VA Civ Pro Flashcards
What is Doctrine of Res Judicata?
Precludes parties from relitigating the same cause of action (claims relating to same conduct, transaction or occurrence) when a valid final judgement was entered.
It can have 4 different effects: merger, direct estoppel, bar collateral estoppel.
Collateral Estoppel
Precludes parties to a prior action from litigating in a subsequent action, any factual issue that was actually litigated and essential to a valid final judgement, in the prior action.
Requirements for Collateral Estoppel
(i) the parties to the prior and subsequent proceedings must be the same.
(ii) the factual issue sought to be litigated, must have been litigated in the prior action.
(iii) the factual issue must have been essential to the judgement in the prior proceedings
(iv) the prior action must have resulted in a judgement that is valid, final, and against the party whom the doctrine is sought to be applied.
Subject Matter Jurisdiction
Three types of Subject Matter Jurisdiction
1) Diversity
2) Federal Question
3) 3) Supplemental Jurisdiction
Diversity Jurisdiction
Subject matter jurisdiction based on diversity exists when:
1) Complete Diversity - Every Plaintiff is diverse from every defendant
2) Amount of controversy exceeds $75,000.00
Where is a corporation a citizen of?
Every U.S. state in which it is incorporated in and the one U.S. state in which it has it’s principal place of business.
Federal Question
Exists when the claim arises under Federal Law, the U.S constitution or a Federal Treaty -
Plaintiff must be enforcing a federal right -
Federal question must be present on the face of a well pled complaint. -
Raising a defense under federal law is not sufficient.
Personal Jurisdiction
Jurisdiction over the parties.
A Virginia court may exercise personal jurisdiction over a Defendant if the long arm statute of Virginia and the U.S. constitution are satisfied.
Virginia Long Arm Statute
A court “may exercise personal jurisdiction over a person who acts directly or through an agent, as to cause of action from…transacting business in the commonwealth.”
Long arm statute extends it’s reach to a single act of business, if that act is significant and demonstrates purposeful activity in VA.
Examples:
1) Causing tort or injury in the state a VA by an act or omission inside the state. I punch Adam in the face in our apartment in Alexandria.
2) Causing tort or injury in the state of VA through an act or omission outside of the state. Ex. A car was built in Ohio and the airbag malfunctions, causing me injury in VA.
3) Contracts to supply goods or services in VA
4) Has an interest in, uses or possesses realty in VA
5) Transacts any business in VA. VA is a “single transaction” state. There is PJ even from just one business contact in VA.
6) Causing injury in VA by breach of warranty where sale is out of state. - ok if seller could reasonably foresee effects in VA, does business in VA or derives substantial revenue from goods consumed in VA
PJ - Constitutional Requirements
In order to satisfy the constitutional due process requirements the Defendant must have minimum contacts with the forum state that would be fair and reasonable.
**Prong 1: Minimum Contacts: **
(a) General Jurisdiction: contacts so substantial and of such nature that the D is essentially at home. - For an individual, this would be their domicile. - For a corporation they are “at home” where they are incorporated or headquartered.
(b) Specific Jurisdiction: the connection between the forum state and underlying controversy and lawsuit must arise/relate to the Defendant’s contact with the state.
**Prong 2: Fair and Reasonable. **- The suit must not offend the traditional notions of “fair play and substantial justice.”
Supplemental Jurisdiction
Allows a party to bring a state claim into Federal Court that does not meet the requirements of SMJ on it’s own.
Requirements:
the claim must arose from a common nucleus of operative fact as the other claims the court has SMJ over (the claims must arise from the same transaction or occurrence.
What cases can VA state courts hear?
Any cases except those with exclusive federal jurisdiction (federal anti-trust, patent infringement, bankruptcy)
How many trial courts in VA?
- Circuit Court & General District Court
What cases can circuit courts hear?
Any civil action, except for those which exclusive jurisdiction is vested in another court. Amount in controversy must be more than $4,500.00.
General District Court
SMJ in GDC is statutory and basically for causes of action at law and not equitable claims.
Characteristics:
1) Less formal than CC. No formal pleadings or discovery.
2) Never get a jury in GDC
3) Injunctions cannot be granted. (Exception - can get an injunction to enforce FOIA)
4) Can hear actions at law in torts or contracts or actions for detinue (recovery of personal property or value thereof) only if amount in controversy is less than 25K.
5) Can hear attachment cases for personal property if amount in controversy is less than 25K. (If attachment involves realty, must go to CC).
6) Can hear interpleaders. As long as amount in controversy is 25K or less. - Exception - Can hear interpleader for any amount even more than 25k in cases involving earnest money deposit in land sales K.
