Virginia Civil Procedure Flashcards
1
Q
How do you sue an incompetent?
A
Sue the fiduciary that was appointed (i.e., committee - french, guardian, conservator)
2
Q
When can a court suspend, vacate, or modify its judgment or decree in the Circuit Court?
What happens after that?
A
During the 21-day period, which is “in the breast of the court”
Afterwards, the court loses jurisdiction, even if a motion is under advisement
3
Q
What is a summons?
What is it called in:
- Circuit court
- General district court
A
The summons tells D that he has been sued
Circuit Court
- Summons
General District Court
- Either:
- Warrant
- Notice of motion for judgment
4
Q
When does P have to respond to D’s response?
A
Only if D inserts new facts into the case and expressly requests that P respond to them
Then P has 21 days to respond in a reply
5
Q
How can a special plea be raised?
A
- Separately
- As a motion to dismiss
- In the answer
6
Q
If P is injured and sues, but before trial dies from the injuries, what is the effect on damages?
A
He cannot get pain and suffering
7
Q
When can service be performed by publication in Virginia?
A
Only in cases concerning rights to property or status (i.e., never in personam jurisdiction)
8
Q
When does a statute of limitations start to run?
A
Upon accrual of the cause of action
- The date of injury or breach, regardless of whether the P was aware of it at that time
- Not from date P discovered or should have discovered
9
Q
In a court of equity, what is oral testimony called?
A
Ore tenus
10
Q
What is the difference between an action for ejectment and an action for unlawful detainer?
A
Ejectment - ousting someone in possession of land
Unlawful detainer - ousting tenant to recover possession
11
Q
When is there a jury trial in Circuit Court?
A
Same as in federal court, but based on state law and not the 7th amendment
But must be at law, not equity
12
Q
On appeal from the GDC, what does the Circuit Court do?
A
Hears the case de novo
13
Q
With regard to personal jurisdiction, what requires a special appearance, and what is okay for a general appearance?
A
No personal jurisdiction or service was nevere made - special appearance
Service was improper - general appearance is okay, but waived if not brought up at beginning
14
Q
How is service performed under the Non-Resident Motorist Act?
A
P serves the Commissioner of Motor Vehicles with an affidavit of due diligence and D’s non-residence
15
Q
What is a pretrial interlocutroy ruling?
How do you et it?
A
Where 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 be dispositive of material aspect
- In best interest of parties to seek interlocutory review
After getting this certification, file a petition w/ Supreme Court within 10 days
16
Q
What is forum non conveniens?
A
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 Virginia
- There is a more convenient venue outside Virginia
17
Q
When can you move for a new trial?
What are the grounds for doing so?
A
While the case is still in the breast of the court (i.e., 21 days)
Grounds:
- Prejudicial error or misconduct by court
- Misconduct of party, attorney, juror, or third party
- New evidence
- Unfair surprise
- Excessive of inadequate damages
18
Q
In GDC, if the court orders P to file a bill of particulars, or orders D to file grounds of defense, and they fail to do so, what can happen?
A
The court can enter summary judgment against any party
19
Q
Has the Virginia Supreme Court ever allowed nonmutual collateral estoppel?
A
No
20
Q
What are the two pleading types?
What does Virginia require?
A
Fact pleading and notice pleading
Virginia requires fact pleading (i.e., must include all facts necessary to back up allegations)
- Facts must be in numbered paragraphs
21
Q
What tolls the statute of limitations? Service or filing?
A
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 service process within 12 months of filing or else he cannot win judgment
22
Q
What is an incompetent is sued without a fiduciary?
A
Same as with minor
23
Q
In GDC, how does D respond to the civil warrant/motion for judgment?
A
By simply showing up on the return date and trying the case
If D wants more details, he moves for a bill of particulars (which court has discretion to grant)
24
Q
How does an incompetent sue?
A
Either:
- Guardian sues
- Incompetent sues in own name, by next friend
25
What are a party's options if a judge orders remittitur?
