VA Themis Handout

Question 1

Two main trial court for ordinary civil cases

Answer 1

General District courts
Circuit courts

Question 2

GDC JX over non-personal injury actions:
o Jurisdiction over claims alleging damages from $1 to $_____________—including $_____________ itself
o If the alleged damages are _____, the case has to go to ________

Answer 2

25,000
25,000
25,001
Circuit Court

Question 3

GDC JX for personal injury actions:
o Jurisdiction over claims alleging damages from $1 to $_________________—including $________________ itself
o If the alleged damages are $_______, the case has to go to _____

Answer 3

50, 000
50,000
50,001
Circuit Court

Question 4

GDC JX over unlawful detainer actions
o More easily understood as _________________________ disputes
o Jurisdiction _______ of the amount in controversy

Answer 4

Landlord-tenant
regardless

ALWAYS HAS JX

Question 5

GDC cannot issue ________ relief

Answer 5

injunctive

Question 6

GDC and CC have _______ jurisdiction

Answer 6

concurrent

Question 7

The circuit court has jurisdiction over claims that are valued OVER _______

Answer 7

4,500
so 4,501 and up

Question 8

The GDC has concurrent jurisdiction with the CC if the claim is between ______ to _________ or __________ if it is a personal injury action

Answer 8

4501 to 25,000 or 50,000 if personal injury action

Question 9

If the claim is for 4500 or less than the _______ has exclusive jurisdiction

Answer 9

general district court

Question 10

The general district court always has concurrent jurisdiction over _________ regardless of the amount

Answer 10

unlawful detainer claims

Question 11

When there is concurrent jurisdiction, the plaintiff can _____

Answer 11

decide which court to go to

Question 12

Virginia trial courts have PJ to the _________________________ permitted by the Due Process Clause

Answer 12

full extent

Question 13

Two questions to ask regarding personal jurisdiction

Answer 13

1. Is the assertion of PJ consistent with Virginia Law
2. Is the assertion of PJ consistent with Federal Law

Question 14

To assert PJ in Virginia over a non-resident you must:

Answer 14

identify a series of contacts with VA that are sufficient to give the court jurisdiction

Question 15

What are some contacts that would give VA personal jurisdiction over a non-resident?

Answer 15

1. Contract based contacts
2. Tort Base contacts
3. Property based contacts
4. family based contacts

Question 16

Contract based contacts:
If D conducts ___________or___________ into the state, a VA court will have PJ over the D provided that the claim being brought ____________________

Answer 16

business in VA or sells goods or services

arises from the defendant’s contacts within the state

Question 17

Contract Based Contacts:

Answer 17

If a D sells a product outside of VA covered by an
explicit or implied warranty and the product
causes injury in VA, the D will be subject to PJ if:

i) the D could reasonably expect that the product will be used in VA; and
ii) The D conducts regular business or derives substantial revenue

Question 18

If a D acts in VA, causing _____ injury in the state, VA will have PJ over that particular claim

Answer 18

tortious

Question 19

If a D acts outside of VA, causing tortious injury in the state, VA will have PJ over the D provided that:
i.
ii.

Answer 19

The D has systemic contacts with the state; and
The claim arises from those contacts

Question 20

If a D has an interest (e.g., ownership, possession) in __________ in VA, VA will have PJ over the D provided the claim _____ from that ________

Answer 20

real property
arises
interest

Question 21

Family based contacts
Divorce action: ______

Support action: _______

Answer 21

If the Matrimonial domicile was in VA, then VA has PJ to adjudicate a divorce

If a D is obligated to pay spousal or child support to a VA resident, then VA has PJ to enforce the obligation

Question 22

“Subject to service of process” triggers a ______________

Answer 22

personal jurisdiction issue

Question 23

Personal jurisdiction is about predictable places you can be sued.
What are the non-random places you can be sued?

Answer 23

1. Where you are domiciled
2. Where you have minimum contacts
3. Where you have given consent
4. Where you can be served with process “Tag Jurisdiction”
5. Where you are essentially at home (mostly applies to companies operating in state but not domiciled there)

Question 24

PJ Federal
Domicile means:
o Human: _______
o Entity: _________

Answer 24

The state in which he resides and intends to remain

The state of its principal place of business and its state of organization

Question 25

PJ Federal
Minimum Contacts:

Contacts that are ________________________________________

A D can be sued in a state where it has _____ and _____

Answer 25

purposefully established

minimum contacts and there is a relationship between the claim and those contacts

Question 26

Tips for evaluating minimum contacts (federal)
Contact with the state: D must intentionally establish contact with the state, not simply a _________________________ who is a _________________________
Stream of commerce: Intentionally putting something in the stream of commerce _________________________ that you intend to go everywhere the stream goes, even if you know the path of the stream.
Selling product in the state: Selling a physical product in the state _______________________________ to establish contact with the state
Other contracts: Contractual relationships that do not involve the sale of products or services will establish PJ if the contract portends a _________________________ relationship with the forum state
Relationship between contact and claim: Use a ______ causation analysis
Fair play and substantial justice is ______________ on exam

Answer 26

person; resident of the state;
does not mean;
is enough
substantial ongoing
but-for
rarely dispositive

Question 27

What situations could you consent to personal jurisdiction?

