Virginia Civil Procedure Flashcards
Personal Jurisdiction: 2 step process
- Does Virginia law authorize personal jurisdiction?
- Is Personal Jurisdiction constitutional?
How is General Personal Jurisdiction established?
- Defendant served in VA
- Defendant domiciled in VA
Virginia’s long arm status requires the claim arise in which ways? (7 ways)
1st way: The D/s act/omission AND damage occurred in VA
2nd way: The damage occurred in VA but D’s act/omission did not. Require (1) regularly does or solicits business in Virginia or (2) engages in any other persistent course of conduct from which it derives substantial revenue from goods used in Virginia.
3rd way: Claim relates to real property in VA
4th way: D does business in VA and claim relates to that business
5th way: Breach of warranty causes injury in VA
6th way: Domestic relations cases (divorce, spousal/child support)
7th way: Nonresident Motorist Act
What is the Nonresident Motorist Act
Allows PJ over the owner or operator of a motor vehicle involved in an accident in Virginia.
When is Personal Jurisdiction constitutional?
When defendant has “such minimum contacts with the forum so that jurisdiction does not offend traditional notions of fair play and substantial justice”
Circuit Court: What jurisdiction do they have over claims?
General Jurisdiction
- They can hear any civil action except those for which exclusive jurisdiction is vested in another court
GDC: What jurisdiction do they have over claims?
Statutory jurisdiction and basically for causes of action at law (not equitable claims)
When does GDC have exclusive jurisdiction
For monetary claims or claims to specific personal property of $4,500 or less
GDC: What are four general characteristics?
- Less formal
- No discovery
- No jury
- No injunctive relief
GDC: What is the amount in controversy generally?
≤ 25,000
GDC: What is the amount in controversy involving injury to persons?
≤ 50,000
GDC: What is the amount in controversy involving attachment cases?
≤ 25,000
GDC: When can court not hear attachment cases?
If attachment involves realty, goes to circuit court
GDC: What is the amount in controversy for interpleader cases?
≤ 25,000
GDC: what type of interpleader case can GDC hear in any amount?
Earnest money deposit in land sale contract
GDC: What is the amount in controversy for Distress claims (rent due; unlawful entry or detainer)
No cap
Is interest and/or attorney fees included in determining amount in controversy?
No
What happens if GDC loses if jurisdiction (by amendment)?
It must transfer the case to circuit court.
Requirements for motion to amend and transfer from GDC
- Motion to amend and transfer must be made 10 or more days before trial (unless good cause is shown)
- Plaintiff pays filing and other fees to the clerk of the circuit court
NOTE: Same rules apply for a case filed in circuit court in which PLA moves to decrease the amount of the claim to fit within GDC jurisdiction
Right to appeal from GDC to Circuit Court
Absolute matter of right to appeal a final judgment if the “amount involved” is more than $20. This means a party who is aggrieved by more than $20 by the judgment in GDC can appeal to the circuit court
Steps for appealing a final judgment from GDC to the circuit court
(1) the party files written notice of appeal with the clerk of GDC within 10 days of judgment
(2) the appealing party posts a bond and pays a writ tax in GDC within 30 days of judgment
GDC to Circuit: What kind of case must the appealing party post a bond and pay a writ tax within 10 days of judgment?
Unlawful detainer cases
What are the four Category A venues?
- Certain Land Actions (Local Actions)
- Wills
- Writs
- Injunctions
What are “Local Actions”
Cases for the
1. recovery, partition, or judicial sale of land
2. to establish boundaries to land
3. for unlawful entry or detainer
of land (including trespass)
4. to subject land to a debt
5. to quiet title to land or remove an encumbrance on land
Where is venue OK for local actions?
Where the land or any part thereof lies
Where is venue OK for wills?
Where the will was probated, or if not yet probated, where it could have been offered for probate
What is a writ?
- Mandamus (such as forcing an officer to perform a ministerial act)
- Prohibition (such as stopping lower court from exercising jurisdiction)
- Certiorari (such as review of zoning decisions)
Where is venue OK for writs?
At the place where the proceeding to which the writ relates is located
Where is venue OK for 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.
Where is venue OK for Category B cases?
- Where the defendant resides or has her principal place of employment; or
- Where the cause of action arose
- More possibilities
-Where D has registered office or appointed agent
-Where D regularly conducts substantial business activity
-In Personal Property, where personal property is located
-In a case against fiduciary appointed under court order, where fiduciary qualified
Venue: For a contract case, to determine where the cause of action arose, does that include where the contract was entered?
