VA Civ Pro Flashcards
(199 cards)
1
Q
What is a demurrer? Standard
A
- Argues that P’s allegations fail to state a claim upon which relief can be granted.
- whether, taking the facts in the complaint as true and in the light most favorable to the non-movant, a cause of action has been stated.
2
Q
Procedure for a demurrer?
A
A demurrer, in the circuit court, must be filed in writing, within 21 days of service of process unless the trial judge grants leave for additional time within which to file it. The demurrer must state the specific grounds (not merely failure to plead a cause of action), and the trial judge may look only to the face of the plaintiff’s pleading in ruling on the demurrer.
3
Q
What is the standard of review on appeal from demurrer?
A
- It does depend. If the ruling was on a question of law, then de novo, but questions of fact with high deference.
4
Q
What is a Plea in Bar?
A
It is used when the D has a complete defense to one of P’s claims. Allows the D to put on evidence of an affirmative defense.
5
Q
What does de novo mean?
A
- Without deference to the ruling of the court below.
6
Q
Who must sign a pleading? Can a Virginia attorney authorize an out-of-state attorney to sign on their behalf?
A
Va. Code §8.01-271.1 & Rule 1:4(c) A pleading must be signed by either a pro se litigant or by at least one attorney of record in his individual name. Rule 1A:4(2) provides that any pleading shall be invalid unless it is signed by local counsel. Based on these rules, the Virginia S.C. held that a Virginia attorney may NOT authorize an out-of-state attorney to sign on their behalf.
7
Q
If a pleading that is required to be signed by an attorney licensed to practice law in Virginia does not contain such signature, what should happen?
A
The court should dismiss the case because the pleading is a nullity. It is as if the pleading never existed, so consequently, for example, the complaint cannot be amended to add the signature.
8
Q
What is the statute of limitations for personal injury claims?
A
2Y
9
Q
What is the scope of discovery?
A
- Rule 4:1 permits discovery of any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether the subject matter relates to a claim or a defense
- As long as the requested discovery is reasonably calculated to lead to the discovery of admissible evidence, an objection on the ground that the information sought is inadmissible should be overruled
10
Q
Can the right to arbitration be waived?
A
- Yes, in the case in which this was asked, the example answer said the P should argue that D waived arbitration by continuing to engage in substantial litigation for an extended period of time in the forum after filing an answer.
11
Q
Should arbitration be compelled if it lists venue in an irrelevant place? what can a plaintiff argue?
A
- A party can argue that neither party nor the controversy have a connection to the forum, and to force the cost and expense of a dispute In the forum is unfair or unconscionable. Also, if litigation has been ongoing, then the D moves to compel arbitration, then the P could argue that they will be unfairly prejudiced.
12
Q
Motion to Strike Evidence
When must a Motion to Strike Evidence be brought?
A
Either party can move to strike the evidence after the conclusion of all the evidence.
Most commonly, D will move immediately after P has presented her evidence.
13
Q
Motion to Strike Evidence
What is the standard for ruling on a Motion to Strike Evidence?
A
Court applies the MSJ standard. Court will consider all the evidence presented in a light most favorable to the non-movant (genuine dispute) and determine whether a reasonably jury could rule in non-movant’s favor (as a matter of law).
14
Q
To satisfy the Virginia long-arm statute, the claim must arise when the defendant does one of the following things in Virginia:
-
PJ
-
Statutory Analysis
- Long-arm statute: Contracts (goods sold out of state)
-
Statutory Analysis
A
If 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:
1. the D could reasonably expect that the product will be used in VA; and
2. the D conducts regular business in VA or derives substantial revenue from VA
15
Q
To satisfy the Virginia long-arm statute, the claim must arise when the defendant does one of the following things in Virginia:
-
PJ
-
Statutory Analysis
- **Long-arm statute: Tort (outside VA)
-
Statutory Analysis
A
- Commit a tortious act (or omission arising to a tortious act) outiside the state,
- for which the plaintiff’s injury occurs in Virginia, and
- the defendant:
- regularly does or solicits business in Virginia, or
- (engages in any other persistent course of conduct from which it derives substantial revenue from goods used in Virginia)
16
Q
CC to Court of Appeals: Procedure
When and where must the appellant file the notice of appeal?
A
within 30 days of the order or final judgment being appealed, and in the circuit court.
Appeal as of right, no need to petition.
17
Q
Court of Appeals to Supreme Court: Grant
An appeal may only be had if…
A
the Court grants the putative appellant the opportunity to appeal
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
- determine whether there is a genuine dispute as to any material fact, and if not,
- 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
- 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).
- Claims are between two business entities for $50k or more
- 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
Can SMJ be waived in VA?
No, a party may object to subject matter jurisdiction on a claim at any time, even for the first time upon appeal, and the court may raise the issue sua sponte
26
# CC to Court of Appeals: Objections
If an issue is not raised by the court or another party, does it need to be objected to be raised on appeal?
Yes, need to object to the issue. Cannot be raised for the first time on appeal (except smj or ends of justice exception).
