Virginia Civil Procedure Flashcards
GDC’s exclusive original jurisdiction
1) Specific personal property 2) Damages for tort or breach of contract 3) Other debt where claim does not exceed $4,500
GDC’s concurrent original jurisdiction
Amount claimed is more than $4,500 and does not exceed $25,000
GDC’s jurisdiction over other actions
1) Partition actions over personal property
To appear a “money only” claim to circuit court, what must be the amount in controversy?
More than $50
Deadline for filing a notice of appeal to circuit court
Within 10 days after entry of order and in writing
Who must pay court costs and an appeal bond to appeal a GDC judgment?
1) Plaintiff: court costs within 30 days 2) Defendant: court costs and appeal bond within 30 days
Deadline to make a motion for a rehearing
1) 30 days from judgment date 2) Judge must rule within 45 days from judgment date
Circuit court jurisdiction
1) Concurrent jurisdiction with GDC where amount claimed is greater than $4,500 and does not exceed $25,000 2) Exclusive jurisdiction where amount exceeds $25,000 3) Jury trials
Preferred Class A venue
1) Action involving land 2) Wills 3) Injunctions 4) Virginia Tort Claims Act 5) Dissolution of marriage 6) Distress actions
Preferred venue for actions involving land
Where the subject land, or any part of the land, is situated
Preferred venue for wills
Where will was probated, e.g., where decedent is a resident at time of death
Preferred venue for injunctions
1) To any judgment or judicial proceeding of circuit court, where judgment was rendered or proceeding is pending 2) To any judgment or judicial proceeding of GDC, where judgment was rendered or proceeding is pending 3) Where act is to be done, being done, or threatened to be done
Preferred venue for Virginia Tort Claims Act
1) Where claimant resides 2) Where act or omission complained of occurred 3) If claimant resides outside of VA or act/omission occurred outside of VA, the City of Richmond
Preferred venue for dissolution of marriage
1) Where parties last cohabited 2) If D is a resident, where D resides 3) If D is a non-resident, where P resides
Preferred venue for distress actions
1) Where leased premises are 2) Where the property liable to distress may be found
Permissible Class B venue
1) Where D resides or has his principal place of employment 2) Where D has a registered office, or has appointed an agent to receive process 3) Where D regularly conducts substantial business activity 4) Where the cause of action (or any part of it) arose 5) Where any of the Ps reside if: (i) all the Ds are unknown or are nonresidents; or (ii) there is no other forum
Permissible venue for an action to recover or partition personal property
1) Where property is physically located 2) Where evidence of such property is located 3) If neither apply, where P resides
Permissible venue for an action against a fiduciary appointed under court authority
Where such fiduciary is qualified
Proper venue for a contract claim
1) Where contract was made 2) Where the breach occurred
Motion to transfer
1) Must state where venue would be proper 2) Must state why venue is not proper where action was brought
Deadline for a motion to transfer
1) GDC: On or before trial date 2) Circuit court: Within 21 days of service on D (or within any extended period to file responsive pleadings)
When can a court transfer a case on its motion?
In a divorce or annulment case within 60 days after service of process, with notice to parties
When may a court retain a case even though it is the wrong forum?
Court finds that: 1) A substantial inconvenience to the parties or witnesses would result from transferring; or 2) Parties have agreed
What happens when a party fails to make timely objection to venue?
Failure to object operates as a waiver
What constitutes service of process?
1) Circuit court: P’s complaint with the summons attached 2) GDC: Complaint, motion for judgment, or warrant
Who can serve process?
1) A sheriff and any deputy within sheriff’s jurisdiction and any contiguous jurisdiction 2) Any person if they are: (i) 18 years or older; (ii) Not a party or otherwise interested in the subject matter in controversy
If service of process in person is not possible, then what methods may be used?
In order: 1) Service to a family member 2) Posting at the front door or other door that appears to be the entrance door of the abode
Who qualifies as a family member for purposes of receiving service of process?
1) Over age 16 2) Who is not a temporary sojourner 3) At D’s usual place of abode 4) Server must explain the purport of the papers
If service is by posting, what must happen before the court can grant default judgment?