Yes
Venue: For a contract case, to determine where the cause of action arose, does that include where the contract was to be performed?
Yes
When must Objection to Venue be made in Circuit Court?
Must be filed 21 days after service. If court receives after 21 days, object
When must Objection to Venue be made in GDC?
By day of trial
What happens when there are multiple defendants and venue is only okay for one defendant?
If venue is OK for one defendant, it is OK for all
If P voluntarily dismisses claim against D1, and venue is now improper against D2, can D2 object to venue and how?
Yes, within 10 days of dismissal by showing D1 was joined improperly or simply to create venue.
If all Ds are nonresidents of Virginia, where may P lay venue?
Where P resides
What does court do if case is filed in improper venue?
Court will transfer to proper venue unless it finds good cause to keep the case.
When venue is improper, what is an example of good cause to refuse transfer?
Defendant failure to press the issue promptly
What must be shown to transfer FROM Proper venue and what four factors are considered??
Good cause.
1. Plaintiff’s choice
2. Forum selection clause
3. Convenience for parties/witnesses
4. Court’s discretion.
What is the standard for transferring under Forum Non Conveniens
Transfer ≠ forum non conveniens
When can Forum Non Conveniens apply in VA?
If the cause of action accrued out of state and is brought by a nonresident of Virginia, and there is a more convenient venue outside Virginia
Requirements for Forum non Conveniens
- Good cause
- Other court has jurisdiction
What must be included with service of process?
Summons + complaint
What is a summons?
Tells defendant that she’s been sued and what she needs to do to avoid default
Who can serve?
- An adult civilian who is not interested in the case
- By the sheriff or deputy
What are the three ways to serve individually?
- Personal service
- Substituted service
- Posted service and curing statute
What is personal service?
Delivering process directly to the defendant
When can substituted service be used?
When personal service is tried and unavailable
Requirements of substituted service?
- Personal service was tried and unavailable
- Service must be at Defendant’s usual abode
- Service to D or D’s family at least age 16 and not a guest
- Process server must tell that person the purpose of the documents
Requirements of posted service?
- Personal and substituted service not possible
- Post copy of process on D’s front door
- 10 days before default judgment, must mail process
- Certify to clerk of court
What is a curing statute?
Improper service of process will be deemed sufficient so long as the person to whom it was directed actually received it within the time prescribed by law.
What cases does curing statute never apply?
Divorce and annulment
Can plaintiff request by mail that D waive formal service?
Yes, same as federal courts
If D is in VA to be a witness in another civil case, is she immune from service for a Virginia civil case?
No, but she would be immune for a federal civil case
Is there immunity from service for one summoned to appear before the grand jury in a criminal case?
Yes, but even then, the court may deny immunity if it would thwart efficient administration of justice
What are two ways of service under long arm statutes?
Option One
1. P files affidavit
2. P gives process/affidavit to the Secretary of the Commonwealth
3. Secretary sends process to D
4. Secretary sends certificate to clerk
Option Two
1. Personal service on D outside state
2. Must have PJ outside state
MUST all Virginia incorporated corporations and qualified non-Virginia corporations designate a registered agent to receive service?
Yes
Who may plaintiff personally serve when suing a Virginia corporation?
- Registered agent
- Any officer
- a director
- If registered agent not found at registered office, then clerk of the State Corporate Commission
Who may plaintiff serve when suing a non-Virginia corporation or a Virginia corporation without a registered agent?
Any officer, director, or agent of the corporation found in VA.
How may plaintiff serve when suing a non-Virginia corporation when no one who can receive service is found?
2 copies of process and an affidavit of corporation’s last known address are served on the clerk of the State Corporation Commission
How is service done under the Nonresident Motorist act?
Commissioner of Motor Vehicles also may be served. Plaintiff gives an affidavit of due diligence and of D’s nonresidence; if affidavit is false, no jurisdiction.
When can service by publication be used?
- in cases concerning rights to property
- Plaintiff gives affidavit that he used due diligence to find D, but without success
How long does defendant have to respond to service by publication?
50 days to respond to complaint OR
if against nonresident, plaintiff can ask sheriff in D’s county to serve process on him. 21 days in this case.
What are the requirements for the affidavit supporting publication notice
States
1. Last known address of D
OR
2. the fact that address is known
What is The Return?
Proof of service. It is a report to the court by the officer who served process, relating what she did to make service.
What is the requirements of the return?
- Relates what officer did to make service.
- States reason for failing to serve D personally.
- Filed within 72 hours of serving process
How is a service different when served by an officer vs a civilian?
