims court has exclusive jurisdiction over this $ amount:
Exclusive jurisdiction less than $5,00
GDC has exclusive jurisdiction for this specific monetary action:
Exclusive jurisdiction for landlord’s claim for rent brought through distress warrant
GDC has original jurisdiction for this specific property action (within $25,000):
Exclusive jurisdiction for action for partition , concurrent for attachment, of personal property
Circuit Court has original jurisdiction for this specific property action:
Exclusive jurisdiction for action for partition of real property
GDC has concurrent jurisdiction with Circuit Court for these types of actions:
Concurrent jurisdiction for 1) Unlawful detainer actions; 2) Interpleader; 3) Virginia FOIA
GDC does not conduct what:
This Court does not conduct juries
A court not of record means this:
This means no record is made for purposes of appeal
An appeal from GDC results in what kind of trial?
This results in a de novo circuit court trial
Motion for New Trial must be made within how many days?
This must be made within 30 days after the judgement date
A Motion for New Trial will have a hearing and ruling on the motion within how many days?
This will be heard and ruled on within 45 days after the judgement date
JDRC shares concurrent jurisdiction with Circuit Court for what until 1) divorce filing states them in divorce pleadings and 2) a hearing is set for it?
JDRC shares concurrent jurisdiction for spousal support, custody/guardianship/visitation/support of child
Circuit Court has exclusive jurisdiction for what $ amount of monetary actions:
Exclusive jurisdiction for claims exceeding $25,000, or $50,00 for personal injury/wrongful death
Circuit Court has exclusive jurisdiction for these types of various actions:
Exclusive jurisdiction over 1) equitable relief (divorce); 2) real property disputes; 3) administration of estate (probate); 4) and issuing injunctions
Circuit Court does conduct what:
This conducts juries
A Circuit Court is what kind of court?
Court of record (record forms basis of appeal to Court of Appeals)
Supreme Court has original jurisdiction over what types of actions:
Original trial jurisdiction over 1) writs of mandamus; 2) prohibition; 3) habeas corpus (exclusive)
Improper venue is waived unless this occurs:
If Defendant does not object to this, it is waived and permitted to proceed here
Venue is tested at this time:
This is tested at the commencement of the action
Venue: Marriage-related action
Preferred; Where parties last cohabitated -> where D resides within VA or last where P resides (D nonresident)
Venue: Wills
Preferred; Where it was or will be probated
Venue: VA Tort Claims Act
Preferred; Where claimant resides, where act omission occurred, or if both out of state, Richmond
Venue: Land
Preferred; County or city in which land is situated
Venue: Distress
Preferred; Where premises are located or goods may be found
Venue: Injunction (Either GDC or Circuit Court)
Preferred; Always where Circuit Court where judgement was rendered or pending or where act is to be done or proceeding pending
Venue: Attachment
Preferred; County or city in which principal Defendant has estate or debts owed to him
Venue: Writ of Mandamus/Prohibition/Certiorari
Preferred; Where record or proceeding to which writ relates is located (except those by SC)
Venue: Writ of Quo Warranto
Preferred; Where D resides, or registered office or chief officer resides if corporation; if not a resident, Richmond
Venue: Attorney Disbarment or Suspension
Preferred; Where D resides/ principal office/ resided practice when misconduct occurred/ has pending cases relating to misconduct
Venue: Administrative Decisions
Preferred; Where affected party resides or regularly conducts business or affected property is located
Venue: Taxes
Preferred; Where taxpayer resides, owns property, has registered office, regularly conducts business; for refunds, Richmond
Venue: Public contract bonds
Preferred; Where public project or any part is situated
Venue: Transportation district contracts
Preferred; any county or city at least partly w/in that district
Venue: General Permissible
1) Where D resides/ principal place of employment; 2) entity has principal office/place of business; 3) registered officer or agent to receive process; 4) regularly conducts substantial business provided there exits a practical nexus; and 5) where cause of action arises
Venue: Delivery of Goods Action
Permissible; Where goods were delivered
Venue: Recover or partition of personal property Action
Permissible; Where property is physically located or evidence is located; otherwise where P resides
Venue: Action Against Court-Appointed Fiduciary
Permissible; Where fiduciary qualified
Venue: Improper Message Action
Permissible; Where message was transmitted/delivered/accepted/misdelivered
Venue: Fallbacks
Permissible; 1) where D had property/debts owing to him subject to seizure; 2) If all D’s unknown/ no pref/perm venue, where any P resides
Venue: Construction Contract
Where construction project is located or otherwise proper
Venue: Multiple Parties
Proper in 1) preferred venue for any D; 2) wherever proper for a resident D; or 3) wherever venue is proper for any party
Objection to Venue is raised by:
This is raised by a Motion to Transfer
A Motion to Transfer must:
This must: 1) state why venue is improper; and 2) where venue would be proper
The timing of bringing a Motion to Transfer is:
1) Circuit Court - w/in 21 days of service; 2) GDC - file on or before trial date
Defendant may object to venue how many days after the D whose presence created venue was dismissed?