Answer 27

o Can arise from a contract that has a forum selection clause
o Can also arise from a decision to make an appearance in a lawsuit and fail to object to PJ

Question 28

Venue in VA
Preferred (Mandatory) or Category A Venue
o C _____
o R____
o A___________________
o W ____________

o I ___________

Answer 28

Choice of forum clause: must sue where the forum clause tells you
Real property: must sue where the land is located
Action against the state: must sue where the plaintiff resides
Wills: must sue where the will was or would’ve been probated
defendant (usually where the decedent lived at the time of death)
Injunctive relief: Must sue in the district where the defendant will be
forced to perform

Question 29

Venue in VA
Permissible or Category B Venue
o If a preferred venue does not exist, P may sue in any of the following venues:
 Where a human D _________________________ or _________________________
 Where a business D has its _________________________________________
 Where a business D conducts _________________________ business, as long as that
place is related to the P’s case
 Where a business D’s ____________________________________ is located
 Where a corporate D’s _________________________
 Where the P’s claim _____:
* Contracts: Last act that formed the contract occurred or where the breach occurred
* Tort: Where wrongful acts or harm occurred
* Everything else: Analogize to contracts or torts

Answer 29

resides
works
principal place of business
substantial
registered agent resides
CEO Resides
arose

Question 30

venue in VA
Multiple Defendants: A venue that is lawful for any ____ defendant is lawful for ____ defendants

Answer 30

one
all

Question 31

Transfer in Virginia State Court

o Mandatory or preferred venue: _________________________
o Permissible venue: _________________________
 The court can transfer to ________________________________ of whether that venue is designated as __________
o Impermissible venue: Court can retain the suit if _______ or _________
 If defendant objects to venue, ____________________

Answer 31

transfer is not permitted

Transfer is permitted if there is a substantially more convenient forum

any fair or convenient forum inside the commonwealth regardless
Permissible

the defendant Fails to object
or the parties agree to stay there

the court will transfer the case to an appropriate venue.

Question 32

Forum Non Conveniens (FNC)

Answer 32

A dismissal (not transfer) of a case because it cannot be conveniently brought anywhere in the Virginia court system

Question 33

A Virginia state court will dismiss an action under FNC if:

Answer 33

i. An alternative forum outside the Commonwealth is much more convenient;
ii. Plaintiff is a non-resident;
iii. The claim arose outside the Commonwealth; and
iv. The alternative forum will have PJ over all defendants

Question 34

Complaint in GDC

Answer 34

o Informal
o Can file a regular complaint, but often, “complaints” are simply forms to fill out (sometimes called a “warrant in debt” or “summons for unlawful detainer”)

Question 35

Complaints in the circuit court must:

Answer 35

-contain the facts that establish the plaintiff’s claim for relief
-include a demand for relief; an Ad damnum clause stating how much the plaintiff is demanding

Question 36

Can a plaintiff recover more than is stated in the complaint?

Answer 36

No

Question 37

Can you plead alternative facts or theories of liability in complaint?

Answer 37

yes

Question 38

If there are documents that are essential to the case, the plaintiff must ______________ them to the complaint
 If not done, defendant can file a motion _________________________

Answer 38

attach
craving oyer

Question 39

Every complaint must be _____, by either ________ which signifies:
* Signor has _______________
* Signor believes it is ___________
* Complaint is ________________ (like harassment or delay)
 If the complaint is not signed, it can be ______

Answer 39

signed
a licensed attorney or an unrepresented party
read the complaint
supported by sufficient facts and law
not offered by an improper purpose
stricken

Question 40

Joinder for minors:

Answer 40

If minor is plaintiff; the suit must be filed by a next friend
If minor is defendant; the minor can be named directly; The court must ensure that the minor is represented by an attorney

Question 41

joinder; incapacity

Answer 41

Court may appoint a fiduciary
 The fiduciary becomes the party that is named in the lawsuit
o If a fiduciary is not appointed, the suit is handled the same as with a minor—i.e., there is a
“next friend” pleading

Question 42

Joinder; imprisonment

Answer 42

Handled in a similar way as incapacitated persons
o Instead of a fiduciary, the court will appoint a committee
 “Committee” is actually a single person

Question 43

Joinder; deceased person

Answer 43

o If someone dies while a lawsuit is pending, the lawsuit continues and person’s heir or personal representative will take over
o Similarly, if a person is liable, but dies before liability is determined, the liability is passed on to their estate
o Upon the decedent’s death, a “personal representative” is substituted as the new party

Question 44

Joinder of parties: multiple plaintiffs
Multiple Ps cannot join together unless they have a joint _______
Ps who are jointly injured in the same accident ____________

Answer 44

legal right

cannot join together

Question 45

A plaintiff can sue multiple defendants, the claims must _______________________

Answer 45

arise out of the same transaction or occurrence

Question 46

Necessary Party Joinder
When a person or entity has a significant interest in the litigation, but is not a party o To determine whether to join that person or entity, the court asks:

Answer 46

i. Is the absent party necessary?

ii. If the absent party is necessary, can the party be joined? (Pj?)

iii. If the absent party cannot be joined, should the court continue
with the suit or dismiss the entire action? (highly discretionary)

Question 47

How do you determine if a party is necessary to the action?

Answer 47

The party has an interest that might be impaired if left out of the litigation
 Complete relief cannot be issued in the party’s absence
 The current parties would be subject to duplicative or inconsistent liability

Question 48

What is misjoinder?

Answer 48

When a party has been inappropriately joined to a lawsuit

Question 49

What is non-joinder?

Answer 49

When a necessary party should have been joined but was not

Question 50

What is interpleader?

Answer 50

One party is stuck between two other competing parties

Ex. insurance company doesn’t know who to pay out between two parties

Question 51

Are multiple claims allowed by claimant?

Does it matter whether they are related to the original claim?

Answer 51

Yes they are Allowed whether they are related or not
A particular claimant may bring any other claim that they want, regardless of whether the claims are related

Example 37: If P wants to sue D for damaging her chainsaw (trespass to chattels), she can also sue D for stealing her cat (conversion), even though the two claims have nothing to do with each other.
Example 38: Similarly, if P sues D for a punching her in a bar brawl, and D files a counterclaim alleging that P punched him, D can also add a claim arising from P’s theft of a ham out of D’s refrigerator.

Question 52

A counterclaim may be brought whether it is _______ or ________ to the P’s underlying claim

Answer 52

related or unrelated

Question 53

Does virginia have a compulsory counter claim rule?

Answer 53

No

Question 54

Do the federal courts have a compulsory counter claim rule?