27
# Discovery
Virginia’s discovery rules allow the taking and using the deposition of a treating or examining health care professional to be used at trial, even if
he/she is available for trial
## Footnote
Not permissible in federal court. the professional must be unavailable.
28
# Post-Judgment Relief
The court retains the power to ________, ____________, or __________, judgment for ________ days
* reconsider, modify, or vacate judgment
* 21 days
29
# Post-Judgment Relief: Relief Sought Within 21 Days
When will a court grant a motion to set aside a default judgment?
* When justice requires within 21 days
* after experations of 21 days, may overturn DF only in limited circumstances.
30
# Post-Judgment Relief: Relief Sought Within 21 Days
Motion to set aside judgment will be granted...
Also, how is the motion to set aside judgment in VA different from a federal motion for renewed judgment as a matter of law
only if no reasonable jury could have reached the verdict in question.
Similar to federal renewed judgment as a mater of law, except that movant need not have made a motion to strike evidence at trial.
31
# Post-Judgment Relief: Relief Sought Within 21 Days; M. for New Trial
How many basis are there for a Motion for New Trial?
4, though the last one is somewhat limited:
1. misconduct
2. legal error
3. new evidence
4. damages
32
# Post-Judgment Relief: Relief Sought Within 21 Days; M. for New Trial
Motion for new trial may be granted due to misconduct of...
parties, judge, juror, witness or some other party that tainted the results
33
# Post-Judgment Relief: Motion for New Trial
Motion may be based on ________ error by the ________________
* legal
* court
34
# Post-Judgment Relief: Motion for New Trial
Motion may be based on Newly discovered evidence that: (3)
1. was discovered **after** trial and could not have been reasonably discovered **before** trial
2. Is not merely **cumulative** or corroborative; and
3. Is of sufficient power that it would have likely produced and **opposite** result
35
# Post-Judgment Relief: Motion for New Trial
Motion may be based on a damage award that ....
shocks the conscience
36
# Post-Judgment Relief: Motion for New Trial
1. What are Remittitur
2. What is additur
## Footnote
These are granted once the court finds that a damage award shocks the conscience in response to a Motion for New trial
1. Reduction of excessive verdict. P may accept new amount or demand new trial
2. Increase of insufficient verdict; D may accept new amount or demand new trial
37
# Post-Judgment Relief: Relief Sought Beyond 21 Days
For relief from default judgment D must show..., and when must it be brought?
* fraud on the court; or
* that the judgment is void
* Must be brought within 2 years of the date of judgment
38
# Post-Judgment Relief: Relief Sought Beyond 21 Days
If a judgment contains a typographical error, the court can fix this error...
Outside the 21-day post-judgment window
39
# Post-Judgment Relief: District Court
When may a new trial be granted after entry of judgment (works for default judgments)?
A new trial may be granted upon a motion made within thirty days after the date of the judgment. The court must rule on the motion within 45 days of the judgment.
40
# Post-Judgment Relief: District Court Beyond 30 Days
For relief from default judgment D must show..., and when must it be brought?
* fraud on the court; or
* that the judgment is void
* Must be brought within 2 years of the date of judgment
41
# Default Judgment
What's the Default Judgment Rule?
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.
42
# Default Judgment
What are the consequences of a default judgment? (3)
* 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.
43
# Default Judgment Procedure
What is the two-step procedure for obtaining a default judgment
1. Entry of default
2. Entry of default judgment
44
# Default Judgment Procedure
What is the Entry of Default?
It is just a clerical record of D's failure to respond within allotted time.
## Footnote
Entered automatically
45
# Default Judgment Procedure
After Entry of Default, what must P do to get a Default Judgment?
P must move for default judgment.
46
# Default Judgment Procedure
After entry of default judgment, will the court just award damages as alleged?
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.
47
# 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?
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
## Footnote
From exam: no judgment. hearing set to determine if judgment should be entered AND to determine damages. D can participate in the hearing for default judgment (and damages), and the court can grant leave to the D in default to file a late responsive pleading and cure the default.
48
# Escaping Defaults and Default Judgment
What can a D do if a default judgment has been entered? within what amount of time?
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 then two years to file).
49
A defendant in default is not entitled to notice of any further proceedings in the case, including notice to take depositions, except...
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.
50
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)?
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.
51
What does the court consider when deciding to relieve the defendant from the default judgement? (4)
## Footnote
within 21 days
* 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,
* the effect of the delay upon the plaintiff, and
* The existence of a substantial defense
52
What are the Two prerequisites for an appeal from GDC to CC? SoR?
1. A final judgment
2. An AIC in excess of $20
3. De novo
53
# GDC to CC
When must the losing party appeal? Where is the notice of appeal filed?
1. Within 10 days of the entry of final judgment
2. Notice of appeal is filed in GDC
54
What is an SoL? what do you need to know about it?