1) P must have mailed a copy of process to D at least 10 days prior 2) Must file a certificate of mailing with the court, certifying on a particular date, process was mailed to D
Proof of service
The report of the person serving the papers as to whether service was able to be made, and if so, in what mode
Curative statute
Process received in time by the person whom it is directed is good, except in suits for divorce or annulment of marriage * Notice is insufficient, requires complaint + summons
Service on a convict
1) Delivery to convict 2) Delivery to the officer in charge of such institution who shall deliver it to the convict
Service on a domestic corporation
Personal service on an officer, director, registered agent, or on the Clerk of the State Corporation Commission
Service on a town or city
1) Delivery to the city or town attorney 2) If none, the mayor, manager, or trustee
Service on a county
1) Delivery to the county attorney 2) If none, the attorney for the Commonwealth
Service on a foreign corporation
Personal service on an officer, director, registered agent, or on the Clerk of the State Corporation Commission
Service on partnerships & unincorporated associations
1) Partnership: A general partner 2) Limited partnership: A registered agent, or if not found, the Clerk of the State Corporation Commission 3) Unincorporated association: Any officer, trustee, director, staff member, or other agent
Non-Resident Motorist or Pilot Act
When a non-resident operates a vehicle or aircraft in VA, that person irrevocably appoints a statutory agent to receive process for any action arising out such operation of vehicle or aircraft 1) Motor vehicles: Commissioner of DMV 2) Aircraft: Secretary of the Commonwealth
Long-Arm Statute
Can acquire personal jurisdiction over D who engages in the following: 1) Transacting any business in VA 2) Contracting to supply services or things in VA 3) Causing any tortious injury by an act or omission in VA 4) Causing tortious injury in VA by act/omission in VA, if person regularly does business or derives substantial revenue from goods used or services rendered in VA 5) Causing injury in VA to any person by breach of warranty made in the sale of goods outside VA when one might reasonably have expected such person to use goods in VA, provided he also regularly does business in VA
How is service of process accomplished under the long-arm statute?
1) Send the process to where person resides and have them served there 2) Serve the Secretary of the Commonwealth, who is required to mail a copy of the process to the address of D
Can the long-arm statute be used on a VA resident?
Yes, if P files an affidavit with the Secretary of the Commonwealth stating he has exercised due diligence to find D without any success
Service on a statutory agent
1) Agent must mail a copy of the process to the last known address of D and file a certificate of compliance 2) The date the clerk’s office receives the certificate is the effective date of the process
To file a claim of negligence against a local govt entity, what must claimant do?
Within 6 months of injury, file a written statement including: 1) Nature of the claim 2) Time of the injury 3) Place where injury occurred * Notice is given to the county, city, or town attorney, or the chief executive or mayor
To file claim against a county, what must claimant do?
Present claim to the governing body (Board of Supervisors) before any suit is filed
The Virginia Tort Claims Act (VTCA) waives immunity for what type of tort claims?
1) Claim for damage to or loss of property or personal injury or wrongful death 2) Caused by the negligent or wrongful act or omission of any employee 3) Acting within the scope of his employment 4) Under circumstances where claimant would be entitled to recover against a private employer
VTCA limits liability to how much?
$100,000 or any applicable insurance coverage
Procedure for filing a VTCA claim
1) Notice in writing to Attorney General or Director of the Division of Risk Management 2) Notice is effective when received & may be hand delivered or mailed 3) Notice must occur within 1 year of accrual of claim 4) No suit can be filed until claim denied or 6 months after giving notice 5) Suit must be filed no later than 18 months from giving notice
How you do you file a pecuniary claim against the Commonwealth?
1) Present claim to head of department, division or agency 2) If head cannot be identified, give notice to comptroller 3) Notice must be in writing 4) Within 5 years of accrual 6) Suit must be filed within 3 years after disallowance
In rem jurisdiction
Order of publication may be entered with an affidavit filed stating one or more grounds: 1) D is a foreign corporation or nonresident individual 2) That diligence has been used without effect to ascertain the location of the party to be served 3) Sheriff has been unable to make service for 21 days * Must state last known address of D
What is contained in an order of publication?
Requires D to appear & protect his interests on or before date set, which cannot be sooner than 50 days from date of order. Order is published once a week for four consecutive weeks in newspaper
How can D accept process?
By: 1) Signing the proof of service 2) Indicating the location in which it was accepted
Failure to serve within one year
Court must dismiss action with prejudice (unless P used due diligence in trying to get service)
Motion to quash
Objection to any defect in process
When can a motion to squash be filed?
Prior to or simultaneously with any responsive pleadings
How can D challenge the lack of service within 1 year?