Answer 54

Yes, If the D has a counterclaim that arises from the same transaction or occurrence as the P’s original claim, the D has to bring that counterclaim

Question 55

What is a cross-claim?

Answer 55

A claim brought by one party against a co-party—most often a D against a co-D

Question 56

Do cross-claims have to relate to the same transaction or occurrence underlying one of the claims in the original action?

Answer 56

Yes always

Question 57

Are cross claims permissive or compulsory?

Answer 57

Permissive, NEVER compulsory

Question 58

What is a third party claim? (impleader)

Answer 58

A claim brought by a D (also called the third-party P) against another party not yet in the lawsuit (also called the third-party D)

Question 59

What must a third party claim allege?

Answer 59

Claim must allege that the new party is responsible for all or part of the original D’s liability

Question 60

Is the SOL an affirmative defense?

Answer 60

Yes, it must be raised or it is waived

Question 61

What is the defense of laches? What do they apply to? What is its relationship to the SOL?

Answer 61

Bars suits where the P has unreasonably delayed pursuing a suit
Laches only applies to suits seeking equitable relief
Can impose a shorter timeline than would otherwise apply under the SOL

Question 62

What is the statutes of repose? What is its relationship to SOL?

Answer 62

Statute of repose works like a SOL, except that it imposes an absolute limit on when a suit can be brought
o An SOL might not start running until later, so a statute of repose sets an absolute limit on when a suit can be brought

Question 63

Three questions for every SOL issue:

Answer 63

1. How long will the clock tick for?
2. Accrual—When does the clock start ticking?
3. Tolling—When does the clock stop ticking?

Question 64

SOL for defamation and libel

Answer 64

1 year

Question 65

SOL for Personal injury and fraud

Answer 65

2 years

Question 66

SOL for injury to property

Answer 66

5 years

Question 67

SOL for oral contract; equitable estoppel, unjust enrichment

Answer 67

3 years

Question 68

SOL for UCC Art 2 contracts for sales of goods

Answer 68

4 years

Question 69

SOL for written contract not covered by UCC Art 2

Answer 69

5 years

Question 70

When does the clock for SOL start ticking?

Answer 70

Accrual occurs when the injury actually occurs—not when the injury is discovered

Question 71

Exceptions for SOL accrual- when the clock starts
 Fraud or mistake— _______
 Certain medical claims—failed _______, faulty medical device
* In exchange for the more generous discovery rule, the SOL is shortened to _________________________

Answer 71

SOL begins to run when the fraud or mistake is discovered or reasonably should’ve been discovered, whichever is earlier

diagnosis
1 year

Question 72

When does the clock on SOL stop ticking - tolling;

a. Suit is ______

b. Obstruction by the _______
 If the D does something to keep the plaintiff from filing suit, the SOL will be tolled
 Obstruction occurs when D:
* Files for ________
* Hides the _______
* Takes _______ actions

c. Lack of capacity to sue (minor)
 Minor in ordinary case: If the P is injured when a minor, the SOL is tolled until P becomes an ______ or is __________
 Minor in a medical malpractice case: Ordinary_____ SOL applies unless the minor is younger than ___when injured, in which case she has until she is __ years old to sue

Answer 72

a. Suit is pending

b. Obstruction by the D
 If the D does something to keep the plaintiff from filing suit, the SOL will be tolled  Obstruction occurs when D:
* Files for bankruptcy
* Hides the injury
* Takes curative actions

c. Lack of capacity to sue (minor)
 Minor in ordinary case: If the P is injured when a minor, the SOL is tolled until P becomes an adult or is emancipated
 Minor in a medical malpractice case: Ordinary 2-year SOL applies unless the minor is younger than 8 when injured, in which case she has until she is 10 years old to sue

Question 73

A P who nonsuits her case has _________________________ or the remainder ________, whichever is _________________________

Answer 73

6 months to refile
of the SOL
longer

Question 74

How to calculate SOL time
* Always _________________________ the ________event
o The triggering event is the day that starts the clock ticking—usually the date of ______
* The SOL will expire on the _________________________ as the triggering event, in the year dictated by the length of the SOL
* If the expiration of the SOL falls on a day when the court is closed (i.e., weekend or legal holiday), the SOL is extended to the _____________________________________

Answer 74

start counting on the day after
triggering
injury
same day
next business day

Question 75

What is Process?
What is Summons?

Answer 75

• Process: (1) a summons, and (2) a copy of the complaint
• Summons: Formal document issued by the court that commands the D to respond to the allegation

Question 76

Who can serve process?

Answer 76

sheriff in their jx or adjacent jx
disinterested person (non-party + non-family member+18 yrs old)

Question 77

When must you serve process?

Exceptions:
If the P fails to serve process within that time, the court will ______ the lawsuit with ________,
unless the P can show that she exercised _________ in attempting to complete service

Answer 77

Within one year of complaint

Exception:
If the P fails to serve process within that time, the court will dismiss the lawsuit with prejudice,
unless the P can show that she exercised due diligence in attempting to complete service

Question 78

How is process served in VA to a natural person?

2. 3.

Answer 78

1. Personal Service (actual physical delivery to person)
2. Substituted Service (Actual, physical delivery to some other person close to the defendant, leave w/ family member at least 16 who resides at D’s home)
3. posting (posts process on the front door of the defendant’s usual place of abode AND mails a copy of process to that same address) This method of service cannot support a default judgment unless a copy of service was mailed to the defendant at least 10 days before judgment.)

Question 79

How is process served on entities in VA?

