VA Civil Procedure Flashcards
VA Bases for Personal Jurisdiction
- Minimum Contacts
- Personal Service within the State
- Domicile
- Express Consent
- Implied Consent
- Nonresident Motorist
General Appearance
(i.e., filing answer, appearing before court) without raising timely objection to jurisdiction constitutes a waiver of any right to challenge personal jurisdiction.
Virginia long-arm statute
Allows personal jurisdiction over non-residents who cause tortious injury in Virginia if they regularly do or solicit business, or engage in any other persistent course of conduct, or derive substantial revenue form goods used or consumed or services rendered, in the Commonwealth.
Venue
The physical court where a case is heard.
True or False: Improper venue is a basis for dismissal.
False.
Improper Venue
A defendant must file an objection to venue (not a motion to dismiss) within 21 days of service of process. In its pleading, a defendant must set forth where it believes venue to be proper.
Responsive Pleading
The defendant must file a pleading in response to the complaint within 21 days after service of the summons and complaint (answer, demurrer, plea, motion to dismiss, motion for bill of particulars)
Motion for a Bill of Particulars
Asks the plaintiff to amplify their pleading to provide sufficient notice of a claim or defense adequate to permit the adversary a fair opportunity to respond or prepare the case.
Motion to Dismiss
the defendant may file a motion to dismiss on any grounds that would result in dismissal of the suit (SMJ, PJ, Service, Failure to State a Claim upon which relief can be granted)
Demurrer
A pleading stating that although the facts alleged in a complaint may be true, they are insufficient to state a claim for relief and for the defendant to frame an answer (the complaint is legally insufficient).
Plea to the Statute of Limitations
An allegation that an action is barred by the statute of limitations.
What must a defendant include in an answer?
They must admit or deny the allegations made in the complaint and raise affirmative defenses.
Affirmative Defenses not raised in the Answer are
Waived
In Virginia, are counterclaims permissive or mandatory?
Permissive.
A defendant may plead as a counterclaim any cause of action the defendant has against the plaintiff whether or not it arises out of the same transaction that is the subject of the plaintiff’s complaint and whether it is in tort or contract.
What is a nonsuit?
The right of a plaintiff to voluntarily dismiss their case under certain conditions.
True or False: A party can nonsuit a cause of action with a counterclaim without consent.
False.
When must the plaintiff motion for a nonsuit
Before a motion to strike the evidence has been sustained or before the jury retires from the bar or before the action has been submitted to the court for decision. (e.g., counts already dismissed can not be nonsuited)
Wrongful Death Statute
Authorizes a cause of action for the wrongful death of a person. (negligence standards)
Who must file a wrongful death action?
The personal representative of the deceased.
What is the statute of limitations for wrongful death in Virginia?
Must be filed within 2 years of the date of death.
First Class of Beneficiaries Entitled to Compensation Under the Wrongful Death Statute
- Surviving spouse
- Children of the deceased
- Children of any deceased child of the deceased
Second Class of Beneficiaries Entitled to Compensation Under the Wrongful Death Statute
if there is no surviving spouse, children, or grandchildren, then to the parents, brothers, and sisters of the deceased, and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent
When does the right of action accrue for personal injury?
When the injury occurs.
Third Class of Beneficiaries Entitled to Compensation Under the Wrongful Death Statute
if the decedent has left both a surviving spouse and parent(s), but no children or grandchild, the award will be distributed to the surviving spouse and such parent(s)
Tolling
The statute of limitations will be suspended, or cease running, when certain events occur, or in some situations involving the disability of a party:
- Minority (until turns 18)
- Mental incompetence
- Fraud or concealment (until the fraud is discovered)
- Physical disability (unable to file)
- Defendant’s absence (out of state or unreachable)
- Bankruptcy (during bankruptcy proceedings)
- Legal disability
- Equitable tolling (rare, exceptional circumstances)
- Continuing violations (tolling for ongoing conduct)
What is the statute of limitations for breach of written contracts in Virginia?