* Accept remittitur
* Accept remittitur under protest and appeal remittitur
* Reject remittitur and go through new trial
* If still aggrieved, appeal on basis that granting new trial was error, but only if:
* Made exception to order of new trial on the record
26
Who bears the burden of showing the statute of limitation bars the claim?
D
27
What is the size of the jury in Virginia?
Case involves less than $25,000
* 7 jurors
Case involves $25,000 or more
* 5 jurors
Parties consent
* 3 jurors
28
Can a party seek discovery of another party's insurance coverage that could not be admitted at trial?
Yes. Discoverable is broader than admissible
29
If your husband is unconscious and the two eyewitnesses to the accident intend to leave the country, what should you do?
1. Become the husband's _fiduciary_
2. _Subpoena_ the witnesses
3. File a _verified petition_ in the court where husband resides, seeking perpetuation of testimony
30
How do you serve an individual in Virginia (specifically)?
Based on the _descending order_ rule (can only move down the list if former methods are impossible):
1. _Personal_ service (i.e., directly to D)
* Must be tried
* _Note_: this is different than Federal court
2. _Substituted_ service
* Must be served:
* At D's _usual abode_
* On _member of D's family_ who is both:
* At least 16 years old
* Not a guest or temporary sojourner
* By _explaining the purpose_ of the service
3. _Posted_ service
* Must:
* _Post_ a copy of process on D's _front door_
* _Mail_ a copy of process to D
* At least 10 days before taking default judgment
* _Explain_ to D that P may seek default judgment 10 days later (only in Circuit Court)
* _Certify_ to the clerk that mailing took place
31
In Circuit Court, how does D respond to P's complaint?
A number of options:
1. Motion for _bill of particulars___
2. Motion objecting to _venue___
3. _Special appearance_ to challenge personal jurisdiction
4. Motion to _quash process___
5. _Demurrer___
6. _Special plea___
7. _Answer___
32
What are the statute of limitations for:
* Personal injuries
* Nonphysical personal torts
* Defamation
* Property damage
* Property damages for sales under UCC
* Fraud
* Wrongful death
* Written contracts
* Unwritten contracts
* Unlawful detainer
* Personal injuries - 2 years
* Nonphysical personal torts - 2 years
* Defamation - 1 year
* Property damage - 5 years
* Property damages for sales under UCC - 4 years
* Fraud - 2 years
* Wrongful death - 2 years from death
* Written contracts - 5 years
* Unwritten contracts - 3 years
* Unlawful detainer - 3 years from detention
33
When is D required to raise a defense in a sworn pleading or affidavit?
Defenses based on:
* Lack of genuineness of _handwriting_
* Lack of corporate or partnership _agency status_
* Lack of _ownership or operation_ of property/instrument
34
How many jurors have to agree in order to get a verdict?
It must be unanimous, unless:
* Parties agree otherwise
* It is a three person jury (in which case 2 votes is fine)
35
For purposes of determining the 21-day period, what do you count?
All days, including weekends and holidays
36
What if a minor is sued without a guardian ad litem?
Any judgment is invalid, unless both:
* Minor represented by a _lawyer_ who entered an appearance for her
* Suit is not to _encumber minor's land_
37
What is common law "recoupment"?
When D pleads _equitable defenses_ in legal claims on contracts (e.g., failure of consideration, fraud in the inducement, breach of warranty, etc.)
38
Does a court have to grant a request for an extension of time for filing?
No, so long as it considers:
* Good faith of moving party
* Prejudice to other party
* Extenuating circumstances
* Merit of the proposed document
39
What is the equivalent of the RJMOL in Virginia?
What is the difference?
Motion to set aside verdict as contrary to evidence
The party _does not_ have to have moved to strike the evidence first (different from Federal court)
40
If there are two defendants who live in different places, what venue is proper?
If venue is okay for one defendant, that venue is okay for all defendants
_Unless_ one defendant is entitled to Category A venue, in which case she can object and the case will be transferred there
41
In an action for detinue, what should P do from the outset?