Defendant may object to venue 10 days after this happens:
A court on its own motion may do what if it is a permissible divorce venue?
This may transfer the action to the proper preferred venue on its own motion within 60 days service of process on all parties
Forum non conveniens: Transfer
May transfer to fair and convenient forum with jurisdiction in VA
Forum non conveniens: Dismissal
May dismiss action brought by non-resident without prejudice if 1) arose outside VA and 2) a more convenient forum with jurisdiction is available outside VA
Forum non conveniens: Retention
If party opposes transfer/dismissal, Court may retain action for good cause
Forum non conveniens: Appellate Review
Abuse of discretion standard applies on appeal for this
Forum selection provisions in contracts
This is presumed valid and enforceable
Rebutting forum selection provisions:
Rebutted upon a showing of unfairness, unreasonableness, fraud, or unequal bargaining power
Award of compensation and attorney’s fees are available when?
These are available when court transfers or retains an action subject to venue objection
Parties: Generally, what P and D must have:
Pmust have justiciable interest in matter of dispute for standing; D must have some interest/liability in subject matter
Proper Party Sued: Business Entities
May sue and be sued in entity’s legal name
Proper Party Sued: Persons under Disability
If P: infant sue by next friend, others by committee or next friend If D: Must be represented by a GAL or attorney
Proper Party Sued: Unborn Persons
Natural mother brings wrongful death; if survives, by next friend brings personal injury; GAL represents their interests
Proper Party Sued: Deceased persons or terminated entities
Action survives - successor in interest may be substituted
Proper Party Sued: Third Party Beneficiaries
May sue in own name to enforce a contract; can only seek damages from legal malpractice concerning decedent’s estate planning if will granted beneficiary standing
Proper Party Sued: Jointly liable in Tort
Jointly/severally; contribution permitted for wrong from negligence w/out moral turpitude
Proper Party Sued: Jointly liable in Contract
All entitled to performance must be Ps; P can sue one some or all parties liable on contract claim w/out prejudicing other claims
Proper Party Sued: Commonwealth of VA
May sue or if immunity waived, be sued in is own name
Proper Party Sued: VA County/City/Town
May sue or when permitted by law be sued in its own name
Substitution of Parties
This may occur with a successor in interest upon motion by successor or another party to suit
Misnomer of Party
This occurs if party is incorrectly named in pleading; may be corrected on motion accompanied by affidavit
Service of Process in Circuit Court
This is the Complaint and Summons served together, with 21 days afterwards for responsive pleading
Service of Process in GDC
This is either the Complaint, Motion for Judgement, or Warrant
Process may be served by either:
1) sheriff or 2) any person over 18 yrs old not a party or otherwise interested; must file proof of service within 72 hrs
Service of Process must be made within how long of receiving it (sheriff/individual)
Must serve w/in 5 days; only prejudices if served more than 1 year after institution of action or 2) P failed to exercise due diligence
Notice on Defendant is effective when?