Answer 79

1. Service on officer, director, or registered agent
   if there is no registered agent, service is allowed on ANY agent of entity

Question 80

After serving process, the server has __________________ to file proof of service with the court

Answer 80

72 hours

Question 81

If the D actually receives process within one year of filing the complaint, service will be sufficient even if the service rules were technically broken if

Answer 81

the server acted in good faith

Question 82

If the D actually receives process within one year of filing the complaint, service will be sufficient even if the service rules were technically broken if

Answer 82

the serve acted in good faith

Question 83

Where the D agrees to acknowledge the lawsuit without formal service of process

Answer 83

waiver

Question 84

Once served with process, the defendant has _____ days to respond to complaint

Answer 84

21

Question 85

if the defendant has waived service of process, they have ___ days to respond from the _____________ or if the defendant is out of state they have ___ days to respond

Answer 85

60 days
date of waiver
90 days

Question 86

Optional pre-answer responses to complaint: You can file one of these motions (8)

Answer 86

1. Motion to dismiss for lack of SMJ
2. Motion to quash service of process (PJ challenge)
3. Motion to dismiss for failure to serve process
4. Motion objecting to venue
5. Motion for bill of particulars
6. motion craving oyer
7. demurrer
8. plea in bar

Question 87

What does a Motion to Dismiss for Lack of SMJ challenge?

Answer 87

Argues that P has filed in wrong court

Question 88

What does a Motion to Quash Service of Process challenge?

Answer 88

Challenges the court’s personal jurisdiction

Question 89

What does a Motion to Dismiss for Failure to Serve Process challenge

Answer 89

Argues that service has not been served correctly
o If the server’s failure to serve was innocent and reasonable Virginia will deem service to be proper

Question 90

What does a Motion Objecting to Venue argue?

Answer 90

Argues that the P filed in the wrong venue

Question 91

What does a Motion for Bill of Particulars argue?

Answer 91

Argues that the D cannot respond to the complaint without more information

Question 92

What does a Motion Craving Oyer argue?

Answer 92

Asks the P to provide a document referred to in the complaint, and which is essential to the P’s claim

Question 93

What does a demurrer argue?

Answer 93

Argues that P’s allegations fail to state a claim upon which relief can be granted

Question 94

When does a defendant submit a plea in bar?

Answer 94

Used when a D has a complete defense to one of the P’s claims
Allows the D to put on evidence of an affirmative defense

Question 95

If the court denies a D’s pre-answer motion, the D has __________________ from the denial to file an answer

Answer 95

21 days

Question 96

Answers typically contain _________________________, _____________________, and ________________________________________

Answer 96

admissions
denials
affirmative defenses

Question 97

For each allegation in the complaint, the D must

Answer 97

admit or deny allegations

Question 98

Failure to deny an allegation is treated as

Answer 98

an admission

Question 99

When must affirmative defenses be raised?

Answer 99

In the first defensive pleading or it is waived

Question 100

A pleading is the ______ or _________

Answer 100

complaint or answer

Question 101

How do you amend a pleading in Virginia?

Answer 101

You must file a motion seeking leave to amend and include the amended pleading

Question 102

In federal court, there are some opportunities to amend ___________

Answer 102

as of right

Question 103

Leave to amend in VA should be _________ granted in furtherance of the ends of _________

Answer 103

liberally
justice

Question 104

VA courts will consider 3 facts when considering a motion seeking leave to amend
1. M; _______ delayed in seeking amendment
2. P
3. F; inquiry into the ______ of the proposed amendments

Answer 104

1) Movant’s bad faith—unreasonably delayed in seeking amendment
2) Prejudice to non-movant
3) Futility—inquiry into the merits of the proposed amendment

Question 105

A claim added to a previously filed lawsuit will be deemed to be filed at the same time as the original suit if the claim ____________________________________________________ as one of the claims in the original suit and the amended claim ___________ to one of the original claims

Answer 105

arises from the same transaction or occurrence
relates back

Question 106

o In order to add a new party to a suit after the SOL has expired, three factors must be satisfied:
1) The claim against the new party must _______________________ to one of the original claims (i.e., arises out of the transaction or occurrence underlying an original claim)
2) The new party must have had _____________ notice of the suit within the time in which the original defendant had to be served with process (i.e., ________________________ + _________________ for service of process)
3) The new D expected to be sued but was not sued because of a _____________________ by the plaintiff

Answer 106

relate back
actual
SOL + 1 year
Mistake in identity

Question 107

A misnomer is

Answer 107

a mistake in the name, not the identification of the party
This is not a SOL issue

Question 108

The scope of discovery in VA state courts (just as in federal court) is defined by five factors:
1. R
2. W
3. P
4. U
5. E

Answer 108

1. Relevance
2. Work product
3. Privilege
4. Undue Burden
5. Experts

Question 109

Scope of discovery- Relevance
* May only seek discovery of relevant information
* Relevant: Information has potential to make a fact in _______________________ more or less ____________
* Two types of information that are frequently sought that might seem irrelevant:
o Net worth: Not generally relevant, but may be relevant when plaintiff is seeking _____________________
o Insurance coverage: Discovery _______ permitted because it significantly ___________________

Answer 109

dispute
likely to be true
punitive damages
universally
expedites resolution of cases

Question 110

Scope Discovery-Work Product
* _______ or other ______ objects created by a ______________ or party’s ________________ in anticipation of litigation
are generally_________, but requesting party can obtain:
o _________________________ statement
o _____ information (i.e., substantial need exists) the party cannot otherwise obtain

Answer 110

documents
tangible
party
attorney
not discoverable
Own
crucial

Question 111

Discovery scope- Privilege
* Protects certain information from discovery for _______ reasons
* Attorney Client privilege extends to _________________________ between attorney and client for the purpose of obtaining or rendering _________________________ advice
* Several exceptions apply; the most common is _______

Answer 111

public policy
communications
legal
waiver

Question 112

Scope of discovery- Undue Burden
* Exists in three circumstances:
i. Discovery sought is unreasonably _________________________ or can be obtained from a less burdensome source or in a less burdensome way
ii. Party seeking discovery has already had ample opportunity to obtain the information
iii. Burden or expense of proposed discovery outweighs its _________________________,
considering the nature of evidence sought, amount in controversy, and parties’ resources
* General goal is to limit wasteful (i.e., inefficient) discovery

What is the general concept of undue burden that encompasses all of these?