7) Can hear claims for rent due or to oust Def. from property. No 25K cap.
8) Can grant distress warrants (creditor seizes property) regardless of the amount.
9) Has exclusive SMJ over cases where recovery is less than $4,500.00Note: Each GDC has a small claims court with concurrent jurisdiction over claims that do not exceed 5k.
Appeals from GDC to CC
There is an absolute right to appeal a case from GDC to CC if the amount involved is more than $20.
Steps to appeal final judgement to CC:
1) file written notice of appeal with clerk of GDC within 10 days of judgement
2) post bond and pay writ tax in GDC within 30 days of judgement. (10 days if unlawful detainer case)
What does CC do with the appealed GDC case?
Hears the case de novo. - New trial in CC. This is why GDC is a court of no record.
GDC enters a final judgement, Plaintiff moves to appeal to CC. Now may Plaintiff seek leave to amend to increase claim to over 25K?
No. Plaintiff can only increase the claim to over 25K if Defendant is the one appealing the case to CC.
Will VA enforce a contractual provision that says a case must be brought in a particular place (forum selection clause)?
Yes. A contractual provision designating a forum for contract disputes is not against public policy, and is enforceable. These contractual provisions on their face are valid and should be enforced, unless the party challenging it’s enforcement can establish that the provision is unfair or unreasonable or that they were affected by fraud or unequal bargaining power.
Category A - Venue
Cases where the VA statute sets out the appropriate place for trial.
1) Local Actions: Actions for the recovery partition, or judicial sale of land, to establish boundaries of land, for unlawful entry onto land, or anything else involving land, venue is appropriate where the land or any part of it lies.
2) Wills: Where the will was probated. If not yet probated then where it could have been offered for probate.
3) Writs: For mandamus (e.g forcing an officer to perform ministerial act), prohibition (e.g. stopping lower court from exercising jurisdiction), or certiorari (e.g. for review of zoning decisions), lay venue at the place for which the writ relates is located.
4) Injunctions: Where the subject proceeding or judgement is pending, or was rendered, or where the subjecy act is to be done, is being done, or is apprehended to be done.
Category B Venue - Anything not included in category A.
1) Where Defendant resides or has place of employment
2) Where the cause of action or any part of it arose.
3) Where Defendant has a registered office or appointed agent.
4) Where Defendant regularly conducts substantial business activity (but case itself must have some practical nexus with the place); or
5) In case to recover personal property - Where property is located. 6) In case against a fiduciary appointed under court order, where fiduciary is qualified.
What happens if case is filed in an improper venue?
Court will transfer the case to a proper venue. (WILL NOT DIMISS CASE FOR IMPROPER VENUE)
Transferring from a proper venue?
If a case is already in a proper venue, it can be transferred to another venue on Motion by either party, as long as the court finds good cause for transfer.
Factors relevant to good cause: the court weighs
(1) plaintiff’s choice of forum against things like
(2) agreement of parties
(3) avoidance of substantial inconvenience to parties or witnesses
(4) delay in parties seeking transfer. etc.
Decision to transfer is in court’s discretion.
Note: VA Supreme Court has found that the trial court abused discretion when it refused to transfer case from Place where Def. had principal place of business to place where cause of action occurred, plaintiff worked, and witnesses were located.
Forum Non Conveniens
A court may dismiss an action if the cause of action:
(a) arises out of state
(b) is brought by a non resident of VA and
(c) there is a more convenient venue outside of VA
The court must find (1) good cause and (2) that the other court has jurisdiction.
What must you serve the Defendant with?
Summons & Complaint
Note: In GDC a summons is called either a Warrant (if you use a civil warrant as a complaint) or a Notice of Motion for Judgement (if you use a motion for judgement as a complaint.)
In CC - it’s called a summons.
Who can serve the summons and complaint?
Any adult civilian who is not a party to the case or by the sheriff or deputy. An officer may serve in her city or county or contiguous localities (county city which is bordering or touching the county, city they are in) Plaintiff pays officer a fee.
Service on Individuals
Three ways to effect this. VA follows a descending order rule, meaning you can only move down the latter if one of the higher forms of service is impossible.
1) Personal (or actual) service: Deliver service directly to Defendant. THIS MUST BE TRIED (AND UNAVAILABLE) BEFORE YOU CAN TRY ANY OTHERS.
2) Substituted Service: - Service at Defendant’s usual abode - Served on a member of D’s family, at least 16 years of age. (CANNOT BE A GUEST) - Must tell person the purpose of the documents.