This is effective if complaint and summons are received (except for divorce/annulment)
Proper Party Sued: Persons under Disability
For this: Plaintiff - infant sues by next friend, otherwise committee Defendant - must have guardian ad litem or attorney
Proper Party Sue/Sued: Unborn persons
This person sues by Natural mother (wrongful death), or if surviving, by next friend. GAL to represent interests
Proper Party Sue/Sued: Third-party beneficiaries
This person may sue in their own name for contract/only if will granted beneficiary standing
Proper Party Sue/Sued: Parties Jointly Liable
In tort - jointly & severally liable, but contribution for negligence w/out moral turpitude In contract - all parties entitled must join as Plaintiffs, can sue whomever on contract w/out prejudicing claims of others not sued
Proper Party Sue/Sued: Commonwealth
This may sue or, when permitted, be sued in its own name
Proper Party Sue/Sued: Misnomer
If this occurs, it may be corrected on motion accompanied by affidavit
Circuit Court: Service of Process
This is a complaint and summons served together, with 21 days for response
GDC: Service of Process
This is a complaint, motion for judgement, or warrant
Service of Process may be served by:
This may be served by sheriff or any person over 18 who is not a party and does not have an interests in the proceedigns
Proof of service must be filed when?
The person who serves this must do this within 72 hrs
Service on a representative must always be?
This must always be in person
Service on a Natural Person: Preferred Order
1) Personal Service 2) on family member over 16 at Defendant’s abode (explain significance) 3) Posting on main entrance of abode, mail a copy to Defendant, and file a certificate of mailing
Long-arm Personal Jurisdiction generally
Transacting business out of VA, contracting to supply services/things in, causing tortious injury in, having/using/possessing property in, insuring in, spousal/child support in, conceived child in, maintain matrimonial domicile in for divorce, incurring taxes/fines in, using computer/network in
Long Arm Personal Jurisdiction Breach of Warranty
VA has this if P is injured in VA by breach of warranty of goods sold outside VA if 1) D reasonably expected goods in VA and does regular business/derives substantial revenue in VA
Long Arm Personal Jurisdiction Act Outside
VA has this if P is injured in VA by act/omission outside VA if 1)D regularly does business in VA or derives substantial revenue from goods used/consumed in VA
Service of Process: Publication
Service for 1) foreign corporation/nonresident 2) diligent search did not reveal location 3) sheriff unable to serve for 21 days 4) unknown persons may be interested or5) service is made on more than 10 Ds who represent interests of those not served
Service of Process: Waiver
Plaintiff may request this, if D does - grants extension to file responses (60 days w/in VA). If not, P can recover costs of service
Initial Pleading in Circuit Court
Complaint containing specific relief sought, with ad danum clause for damages if desired in this court
Initial Pleading in GDC
Complaint, Warrant in Debt, Warrant in Detinue, Distress Petition, Summons for Unlawful Detainer
Counterclaim
Claim made by Defendant against one or more Plaintiffs
Cross-claim
Claim made by Defendant against another Defendant
Third-party Claim
Claim made by Defendant against a third=arty whom D asserts is partially/entirely liable
Responsive Pleading in Circuit Court
Answer must be filed w/in 21 days of service of process/entry of order overruling responsive pleading
Responsive Pleading in GDC
D not required to file an answer here unless instructed to do so
Responsive Pleading - D’s early protection
Affirmative Defenses and Plea in Bars, if Valid, will bar P’s claim
Demurrer
Challenges the sufficiency, form, style, allegations, or appropriateness of an aggressive pleading; must be filed before/same time as other responsive pleadings
Motion to Strike a Pleading
Challenges the sufficiency of a responsive pleading
Motion for Bill of Particulars
Seeks court order compelling party to elaborate on pleading that does not provide adequate notice of claim/defense
Motion to Object to Venue: Deadline to File
Deadlines to file this in CC is 21 days after service of process, or on/before day of trial in GDC
Waiver of Service: Adjudication
D does this once he engages in conduct relating to adjudicating the merits of the case
This may be challenged by a motion to dismiss or, if not evident, by demurrer
Subject matter jurisdiction may be challenged by this motion if evident, otherwise this motion
Motion craving oyer
This motion seeks a court order compelling Plaintiff to produce an essential document for the complaint
What must a Cross-Claim involve?
This filing involves the subject matter growing out of a matter pleaded in the Complaint.