A deadline for filing a claim, and an affirmative defense for the D to raise, OR it is WAIVED
| It can be WAIVED
55
What are the statute of limitations for:
* Personal injuries and fraud
* Nonphysical personal torts
* Defamation and libel
* Property damage
* Oral K, equitable estoppel, unjust enrichment
* Property damages for sales under UCC
* Written K's not under UCC
* Wrongful death
* Unlawful detainer
* Personal injuries and fraud - 2 years
* Nonphysical personal torts - 2 years
* Defamation and libel - 1 year
* Property damage - 5 years
* Oral K, equitable estoppel, unjust enrichment - 3 years
* Property damages for sales under UCC - 4 years
* Written contracts (non UCC)
1. signed by party to be charged: 5Y
2. Not signed: 3Y
* Wrongful death - 2 years from death
* Unlawful detainer - 3 years from detention
56
# Accrual
When does a statute of limitations start to run?
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
## Footnote
for defamation: when the defamantory acts occured, not when resulting damage discovered.
57
# Accrual
What exceptions are there to the accrual rule regarding discovery? SoL change?
* Fraud or mistake--SOL stats running when fraud or mistake is discovered or reasonably should have ben discovered, which ever is earlier.
* Certain medical claims--failed diagnosis, faulty medical device.
* In exchange for the more generous discovery rule, the SOL is shortened to 1 year.
| the exchange for both exceptions
58
# Nonsuit: Key features and rules
What is a nonsuit?
Allows the P to stop litigating a case wihtout forfeiting the chance to relitigate later.
59
# Nonsuit: Key features and rules
The first nonsuit is as...
of right
60
# Nonsuit: Key features and rules
When can a P file a nonsuit?
1. Before the case is submitted to the factfinder for resolution
2. Before a motion to strike the evidence has been sustained
## Footnote
E.g., before court dismisses counts w/ prejudice based on SoL
61
What is the doctrine of unclean hands?
Under the doctrine of unclean hands, a party seeking equitable relief must himself not have been guilty of inequitable or wrongful conduct, and the wrongful conduct must relate to the claim asserted.
affirmative defense to claim of equitable relief
62
What is the rule regarding legal remedies versus equitable remedies?
An equitable remedy is impermissible when a legal remedy is available.
63
Is specific performance an equitable or a legal remedy?
Equitable
64
What are the elements required for specific performance? (6)
1. the contract at issue is enforceable;
2. all conditions precedent to performance have been satisfied;
3. the contractual terms at issue are sufficiently definite to be enforced by the court;
4. the defendant is able to perform or the performance can be abated (lessened, reduced, or removed);
5. it would be fair (equitable) to specifically enforce the contract;
6. and there is not remedy available at law
65
What is the doctrine of hardship or oppression?
A court of equity will not decree specific performance of the agreement where it would entail great hardship, and the hardship was due, in some measure, at least, to the conduct of the other party.
66
How do you rescind a contract based on Fraud?
To rescind a contract based on fraud, there must be a false statement of facts, positively made, not mere matters of erroneous opinions.
A concealment to afford ground of rescission for fraud must be a willful suppression of such facts in regard to the subject–matter of the contract as the party making it is bound to disclose
67
How does a party intervene in a pending action?
A new party may by leave of court file a pleading to intervene as a plaintiff or defendant to assert any claim or defense germane to the subject matter of the proceeding. Courts have considerable discretion in granting or refusing such a request.
68
What must a party allege to obtain a temporary injunction?
1. They have a legal right in the subject matter;
2. They will suffer irreparable harm without an injunction;
3. The balance of equities weighs in the party’s favor (e.g., the other party will not be permanently harmed by the injunction);
4. Likely to succeed on the merits of their claim;
5. Exigent circumstances support the injunction; and
6. No adequate remedy at law (however--An injunction may be awarded to protect any plaintiff in a suit for specific property, pending either at law or in equity, against injury from the sale, removal, or concealment of such property; important because an action in detinue is available for specific property).
Granting of an injunction is an extraordinary remedy and rests upon the discretion of the court. It will not be awarded unless the court is satisfied of the party’s equity (justice).
69
What must a person prove in order to get a permanent injunction? (4)
(1) That the plaintiff has suffered an irreparable injury;
(2) that remedies available at law, such as monetary damages, are inadequate to compensate for the injury;
(3) that the remedy in equity is warranted upon consideration of the balance of hardships between the plaintiff and defendant; and
(4) that the permanent injunction being sought would not hurt public interest.
70
What is the hiearchy to look for in Venue?
1.Forum Selection Clause 2.Look for category A. 3.Look for category B.
71
What cases fall into Category A venue? (6)
1. Choice of forum
2. Real Property
3. Action against the state
4. Wills
5. Injunctive relief
6. writ actions
72
What may Category B venue be based on? (7)
1. Where D resides or works
2. Where a business D has its PPB
3. Where a business D conducts substantial business, as long as that place is related to P's case.
4. Where D has registered office/agent
5. Where corp. D CEO resides
6. Where cause of action arose:
* Contracts=last act that formed the K occured OR where the breach occurred
* Tort = where the wronfgul acts or harm arose
* Everything else=analogize to contrcts or torts
Multiple D's, anywhere that it is lawful for a D to be sued
73
What is process?