5 years if signed, 3 years if not signed.
What is the statute of limitations for defamation actions?
1 year after the date the defamatory acts
How long does a party have to appeal a General District Court judgment?
10 days.
Motion for Relief for Fraud on Court
A motion to vacate a judgment obtained through fraud on the court. Must be filed within 2 years of the judgment.
Default
What happens when a defendant fails to file a timely responsive pleading (e.g., an answer to a complaint) - they automatically admit liability (if liability is at issue) but can still argue about the amount of damages.
.
What must a defendant show to cure a default in Circuit Court?
- Good cause for the late response
- No unfair prejudice to the plaintiff
Where may a sheriff serve a summons and complaint?
Within their county or city or in a contiguous county or city.
Is service outside a sheriff’s jurisdiction proper?
No, service outside this jurisdiction is improper.
Who may serve process according to §8.01-293(A)(2)?
Any person who is:
* At least 18 years old
* Not a party to or otherwise interested in the controversy.
Can a spouse of a plaintiff serve process?
Most likely no, a spouse may be considered interested and therefore improper for service.
Service on a Foreign Corporation (§8.01-301.1)
Process may be served on an officer, director, or registered agent of the corporation.
Is a manager who is not an officer or director a proper recipient for service on a foreign corporation?
No, a manager who is not an officer or director is not a proper recipient.
Forgiveness of Improper Service (§8.01-288)
Service is still effective if the defendant actually receives the summons and complaint in a timely manner (within a year of filing).
Does not apply to divorce or annulment cases.
Personal Injury Statute of Limitations (§8.01-243(A))
A lawsuit for personal injury must be filed within two years from the date the cause of action accrues.
Category A (Preferred Venue)
Statutorily prescribed venue requirements for certain causes of action.
Category B (Permissive Venue)
Proper venue under Category B (Permissive Venue) includes:
- Where the defendant resides;
- Where the defendant has appointed a registered agent to receive process;
- Where the cause of action arose.
Deadline for Improper Venue
Improper venue must be objected to within 21 days of service of process.
A defendant objecting to venue must also
specifcy a proper venue.
Motion for Summary Judgment
A request for dismissal of a claim when discovery shows no factual support for it
There is no genuine dispute of material fact, and the moving party is entitled to judment as a matter of law.
Under what condition can depositions be used to support a Motion for Summary Judgment?
All parties must agree
What can a defendant file if they are improperly joined in a lawsuit?
A plea of misjoinder
What happens if a plea of misjoinder is granted?
The improperly joined defendant is dismissed, and the case continues against the remaining defendants
Land Actions & Property Disputes (Category A - Preferred Venue)
Cases involving real property (e.g., disputes over ownership, easements, partitions) must be brought in the county or city where the land or subject property is located.
Wills & Estates (Category A - Preferred Venue)
Actions regarding the probate of wills or estate administration must be brought in the jurisdiction where the decedent’s estate is being administered.
Writs of Mandamus or Prohibition Against Government Officials (Category A - Preferred Venue)
If seeking a writ against a state officer, the case must be filed in the City of Richmond.
If against a local officer, it must be filed in the jurisdiction where the officer performs their official duties.
Judgments & Execution on Property (Category A - Preferred Venue)
Actions to enforce, contest, or collect on a judgment must be brought where the judgment was rendered.
Injunctions Against Court Proceedings (Category A - Preferred Venue)
If an injunction seeks to stop proceedings in a court, it must be filed in the same jurisdiction as that court.
Suits Against Fiduciaries (Executors, Administrators, Trustees, etc.) (Category A - Preferred Venue)
Cases against fiduciaries related to trusts, estates, or guardianships must be brought in the jurisdiction where the fiduciary was appointed or is administering duties.
State Corporation Commission Cases (Category A - Preferred Venue)
Certain corporate disputes or appeals involving the State Corporation Commission must be brought in the City of Richmond.