Virginia generally observes this rule for juror testimony on jury deliberations
Jurors may not testify about any statement made or incident that occurred during this
Juror Testimony - Statements made exhibiting overt racial/national origin bias
This exception to the general rule regarding juror testimony regarding jury deliberations must be 1) a significant motivating factor in the juror’s vote; and 2) cast serious doubt on the fairness and impartiality of the jury’s deliberations/verdict
The statute of limitations for an action tolls (does not run) for an infant until
This does not run for this type of person until the disability is removed (age of majority is reached)
When must service occur for initial suit papers in an unlawful detainer action in General District Court?
These must be served at least 10 days before the first date the case is on the docket for an unlawful detainer action in General District Court
This is a responsive pleading that challenges the sufficiency of the form, style, allegations, or appropriateness of an aggressive pleading
A demurrer is a responsive pleading that challenges these in an aggressive pleading
A Demurrer contends that the aggressive pleading does this
This contends that an aggressive pleading 1) does not state a cause of action; or 2) fails to state facts upon which relief can be granted
This is a responsive pleading that tests the sufficiency of a defensive pleading (answer, plea of statute of limitations, plea of payment, demurrer)
A Motion to Strike does this to defensive pleadings (answer, plea of statute of limitations, plea of payment, demurrer)
What does a Motion for a Bill of Particulars do?
This type of Motion asks the court to compel the other side to provide factual details forming the basis of their pleading
What does a Motion Craving Oyer request?
This type of Motion requests 1) required production of documents being sued on; 2) to be produced during pleading; 3) to become a matter of record; and 4) to be made part of Plaintiff’s Complaint
What happens if a Motion Craving Oyer is sustained?
If this type of motion is sustained, the document becomes part of the Plaintiff’s Complaint and the Defendant can rely on the document in a Demurrer
The jurisdictional dollar limit in General District Court is:
A claim for more than $25,000 is barred from being brought in this Court:
A counterclaim may be brought when in General District Court?
This may be brought anytime before trial in General District Court
For money damages sought based on fraud, the statute of limitations is:
Within two years after the cause of action accrues, money damages can be sought for this:
For fraud, the time period begins running when:
The time period for this cause of action begins running on either 1) the date of discovery; or 2) when this should have been discovered by exercising due diligence
A judgement to be enforced under the Uniform Enforcement of Foreign Judgement Act must be filed in this court:
A judgement under this must be filed in Circuit Court
In order to appeal a final order of the Circuit Court, notice must:
In order to do this, notice must be 1) filed with the clerk of the circuit court that entered the final order; and 2) sent to the opposing party’s counsel of record
Notice of Appeal is treated as having been received by the court clerk:
This is treated as received on the date transmitted with prepaid expense to the court clerk by priority/express/registered/ or certified mail/ or 3rd party commercial carrier for next-day delivery
A party seeking to challenge the joinder of parties to an action should file:
A Motion to Drop does this:
For a county or city to be a permissible forum for a civil action based on defendant’s regular and substantial conduct of business activity, there:
For this type of permissible forum for a civil action there must exist a practical nexus to the forum (location of fact witnesses, plaintiffs, other evidence to the action)
Virginia generally requires jurors to render what type of verdict for this?
For civil actions, juries are generally expected to render a unanimous verdict
This number of jurors is required for a civil action involving more than the max jurisdictional limit of general district courts:
A seven member jury is required for this:
General District Court has jurisdiction over an action brought under this and has the authority to do what?
This court has jurisdiction over an action brought under Virginia Freedom of Information Act and has authority to order a governmental entity to comply with the act
An independent equitable action to set aside judgement /decree requires what?
This requires proof that 1) in equity & good conscience, it should not be enforced 2) existence of a good defense exists 3) fraud/accident/mistake prevented defendant in judgement from obtaining benefit of defense 4) absence of fault/negligence on behalf of defendant and 5) absence of any remedy at law
Unless all parties agree, these cannot be considered by a court for a Motion for Summary Judgement:
Statement made in an oral deposition may not be considered by the court for what unless all parties agree?
After the filing of the commissioner’s report, any party may file what?
Within ten days after filing of report (or later set by the court with good cause shown), any part may write objections to this person’s conclusions
When a Defendant appeals a GDC judgement, a Plaintiff may do what with respect to damages?
A Plaintiff may amend complaint and increase the amount in controversy over the jurisdictional GDC limit if this person appeals a judgement:
A deposition for a party/witness designated to testify for a corporation may take place where (unless otherwise agreed to)?
