Termination of the Case Without Trial Flashcards
What is a nonsuit?
How P voluntarily drops the case
A nonsuit is permitted at any time except:
- Jury is retired from bar
- Nonjury case has been submitted to court for decision
- Motion to strike evidence is granted
- Demurrer or special plea is fully argued and awaiting decision
What does it mean to say that the jury is retired from bar?
That they are deliberating–at this point, no nonsuit allowed
* If jury then deadlocks and court declares a mistrial, P can take a nonsuit
If D makes motion to strike P’s evidence before case submitted to jury and court does not formally grant, but indicated strong inclination to, can P take a nonsuit?
YES and probably should–court has not granted the motion, but noted it was inclined to do so
* Shows how nonsuit can be used as a weapon–if case is going poorly, just nonsuit it
If D filed a counterclaim or crossclaim, can P take a nonsuit?
Only if D agrees or D’s claim can be adjudicated independently
Where may P refile after taking a nonsuit?
In the same court unless court lacks jurisdiction or venue or good cause is shown to litigate elsewhere
When should P refile after nonsuit?
Within 6 months or the SOL period, whichever is longer
* Again, using nonsuit as weapon–can file 1 day before SOL runs, toll the case by filing, and then nonsuit and get an extra 6 months
How many nonsuits does P get as a matter of right?
One–others can be allowed by the court with notice to other parties
* Party taking nonsuit must inform court of all previous nonsuits and that number must be reflected in the court order
When is a party in default?
If he fails to respond to an affirmative pleading within the allowed time
* Court enters automatically (compare w/ fed courts)
What does D waive if she is in default?
(1) Notice to further proceedings
* Notice will be given to counsel of record if there is one
(2) Jury trial at further proceedings
* Further proceeding is that P must move for entry of default judgment
If P moves for entry of default judgment and damages are not liquidated, what happens?
P may move for a hearing on damages and get a jury if they request it (D cannot request)
Can D introduce evidence on liability at default judgment hearing?
NO–can appear and litigate damages, but not liability
* Can cross-examine witnesses and offer evidence on only damages
What is the standard for summary judgment in Virginia and who can move for it?
Same as federal standard: “Whether there is a genuine dispute of material fact and the moving party is entitled to jdugment as a matter of law”
* Any party can move
What are the differences from federal court with respect to summary judgment?
(1) Can ONLY base motion on deposition testimony if all parties agree
(2) Cannot base on affidavits
(3) Conflict in pleadings creates triable issue
* This is why MSJs are so difficult in VA–only granted if pleadings, admissions, and orders show no genuine dispute of material fact
