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VA CIV PRO (Mine) > Pre-Trial Disposition > Flashcards

Pre-Trial Disposition Flashcards

1
Q

What types of pretrial disposition are there? (6)

A
  1. Motions to Dismiss
  2. Demurrers
  3. Plea in bar
  4. Default Judgment
  5. Nonsuit
  6. Summary Judgment

First three are in response to complaint

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2
Q

Default Judgment

What’s the Default Judgment Rule?

A

If D is properly served with process but fails to respond within the allotted time, court will assume that D does not contest the allegations.

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3
Q

Default Judgment

What are the consequences of a default judgment? (3)

A
  • D waives his right to jury trial
  • D may no longer contest his liability on the merits, but may contest the value of damages
  • D is not entitled to any further proceedings in the case. Exception: If D has an attorney, notice must be given to the attorney.
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4
Q

Default Judgment Procedure

What is the two-step procedure for obtaining a default judgment

A
  1. Entry of default
  2. Entry of default judgment
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5
Q

Default Judgment Procedure

What is the Entry of Default?

A

It is just a clerical record of D’s failure to respond within allotted time.

Entered automatically

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6
Q

Default Judgment Procedure

After Entry of Default, what must P do to get a Default Judgment?

A

P must move for default judgment.

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7
Q

Default Judgment Procedure

After entry of default judgment, will the court just award damages as alleged?

A

Yes, BUT only if they are plain on the face of the complaint. If not, then the court will hold a hearing to set damages. D may participate in the hearing.

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8
Q

Escaping Defaults and Default Judgment

What can D do if default has been recorded but there is no judgment yet? What Must D show? What can the court condition?

A
  1. D can file a motion for leave to file a responsive pleading
  2. D must show good cause for failing to respond
  3. The court can condition its grant of the motion on D accepting responsibility for any costs caused by any the delay
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9
Q

Escaping Defaults and Default Judgment

What can a D do if a default judgment has been entered? within what amount of time?

A

The D should file a motion to set aside the default judgment and the Motion must be made within 21 days of entering the judgment (unless the judgment was fraudulent or without jurisdiction).

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10
Q

Nonsuit: Key features and rules

What is a nonsuit?

A

Allows the P to stop litigating a case wihtout forfeiting the chance to relitigate later.

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11
Q

Nonsuit: Key features and rules

Nonsuit is a dismissal w or w/o prejudice?

A

W/o

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12
Q

Nonsuit: Key features and rules

The first nonsuit is as…

A

of right

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13
Q

Nonsuit: Key features and rules

Subsequent nonsuits require what? and what may the court award the opposing parties?

A
  1. Leave of court
  2. fees and costs
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14
Q

Nonsuit: Key features and rules

When can a P file a nonsuit?

A
  1. Before the case is submitted to the factfinder for resolution
  2. Before a motion to strike the evidence has been sustained
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15
Q

Nonsuit: Key features and rules

If a suit involves counterclaims, cross-claims, or impleader claims, who cannot nonsuit? What happens when there isn’t consent?

A

No party involved in those claims can nonsuit without the permission of the opposing party. If the opposing party will not grant permission for nonsuit, the only option is dismissal w/ prejudice.

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16
Q

Nonsuit: Key features and rules

What venue must a refiling nonsuiter file in?

A

The same venue as the original suit to prevent judge shopping, BUT can refile in federal court

17
Q

Nonsuit: SOL

When must P refile after a nonsuit?

A

Either within 6 months of nonsuit OR the within the remainder of SOL, whichever is longer.

18
Q

Summary Judgment

Who may file a motion for summary judgment?

A

Summary Judgment is avaiable for either the plaintiff or defendant when there is no dispute as to any material fact and the moving party is entitled to judgment as a matter of law

19
Q

Summary Judgment

What does a motion for summary judgment call for the court to determine? 2 things

A
  1. determine whether there is a genuine dispute as to any material fact, and if not,
  2. determine whether the law determines that the movant should win.
20
Q

Summary Judgment

The Court does not weigh evidence, instead it construes the facts….

A

in the light most favorable to the non-movant

21
Q

Summary Judgment

How is evidence presented to the court on an SJ motion? What do parties typically use?

A

In documentary form as opposed to live testimony. parties typically use interrogatories, requests for admission, and documents produced during discovery to support/oppose motion for SJ.

22
Q

Summary Judgment

Can either the movant or the non-movant use depositions?

A

Movants cannot, but non-movants can in opposition.

23
Q

Summary Judgment

What are the three exceptions to the bar on Movants using depostions?

A
  1. The movants contests the availability of punitive damages. (this exception does not apply to a punitive damages claim or demand based on the operation of a motor vehicle by a person while under the influence of alcohol, any narcotic drug, or any other self-administered intoxicant or drug).
  2. Claims are between two business entities for $50k or more
  3. Parties agree to use depositions
24
Q

Summary Judgment

May the movant use deposition testimony as the basis for facts?

A

No, unless the parties agree to allow it.

25
Q

If the court enters nonsuit, is it appealable if:

  • D does not object
  • D objects
A

No objection

  • No appeal (it is without prejudice)

Objection

  • Appeal (as to whether nonsuit should have been granted)
26
Q

A defendant in default is not entitled to notice of any further proceedings in the case, including notice to take depositions, except…

A

that written notice of any further proceedings shall be given to counsel of record, if any. The defendant in default is deemed to have waived any right to trial of issues by jury.

27
Q

What can D do if he is present at a default judgement damages hearing? in other words, how can he specifically contest the thing he can contest (5)?

A

he may not offer proof or argument on the issues of liability, but may

(i) object to the plaintiff’s evidence regarding damages,
(ii) offer evidence regarding the quantum of damages,
(iii) participate in jury selection if a jury will hear the damage inquiry,
(iv) submit proposed jury instructions regarding damages, and
(v) make oral argument on the issues of damages.

28
Q

What does the court consider when deciding to relieve the defendant from the default judgement?(3)

A
  • The extent and causes of the defendant’s delay in tendering a responsive pleading
  • whether service of process and actual notice of the claim were timely provided to the defendant, and
  • the effect of the delay upon the plaintiff.

VA CIV PRO (Mine) (16 decks)

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