This may be taken where the suit is pending or in an adjacent county/city
A notice of appeal must be filed within how many days from final order in Court of Appeals to Supreme Court?
This must be filed within 30 days from entry of final order in the Court of Appeals
There are preferred (Class A) forums for these types of actions:
This is where the premises yielding rent are located for distress actions, where judgement was rendered/proceeding/act to be done for injunction, and where the parties last cohabited for divorce
Counterclaims are permissive, meaning they can:
Can be plead whether or not it arises out of the same transaction and whether it is in tort or contract
A counterclaim arising out of the same transaction identified in the complaint will:
This relates back to the date of filing the complaint for SOL purposes
A party may nonsuit anytime when?
This may be taken before a motion to strike has been sustained or before the jury retires from the bar
A party cannot nonsuit if a counterclaim is filed unless:
This cannot occur unless consent is obtained from the party who filed the counterclaim, arising out of the same transaction
A party can nonsuit a counterclaim without consent if:
This can be done without adverse party consent if it did not arise out of the same transaction
A plaintiff has one nonsuit as what?
Plaintiff has this as a matter of right if done timely
There is no statute impacting this because of trial continuances:
Nonsuits aren’t statutorily impacted by requesting these:
A sheriff may only serve summons and complaint where:
This person may only serve summons and complaint in her county/city or contiguous county/city
Summons and Complaint must be served by this type of person:
Any person over 18 who is neither a party nor otherwise interested in the subject matter can do what?
A registered foreign corporation may be served:
This may be served through any officer, director, or registered agent
Effective service requires it to be both:
This must be proper (done correctly by the right person) and timely (within a year)
The statute of limitations for a personal injury action is:
This action’s is two years after the cause of action accrues
Personal injury actions do not have what type of venue?
This action does not have a preferred venue
A permissible venue is:
This venue is where the defendant resides, where they appoint a registered agent to receive process, or where the cause of action arose
A demurrer tests:
This filing tests the legal sufficiency of a complaint
A Motion for Summary Judgement tests:
This filing tests the facts of the matter as if wholly in the nonmoving party’s favor
How long Circuit Courts retain jurisdiction to consider post-trial motions?
21-days after entry of final judgement in Circuit Court
Civil Appeals from Circuit court go first to which court?
The Court of Appeals is the first place for civil appeals from this court to be filed
When a party files an appeal in the wrong appellate court, what is the result?
The appeals will be transferred as a result
3 Reasons a juror strike should be “for cause”:
Juror is 1) related to either party of the case; 2) has any interest in the outcome of the case; 3) has any apparent bias or prejudice to any party
To be considered on appeal, errors must be:
Raised by objection in the trial court
Appeals from General District Court to Circuit Court are:
Heard de-novo
De-novo Appeal
Appeal from this court will result in a brand new trial as if the first one never happened
A motion to reopen a General District Court case must be made within how long?
This motion must be made within 30 days from the judgement in General District Court
A motion to vacate a judgement obtained by fraud on the court must be made within how long?
A court may still do this within two years from the date of a judgement
A Notice of Appeal must be filed in the Circuit Court within how long?
A notice of appeal is filed in this court within 30 days after entry of its final order
After losing a civil appeal in the Virginia Court of Appeals, a party may:
A petition for appeal may be filed in the Supreme Court of Virginia in this situation
Motions for Summary Judgement: Use of Deposition Testimony Transcripts
These may not be directly admitted as evidence in a Motion for Summary Judgement
Motions for Summary Judgement: Use of a party’s admissions provided in response to a Discovery Request for Admission
These may be admitted as evidence in a Motion for Summary Judgement, even if based on answers from a deposition
Is it waivable? - Subject Matter Jurisdiction
This type of proceeding cannot be waived, and the issue can be raised at any point in the proceedings
Is it waivable? - Personal Jurisdiction
This type of jurisdiction can be waived
Ends-of-Justice exception:
This exception allows a party to raise an issue on appeal that was not preserved in the trial court (exception is rarely applied)
Objecting to personal jurisdiction after filing an answer or conducting discovery:
An objection to this type of jurisdiction cannot be made after a party 1) files an answer; 2) makes a general appearance; or 3) engages in discovery
A Defendant’s Motion to Change Venue must be made within how long?