Move for _pretrial seizure_ by:
* Verified petition
* Describing property and showing rights to it
* Stating risk that property will be damaged, hidden, or removed
* Posting bond that is twice the value of the property
42
What are the different methods of partition of realty?
1. Division in kind
* Divide up property among interested parties
2. Partition by allotment
* Give land to one party and have them pay off others
3. Partition by sale
* Co-owners split proceeds of sale
* Only allowed if other methods not feasible
43
What is the difference between the circuirt courts and the GDCs in Virginia?
Circuit courts:
* Have general SMJ
GDCs:
* Basically restricted to hearing _legal claims only_
* Courts _not of record_
* No formal _pleadings_
* No _discovery_
* No _jury_
44
How does the class action work in Virginia?
It doesn't, there is no such thing in Virginia
45
How do you determine venue in Virginia?
1. Is there a _forum selection clause_?
* Must be _fair and reasonable_
2. Does the case fall into _Category A_ venue?
* Local actions (involving _land_)
* Venue is where land or any part thereof lies
* _Will_ actions
* Venue is where will was subject to probate
* _Writ_ actions (i.e., mandamus, prohibition, certiorari)
* Venue is where proceeding to which writ relates is located
* _Injunctions_
* Venue is where subject proceeding/judgment is located
3. Does the case fall into _Category B_ venue?
* Whatever does not fall into Category A
* Venue may be:
* Where D resides
* Where D has principal place of employment
* Where cause of action arose
* Where D has registered office/agent
* Where D regularly conducts business
* Where property subject to litigation is located
* Where fiduciary subject to litigation is qualified
46
Can the GDC attach real property?
No. That must go to the Circuit Court
47
When is D required to file her answer?
Within _21 days_ after the court has overruled all demurrers, pleas, and motions
48
What is the motion to strike the evidence?
Functional equivalent of a JMOL
49
How does D raise a statute of limitations defense?
Special plea
50
When P files a complaint, that tolls the statute of limitations for what?
* P's claim
* Counterclaims arising from same T/O
* Crossclaims arising from same T/O
51
What happens if D responds without raising a special plea?
It is waived
52
How is service performed on Virginia Corporations?
What about non-Virginia corporations?
Virginia Corporations
* P _personally serves_ either:
* The corporation's _registered agent_
* Any _officer_ of the corporation
* Any _director_ of the corporation
* _State Corporation Commission_
Non-Virginia Corporations
* If registered to do business in Virginia, same as above
* Otherwise, P either:
* _Personally serves_ either:
* The corporation's _registered agent_ in Virginia
* Any _officer_ of the corporation in Virginia
* Any _director_ of the corporation in Virginia
* Serves the following with the _State Corporation Commission:_
* 2 copies of process
* Affidavit of corporation's last known address
53
Under the Virginia Code, who is subject to _general_ personal jurisdiction?
Defendants who are either:
1. _Served with process_ instate
2. _Residents_ (domiciled) instate
54
In Circuit Court, how does D challenge personal jurisdiction?
Must make a _special appearance_
Must be raised _first and by itself_, or waived (that would be called a general appearance)
55
What would D files to argue lack of SMJ?
Demurrer
56
What if a demurrer says that P's pleading is "insufficient as a matter of law" or "fails to state facts showing P is entitled to relief"?
This is not good enough - P must specifically state why the complaint is not good enough
57
If a document that should be annexed to a pleading is not, what can the receiving party do?
Make a motion _craving oyer_, which requires the other party to produce the document, and then it is annexed
58
What is a special plea?
This is Virginia's version of the affirmative defense
59
If P takes a nonsuit and wants to refile, when can he do so?
Within _60 months_ or _SOL period_, whichever is longer
60
How does P start the case in GDC?
Either:
* Obtain a _civil warrant_ (i.e., printed form) from the clerk of court and fill in the blanks (i.e., name of parties and nature of grievance)
* Draft a tailored _motion for judgment_
61
What is a partial final judgment and when is it appealable?