Answer 112

cumulative
benefits

EFFICIENCY - concept that unifies these
limits wasteful discovery

Question 113

Scope of discovery- Experts
* Can generally only seek discovery of information about a _________________________ expert
* Non-testifying expert: an expert consulted to help a party understand factual issues related to
her claims
* Discovery from testifying experts only extends to:
o The expert’s _________________________ stating her expert opinion
o Communications relating to _________ for the expert’s study or testimony
o Communications relating to the _________________ provided by the attorney to the expert

Answer 113

testifying
final report
compensation
data

Question 114

Do virginia courts have initial disclosures?

Answer 114

No

Question 115

Virginia limits interrogatories to __

Answer 115

30

Question 116

VA courts limit requests for admission to __

Answer 116

30

Question 117

Can a party respond to a request for admission by stating “whether or not X happened is up the jury to determine”

Answer 117

No obviously

Question 118

Requests for physical or mental examination must be ______ and they require _____________ first

Answer 118

relevant
judicial approval

Question 119

Do VA courts have limits on depositions?

Answer 119

No

Question 120

DO federal courts have limits on depositions?

Answer 120

Yes, 10 without leave of court

Question 121

Party may only use a deposition at a hearing or trial if the party against whom deposition is used had a _______ opportunity to be _____ at the deposition, and only according to the following conditions:
 Deposition of party or unavailable non-party: Can be used for _____________________ * Non-party deemed unavailable if they are not present, regardless of the reason
 Deposition of present non-party: Can be used to ___________________ the deponent

Answer 121

reasonable
present
any purpose
impeach

Question 122

May a Party depose a witness before filing suit if there is reason to believe that witness will not be available for deposition or testimony after suit has been filed?

Answer 122

yes

Question 123

Non-Party Discovery: Subpoenas
* Must use subpoenas to seek information relevant to ______ or _____ from non-parties
* Two types of subpoenas available:
o Subpoena for ________ (re: documents, things, or access to land)
o Subpoena for _________________________ testimony
* Non-party can ______ to subpoena by asserting that it seeks information outside scope of discovery

Answer 123

a claim
defense
production
deposition
Object

Question 124

Time to Respond
* VA rule: Parties responding to a discovery request generally must respond within ____________
* Federal rule: Parties responding to a discovery request generally must respond within ________

Answer 124

21 days

30 days

Question 125

If D is properly served with process but fails to _________________________ within the allotted time, court will assume that D ____________________
o Consequences of default:
 D waives the right to a _________________________
 D may no longer contest his _______, but may contest________
 D is not entitled to any further _________________________ of proceedings in the case
* Exception: _______

Answer 125

respond
does not contest the allegations
jury trial
liability on the merits
value of damages
notice
If D has attorney, notice must be provided to attorney

Question 126

does failure to respond automatically entitle P to a judgment against D?

Answer 126

No

Question 127

What happens when a D fails to respond to service of process?
1.
2.
3.

Answer 127

1. there is an entry of default
2. Plaintiff must move for default judgment
3. If damages are plain on the face of the complaint, court will order award of those damages; if damages are not self-evident the court will hold a hearing to set damages where D may participate

Question 128

If default has been recorded but default judgment has not been entered:
 D can file a _________________________ to file a _________ pleading
* Motion must show _________ for failing to respond
 Court may condition its grant of the motion on D __________ for any _____ caused by the delay

Answer 128

motion for leave
responsive
good cause
accepting responsibility
costs

Question 129

If a default judgment has already been entered:
 D should file a ___________________________________ the default judgment
 Motion must be made within ________________ of entry of judgment (unless judgment was ______ or without ______)

Answer 129

motion to set aside
21 days
fraudulent
jurisdiction

Question 130

First nonsuit is as of ___________________
 Subsequent nonsuits require _________________________
 When determining whether to allow nonsuit, court may award _______ to opposing parties

Answer 130

right
leave of court
fees and costs

Question 131

P can file nonsuit:
 Before the case is submitted to the _________________________ _______
 Before a motion to ____________ has been _________________________

Answer 131

fact finder for resolution
strike the evidence
sustained

Question 132

If suit involves related counterclaims, _________________________, or impleader claims, no party involved in those claims can ______ without ______ of the opposing party

Answer 132

cross claims
nonsuit
permission

Question 133

If suit involves related counterclaims, _________________________, or impleader claims, no party involved in those claims can ______ without _______ of the opposing party

If opposing party will not grant permission for nonsuit, only option is outright dismissal _________________________

Answer 133

nonsuit
permission
with prejudice

Question 134

o If P wishes to refile in state court after nonsuiting, must file in same ___________________ to prevent judge shopping

Answer 134

venue

Question 135

NON SUIT: SOL: Must refile within _________________ or the remainder of the SOL, whichever is
___________________

Answer 135

six months
longer

Question 136

Is summary judgment common in virginia compared to other jx?

Answer 136

no, it is uncommon compared to other jx

Question 137

Court’s only job in a summary judgment motion is to determine

Answer 137

(i) whether there is a genuine dispute as to any material
fact, and if not, (ii) does the law determine that the movant should win

Question 138

In summary judgment, the Court does not weigh parties’ evidence; must construe evidence in the light most favorable to _________________________

Answer 138

non-movant

Question 139

On SJ motion, evidence presented to the court in _________________________ form rather than live testimony

Answer 139

documentary

Question 140

What do parties typically use to support or oppose a motion for summary judgment?

I:
R:
D:

Answer 140

Parties typically use interrogatories, requests for admission, and documents produced during discovery to support/oppose motion for SJ

Question 141

In VA: Movant generally cannot use _________________________ excerpts to support a SJ motion, but _________________________ can oppose SJ using deposition transcripts

Exception: Movant can use deposition excerpts if:
Movant contests availability of _________________________ damages;
o Claim is between two business entities for ____ or more; or
o Parties _________________________ to use deposition excerpts

Answer 141

deposition
non-movants
punitive
50k or more
agree

Question 142

In circuit courts, either party has a right to a jury in an _________________________

Answer 142

action at law

Question 143

No right to a jury in _______________________________ courts or in __________________ actions

Answer 143

general district
equitable actions:
Actions seeking equitable relief (e.g., injunctions, specific performance, reformation of a contract)

Question 144

what is an equitable action?