This motion must be made within 21-days of service of process on a Defendant
A Demurrer is a filing that does what?
This filing challenges the legal sufficiency of a Complaint (or Counterclaim/Crossclaim/3rd-party Claim)
A demurrer in Virginia is the equivalent of what?
This is the Virginia equivalent to a 12(b)(6) Motion in federal court
Wrongful Death Suit - Statute of Limitations
This type of action must be filed within 2 years of the date of the death
What type of filing challenges an action for exceeding the statute of limitations?
A “Plea in Bar” is filed to challenge this
Wrongful Death Suit - 1st Class of Beneficiaries
Surviving spouse, child(ren), and parents (only if they were supporting the decedent at the time of their death)
Wrongful Death Suit - 2nd Class of Beneficiaries
If no spouse, child(ren), then to parents, brothers and sisters of the deceased, and any other relative who 1) was primarily dependent on the decedent; and 2) lived with them
Statute of Limitations on actions for any verbal contract or unsigned written contract (express or implied)
This type of claim must be brought within 3 years of a breach
Statute of Limitations on actions for any written contract that is signed by the party to be charged
This type of claim must be brought within 5 years of a breach
Who may serve process?
1) Any person of age 18 years or older; and 2) who is not a party or otherwise interested in the subject matter of the controversy may serve this
A sheriff may serve process only in what location(s)?
This person may only serve process within their own county/city or one directly contiguous to their own
Service of process on a foreign corporation must be served on who?
Process may be served only on an in-state officer, director, or registered agent of this type of corporation
Improper service of process may be “cured” when:
When process was actually received by the person to whom it was directed within one year, this will be cured (except in divorce/annulment cases)
Equitable Defenses - Unclean Hands
Under this doctrine, a party seeking equitable relief 1) must himself not have been guilty of inequitable or wrongful conduct; and 2) the wrongful conduct must relate to the claim asserted
Equitable Defenses - Availability of Remedy at Law
Under this doctrine, a party seeking equitable relief must establish that money damages would not be sufficient to place him back in a position he would be in had the breach not occurred.
Equitable Defenses - Hardship or Oppression
Under this doctrine, a party seeking equitable relief must show that the requested relief will not cause unreasonable great hardship on the other party
Equitable Defenses - Fraud
Under this doctrine, a party may not obtain equitable relief where they have made false statements of material facts in connection with the disputed contract
Elements to Establish Temporary Injunction
1) Has a recognized legal right; 2) will suffer irreparable harm without an injunction; 3) balancing equities and hardships weighs in their favor; 4) likely to succeed on the merits; and 5) no adequate remedy at law
Action in Detinue
This type of action allows a court to determine who is entitled to possession of an item or to award damages when the item cannot be returned
Statute of Limitations on Actions for Fraud
This type of claim must be brought within 2 years from the time the Plaintiff was or should have been aware of the issue
May a judge award attorney’s fees to a prevailing party?
These may not be awarded to a prevailing party, except in a suit for fraud
May a court permit the late filing of responsive pleadings?
The court may permit this type of pleading, even when the time for filing them has passed, if the party demonstrates good cause for the delay
Time within which a Responsive Pleading must be filed
A Defendant must file this within 21 days after they are served
When a default judgement is entered against a Defendant who does not appear at the trial, may he still present evidence as to damages?
A Defendant against whom a default judgement has been entered may still present this type of evidence
When may a court grant leave to amend a complaint?
This type of “leave” is discretionary, and is to be liberally granted to attain the ends of justice
To appeal from General District Court to Circuit Court, a party must file their notice within how long?
This notice must be filed in the General District Court within 10 days of the final judgement
Appeals to this court will result in a brand new trial (ignoring what happened in the court below:
Appeals to Circuit Court from General District Court result in this
This type of appeal allows for admission of brand new evidence, not ever presented to the court below:
Appeals to Circuit Court from General District Court allow this type of evidence
This type of appeal will not review or consider what happened in the court below:
Appeals to Circuit Court from General District Court do not review or consider this
This type of error will not be considered on an appeal to the Court of Appeals or Supreme Court:
Unpreserved errors (errors not objected to in the trial court)
What is the standard for appellate review of a trial court’s decision on a Motion for Summary Judgement?