When the court enters judgment regarding one party but not the other (i.e., summary judgment in favor of D1 but not D2)
The loser on the motion (D2) may appeal if:
* Trial court enters partial final judgment
* Interests involved are separate and distinct from those remaining
* Results of appeal will not effect remaining decision
* Results of remaining decision will not affect disposition of final partial judgment
62
What happens to the statute of limitations in a case against an unknown owner or operator of a motor vehicle?
Statute of limitations is tolled for _3 years_ so P can identify D
If D has actual knowledge of the action within the limitations period, P can amend to name him specifically after period
63
How do you appeal from the GDC to the Circuit Court?
1. File written notice of appeal
* With the _clerk of GDC_
* Within _10 days of judgment_
2. Post bond and pay writ tax in GDC
* Within _30 days of judgment_
* Within _10 days of judgment_ (if unlawful detainer)
64
In Virginia, when can you amend the pleadings?
Only if you get leave to amend
This is not the case in Federal court
65
If all defendants are nonresidents (i.e., out of state), where can P lay venue (in addition to where action arose)?
Where P resides in Virginia
(But if one D is a Virginia resident, venue must be proper to her)
66
What if there are two defendants, but the case is voluntarily dismissed against one defendant, and that defendant provided the basis for venue?
The other defnedant can move to object to venue _within 10 days of dismissal_
The court will transfer venue if that defendant shows the other defendant was _joined improperly or to create venue_
67
In what name does a minor bring suit?
In what name is a minor suied?
She should sue in her own name, by _John Doe, her next friend_
She should be sued in her own name, but P should ask the court to appoint a _guardian ad litem_
68
What would D file to argue misjoinder of claims?
Demurrer
69
What is the procedure for jury selection?
7 or 5 person jury
* Begins with number of jurors to be selected plus 6
* After voire dire, parties exercise strikes for favor
* If one is stricken, another is brought on
* Each side uses their 3 preemptory challenges
3 person jury
* Each side chooses one
* The two jurors choose the third
70
What would D file to argue failure to state a cause of action?
Demurrer
71
If Case 2 is in a different court system (i.e., federal or state) from Case 1, which system's laws apply regarding res judicata or collateral estoppel?
Case 1
72
What is a quotient verdict?
Is it allowed?
Each juror sets his own damages and then they divide by the number of jurors
It is improper because they have to reach a number as a group
73
What is the warrant?
What is the notice of motion for judgment?
What are the restrictions on them?
_Warrant_ - printed form starting case in GDC that is served by sheriff or deputy
_Notice of motion for judgment_ - goes along with the tailored motion for judgment drafted by P in GDC
The return date (i.e., when D must appear in court) cannot:
* Be more than _60 days_ from service
* Be less than _5 days_ from service
74
What constitutes "good cause" to refuse transfer based on improper venue?
A lawyer's _failure to press the issue_ of improper venue, even if a motion objecting to venue was properly filed
75
What is the rule regarding discovery in Circuit Court?
Generally mirrors federal rules, except:
Distinctions:
* No mandatory disclosures
* 21 days rather than 30 days for deadlines
* 30 is the max for interrogatories
* No limit on number of depositions
* No requests for production against non-parties
76
What is different in Virginia regarding counterclaims?
* They are never compulsory
* Don't need to be transactionally related to original claim
* Must be against P or all Ps jointly
77
When can a party seek a rehearing in GDC?
No later than _30 days after judgment_, and court must rule no later than _45 days after judgment_
78
When can you appeal a Circuit Court decision to the Court of Appeals?
Generally only in domestic relations cases and in some administrative matters
Otherwise, seek appeal by Supreme Court, which is always discretionary
79
How does P start the case in Circuit Court?
What does this need to contain, what can it contain, and what does it not need to contain?
1. File either a:
* _Complaint_
* _Petition_ (if suing for a writ)
2. Must contain:
* Name of court
* Names or parties
* Addresses of parties
* Signature of lawyer
* Statement of facts (in numbered paragraphs)
3. May contain:
* _Prayer_ for relief, including:
* _Ad damnun_ clause (if money damages)
* Separate identification of _punitive_ damages
4. Does not need to contain:
* Allegation of jurisdiction
* Allegation of venue
80
Who can serve process in Virginia?
