VA Civil Procedure Flashcards
What is personal jurisdiction?
Power over the parties i.e. defendant since plaintiff filed case PJ is automatic.
How do we find out if PJ exists?
1) Look at whether a VA statute is satisfied. Then, 2) determine whether the constitution is satisfied.
When does VA have in personam jurisdiction?
VA has in personam jurisdiction over Ds who are 1) served w/ process in state or 2) who reside in VA. Ds with such substantial ties are subject to general PJ.
What is general PJ?
Substantial ties allow that person to be sued in VA on a claim that arose anywhere in the world.
What is the VA long arm statute?
Statute that provides specific PJ. Claim must arise from D doing one of the following in VA: causing tortious injury instate by an act or omission instate; causing tortious injury instate by out of state conduct; K to supply services or things; has an interest in, uses, or possesses realty in VA; transacts any business in VA; causes injury in VA by breach of warranty where sale was out of state; domestic relations.
What is specific PJ?
Can sue a non-resident person or entity for something she has done or an effect she has caused in VA.
When may a D be sued for causing tortious injury in state by act or omission out of state?
D regularly does or solicits business in VA or engages in any other persistent course of conduct from which it derives substantial revenue from goods used in VA.
When may there be specific PJ over a person who transacts any business in VA?
VA is a single transaction state. PJ okay if the claim arises even from just one business contact with VA.
When may there be specific PJ over a person who causes injury in VA by breach of warranty where sale was out of state?
Seller could reasonably foresee effect in VA and she regularly does or solicits business here or derives substantial revenue from goods consumed in VA.
When may there be specific PJ over a person because of domestic relations?
Maintaining a matrimonial domicile in VA at the time the claim for divorce or separate maintenance arose or at the time of separation or at the time suit is filed are supports PJ.
What is the non-resident motorist act (NRMA)?
Allows jurisdiction over the owner or operator of a motor vehicle involved in an accident in VA. PJ also arises under long arm statute because it causes tortious injury instate by an act or omission in state.
What is the constitutional standard for PJ?
International Shoe. Does D have such minimum contacts w/ the forum so that jurisdiction doesn’t offend traditional notions of fair play and substantial justice? Domicile, consent, and presence in forum when served generally meet the test.
If we get a difficult case about the constitutionality of PJ, what are the factors to consider?
Contact, relatedness, and fairness.
For purposes of constitutional PJ, what is sufficient contact?
Some tie between D and forum that results from purposeful availment i.e. D’s voluntary act (but D doesn’t necessarily have to set foot in VA). It must be foreseeable that D could get sued in this forum due to the voluntary contact.
For the purposes of constitutional PJ, what is relatedness?
Does P’s claim arise from contact w/ the forum? This is always met when there is specific PJ under the long arm and NRMA.
When claim doesn’t arise from D’s contact with the forum, when is jurisdiction still sufficiently related?
When there is general PJ i.e. D has continuous and systematic ties with the forum so that D is essentially at home in the forum. Person is always at home where domiciled; business is always at home where formed and where PPB. If case is unclear, must have some physical presence.
What is the practical difference between general and specific PJ?
A D who is essentially at home in the forum can be sued there for a claim that arose anywhere in the world i.e. general PJ. A D with lesser contacts generally can be sued only for a claim arising from those contacts i.e. specific PJ.
For the purpose of constitutional PJ, what is fairness?
Is PJ fair under the circumstances? Consider: Convenience for Ws and parties;state’s interest; P’s interest. Forum is OK unless it puts D at a severe disadvantage in the litigation.
When must the fairness inquiry for constitutional PJ be conducted?
When there is specific PJ only. General PJ automatically considered fair.
What is subject matter jurisdiction?
State can hear any case except those for which there is exclusive federal Q jurisdiction.
What is the SMJ of circuit courts?
Can hear any civil action except those for which exclusive jurisdiction is vested in another court. EXCEPTION: actions for monetary claims or claims to specific personal property of $4,500 or less (these go to General District Court).
What is general district court (GDC)?
Court not of record that is statutory and basically legal (no injunctions may be granted). No formal pleadings or discovery or jury.
What is the SMJ of GDCs?
Actions at law in tort, K or detinue if amount in controversy is $25K or less; attaching personal property if value is $25K or less; may hear interpleader cases if stake is $25K or less (or in any amount if ernest money deposits are at issue); may hear claims in any amount for rent due or to oust D from real property, disputes over leases, and guarantees of leases; may issue distress warrants.
When does GDC have exclusive SMJ?
Monetary recovery or claim to specific personal property of $4,500 or less. In determining amount in controversy, do not include interest or attorney’s fees.
What is an action in detinue?
Claim for recovery of personal property or value thereof.
When may a party appeal from GDC to circuit court?
Always. There is an absolute right to appeal from GDC to CC if amount involved is more than $50.
What are the steps for appealing a final judgment to CC?