When appealing this motion from a Circuit Court, the appellate court reviews the trial court’s decision de novo
When must a party object to the form or admissibility of evidence at trial?
A party must object at the time the evidence is offered, or else the objection is waived
When is a motion for new trial appropriate in Virginia state court?
A motion for new trial is appropriate to raise errors that occurred during the trial that affected the party’s substantial rights
What is the deadline for filing a notice of removal to federal court based on diversity jurisdiction?
A notice of removal must be filed within 30 days after Defendant receives a copy of the initial pleading or service of summons
What is the maximum amount-in-controversy for a civil case to be filed in General District Court?
$25,000 is the maximum amount for a civil claim filed in this court
How long does a party have to respond to written discovery requests in Virginia state court?
A party must respond to written discovery requests within 21 days after service of the request
What is the time limit for filing an Answer or responsive pleading in Virginia state court?
A Defendant must file an Answer or responsive pleading within 21 days after service of process
What is the deadline for filing an appeal from the General District court to the Circuit Court in Virginia?
An appeal must be filed within 10 days of the final judgement in the General District Court
When can a party seek sanctions for spoilation of evidence in Virginia state court?
A party can seek sanctions for spoilation of evidence if the other party intentionally/negligently destroyed/failed to preserve relevant evidence
What is the requirement for a valid forum selection clause in a contract under Virginia law?
A forum selection clause must be clear and unambiguous, and its enforcement must not be unreasonable or unjust
What is the time limit for filing a demurrer in Virginia state court?
A demurrer must be filed within 21 days after service of the pleading being challenged
What is the time limit for serving process on a civil Defendant in Virginia state court?
Process must be served on a Defendant within one year from the date of filing the Complaint, or the action may be dismissed without prejudice
What is the rule regarding the tolling of the statute of limitations during the pendency of a Motion for Judgement?
The statute of limitations is tolled during the pendency of a Motion for Judgement, and the time to file a new action is extended 30 days after entry of final judgement on the Motion
When can a party seek relief from a final judgement in Virginia state court based on newly discovered evidence?
A party can seek relief from a final judgement based on newly discovered evidence within 21 days after the judgement was entered
What is the deadline for filing an Answer to an Amended Complaint in Virginia state court?
An Answer to an Amended Complaint must be filed within 21 days after service of the Amended Comlaint
When can a party move to strike a pleading in Virginia state court?
A party can move to strike a pleading if it is: 1) insufficient in law; 2) contains redundant /immaterial/impertinent/scandalous matter; or 3) filed for an improper purpose
What is the requirement for a valid waiver of service of process in Virginia state court?
A waiver of service must be in writing, signed by the Defendant, and filed with the court
When a party files in the wrong appellate court, this occurs:
When this occurs, the Court cannot dismiss it but it must be transferred to the correct court.
A court may strike a juror for cause when:
This may occur if juror is related to either party, has any interest in the outcome of the case, or has any apparent bias/prejudice to the parties.
Laches is an affirmative defense available if:
This is an affirmative defense available if P waits to long to bring claim that it is so unfair to disadvantage D; for equitable claims w/out SOL not brought by VA/local gov
Scope of discovery is this:
This is any non-privileged, relevant matter; need not be admissible if reasonably calculated to lead to discovery of admissible evidence
Discovery must be limited when?
This must be limited if unreasonably cumulative/duplicative, party had ample opportunity to obtain information sought, or unduly burdensome/expensive
Discovery of trial prep/work product materials is discoverable if:
This is discoverable if party seeking has substantial need and cannot obtain substantial equivalent material by other means
Discovery of nontestifying experts is discoverable if:
This is discoverable if if exceptional circumstances make it impracticable to obtain facts/opinions by other means
Discovery of testifying experts permits discovery on:
Identity of each expert testifying, the subject matter, the substance to which the expert is expected to testify, and a summary of the grounds for each expert opinion
Claims of privilege/work product protection must:
These must expressly state protection claimed & describe protected materials/communications
Electronically Stored Information need not:
This need not be provided if not reasonably accessible due to undue burden/cost, unless ordered by court
Protective Orders for discovery may be sought for:
These may be sought to protect movant from annoyance/embarrassment/oppression/undue burden or expense; must include certification of good faith attempt to confer
Duty to supplement discovery:
This duty requires a party to do this if earlier response was incomplete/incorrect
Timing of Depositions may be done when?