Either:
* _Adult civilian_ who is not interested in case
* _Sheriff_
* _Deputy_
81
When can a P plead inconsistent allegations?
P can plead _alternative facts to alternative parties_, if they arise from the _same transaction or occurrence_
82
How does a lawyer properly object to venue?
Circuit Court
* By filing a motion within _21 days after receving process_
* _Note_: the motion must be _filed_, not merely mailed
General District Court
* By objecting _on or before the day of trial_
83
In Circuit Court, what are the requirements for a motion objecting to venue?
Must state:
* Why venue was improper
* What venue is proper
Must be _timely_ (i.e., within 21 days of service)
84
If D is in Virginia to be a witness in a civil case, can she be served for another civil case?
If the other case is a _Virginia_ case, _yes_ (i.e., no immunity)
If the other case is a _Federal_ case, _no_ (i.e., immunity)
Virginia is different than the Federal rules here
But immunity does apply if D is in Virginia for to appear in:
* Grand jury proceeding
* Criminal case
85
If D appeals from GDC to the Circuit Court, what can P do in response?
Can P do this if P appeals from GDC to the Circuit Court?
Move to amend his claim to over $25,000 (because the GDC would not have had jurisdiction over this amount before)
It is not clear whether P could do this if he appeals
86
What is "the return" or "proof of service"
A report to the court by an officer who served process, saying what he did to effect service
A civilian can do this too, but it is prima facie evidence of service if an officer does it, not so with a civilian
Must be filed within 72 hours of service
87
What are the sanctions if an attorney certificate is wrong?
The party can be liable for attorney's fees incurred because of the improper document
88
What is the one motion for which time cannot be extended by the court?
_Venue_ (i.e., the judge cannot extend the time for filing a motion to transfer venue)
_BUT_ you can simply ask for an extension of time to file a responsible pleading (i.e., just not refer to venue by name)
89
How does a convict sue and be sued while in custody?
Should be done through a committee
If convict is suing, he waives committee if he does so without one
90
What are the different types of writs?
What venue is appropriate in these cases?
Writ of:
1. Mandamus
* E.g., force government official to fulfill duties
2. Prohibition
* E.g., stop lower court from exercising jurisdiction
3. Certiorari
* E.g., review zoning decision
Venue is appropriate under _Category A_ where the proceeding to which the writ relates is located
91
Can the GDC hear:
* Actions at law in tort
* Actions at law in contract
* Actions in detinue
Yes, but only if:
* Amount in controversy is _$25,000 or less_
92
What is the rule regarding discovery in GDC?
There is no discovery
Parties can compel witnesses to attend trial through:
* Subpoena
* Subpoena duces tecum
93
What is different in Virginia regarding default?
It is entered _automatically_
94
What is the curing statute?
Does it always apply?
Definition
* It says that even if service was improper, if D _actually_ (i.e., in person) and _timely_ (i.e., before D would be in default) receives service, it is okay
Application
* Does not apply in _divorce and annulment_ cases
95
If D's motion objecting to venue is defective (e.g., it did not state what venue was proper), what can the judge do?
He can still transfer
If this arises, just explain why the motion was defective
96
If a claimant won Case 1, what is res judicata called?
What is the claimant lost?
Merger
Bar
97
Over what claims does the GDC have exclusive subject matter jurisdiction?
* Monetary claims of $4,500 or less
* Claims to personal property of $4,500 or less
98
How is a Commissioner used in equity cases?
The Commissioner assists the judge in deciding the case
The judge sends matters to the Commissioner by a decree of reference, telling him what to do
Commissioners can only be used if either:
* All parties agree
* Court finds good cause
99
Can the GDC issue distress warrants? What are these?
These give the creditor rights to seize property
The GDC can issue them regardless of amount
100
What causes of action can be plead in the same complaint?