Answer 144

Actions seeking equitable relief (e.g., injunctions, specific performance, reformation of a contract)

Question 145

Party seeking trial by jury must _____ the right:
 P can demand trial by jury in the _________________________; or
 Any party can demand a trial by jury after the _________________________ of the action, but no later than ____________________ after service of the last pleading

Answer 145

assert
complaint
commencement
10 days

Question 146

Even if neither party demands trial by jury, the ____ may decide on its own to have a jury trial

Answer 146

court

Question 147

Personal injury case involves more than _______________, or non-personal injury case involves more than ________________: Jury composed of _____________ persons

Answer 147

50k
25k
7

Question 148

Personal injury case involves ___________________ or less, or non-personal injury case involves ____________________ or less: Jury composed of ________________ persons

Answer 148

50k
4500
5

Question 149

If parties agree: Jury of ______________ persons is permissible

Answer 149

3

Question 150

How many peremptory strikes does each side have in jury selection?

Answer 150

3
*Peremptory strikes may not be used to discriminate on basis of race or gender

Question 151

Parties must object to proposed jury instructions _____ case is submitted to jury to preserve the issue for appeal

Answer 151

before

Question 152

Judge cannot share the judge’s own _________________________ of the case

Answer 152

opinion

Question 153

Jury Deliberation
Jurors may take the jury _________________________ into jury room, but may not take _________________________
o _________________________ may be taken into jury room upon request of the jury
o If jury needs to view a specific place or premises, the court ___ allow it

Answer 153

instructions
pleadings
exhibits
may

Question 154

o Verdicts are typically “_________________________ verdicts”
o General verdict: Simply declare the _______ of suit
o Special verdict: Reveals jury’s conclusion on various______ in case

Answer 154

general
winner
sub-issues

Question 155

Motion to Strike the Evidence 1. What is it?
o Functionally equivalent to federal motion for ______________________________________ o Made at trial and based on the actual evidence presented

Answer 155

JMOL

Question 156

When must a motion to strike the evidence be brought?
o _________________________ party can move to strike the evidence
o Most commonly, ________________ will move immediately after _________________ has presented her evidence
o Both parties can both move after ________ of all the evidence

Answer 156

either
defendant
plaintiff
conclusion

Question 157

What standard is applied to a motion to strike the evidence?

Answer 157

o Court applies summary judgment standard
o Court will consider all evidence presented in a light most favorable to non-movant and determine whether a reasonable jury could rule in non-movant’s favor

Question 158

courts retain power to reconsider, modify, or vacate judgment
for ___ days

Answer 158

21

Question 159

What are options for post-judgment relief sought within 21 days?

Answer 159

Motion to set aside default judgment
Motion to set aside judgment as contrary to evidence
Motion for a new trial

Question 161

Motion to set aside default judgment:
 Court will set aside a default judgment if _________ requires judgment to be set aside
 After expiration of __-day period, may overturn default judgment only in limited circumstances

Answer 161

Justice
21

Question 162

Motion to set aside judgment as contrary to evidence
 Court will only grant motion if no _________________________ could have reached the verdict in question
 Similar to federal renewed judgment as a matter of law, except that movant need not have made a motion to ___________________________________ at trial

Answer 162

reasonable jury
strike the evidence

Question 163

Motion for a new trial
Must be filed within __ days of judgment

 Motion may be based on:

*
*
*
*

 Court must rule on a motion for new trial within __________ of the motion being made

Answer 163

30 days

i)Misconduct of parties, judge, juror, witness or some other party tainted the results

ii) Legal error by the court

iii) Newly discovered evidence that:

i. Was discovered after trial and could not have been reasonably discovered before trial;
ii. Is not merely cumulative or corroborative; and
iii. Is of sufficient power that it would have likely produced an opposite result

or

iv). Damage award shocks the conscience

o Remittitur: Reduction of excessive verdict; plaintiff may accept new amount or demand new trial
o Additur: Increase of insufficient verdict; defendant may accept new amount or demand new trial

45 days

Question 164

Relief Sought Beyond 21 Days
a. Relief from default judgment
 The defendant must show:
* _________________________ on the court; or
* That the judgment was ___________________
 Must be brought within _________________________ of the date of judgment

b. Correction of a clerical mistake
 If a judgment contains a typographical error, the court can fix this error outside the 21- day post-judgment window

Answer 164

fraud
void
2 years

Question 165

Appeals from GDC to circuit court require:
 A _________________________ judgment
 An amount in controversy of more than _________________________

Answer 165

final
20$

Question 166

Procedure for filing an appeal to CC from GDC
o Losing party must file a notice of appeal within ________ days of entry of judgment o Notice of appeal is filed in _________________________ court

Answer 166

10
general district

Question 167

What is the standard of review in circuit court?

Answer 167

de novo on all issues

Question 168

On appeal to CC, If the _______________________ is the appellant, the court may permit the P to increase her ad damnum

Answer 168

defendant

Question 169

What must there be when appealing to Court of appeals from CC?

Answer 169

Final Judgment
Partial Final judgement
Certain interlocutory orders
Objection in lower court

Question 170

Circuit court to Court of Appeals:
A final judgment is a court order that:
* _________ of the entire case; and
* Leaves nothing further to be _________________________ by the court

Answer 170

disposes
resolved

Question 171

Can there be an appeal to the court of appeals with only a partial final judgment?

Answer 171

May apply in multi-party case
Must find that decision on appeal won’t affect remaining trial proceedings (and vice versa)

Question 172

What must there be when appealing to Court of appeals from CC?

Answer 172

Final Judgment
Partial Final judgement
Certain interlocutory orders
Objection in lower court

Question 173

What interlocutory orders can you appeal to the court of appeals from the CC?