These may be conducted anytime after commencement of action; leave of court required if sought before D’s deadline to file responsive pleading unless 1) D served notice of its taking OR 2) deponent is leaving VA and otherwise unavailable
Location of deposition for a party-deponent is:
This is the county/city which suit is pending, adjacent county/city, a place where the parties agree, or place where court designates for good cause
Location of deposition for a nonparty deponent is:
This is the county/city where deponent resides/is employed/has principal place of business, place where parties agree, or place where court designates for good cause
Notice of deposition for party deponent requires:
Requires reasonable notice of time/place of deposition, no subpoena required, for this person
Notice of deposition for nonparty deponent requires:
Requires subpoena to appear or dupoena duces tecum for documents, for this person
Notice of examination to all parties must give:
This must give reasonable written notice of time/place of deposition including names/address of each person to be examined
Deposition manner of conducting and number permitted:
These may be oral or written, and there is no time limit or number limitation
Deposition examination and objections proceed this way:
This proceeds as permitted at trial, witness testifies under oath; must be transcribed if requested by a party; if objections, then noted on record but this continues
If deposition is admissible, it may be used against a party who has reasonable notice of taking deposition if witness is:
This may occur (or otherwise prevented) if witness is 1) deceased, 2) 100 miles from trial, 3) unable to attend from age/illness/infirmity/imprisonment, 4) unable to be subpoenaed or 5) judge
Interrogatories
These are answers under oath filed w/in 21 days of service with objections; 30 question limit including subparts unless authorized by court
Production of documents/tangible things, entry on land
These written responses are due w/in 21 days of service, and D may file written response w/in 28 days of complaint
A physical/mental examination of persons is only available if:
This is only available if mental/physical condition is at issue; court can order on motion; examined party can admit report to evidence; testimonial privilege waived if examined party deposes examiner
Requests for admissions
These are written answer/objections w/in 21 days of service of request or deemed admitted; unless agreed to/permitted by judge, limited to 30 requests, unlimited requests for admission of genuineness of documents permitted; D has 28 days to respond from service of complaint
A party may move for an order to compel discovery if:
This may be sought if party certifies party’s good faith attempts at resolving discovery dispute
If a party fails to comply with discovery, a court may:
If this occurs, a court may deem matters admitted, strike pleadings, hold in contempt, grant D/J and order payment of attorney’s fees
Default Judgement in Circuit Court happens if:
This happens if Defendant fails to file a responsive pleading w/in 21 days of service (or 60/90 if D waived service)
Default Judgement has the following effects:
When this occurs, D waives right to jury, right to notice of further proceedings; judgement entered against D for liquidated damages or after hearing on amount (D can participate in damages hearing)
D can seek leave of Court for this:
When in default, D can do this to file late responsive pleading if D can establish good cause for the failure to file; or if D/J entered, move to set aside judgement w/in 21 days
Default judgement when D fails to appear (GDC):
When this occurs, D waives all objections to admissibility of evidence, not entitled to notice of future proceedings, and court enters judgement amount
Default judgement: Nonappearance by P
If neither do this, dismissed w/out prej; If D appears but P doesn’t, dismissed w/out prej; if D appears and admits liability but P doesn’t, dismissed w/out prej; If D appears and denies liability but P doesnt, judgement for D with prej. to P’s right to refile
Summary judgement requirements:
This is a motion that can be made by either party after responsive pleadings, with burden on moving party establishing there is no question of material fact genuinely in dispute; can be granted in part and court can consider all pleadings
In default/summary judgement, Court cannot rely on depositions unless:
Generally, Court cannot do this unless: 1) all parties to action agree, 2) action is between business entities for amount of $50k or more, or 3) P is seeking punitive damages (unless when based on operating motor vehicle drunk)
There is no right to jury trial for:
For 1) damages of $20 or less or 2) equitable actions (except suit to probate will/quiet title to real estate/plea in equitybar/ advisory jury, there is no right to this
Demand for jury must be made:
This must be made w/in 10 days after last pleading or right is waived