(1) a summons, and (2) a copy of the complaint
74
Who may serve process? JX limitation? Payment?
an adult (18) civilian who is not interested in the case or by the sheriff or deputy. An officer may serve in her city or county and in contiguous (being in actual contact) localities. Plaintiff pays the officer’s fee.
75
# Natural Person Service
What is the hierarchy of service in VA?
1. Personal (or “actual”) service. 2.Substituted service. 3.Posted service.
76
# Natural Person Service
What is personal service?
Actual, physical delivery directly to D. THIS MUST BE TRIED (AND UNAVAILABLE) BEFORE YOU CAN TRY ANY OTHERS.
77
# Natural Person Service
How is substituted service performed?
Must be served: -At D's usual abode -On member of D's family who is at least 16 years old, and not a guest or temporary sojourner
| A family member can be a guest/temp. sojourner
78
# Natural Person Service
How is posted service performed? Can this form of process support a default judgment? Can non-residents be served this way?
1. Post a copy of process on the front door of D's usual place of abode AND mail a copy of process to that same address
2. 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
## Footnote
Non-residents can be served in the same way, but service may also be made on the secretary of the Commonwealth.
79
How is service performed on Virginia Entities (Corporation, LLC, partnerships, associations, etc.)?
* Service on officer, director, or registered agent
1. Partnership
* General Partnerships: service *can* be made on general partner
* Limited Partnership: service *can* be made on the registered agent
2. No registered agent? service can be made on any agent of the entity
80
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
## Footnote
Why? court needs this so it can set deadlines for D's response
81
Can a civilian make the proof of service report?
A civilian can do this too, but it is prima facie evidence of service if an officer does it, not so with a civilian.
82
How may a foreign corporation registered in the commonwealth be served?
process may be served on “any officer, director, or registered agent of the foreign corporation.”
83
When can improper service be effective?
When defendants received the summons and complaint (the process) in a timely manner (within one year of filing the lawsuit). (Note that forgiveness of improper service does not pertain to cases of divorce and annulment of marriage).
84
What is the SoL for a personal injury case?
2Y
85
When must a defendant object to venue and what must they provide with their objection?
A defendant must object to this venue within 21 days (or within the period of extension of time for filing responsive pleadings). A defendant must also set forth where he believes venue to be proper.
86
If D believes they are an improper D, what should they file? What happens thereafter?
A plea of misjoinder; the D will be dismissed.
87
# 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? Amount of discretion?
.
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
Factors the court may take into consideration include the extent and reason for the delay and prejudice to the other party caused by the delay
## Footnote
Court has broad discretion is permitting leave to file
88
If D has default judgment against them, and P found contributorily negligent, what result?
A Defendant in default may not contest liability on the merits, and contributory negligence is an affirmative defense so it is waived if not asserted. Therefore, the defendant (most likely) cannot bring up contributory negligence when contesting damages.
However, under Rule 3:19(c)(1), the court shall enter judgment “for the relief appearing to the court to be due.” May be able to argue that the P is not due anything if she was contributorily negligent
89
What is an action for detinue and what must be proven to prevail?
o An action to recover personal property or its value
o (1) the plaintiff has a current right in the property; (2) the plaintiff has a right to immediate possession; (3) the property is capable of possession; (4) the property has value; and (5) the defendant had possession of the property prior to filing suit.
90
What two legal actions could a holder of property assert to avoid being sued by conflicting parties with potential interests in the property? Which is the best? Explain them both
* Interpleader (best): “Whenever any person is or may be exposed to multiple liability through the existence of claims by others to the same property or fund held by him or on his behalf, such person may file a pleading and require such parties to interplead their claims.” And the court may enter an order restraining all claimants from instituting or prosecuting any proceeding in any court in the Commonwealth affecting the property involved in the interpleader action until further order by the court.
* Declaratory judgment: (1) seeks a judicial declaration of a right. (2) requires an actual controversy over the rights in question, and (3) only available when no other form of action is available.
91
When can the defense of laches be used?
- They are available only against equitable actions where there is no applicable SoL
92
To satisfy the Virginia long-arm statute, the claim must arise when the defendant does one of the following things in Virginia:
* **PJ**
* **Statutory Analysis**
* **Long-arm statute: Contracts (goods sold in state)**
If D conducts business in VA, or sells goods or services into the state, Court will have PJ so long as claim(s) arises from D's contacts w/ the state.
## Footnote
have even just one business contact in Virginia. So if the defendant signs a contract in Virginia, he is subject to PJ.
(this is called a "single transaction" state)
a key distinction: sold outside of state means literally sold outside of state, not into.
Acting through an agent is sufficient (e.g., NY buyer acting through salesperson from delaware company that sells in Virginia to VA P)
93
To satisfy the Virginia long-arm statute, the claim must arise when the defendant does one of the following things in Virginia:
* **PJ**
* **Statutory Analysis**
* **Long-arm statute: Tort (inside VA)
D acts in VA and causes injury in VA. PJ over that claim.