By officer: Return is prima facie true
By civilian: Must be sworn affidavit. Is evidence of service but not prima facie
When does the case commence for purposes of tolling the statute of limitations?
When filed, not when served
When must Plaintiff have process served to avoid having case dismissed?
Within 1 year of filing
When does untimely service NOT warrant dismissal?
Plaintiff must show due diligence in trying to make service
Before a court dismisses for untimely service, what must they do?
The court must give Plaintiff 30 days’ notice and hold a hearing
What are the rules for service of other documents?
For responsive pleadings, counterclaims, motions, discovery, etc, the party can just mail, fax, or make in-hand delivery of a copy of the paper to all counsel of record on or before the filing date. Then, counsel for serving party certifies the fact of delivery on the document filed with the court.
When can service be emailed?
- Party is not brought before court for the first time
- Consent of the party to be served
How is time to respond to service of other documents different when by mail?
Adds 3 days to time to respond
When is service of other documents effective and what is the exception?
At mailing or delivery, but a fax after 5pm is not effective until the next day
What is the required form of pleadings?
- State in numbered paragraphs, facts on which claim relies
- Clearly informs opposing party of the true nature of the claim or defense.
- At least 1 individual lawyer must sign
What is a motion craving oyer?
When document that should be annexed to a pleading is not, then other party makes a motion craving oyer. If granted, the other party must produce the document, which is treated as though annexed to the pleading.
Pleadings: Requirement of attorney certificate
Attorney must sign and certify
(1) She has read it
(2) to the best of her knowledge, information and belief (formed after reasonable inquiry) it is grounded in fact and law (or a good faith claim that law should be modified) and
(3) it is not for harassment or delay
What are possible sanctions for violating Certificate Requirement?
Can be liable for costs and attorney fees because of improper document. If attorney refuses to sign, document can be stricken.
When can you plead alternative facts to alternative parties?
If they arise from same transaction or occurrence.
Can court extend the time in which parties are required to file pleadings and motions? Are there exceptions?
Yes, in the sound exercise of its discretion, even if time for filing document has passed. A motion challenging venue CANNOT be extended
Can a court condition an extension of time on the party’s posting a bond?
No
Service in GDC
Less formal
1. Plaintiff obtains civil warrant from clerk on court and fills it out OR drafts a tailored motion for judgment (complaint)
- Warrant directed to sheriff or deputy, who serves it on the defendant OR if motion for judgment, officer can serve it along with a notice of motion for judgment.
Requirements of GDC warrant
- Warrant (or motion for judgment) tells D that he must appear in court on the return date to respond.
- Return date is not more than 60 days or fewer than 5 days after service
Are there responsive pleadings in GDC?
Generally, no. They show up on return date and try the case.
GDC: When will the defendant be made to file a responsive pleading?
When plaintiff moves for Grounds of Defense and court grants in their discretion
GDC: What is a bill of particular?
Motion by D for more details of P’s case
GDC: What happens when P fails to file particulars or D fails to file grounds of defense?
Summary judgment against party failing to file
GDC: What is a continuance?
If party does not want to go forward on return date, they may move for a continuance, the granting of which is in the court’s discretion.
GDC: When must motion of continuance be denied?
If party does not move before the return date and does not show continuance is in the best interest of justice
GDC: If a suit is brought on a written instrument, must original document be tendered?
Yes, unless excused by court by statute or for good cause
GDC: When can defendant object to venue?
Any time on or before day of trial
CC: Requirements for a complaint
Pleading must contain
1. Name of court
2. Names and addresses of the parties
3. Signature of lawyer
4. Statement of facts in numbered paragraphs
5. Clearly inform defendant of the true nature of the claim
CC complaint: Must plaintiff allege jurisdiction?
No
CC complaint: Must plaintiff allege venue?
No
Must plaintiff make a statement of relief desired?
Yes
What is a prayer
A statement of relief desired
CC: What is an ad damnum clause?
A statement of relief for damages
CC: What must be identified separately in the prayer for relief?
Punitive damages
CC: When may plaintiff join claims?
When they arise from the same transactions
CC: How long does D have after service to respond?
21 days
CC: Ways to respond to complaint
- Motion for Bills of Particulars
- Motion objecting to venue
- Move to dismiss for plaintiff not serving within 1 year of commencement
- Challenge PJ
- Motion to quash process
- Demurrer
- Special Plea or “Plea in Bar of Recovery”
- Answer
- Equitable defenses to legal actions
CC: What is a Motion for Bill of Particulars?
Asks the court to require the plaintiff to amply her pleading. Similar to federal motion for more definitive statements. Must be made promptly.