Any claims that arise from the same transaction or occurrence
101
Can the GDC hear:
* Claims for rent due (i.e., distress claims)
* Claims to oust D from real property
* Disputes over leases
Yes, and there is _no monetary ceiling_
102
What is the official announcement by the court of the decision in the case:
* On legal causes of action
* On equitable causes of action
Legal - _judgment_
Equitable - _decree_
103
When can you appeal from the GDC to Circuit Court?
If the amount involved is more than $50, there is an absolute right to appeal
104
When can P take a nonsuit without prejudice?
Only once, and only if the following is not true:
* All considered _at time of motion_:
* Jury retired from bar
* Non-jury case submitted to court for decision
* Motion to strike evidence granted
* Demurrer or special plea is both:
* Fully argued
* Awaiting decision
105
In Virginia, what is different about impeaching a verdict for impropriety by a juror?
In Federal court you can't really ask jurors about anything
In Virginia, you can ask jurors about misconduct but not about their subjective deliberations process
106
How is service performed under Virginia's long-arm statute?
First alternative:
1. P executes and files an _affidavit_ setting forth both:
* That D is a _non-resident or cannot be found_
* D's _last known address_
2. P gives process and a copy of the affidavit to the _Secretary of the Commonwealth_
3. The Secretary:
* Sends process to D by certified mail
* Sends a certificate of mailing to the court
4. Service is complete once the _clerk of court receives_ the certificate
Second alternative:
* P arranges for _personal service out of state_ by someone authorized to serve process there
* _Note_: P obviously must have a basis for personal jurisdiction under the long-arm
107
If in response to a request for admission, D refuses to respond, what is the result?
Because D failed to deny, it is treated as an admission
"If you don't deny you will surely fry"
108
Under the Virginia Code, who is subject to _specific_ personal jurisdiction?
Under Virginia's _long-arm statute_, the claim must arise from the defendant doing/having one of the following:
1. _Tortious injury_ instate by act or omission instate
2. _Tortious injury_ instate by act or omission out of state
* D must either:
* Regularly do or solicit business instate
* Derive substantial revenue from goods instate
3. _Contracts_ to supply services or things in Virginia
4. Having an interest in, using, or possessing _realty instate_
5. Any _business transaction_ instate
6. _Injury_ instate by _breach of warranty_ from sale out of state
* D must either:
* Have reasonably foreseen effect instate
* Regularly do or solicit business instate
* Derive substantial revenue from goods instate
7. Matrimonial domicile instate (domestic relations cases)
Under Virginia's _non-resident motorist act (NRMA)_, the claim must arise from:
* Motor vehicle accident instate
* But also falls under long-arm #1 above
109
What is different in Virginia about enforcement of arbitration agreements?
* Must be done in _Circuit Court_
* Party can petition court to _confirm arbitration award_ into a judgment
* Party can petition court to _vacate arbitration award_ on limit grounds:
* Fraud
* Corruption
* Undue influence
110
What is the basic idea behind subject matter jurisdiction in Virginia?
State courts can hear any case except those for which there is _exclusive federal question jurisdiction_ (e.g., federal antitrust, patent infringement, bankruptcy)
111
To argue that service was improper, what motion would D make?
Motion to quash process
112
Can the GDC attach property?
Yes, but only if the value is $25,000 or less
113
If D filed a counterclaim or crossclaim, can P take a nonsuit?
Only if:
* D agrees
* D's claim can be adjudicated independently
114
When does a party have to demand a jury?
If a party doesn't do so, what happens?
Within _10 days_ after service of last pleading raising jury-triable issues
If not demanded, bench trial (unless judge orders jury)
115
When might the statute of limitations start to run later than date of injury or breach?
* _Fraud, mistake, or undue influence_ (discovery)
* _Malicious prosecution_ (end of underlying case)
* _Contribution_ (when one pays more than fair share)
* _Medical malpractice_ (end of full course of treatment)
116
What is different in Virginia medical malpractice cases?