1) File writing notice of appeal w/ clerk of GDC w/in 10 days of judgment; 2) post bond and pay writ tax in GDC w/in 30 days of judgment. Seeking rehearing at GDC doesn’t increase these time requirements.
What happens when the case gets appealed from GDC to CC?
Start over at CC, which hears the case de novo.
If D appeals case to CC, can P amend to increase claim to over $25K?
Yes. BUT not clear whether P could appeal from GDC and try to amend to claim more than $25K.
Will VA enforce forum selection clauses?
Yes. If clause is fair and reasonable.
What are the clauses that fall into CATEGORY A venue?
Local actions, wills, writs, and injunctions.
What are local actions?
Cases for recovery, partition, or judicial sale of land, to establish boundaries to land, for unlawful entry or detainer of land (incl. trespass), to subject land, to a debt, to quiet title or remove encumbrance. Venue is OK where the land or any part thereof lies.
What are wills actions and what is their proper venue?
Cases to establish or impeach a will should be brought where the will was probated or if not yet probated where it could have been offered for probate.
What are writs and what is their proper venue?
Mandamus (forcing officer to perform a ministerial act); prohibition (stopping lower ct from exercising jur); certiorari (review of zoning decision). Venue where the proceeding to which the writ relates is located.
What is the venue rule for actions seeking injunctions?
Where the subject proceeding or judgment is pending or was rendered, or where the subject act is to be done, is being done, or is apprehended to be done.
When there is not Category A venue i.e. when there is Category B venue for any other run of the mill case, what venue choices are appropriate?
1) Where D resides or has principal place of employment; 2) where cause of action or any part thereof arose; 3) where D has a registered office or appointed agent; 4) where D regularly conducts substantial business activity; 5) in case to recover personal property, where property is located; 6) in case against appointed fiduciary, where fiduciary qualified.
If there is an objection to venue, when is a motion objecting to venue timely?
In CC, must file motion w/in 21 days of service unless court extends time to file responsive pleading. In GDC, ok to object to venue on or before day of trial.
What happens if a party timely files a motion to object to venue and the court grants it?
Court will transfer the case unless there’s good cause to keep the case. There is good cause to refuse the transfer when a party doesn’t press the issue promptly.
If there are multiple Ds who reside in different localities, where is venue proper?
If venue is ok for one D, it’s good for all. EXCEPT if one D is entitled to Category A venue, she can object and the case will be transferred there.
If venue becomes improper due to dismissal of the D to which venue was proper, when may the remaining D object to venue and obtain a transfer?
Must file a motion w/in 10 days of dismissal of the D to whom venue was proper. Must show D who has been dismissed was 1) joined improperly or 2) joined to create venue.
If all Ds are non-residents, where is venue proper?
Where P resides. BUT if there is a VA co-D, venue must be proper as to her.
What must court consider and find before transferring a case from a proper venue?
Good cause to transfer. Consider: P’s choice of forum, agreement of parties, avoidance of substantial inconvenience to parties or Ws, delay in party’s seeking transfer. Court has discretion.
What is forum non conveniens dismissal?
If 1) COA accrued out of state, 2) is brought by a non-resident of VA, and 3) there is a more convenient venue outside VA, court might dismiss w/o prejudice. Court must find good cause and that the other court has jurisdiction. Dismissal may be conditioned on state conditions.
What is service of process?
Serving D w/ summons and copy of complaint.
In GDC, what is the summons called?
A warrant OR notice of motion for judgment.
What is the summons called in CC?
Summons.
Who may serve process?
An adult civilian who is not interested in the case; sheriff or deputy.
What are the three ways to serve process and in what order must they be tried?
Personal (actual) service; Substituted service; Posted service. Can only move down the list if one of the “higher” forms of service is impossible.
What is personal (actual) service?
Deliver process directly to D. Must be tried (and be unavailable) before you can try any other methods.
What is substituted service in VA?
Second best way to try to serve process. Requires service at (1) D’s usual abode, (2) to a member of D’s family who is at least 16 who is not a guest or a temporary sojourner, (3) must tell recipient what the contents of the service entail.
What is posted service in VA?
Worst way to serve process. Must 1) post a copy of process on D’s front door and 2) at least 10 days before taking default judgment mail process to D and certify to clerk the mailing took place.
What is the curing statute?
If service was not technically proper, it works if D actually and timely received service. This does not apply in divorce or annulment cases.
Can P request that D waive formal service?
Yes. Same rules as in federal court apply.
If D is in VA to be a W in another civil case, is she immune form service for a VA civil case?
No. But she would be immune for a federal civil case. There is immunity for one summoned to appear before GJ or in a criminal case, but court can deny immunity.
What does service of process under the long arm statute look like?