CC: What are requirements for a motion objecting to venue?
- States why venue is improper
- States what venue would be proper
- Must be timely: within 21 days unless court extends time.
CC: Can the court transfer venue when defendant files defective motion?
Yes, court has power to transfer
CC: What happens when D’s motion to dismiss for untimely process is granted?
Dismissed with prejudice
CC: When will court deny motion to dismiss for untimely process and what happens?
When plaintiff used due diligence. Motion is denied and D must respond within 21 days of denial.
CC: When does D waive a Personal Jurisdiction challenge?
When D engages the merits/makes a general appearance
CC: Is asking for an extension of time engaging with the merits?
No
CC: Is objecting to venue engaging with the merits?
No, unless raised AFTER making motion objecting to venue
CC: What is a motion to quash process?
A motion that argues service was improper, or a problem with issuance of process or with the return.
CC: When is Motion to Quash process waived?
D makes a general appearance.
CC: When does engaging the merits NOT waive motion to quash process
When made simultaneously or before response to merits
CC: What is a demurrer?
Tests sufficiency of a pleading that seeks affirmative relief.
CC: What is the main use of a demurrer?
Failure to state a cause of action
CC: Can a demurrer challenge misjoinder of claims?
Yes
CC: Can a demurrer challenge lack of SMJ?
Yes
CC: Can a demurrer challenge lack of PJ?
NO
CC: Can a demurrer say P’s pleading is insufficient as a matter of law?
No, pleading must say specifically why it is
insufficient
CC: Can a demurrer say P’s pleading fails to state facts showing that P is entitled to relief?
No, pleading must say specifically why it is
insufficient
CC: What can a demurrer NOT do?
Allege new facts
CC: What does a court do after granting demurrer?
A court will NEVER grant or deny a demurrer. They will sustain or overrule.
CC: How can D raise an arbitration clause that was not mentioned in the complaint?
A motion craving oyer
CC: What does the court do after sustaining demurrer?
Sustain without prejudice and set time for amendment
CC: What happens if D files demurrer before her answer or at the same time?
It’s allowed
CC: What happens if D files demurrer AFTER her answer?
Will need court permission
What is a “Plea in Bar of Recovery”
A special plea that raises affirmative defenses, such as statute of limitations or res judicata.
CC: How can a special plea be raised?
Separately, as a motion to dismiss, or stated like affirmative defense in the answer.
CC: What does D put in answer?
- Responses to allegations of the complain
- Affirmative defenses aka special pleas (D can also move to dismiss)
CC: What is a general denial and is it allowed?
A general denial is one sentence long and denies all allegations of complaint. Generally NOT allowed.
CC: How can D respond to allegations of the complaint?
Admit, deny, state lack of knowledge in numbered paragraphs
CC: After the court has overruled all demurrers, pleas and motions, when will D be ordered to file answer?
Within 21 days or such time as the court directs.
CC: What is common law recoupment?
Equitable defenses to legal actions such as failure of consideration, fraud in inducement, breach of warranty, or unconscionability.
CC: Can D raise equitable defenses in a damages action on a contract?
Yes
CC: Can D recover damages for equitable defenses in a damages action on a contract?
Yes, even in excess of plaintiff’s claim.
CC: In addition to damages in damage actions on a contract, can D get reformation or recission of a contract or compel conveyance of land?
NO
CC: What is a verified pleading?
A sworn pleading or affidavit under oath
CC: When MUST use a sworn pleading or affidavit?
When raising any of the following defenses:
1. Lack of genuineness of handwriting
2. Lack of corporate or partnership or agency status (including employment relationship)
3. Lack of ownership or operation of power or instrumentality
In an action on a contract seeking payment of money, what can the plaintiff file with his complaint (or motion for judgment or civil warrant in General District Court)
An affidavit stating:
(1) the amount of his claim;
(2) that the amount is justly due;
(3) the date from which he seeks interest
In an action on a contract seeking payment of money, how must D respond to affidavit with complaint?
Must plead under oath that P is not entitled to the money. If he fails, judgment is entered for plaintiff.
In an action on a contract seeking payment of money, what is the plaintiff entitled to if defendant pleads under oath P is not entitled to money?
P entitled to continuance if he moves for it.
CC: When must plaintiff file reply?
When D pleads new matter in defensive response and expressly requests that P responds to the new matter.
CC: When P must issue reply, how long does P have?
21 days
CC: Can plaintiff file demurrer if D’s answer is legally insufficient?
No
CC: What is a motion to strike the pleading
A motion P files when D’s answer is insufficient legally.