Within 30 days after responsive pleading, either party can request a _medical malpractice panel_ to decide the case
* Parties can accept the decsion or resume the case
* Decision will be admissible evidence at trial if:
* Includes standard of care applied
* In discovery parties can as panel about deliberation
117
What is a motion for bill of particulars?
* Asks other side to _amplify pleading_
* Must be made _promptly_
118
What happens if P joins unrelated claims?
This is _misjoinder_, and it is unique to Virginia
119
When must an impleader action be filed?
Circuit Court
* 21 days after service
GDC
* Earlier of:
* 10 days after service
* Trial date
120
If a demurrer is sustained, what does a court do?
Sustains without prejudice and sets a time for amendment
121
What is intervention?
Is it allowed in GDC?
Circuit Courts?
When a third party wants to join a pending case
Allowed in Circuit Court but not GDC
Always permissive, never mandatory
122
In GDC, can D ever be required to file a responsive pleading?
Only if P moves for _grounds of defense_, and the court grants it
123
In addition to common law recoupment, when can D raise equitable defenses in a legal contract action?
Under _Virginia Code_, but the court cannot:
* Reform the contract
* Rescind the contract
* Compel the conveyance of land
124
What is different in Virginia regarding summary judgment?
Not granted if:
1. Conflict in pleadings
2. Based on affidavits
3. Based on depositions (unless all parties agree)
4. Divorce or annulment case
125
When can a tortfeasor seek contribution from joint torteasors?
So long as:
* Tort is _negligence_
* Does not involve _moral turpitude_
* _P could have recovered_ against the tortfeasor
* E.g., P cannot sue employer under worker's compensation
126
Can a party who files a complaint recover more than he seeks in the complaint:
In Federal court?
In Virginia court?
Federal
* Yes (unless default judgment)
Virginia
* No
127
If P is suing partners in the partnership, who must be named in the complaint?
Either:
* Individual names doing business under firm name
* Firm name
You probably want both so you can have an alternative source for collecting judgment
128
How do you determine which state court has subject matter jurisdiction in Virginia?
1. Circuit court
* May hear _any civil action_, except actions for:
* Monetary claims of $4,500 or less
* Claims to personal property of $4,500 or less
2. General district court (GDC)
* May hear certain limited claims (see next card)
3. Small claims court
* Part of the GDC
* Concurrent jurisdiction over claims of $5,000 or less
129
Can the GDC grant injunctions?
Generally, no.
_Exception_: to enforce state FOIA
130
When should D file a demurrer with respect to when she files an answer?
Demurrer must be filed before the answer
131
In a wrongful death action in Virginia:
* Who brings the case
* Who are the beneficiaries
* What damages can be recovered
* Brought by decedent's executor
* Beneficiaries:
* SS, children, and grandchildren
* If no children or grandchildren,
* SS & parents of decedent
* If no SS, children, or grandchildren,
* Parents & siblings of decedent
* If no beneficiaries in these groups,
* Decedent's intestate takers
* Damages:
* Can be lumped
* Sorrow, anguish, and lost companionship
* Services and income provided by decedent
* Must be separately stated
* Medical and funeral expenses
* Punitive damages for wonton or willful misconduct
132
On the bar exam, how is the use of Commissioners often raised?
In cases involving the partition of land (e.g., division in kind, etc.)
133
When can venue be transferred?
* When venue was _improper_
* When either party makes a _motion_ for a transfer, if:
* There is _good cause_ to transfer - i.e., the transferee venue is the _center of gravity_ (i.e., more convenient)
134
What is the major exception in Virginia for the "same T/O" requirement with regard to res judicata and collateral estoppel?
When property damage and personal injury arise from the same T/O they are different causes of action
135
What does it mean to toll the statue of limitations?
What will toll the statute of limitaitons?
Stop it from running
Sources of tolling:
* Minority
* Being of unsound mind
136
What is different in Virginia regarding necessary and indispensable parties?
Same as in Federal courts, except under Virginia Code:
* Necessary parties include parties "as the ends of justice require"
* There is no such thing as indispensable parties in Virginia
137
What should D do if she wants to respond to P's complaint based on new information/facts?