94
To satisfy the Virginia long-arm statute, the claim must arise when the defendant does one of the following things in Virginia:
* **PJ**
* **Statutory Analysis**
* **Long-arm statute: Tort (outside VA)
1. Commit a tortious act (or omission arising to a tortious act) outiside the state,
2. for which the plaintiff's injury occurs in Virginia, and
3. the defendant:
1. regularly does or solicits business in Virginia, or
2. (engages in any other persistent course of conduct from which it derives substantial revenue from goods used in Virginia)
95
Virginia's
* **PJ**
* **Statutory Analysis**
* **Long-arm statute: Property-based contacts**
1. Has to be land, i.e. real property
2. The nonresident defendant need not own the land, he just has to **use** it, **possess** it, or have an **interest** in it.
1. WATCH OUT FOR THIS!
## Footnote
"Having an interest in, using, or possessing real property in this Commonwealth"
96
* **PJ**
* **Statutory Analysis**
**Long-arm statute: Family-based contacts****
1. Divorce: if the matrimonial domicile was in VA, VA has PJ to adjudicate a divorce
2. Support action: if a D is obligated to pay support (spousal or child) to a VA resident, VA has PJ to enforce the obligation
97
The main exception to Circuit Court jurisdiction is...
actions for monetary claims or claims to specific personal property of $4,500 or less.
98
Claims $4,500 or less (may/must) go to the District Court?
Must
99
SMJ of District Courts is statutory and for causes of action under _____?
Law
100
District Courts may hear interpleader cases if the real or personal property is worth....
$25,000 or less. But, no injunction to stop litigation in other courts.
101
GDC can hear interpleader in any amount (even over $25,000) in what type of dispute?
Earnest money deposit in a land sale contract
102
Is there a right to a jury in GDC?
No, there is not even a statutory authority for jury in GDC. Only Circuit courts are authorized to conduct jury trials
103
Order of analysis for PJ?
1. VA Long arm statute
2. Due process
104
What is the PJ analysis under the DPC?
Has the D purposely availed itself of the laws of the Commonwealth such that D being subjected to the court’s jurisdiction would not offend traditional notions of fair play and substantial justice.
## Footnote
minimum contacts
105
Specific personal jurisdiction test?
Does the claim arise out of the defendant’s contacts with the state?
106
PJ under long-arm statute for tortious injury occurring in state by act done out of state?
Non-resident must regularly conduct or solicit business from the Commonwealth, or engage in any other persistent course of conduct, or derives substantial revenue from goods use or consumed or services rendered in the commonwealth.
107
Where is venue appropriate in a contract action?
Where executed or where the breach occurred
108
When can an improper venue retain a case?
D fails to object or the parties agree to stay there. Court must transfer if D objects.
109
Procedure for objecting to venue? Should you file a motion to dismiss based on improper venue?
Venue is not a jurisdictional issue in VA, so a motion to dismiss is improper. No case shall be dismissed on that basis. A defendant must file an objection to venue within 21 days of service of process or it is waived. The objection should state where venue is proper. The court will transfer the case to proper venue if correct.
110
What is forum non-conveniens? When is it available?
A dismissal, not a transfer. Available when (1) an alternative forum is much more convenient, (2) plaintiff is a non-resident; (3) the claim arose outside the commonwealth; and (4) the alternative forum will have PJ over all Defendants
The traveling Virginian tortfeasor
111
How should a minor sue? Be sued?
By a next friend complaint. “Patty lane, a minor, who sues by her next friend, Lucy Lane.”
Minor can be sued directly, but court must make sure they have an attorney.
112
What do you need to do to add a new claim? What will the court consider in granting it?
File leave to amend promptly after learning of the reason to amend. Leave to amend should be granted (never as of right in VA) liberally in furtherance of the ends of justice. The court will consider the movant’s (1) bad faith, (2) prejudice to the non-movant, (3) futility—inquiry into the merits of the amendment.
113
Difference between misjoinder and a misnomer? Effect?
Misjoinder is a mistake in what party to sue. Misnomer is a mistake in the name of the party you are suing. There is no SoL problem with a misnomer, the plaintiff can just move to amend the pleading.
114
To add a new party or replace a party after the SoL has expired, three factors must be satisfied:
1. The claim in the amended pleading must arise out of the conduct, transaction, or occurrence set forth in the original pleading.
2. The new party must have had actual notice (known or should have known) of the suit within the time that the original defendant had to be served with process (i.e., SoL + 1 year)
3. The new party expected to be sued but was not due to mistaken identity
115
How many claims can any claimant (P or counter-P) bring?
A particular claimant may bring any other claim that they want, regardless of whether the claims are related
116
Do counterclaims need to be related to P's underlying claim?
No
117
Does Virginia have a compulsory counterclaim rule? Explain, more than just yes or no
No. However, suing down the road may be a bad idea because of res judicata. D might have to live with the ruling in the initial case.
118
Do cross claims need to be related?
Yes, they must be related to the same transaction or occurrence underlying ONE of the claims in the ORIGINAL action.