Answer 173

Orders regarding preliminary injunctive relief
Certified orders
Collateral orders

Question 174

What is an interlocutory order?

Answer 174

(order issued during the pendancy of a suit, rather than at the end of the suit)

Interlocutory orders are immediately appealable

Question 175

What are certified orders?

District courts have the power to “certify” an issue for______ appeal, provided that:
i) The issue is based on a __________;
ii) There is a ________ ground for difference of opinion;
iii) Resolution will ________ advance the litigation; and
iv) The parties _____ to certification

Answer 175

District courts have the power to “certify” an issue for immediate appeal, provided that:
i) The issue is based on a controlling question of law;
ii) There is a substantial ground for difference of opinion;
iii) Resolution will materially advance the litigation; and
iv) The parties consent to certification

Question 176

What is a collateral order?

An _______ order (order issued during pendant-cy of suit rather than end of suit) that conclusively resolves an important question that is separate from the _____ and would be effectively _________ if the losing party were forced to wait until the conclusion of the suit to appeal

This interlocutory order is eligible to be appealed right away.

• Applied somewhat haphazardly, look for an order declaring that a party is not immune from suit

Answer 176

interlocutory
merits
unreviewable

Ex. P sues the Commonwealth of Virginia for injuries she sustained while visiting a government building. Virginia moves to dismiss, arguing that, as a state government, it is immune from P’s suit. The court denies this motion and orders that discovery begin. Virginia can immediately appeal the court’s decision on its immunity.

Question 177

 Party _________ appeal an objection in lower court decision unless that party ________ to the decision in the lower court
 If appellant failed to object, court of appeals will only consider appellant’s argument for _________________________ shown

Answer 177

may not
objected
good cause

Question 178

What must there be when appealing to Court of appeals from CC?

Answer 178

Final Judgment
Partial Final judgement
Certain interlocutory orders
Objection in lower court

Question 179

In VA, when appealing to the court of appeals, the appellant must file notice of appeal in the circuit court within ______________ of the order or final judgment being appealed
If appellant fails to timely file notice, court of appeals lacks _________________________ to hear the appeal

Answer 179

30 days
jurisdiction

Question 180

In VA, the court of appealsAppellant must file notice of appeal in the circuit court within ______________ of the order or final judgment being appealed

Answer 180

30 days

Question 181

What is the standard of review in the VA court of appeals?

Answer 181

De novo for all issues of law
High deference for all issues of fact

Question 182

How do you appeal to the VA Supreme Court?

Answer 182

An appeal may only be had if the Court grants the putative appellant the opportunity to appeal

Question 183

Procedure for appealing to Va supreme court
o Appellant must file notice of appeal in court of appeals within ____________ of the adverse ruling being appealed
o Appellant must file petition for review in Supreme Court within __________ of the adverse ruling being appealed

Answer 183

30 days
30 days

Question 184

What is the standard of review at the VA Supreme Court?

Answer 184

De Novo for all issues of law
High Deference to the original fact finder for all issues of fact

Question 185

Declaratory Judgment
1. In General
o Does not seek any relief other than a judicial declaration of ______________
o Requires an actual _________________________ over the rights in question
o Should not be used when another form of action is _________________________

Answer 185

rights
controversy
available

Question 186

What is the forum for seeking declaratory judgment?

Answer 186

Must be filed in the circuit court

Question 187

Is a written agreement to arbitrate a dispute valid and enforceable?

Answer 187

Yes

Question 188

If party obligated to arbitrate refuses to do so, court must order arbitration unless party denies the _________________________ of the agreement to arbitrate

Answer 188

existence

Question 189

If party obligated to arbitrate refuses to do so, court must order arbitration unless party denies the _________________________ of the agreement to arbitrate

Answer 189

existence

Question 190

In Va, Plaintiff with ____________________ and _________________________ injury claims arising from the same transaction or occurrence need not bring those in the same suit

Answer 190

personal
property

Question 191

Claim Preclusion (Res Judicata)
* Very similar to federal claim preclusion
* Requirements:
i) Claim in suit 2 arises from same _________________________ or occurrence underlying suit 1
ii) Suit 2 is between the same __________________ as suit 1
iii) Suit 1 ended in a valid ______________ judgment on the _______________
 Valid: Issuing court must have _________________________
 Final: Order that completely disposes of the case
 On the merits: Non-merits judgments are based on jurisdiction or ________________;
all other judgments are on the merits

Answer 191

transaction
parties
final
merits
jurisdiction
venue

Question 192

Does Virginia permit non-mutual issue preclusion?

Answer 192

No

Question 193

Issue Preclusion (Collateral Estoppel) requirements:

Answer 193

same issue
same parties
final judgement
on merits
fully litigated and decided
essential to judgment

i) issue in suit 2 is the same as in suit 1

ii) Suit 2 is between the same parties as suit 1

iii) Suit 1 ended in a valid final judgment on the merits

iv) Issue in suit 2 must have been fully litigated and decided in suit 1, and

v) essential to the judgment in that suit

Question 194

What is a detinue action?