File a motion _craving oyer_
_DO NOT_ file a demurrer (these cannot be based on new facts)
138
In which cases is discovery narrower in Virginia?
* Divorce
* Habeas corpus
* Eminent domain
139
If D's response is somehow inadequate, what does P file?
A motion to strike the pleading
_Not_ a demurrer - that is only in response to causes of action
140
What is an attorney certificate?
It is the Virginia version of FRCP 11
Attorney (or pro se party) must sign all pleadings, motions, and other papers, certifying that:
* She has read it
* To the best of her knowledge, information, and belief, it is grounded in fact and law
* It is not for harassment or delay
141
Does minority toll the statute of limitations in medical malpractice cases?
Not if the child is 8 or older - 2 year SOL applies
If child is younger than 8, can sue until 10 years old
142
If venue is improper, and an objection is timely filed, what will the court do?
_Transfer_ to a proper venue unless it finds _good cause_ to keep the case
_Note_: the court _will not dismiss_
143
What is different in Virginia regarding crossclaims?
Historically, needed to be done with a formal summons; probably not the case anymore but no clear case law
144
What factors are relevant to determining whether a court has good cause to transfer venue?
* Agreement of the parties
* Avoiding substantial inconvenience to parties/witnesses
* Delay in seeking transfer
145
Can the GDC hear interpleader cases?
Yes, but only if either:
* Stake is worth _$25,000 or less_
* _Earnest money deposit_ in a land sales contract
(And no injunction is available)
146
If a defense is raised that is required to be in an affidavit, but it is not, what should P do?
Make a motion to strike the pleading within _7 days after filed_
Otherwise, the objection is _waived_
147
When does the statute of limitations start to run for a nuisance?
If there is a single nuisance, when it starts
If there is an intermitten nuisance, maybe each time nuisance starts up again
148
For subpoenas, what is the standard for information requested:
* In Federal court
* In Virginia
Federal court
* Must be relevant to a _claim or defense_
Virginia
* Must be relevant to _subject matter of pending action_
Relevant = _reasonably calculated to lead to admissible evidence_
149
What types of things can P allege generally in a complaint?
* Negligence
* Proximate cause
But there must be facts to support the actual elements of the cause of action for negligence (e.g., duty, etc.)
150
Can the amount of a counterclaim exceed the amount of P's original claim?
Yes, but if in GDC, watch out for the jurisdictional limit (i.e., $25K)
151
When can a D implead after the statute of limitations?
If P files within 30 days of end of SOL, D can implead within 60 days after SOL
152
If a party files within the statute of limitations, but then takes a nonsuit after the statute has run, can he refile?
Yes. He can refile within the later of:
* 6 months
* End of statute of limitations
153
What is the bill of review?
Bill in equity cases that trumps 21 day period.
Party can seek review of final decree for up to 6 months after entry
154
How do you serve process in Virginia (basically)?
Serve D with both:
* Summons
* Copy of complaint
155
If the court enters nonsuit, is it appealable if:
* D does not object
* D objects
No objection
* No appeal (it is without prejudice)
Objection
* Appeal (as to whether nonsuit should have been granted)
156
What do special statutes in Virginia do to help vendors collect on contracts?
If P files with his complaint (in Circuit Court) or civil warrant/motion for judgment (in GDC) an _affidavit_ stating:
* Amount of claim
* Amount is justly due
* Date from which he seeks interest
And D does not plead _under oath_ that P is not entitled to the money, then _judgment entered for P_
157
If P's executor sues for wrongful dead, and D dies before judgment, what is the effect on damages?
Punitive damages not allowed
158
In an action for detinue, what can D do if P moves for pretrial seizure?
Get the property back in the meantime by:
* Posting bond of two times the value of the property
* Giving P notice
159
Is a judgment or decree entitled to res judicata or collateral estoppel effect if it it has been appealed, or if the time for appeal has not ended?
Virginia - no
Federal - yes