119
What is impleader?
Where a claim brought by D (third-party plaintiff) against another party not yet in the lawsuit (also called the third-party D). Must allege that the third-party D is responsible for all or part of original D's liability
120
Will a counterclaim that arises out of the same transaction/occurrence as a complaint claim relate back for purposes of SoL? What about one that does not?
1. Yes
2. No
121
Timing issues and SoL: is the day that the action accrues counted for accrual of SoL? Weekends? Holidays?
No, and you cannot file on weekends or holidays so you will be given until the next workday if the last day to file lands on a weekend or holiday.
122
How many days does a D have to respond to the complaint when they have been properly served with the summons and complaint? Waiver?
21, but a D may waive service or make a general appearance by filing a responsive pleading and relieve the P of the burden to serve process. 60 days with waiver or 90 days if out-of-state resident.
123
Proof of service must be filed within how many hours of service?
72 hours
124
What is the curing statute?
even if process was improper, if D actually (i.e., process reached the person) and timely (i.e., before D would be in default) receives proper process (summons and complaint), it is okay
125
What cases does the curing statute not apply to?
Divorce and annulment
126
Good process, but bad service?
If D actually receives process within 1 year of filing the complaint, service will be sufficient even if the rules were technically broken. The process server must have acted in good faith.
127
What is waiver of service of process? what happens when P requests waiver?
Where the D agrees to acknowledge the lawsuit without formal service of process
P can send the D a request for waiver. D is obligated to minimize the cost of service and accept the request for waiver, and if he fails to accept, he is responsible for the cost of service.
128
Is a plea of SoL a responsive pleading? implications?
Yes, it should be brought within the 21 days of service because it is also an affirmative defense. SoL does not need to be raised in an answer but it must be raised in the first responsive pleading like all affirmative defenses.
129
Can SoL as affirmative defense be raised by demurrer?
No
130
What is the form of action you should file to initiate the pre-trial recovery of personal property that you have an ownership interest in?
Petition for pre-trial seizure in detinue
131
What must you plead to properly petition for pre-trial seizure in detinue?
1. The kind, quantity, and estimated fair value of the specific property being sought
2. Describe the basis of plaintiff’s claim with such certainty that will give the adverse party reasonable notice of the true nature of the claim and particulars;
3. Allege one of the prescribed statutory grounds for attachment (e.g., D is a foreign corp. or non-resident; intends to hide the property) by stating facts, not conclusion, from which the judicial officer can conclude there’s reasonable cause to believe the grounds exist.
4. The petition must be sworn to by the plaintiff or his agent
132
What additional requirement is there for a pre-trial action in detinue?
P must furnish a bond payable to the D in an amount equal to at least twice the value of the property being sought on the condition of re-delivery of the property to the D if the P loses. P must pay proper costs, fees, and taxes.
133
Who should be named in a detinue action?
The person in possession along with any other persons claiming the property.
134
Is a Demurrer the proper motion to make when a complaint is filed by an improper party?
Yes, it should be used to challenge the legal sufficiency of a complaint, counterclaim, crossclaim or third-party claim.
135
Who must sue on an action for wrongful death?
The suit should be file in the name of the personal representative of the estate. Filing in the name of the deceased is a legal nullity, so any attempt to amend or substitute the proper party should be denied.
136
When must the first non-suit be brought?
Before a motion to strike has been sustained or before the jury retires
137
When does a counter claim make it impermissible to nonsuit?
When it arises out of the same transaction or occurrence as the claim of the party seeking nonsuit. In other words, the rule does not apply if the counterclaim can remain pending for independent adjudication by the court
138
Does a continuance affect the initial right to nonsuit?
No
139
Subsequent nonsuits require what? and what may the court award the opposing parties?
1. Leave of court
2. fees and costs
140
What venue must a refiling nonsuiter file in?
The same venue as the original suit to prevent judge shopping, BUT can refile in federal court
141
When must P refile after a nonsuit?
Either within 6 months of nonsuit OR the within the remainder of SOL, whichever is longer.
142
Can Admissions made as part of a reply to discovery be admissible even if they are based in whole or in part on discovery depositions?
Yes, And they may include facts learned in the deposition, so long as they do not directly reference the deposition or require the deponent to admit that he or she gave specific testimony at the deposition.
Practically, you do the deposition and then you send Requests for Admission based on that testimony, then use the admissions for SMJ.
143
What two responses should a defendant make after 1 year of no/improper service at a hearing on motion for default judgment?
1. Make a special appearance moving to dismiss the motion based on the fact that the court lacks JX over the D b/c of lack of service.
2. Move to dismiss the action with prejudice because the P failed to serve the D within a year of filing and failed to exercise diligence in serving D
144
Can a judge enter a final order and hear a motion for reconsideration that day (within 21 days) but wait more than 21 days to enter a new order?
No, the judge only has jurisdiction for 21 days to modify, reconsider or vacate the judgment.
145
Can a court proceed with a damages hearing upon a default judgment if it does not have jurisdiction?