• Used to recover _________________________ property belonging to the P
  Example 95: P loans $10,000 D to buy a car and takes a security interest in the car to protect her loan. D defaulted on the loan and P now has the right to recover the car. To do so, P should bring a detinue action.
• Commonly used by creditors with a lien on personal property possessed by the D
  1. Option for Pre-Trial, Ex Parte Seizure
  o P filing detinue action may also seek pre-trial seizure by the court
  o Prevents D from hiding or selling property while detinue action is pending o P can obtain this relief _____________________ (i.e., without notice to D) o A petition for seizure should include:
   A _________________________ of the property
   The basis of the claim (e.g., defendant in default on a secured loan)
   Evidence that the property will likely be _____________, secreted, or damaged

Answer 194

personal

ex parte

description

sold

Question 195

Partition
o Action asking court to draw a new boundary line dividing a single parcel of land into multiple parcels
o Can be brought by one of the _______________, or by a _________________________ of one of the owners
o Available regardless of whether ownership rights are tenancy in ________________ or joint tenancy with a right of _________________________
o If parcel cannot be conveniently divided, court may:
i) Order one owner to take full parcel and pay co-owners a fair value for their portions; or
ii) Order property _____________ and proceeds divided among co-owners and creditors
o Preference for physical partition (i.e., division in kind) over a forced sale, even if dividing the parcel reduces the overall value of the land

Answer 195

owners
creditors
common
survivorship
sold

Question 196

What is an ejectment?
o Brought by someone not in possession of land who claims right to lawful possession
o Ejectment actions, unlike unlawful detainer, determine both _________________________
and ___________________

Answer 196

possession and title

Question 197

What is a boundary line?
o May be brought by anyone claiming interest in real property against another person claiming interest in the same property
o Brought between _________________________ property owners

Answer 197

adjacent

Question 198

What is an unlawful entry or detainer action?
o Available if a person fails to relinquish possession of land to the party entitled to o Typically used in ________________________________ disputes
o Should not be used when the __________________ to property is at issue

Answer 198

landlord-tenant
title

Question 199

Virginia Torts Claims Act (VTCA) does what?

Answer 199

waives state’s immunity from tort claims (does not
waive local government immunity); can be filed in CC or GDC

Question 200

Land actions that must be brought in CC

Answer 200

ejectment
quiet title action
partition
action to set boundary line

Question 201

Extraordinary writs
1. __________—compels a public official to perform a purely ministerial duty imposed by law; must be no adequate remedy at law; initiated by petition under oath stating grounds; jurisdiction in CC and appellate courts; GDC has authority only to enforce Freedom of Information Act
2. ___________—prohibits public official from exceeding authority; initiated by petition under oath stating grounds; jurisdiction in CC and appellate courts; GDC has authority only to enforce Freedom of Information Act
3. __________—determines whether D holds public office; initiated by Attorney General or any interested person; jurisdiction in only CC; file application under oath; D entitled to jury trial; granting the writ is within the discretion of the court

Answer 201

mandamus
Prohibition
Quo warranto

Question 202

Timing Rules
A. Day of event
1. If act must be performed before a motion or proceeding—day of motion or proceeding is not counted; day on which act is performed is counted
2. If act must be performed after an event or judgment—day of event or judgment is not counted
3. Response dates—party may have additional response time depending on service; one additional day for service after ___pm, but three additional days if served by mail
B. Weekends and holidays—if last day falls on weekend or holiday, party has until _____ day the courthouse is open

Answer 202

5
next

Question 202

Wrongful Death Actions 1. By Whom
o A civil suit predicated on the death of a person may be brought by the decedent’s _____________________________________
2. Beneficiaries
o Personal representative not automatically entitled to proceeds of the judgment
o Damages are distributed first to the surviving ______________, ______________________,
and _________________________________
 If none of these exist, then proceeds are distributed to the decedent’s _________________________ and _________________________
Example 96: Jan dies in a car accident. Her surviving family consists of a mother, sister, and daughter. Which of these family members will be entitled to the proceeds from a wrongful death action? _________________________.
3. Damages
o Compensatory damages in a wrongful death action cover:
 Mental anguish
 Loss of financial benefits and services
 _________________________ and _________________________ expenses
Editorial Note 4: Punitive damages are also available where the death was caused by intentional or reckless conduct.

Answer 202

personal representative

spouse, children, grandchildren

parents and siblings

medical and funeral

Question 203

Post judgment relief if sought after 21 days?

Answer 203

Relief from default judgment must file w/in 2 years and show fraud on the court

Correction of a clerical mistake

Motion for a new trial w/in 30 days

Question 203

Virginia Tort Claims Act (VTCA)
1. In General
o Allows plaintiffs to sue Commonwealth of Virginia for certain torts committed by Commonwealth employees
 Does not apply to local governments (cities, counties, school boards, etc.)
o Provides that _________________________ is liable for torts to the same extent a private individual engaged in same conduct
o Only applies to torts by Commonwealth employees acting within the scope of their _________________________
2. Timeliness of Suit
o Potential P must serve _________________ on Commonwealth within _________________ of the incident
o Failure to serve notice completely _______________ claim under VTCA
o Upon notice, Commonwealth may choose to pay claim
o If Commonwealth refuses to pay or fails to respond within _____________, P may bring suit
 No suit may be brought under VTCA sooner than ___________________ after notice  All claims must be filed within _______________________ of notice
3. Limitations
o Compensatory damages: No more than _________________________
o Punitive damages: _________________________
o Claims against legislators or judicial officers: _________________________
o Claims by prisoners: Only after exhaustion of _________________________________

Answer 203

commonwealth

employment

serve notice one year

bars

6 months

6 months

18 months

100k

not allowed

not allowed

admin remedies

Question 204

Medical Malpractice
1. Health Care Provider
o VA has specific procedures for negligence actions against health care providers. o Health care provider: Includes physicians, dentists, pharmacists, counselors, etc.
2. Pre-Filing Expert Requirement
o Before filing suit against a health care provider, P must obtain a written opinion from an ____________________
o The expert opinion must provide that:
 The health care provider _________________________ the standard of care
 The breach proximately caused the plaintiff’s injuries
o Need not be admitted into evidence, but court may inquire into expert’s opinion in camera
3. Review Panel
o Within ________________ after responsive has been filed, either party may request review by a medical malpractice review panel
o Once review is requested, lawsuit is ____________________ pending review
o Medical malpractice review panel will issue an opinion on whether health care provider was
negligent
o After review is complete, lawsuit may resume and either party may use the opinion at trial

Answer 204

expert

breached

30 days

stayed

Question 205

What is the proper venue for land actions?

Answer 205

must be brought in the district where the real property is located

Question 206

What is the proper forum for detinue action?

Answer 206

permissive venue districts (e.g., where defendant lives or works and where the property is located)