Make a special appearance to file a motion to dismiss with prejudice for the failure of P to serve him within 1 year
Can D file any pleadings on the merits and still object to the one-year service requirement?
No, that will waive the objection
What is the style of a case when P is a child?
X, an infant, who sues by her next friend, Y, Plaintiff
What is the style of a case when P is a person under a disability?
X, who sues by committee (or next friend)
VA’s sanction statute
Pro se party or counsel has duty to certify that: 1) He has read the pleading, motion or other paper 2) It is well-grounded in fact and warranted by law 3) Not for any improper purpose
How does someone become a counsel of record?
1) Notification to the court of appearing or representing oneself (in writing in circuit court) 2) Pro se litigant is treated for all notice and other requirements as “counsel of record”
Cap limitation on punitive damages
$350,000
How do you get the get judge to properly enter an order?
1) Tender an order endorsed by all counsel of record; or 2) Get a date, time, and place from court to make a motion t o enter the order & give written notice to all counsel of record along with proposed order
What happens to a court entered in violation of endorsement or notice requirements?
It is a voidable order, not void order
When must a responsive pleading be filed?
Within 21 days of service on D unless judge grants additional time
Motion for a Bill of Particulars
A responsive pleading that requests that the court order the other side to be more particular in the pleadings filed
Demurrer
A responsive pleading used to raise issues as to the form, style, allegations, or appropriateness of the pleading filed (e.g., allegations are not sufficient)
Requirements for filing a demurrer
1) Must be in writing and state specifically the grounds relied on 2) Can be filed before or concurrently with other responsive pleadings
What standard does the court use to rule on a demurrer?
1) Demurring party admits all facts pled by P 2) Demurrer does not admit conclusions of law
Motion Craving Oyer
Method by which one who is sued on a written document that is not attached to the complaint can ask the court to compel P to produce the document in question
Motion to Strike the Pleading
Challenge to sufficiency of a defensive pleading, such as an answer, plea of the statute of limitation, plea of payment, or demurrer
Motion to Set Matter for Hearing on Bill and Answer
Used to test sufficiency of an answer filed in an equitable claim. Unlike a motion to strike, the case is actually submitted to the judge on the merits, based on the pleadings, with no chance to amend answer.
Consequences of default by D in GDC
1) D waives all objections to admissibility of evidence 2) D is not entitled to notice of any further proceedings 3) D may still appear at a hearing on damages
Consequences of default by P in GDC
1) If neither D or P appears, judge dismisses action 2) If D appears on date case if first on the court’s docket but P does not, judge dismisses action without prejudice 3) If D but not P appears on trial date but P does not: (i) If D admits to owing any portion of P’s claim, dismissal without prejudice (ii) If D denies owing anything, dismissal with prejudice
Consequences of default by D in circuit court
1) D gives up any notice of further proceedings, unless there is a counsel of record 2) D waives right to a jury trial 3) D may still appear and litigate at a hearing on damages 4) Court may not may not enter default judgment in a divorce of annulment case; P must prove the case * No waiver of admissibility of evidence
Deadline for filing a counterclaim
1) Circuit court: Within 21 days of service on D 2) GDC: Any time before trial
Is filing a counterclaim ever compulsory in VA?
No, it is optional
Deadline for filing a cross-claim
1) Circuit court: Within 21 days of service on D 2) GDC: Any time before trial
Does a counterclaim or cross-claim need to relate to the subject matter of the complaint?
1) Counterclaim: No 2) Cross-claim: Yes
Deadline for a third-party complaint
1) Circuit court: Within 21 days after filing a responsive pleading, and thereafter, must obtain leave of court 2) GDC: Within 10 days after service on D or up to trial date, whichever is sooner
Can a party plead alternative theories of its claim or defense?
Yes, as long as they all arise out of the same transaction or occurrence
In VA, can P file separately a suit for a property damage claim and a suit for a personal injury claim arising out of the same facts?
Yes
Amendments to pleadings
1) Must get leave of court 2) Courts must liberally grant leave to amend
Right to have pleadings filed under oath
If not, must assert right by filing a motion to strike within 7 days of its filing or waived
Interpleader action
When one holds property that is the subject of competing claims, the stakeholder can ask judge to decide who is entitled to it
Lis pendens
Notice of pending litigation which may affect title to land: gives notice to bona-fide purchasers that litigation is pending