No. There was a question the ordered the Qs weird and the first two Qs assumed there is jurisdiction.
146
When D is in default (default order entered), counsel of record must receive notice of further proceedings until when?
Default judgment is entered.
147
Must a motion for new trial based on a non-unanimous jury verdict be granted?
Yes. Jury verdicts must be unanimous
148
Must a motion for new trial based on a party’s relative conversing with a juror be granted?
It is discretionary. The court should examine how the conversation affected the deliberations and grant it if the other party was prejudiced.
149
What two options does a judge have after granting a motion for new trial based on the fact that the verdict was excessive and shocks the conscience?
(1) Put the plaintiff on terms to accept a reduced judgment or (2) the judge can order a new trial.
150
Can a new trial be ordered just for the issue of damages?
Yes, a motion granted on that ground can lead to an order for new trial on all issues or just damages. It’s discretionary. The court should consider the reason for such an excessive verdict.
151
To appeal a judgment from a Virginia Circuit Court, a party must file a notice of appeal in the Circuit Court and then:
File an Appeal Brief in the VA Court of Appeals
152
Is filing an appeal in the wrong court fatal?
No the Supreme Court will just transfer it to the Appellate Court
153
What must you do to preserve an issue for appeal?
The error in the trial court must be specifically and timely objected to at the time of the error. Only have to make the objection once.
154
A party must object to the decision in the lower court to appeal the decision. If the appellant failed to object, the court of appeals will only consider the appellant's argument under what exception?
The "ends of justice" exception. BUT, this is only applied in extreme circumstances to correct a grave injustice. Really only applied in criminal cases where someone's life hangs in the balance and there was an egregious error at the trial level that was not preserved.
on exam, mention the exception, but say unlikely to be applied in a civil case.
155
GDC to CC Appeal: If the D is the Appellant, the P may increase...
Her ad damnum clause. Also, she may seem an amount in excess of the dollar jurisdictional limit of GDC.
156
When signing a pleading, what assurances does counsel make? (3) And if the plaintiff is lying?
1. He read the pleading
2. To the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and
3. It is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
If a pleading, motion or other paper is signed in violation of the requirement to make these assertions, the court upon motion or sua sponte may issue sanctions, which may include an order to pay other party or parties reasonable expenses, including reasonable attorney’s fees
157
May a court issue sanctions for repeated frivolous motions?
Yes, and they can do it sua sponte
158
Before filing a suit, what must an attorney do?
Be diligent in investigating the fact and determining whether a suit is warranted. See the assurances.
159
Can a court impose sanctions after granting a non-suit but suspending it upon further order of the court?
Yes, this will properly keep the issue of sanctions within the court’s jurisdiction.
160
If a party fails to comply with a discovery request, what can the discovering party do?
Move to compel discovery. And this must happen before sanctions are sought.
161
Does a court have the authority to hold a lawyer in contempt?
Yes, for example for misbehavior in the presence of the court or vile, insulting language in the presence of the court
162
May a court bar an attorney from practicing in their circuit court?
Yes, for egregious conduct
163
May a court report a lawyer’s conduct to the VA state bar?
Yes, as can anyone, but also, the Canon for Judicial conduct says that when the court has knowledge that a lawyer has committed a violation of the Code of Professional Responsibility that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects **should** inform the Virginia State Bar”
## Footnote
treat as a mandate
164
What happens when a party refuses to submit to arbitration pursuant to a mandatory arbitration provision in a K?
either party, on the other parties refusal to arbitrate, may make application to the court and the court shall order the parties to proceed with arbitration
165
Upon what grounds must a court vacate an arbitrator’s award?
1. The award was procured by fraud
2. The arbitrator was evidently biased or corrupt
3. The arbitrator exceeded their powers
4. The arbitrator refused to postpone the hearing after good cause was shown, and a party’s rights were prejudiced.
Disagreeing with the result and mere error of fact or law are not grounds for vacating an award.
166
What must a party do to enforce an arbitration award?
Make application to the court to confirm the award and to enter judgment in conformity with the award.
167
When do the statute of limitations begin to run? Exceptions?
Upon accrual of the CoA. Fraud and certain medical claims; the SoL will being to run when the issue is discovered or when it should have been discovered by due diligence.
168
What tolls the running of the statute of limitations?
Filing suit against the *correct* party, not service
169
Will dismissal of a suit w/o prejudice start the clock again?
Yes
170
How long does a minor have to sue in an ordinary case?
The length of the SoL, but it does not start to run until the minor is 18 or emancipated.
171
How long does a minor have to sue in a medical malpractice case?
2Y, unless younger than 8. Once 8, have until you are 10.
172
What is the SoL for a written contract?
5Y
173
When is laches defense available?
When there is not a specific SoL for the claim. It also requires the plaintiff to have (1) knowledge of rights; (2) significant delay, (3) prejudice to the D.
174
SoL for a fraud claim?
2Y, only accrues when the plaintiff becomes aware or should have become aware of the fraud.
175
Do all defenses need to be raised in the first responsive pleading or face waiver?