P executes and files an affidavit setting forth that D is a nonresident or can’t be found with due diligence and D’s last known address. P then gives process and a copy of the affidavit to the Secretary of the Commonwealth. SOC sends process to D by certified mail, and also sends a certificate of mailing to court. Services is complete when received by the clerk of the court. OR P can arrange for personal service out of state by one authorized to serve process there.
What is the return (proof of service)?
A report to the court by the officer who served process, relating what she did to effect service.
When is service timely?
Case is commenced when filed, which tolls SOL. P must serve process w/in 12 mos. of filing or else he can’t win judgment (unless he shows due diligence).
What is the required form of pleadings?
Must state (in numbered paragraphs) the facts on which party relied (OK if include true nature of the claim or defense). At least one lawyer must be set forth and sign doc. Docs that are the basis of the claim or defense may be annexed as an exhibit, making them part of the pleading.
What is a motion craving oyer?
When a document that should be annexed to the pleading is not included, file this motion to require other party to produce the document.
What is the attorney certificate?
Attorney must sign all pleadings, motions and other papers certifying 1) she read it, 2) it is grounded in fact and law to the best of her knowledge, and 3) it is not for harassment or delay.
What are the possible sanctions for delay of an attorney certificate?
Liable for costs and attorney fees incurred by improper document.
What if the attorney refuses to sign a document?
Document can be stricken.
Can a party offer alternative pleadings?
Yes. Can plead alternative facts as to alternative parties if arise from same T/O.
Can the court extend time for pleadings and motions?
Yes. It can do so even if the time for filing the doc has passed. Court can’t condition extension of time on the party’s posting a bond.
What must the court consider on a motion to allow filing of a late pleading?
Review for abuse of discretion, but uphold decision if court considered 1) GF of moving party; 2) prejudice to other party; 3) extenuating circumstance; 4) merit of proposed pleading.
What is the one motion for which the court cannot extent time for filing?
VENUE. Unless court extends time to file responsive pleading.
What are the two versions of a summons that can be issued in GDC?
1) Civil warrant from the clerk of the court, fills in blanks regarding names of parties and nature of grievance. Directed to sheriff/deputy who serves it on D. 2) P can draft a tailored motion for judgment.
What does a GDC summons tell D?
He must appear in court on a certain day to respond. Return date can’t be more than 60 days or fewer than 5 days from service of process.
In GDC, does D usually file a responsive pleading?
No. Generally D shows up when requested and the case is tried. D may move for a bill of particulars for more info about P’s case, and P can move for grounds of defense to compel D to file a responsive pleading. If a response is required by one of these motions, the court can enter SJ against party failing to file.
Does trial always have to go forward on the return date?
A party may move for a continuance, the granting of which is in court’s discretion. Must move before return date or court will not grant unless it’s in the interest of justice.
In GDC, when must objection based on venue be brought?
Anytime before or on the day of trial.
What if a suit in GDC is brought on a written instrument?
The original must be tendered to the court unless excused by court or statute for good cause.
In CC, what must a complaint include?
Name of court, names and addresses of parties, signature of lawyer, statement of facts in numbered paragraphs, and prayer for relief. Need not allege jurisdiction or venue.
What is the statement of relief for damages sometimes called?
Ad damnum clause.
What must be identified separately in the prayer for relief?
Punitive damages.
In a negligence suit, what must be particularly or generally alleged?
May allege negligence and proximate cause generally, but must allege a duty was violated with more specificity.
In VA, when may claims be joined?
P may join claims arising from same T/O, but it’s misjoinder if P tries to join unrelated claims.
When must D respond to a pleading?
W/in 21 days of services of process.
What is a motion for a bill of particulars?
D can make in response to pleading to require the other side to amplify her pleading. Must be made promptly.
What must D do in a motion objecting to venue?
State why venue is improper AND what places would be proper. Must be timely (w/in 21 days after service unless court extends time to file responsive pleading). If the motion objecting to venue is improper, court still has power to transfer.
How can a D challenge a PJ?
Must make a special appearance to assert court lacks PJ or that service was never made. MUST be raised FIRST AND BY ITSELF or else waived.
How can a D challenge improper service?
Motion to quash process. Waived if D makes a general appearance, which includes filing a pleading going to merits, asserting defenses, or filing a motion for a bill of particulars.
What is a demurrer?
Tests the sufficiency of pleading that seeks affirmative relief. Can be used to challenge misjoinder of claims, failure to state a COA, or lack of SMJ, but can’t use to challenge lack of PJ. Demurrer may not allege new facts.
When file a demurrer for failure to state a COA, what does this apply to?
Leaving out an element of the claim, but must state specifically what is insufficient.
What if a demurrer is sustained?
Usually sustained w/o prejudice and sets time for amendment.
When must a demurrer be filed?
Before answer or at the same time. If D files answer before she demurs, can’t demur w/o court permission.
What is a VA special plea?
Affirmative defense. May be raised separately, as a motion to dismiss, or stated like affirmative defenses in the answer. MUST assert or risk waiver.
