Virginia Civil Procedure Flashcards
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When does P have to respond to D’s response?
P must reply to D’s response only if
1. it inserts new facts into the case *and *
2. expressly requests that **P respond **to them
THEN P must reply within **21 days **
How can a special plea be raised?
A special plea may be raised:
1. separately,
2. As a motion to dismiss, or
3. In the answer
When can service be performed by Publication in Virginia?
Only in cases concerning rights to property or status
When does a statute of limitations start to run?
Upon the accrual of the cause of action (i.e., date of injury or breach)
NOT from date P discovered or should have discovered
In a court of equity, what is oral testimony called?
Ore tenus
What is the difference between an action for ejectment and an action for unlawful detainer
Ejectment - ousting someone in possession of land
Unlawful Detainer - ousting tenant to recover possession
With regard to personal jurisdiction, what requires a special appearance, and what is okay for a general appearance?
A special appearance can be made only when (1) no personal jurisdiction exists or (2) **service was never made **
A general appearance may be made when service was improper
What is a pretrial interlocutory ruling
A pretrial interlocutory ruling is when a party requests the court to certify to the appellate court regarding a matter in which:
- No substantial ground for difference of opinion,
- No clear Virginia appellate precedent,
- Determination will e dispositive of material aspect
- In best interest of parties to seek interlocutory review
After getting this certification, file a petition with Supreme Court within 10 days
What is forum non conveniens
A court might dismiss without prejudice if all of the following are present:
- cause of action arose out of state
- cause of action was brought by non-resident of VA
- There is a more convenient venue ouside of VA
When can you move for a new trial?
Within 21 days of entry of final order
What are the grounds for moving for a new trial?
Grounds:
1. Prejudicial error or misconduct by court
2. Misconduct of party, attorney, juror, or third party
3. New evidence
4. Unfair surprise
5. Excessive of inadequate damages
In GDC, if the court orders P to file a bill of particulars, or order D to file grounds of defense, and they fail to do so, what can happen?
The court can enter summary judgment against any party
What are the two pleading types?
Fact pleading and notice pleading
What type of pleading does Virginia require?
Virginia requires fact pleading (i.e., must include all facts necessary to back up allegations)
- facts must be in **numbered paragraphs **
What tolls the statute of limitations in VA? Service or filing?
Filing - so if service is not made until after the statute of limitations has run, that is okay as long as the suit was filed beforehand
BUT P must be served with process within 12 months of filing or else he cannot win judgment
How does an incompetent (including minor) sue?
Either through:
1. His/her guardian
2. In his/her name, by next of friend
Which party bears the burden of showing that statute of limitations bars the claim?
The Defendant
What is the size of the jury in civil cases in Virginia?
- If case involves over $25,000, then 7 jurors
- If the case involves less than $25,000, then 5 jurors
- If the parties consent, then 3 jurors
Can a party seek discovery of another party’s insurance coverage that** could not** be admitted at trial?
Yes, discoverability is broader than admissibility.
What is remittitur?
In Virginia, remittitur is when the trial judge requires the plaintiff to “remit” a part of his recovery, as ascertained by a jury (essentially reduces the amount of an award given by the jury).
What are a party’s options if a judge orders remittitur?
The party may:
1. accept the remittitur
2. Accept the remittitur under protest and appeal
3. Reject the remittitur and go through a new trial
How do you serve an individual in Virginia (Specifically)?
Based on the Descending Order Rule (i.e., can only move down the list if former methods are impossible):
- Personal Service - directly to D (must be attempted)
-
Substituted Service - must be served:
(i) At D’s usual abode,
(ii) On member of D’s family (at least 16yo and not a guest),
AND
(iii) Explain the purpose of the service. - **Posted Service - Must:
(i) post a copy of process on D’s front door,
(ii) mail a copy of process to D (at least **10 days before taking default judgment),
(iii) explain to D that P may seek default judgment 10 days later (in Circuit Court)
AND
(iv) certify to the clerk that mailing took place
What is the statute of limitations on personal injuries?
2 years
What is the statue of limitations for nonphysical personal torts?
2 years