No, just affirmative defenses.
176
If a non-affirmative defense is raised super late in the game, what should the plaintiff argue? Will it be effective?
They are prejudiced by it being raised because they did not have the opportunity to conduct discovery. It won’t be effective. The Court should permit the defense so long as the evidence supports its proffer to the fact finder.
177
If the D does something to keep the plaintiff from filing suit, the SOL will be tolled. Obstruction occurs when: (3)
1. D files for bankruptcy
2. hides the injury
3. takes curative actions
178
SoL for wrongful death?
2Y from the death.
179
Are SoL substantive or procedural in VA?
Procedural
180
If the foreign forum that the CoL clause chooses has a shorter SoL than the forum (VA), whose SoL will VA apply?
the shorter of the two
181
When is a CoL clause enforceable?
When the state’s whose law is selected to govern the substantive provision of the K is reasonably related to the purpose of the agreement.
182
Should a court excuse a prospective juror if they are related to one of the parties (state the rule)? Does peremptorily striking that person render the error harmless?
Yes, jurors that are related to a party, have an interest in the outcome, express or form an opinion as to the case, or are biased or prejudiced must be struck for cause. Peremptory strike will not cure or render the error harmless.
183
Should a court excuse a prospective juror who is a business partner of one of the parties and knows facts about the case?
The choice is discretionary so it will be overturned if an abuse. It’s a close call, but striking them should be permitted based on the person maybe forming an opinion or being biased.
184
What is declaratory judgment and what does it require?
(1) seeks a judicial declaration of a right. (2) requires an actual controversy over the rights in question, and (3) only available when no other form of action is available.
185
What is Unlawful Detainer and what does it require?
An action that is used to seek a court order for the D to surrender possession of real estate. Action at law. It is used typically when (1) a defendant unlawfully gained possession or (2) where the D had lawful possession but lost that right (e.g., not paying rent).
186
What is Bill to quiet title and what does it require?
An equitable proceeding that asks the court to exercise is equitable powers to determine title to land. Not appropriate when a is a remedy at law.
187
What is Ejectment and what does it require?
Ejectment addresses issues of possession and title. It is an action at law. Possession of part is construed as possession of whole. The movant must recover on the strength of her own title, not the lack of title in the defendant. Active possession is not required.
188
Key difference between ejectment and Bill to quiet title?
They both inferentially determine possession, ejectment is an action at law though. I guess you would only use Bill to quiet title where the right to possession is not an issue? Idk. Google says that a person can only bring an ejectment action if they have a subsisting interest in the premises and a right to recover the possession of the premises.
189
Can the defense of SoF be asserted regarding the return of engagement ring?
Defendant is estopped form arguing that the K is in writing if she accepted the gift.
190
What must a party allege to obtain a temporary injunction?
1. They have a legal right in the subject matter;
2. They will suffer irreparable harm without an injunction;
3. The balance of equities weighs in the party’s favor (e.g., the other party will not be permanently harmed by the injunction);
4. Likely to succeed on the merits of their claim;
5. Exigent circumstances support the injunction; and
6. No adequate remedy at law (however--An injunction may be awarded to protect any plaintiff in a suit for specific property, pending either at law or in equity, against injury from the sale, removal, or concealment of such property; important because an action in detinue is available for specific property).
Granting of an injunction is an extraordinary remedy and rests upon the discretion of the court. It will not be awarded unless the court is satisfied of the party’s equity (justice).
191
If a temporary injunction is granted, what further requirement is the movant supposed to fulfill before relief is effective and why?
They must furnish a bond in sufficient amount to assure that if ultimately the other party wins, there will be assurance that they can recover whatever damage or costs are incurred by the implementation of the injunction.
192
How can an injunction or the lack thereof affect damages?
The implementation of an injunction could reduce the level of damages or prevent completely, and vice versa.
193
General rule for grant of attorneys fees?
In the absence of a statute or contract to the contrary, a court may not award attorney’s fees.
194
What is a significant exception to the general rule regarding attorney’s fees?
A judge in the exercise of his discretion may award them to a defrauded party.
195
Explain the statutory scheme for who is entitled to recover under an action for wrongful death:
## Footnote
recover, not sue
Virginia Code Section 8.01-53 sets forth the statutory beneficiaries who are entitled to recover for the wrongful death of another. This section defines four classes of beneficiaries which are successive in nature, meaning that no member of a class is entitled to compensation if a member of any of the preceding classes is alive.
196
wrongful death: statutory order of beneficiaries?
1. surviving spouse, descendants, and parents if they provided regular support 12 months prior to death
2. If no suriving spouse/descendants, then to parents, siblings (including half siblings), and any other relative who is primarily dependent on the decedent and a member of the same household
197
Can a motion to amend a pleading be made orally?
Yes
198
SoL for breach of UCC K?
4 years
199
What is a bill of review? when may it be brought?
Is it a bill asking the court to vacte or modify a final order in an equitable proceeding. within 6 months of the final order unless the party bringing it was under disability.