3) Posted Service: If other two are unavailable, you can:
(1) post a copy of the process on D’s door and
(2) at least 10 days before taking the default judgement, mail process to D and certify to clerk that mailing took place. -
In CC when Plaintiff mails the process to D they should also state that if D defaults, after 10 days from mailing, P can seek default judgement.
Curing a Statute
Hypo: Actual service not possible, the process was left with D’s 10 year old son at D’s house. The child gives the documents to Dad. Although technically not proper service , it is ok if Defendant actually and timely received it.
Note: Curing statute NEVER APPLIES in divorce and annulment cases.
Can Plaintiff request by mail that Defendant waive formal process?
Yes.
Immunity
If Defendant is in VA to be a witness in another civil case, is she immune to service of process for a VA civil case? No. But she would be in a federal civil case.
Serving under long arm statute
1) Plaintiff must execute an affidavit stating that
(a) Defendant is a non resident or cannot be found with due diligence and
(b) Defendant’s last known address.
2) Plaintiff gives copy of the process and affidavit to the Secretary of the Commonwealth
3) Secretary sends out the process to D by certified mail.
4) Secretary sends certificate of mailing to the Court. OR Plaintiff can arrange for personal service outside of the state by someone authorized to serve process in that state.
Service on a VA corporation and a Corporation qualified to do Business in VA
Serve (1) registered agent or
(2) any officer or
(3) director of corporation.
If registered agent cannot be found, then serve the clerk of the state corporation commission.
Service on other foreign corporations
Any officer, director, or agent of the corporation found in VA. If none found, serve two copies of process and affidavit of corporations last known address on the clerk of the State Corporation Commission.
Service under the Non-resident motorist act
Give affidavit of due diligence and D’s non residence. If affidavit is false, no jurisdiction.
Service by Publication (Constructive Service)
Never available in personam. Only used in cases involving rights to property or status (ex parte divorce) Only ok if Plaintiff gives an affidavit showing they have used due diligence to find Defendant but have not had success. If this is used, D has 50 days to respond to the complaint. If the case is against a non resident. P can have a Sherriff in D’s county serve the D. If the sheriff serves then D has 21 days to respond . Affidavits in support of publication notice, must state D’s last known address or the fact that the address is unknown.
Proof of Service
Report to the court by the person who attempted service. They must state what they did to effectuate service and the reasons for failing to serve. If service was made by an officer, it is prima facie evidence that what is stated is true.If it is a civilian, it is merely evidence of service and not prima facie evidence. Proof of service must be signed by the person making the service and state the jurisdiction where service was done.
Timeliness of Service
P must have process served within one year of filing (unless they show due diligence). The Court must hold a hearing and give P 30 days notice before dismissing on this ground.
Basics of a Pleading
(1) Must be numbered in paragraphs and state the facts which you are relying on.
(2) At least one attorney’s name must be on the pleading and they must sign.
(3) Documents which are part of claim or defense must be annexed to the pleading.
Motion Craving Oyer
If there is a document that should have been attached to a pleading but wasn’t, the other party can make this motion and if granted it requires the other party to produce the document and it is treated as being annexed to the pleading.
Attorney Certificate
Attorneys or pro se parties must sign all pleadings, motions, or other papers certifying that:
1. they have read it and
2. that to the best of their knowledge information and belief it is grounded in fact or law (or in good faith that the law should be modified) and
3. it is not for harassments or delay,You can be held liable for sanctions and attorneys fees for an improper document.
General District Court
Basics
Rules are less formal.
1) P obtains a civil warrant from the clerk and fills in the blanks regarding the parties and nature of grievance.
2) Civil warrant is served on D by Sherriff or deputy
3) The warrant tells D he must appear in court on a certain day.
4) D generally does not file a responsive pleading. He and P show up on the specified date and try the case.
5) No discovery. Instead if D wants more details about P’s case they can move for a bill of particulars. This is at the discretion of court. - Similarly if P wants the grounds of D’s defense they can move for grounds of defense. Also discretionary. - If the court orders a bill of particulars or order D to file grounds for defense and they fail to comply, the court can enter summary judgment against the party failing to file.
6) If the suit is brought on a written instrument, the original document must be tendered to the court unless excused by the court by statute or for showing of good cause.
7) Can object to venue anytime on or before day of trial.
Circuit Court Complaint
Must have:
1) Name of court, names of parties, statement of facts numbered, must clearly inform D true nature of the claim.
2) Must make a prayer of relief.- A statement of relief for damages is sometimes called an Ad Damnum Clause. -
Punitive damages MUST be identified separately in the prayer for relief. Does not need to allege jurisdiction or venue.
Can join multiple claims arising from same transaction and occurrence.
Ex. P buys new tv, the tv explodes in his house causing injury to P. They can sue for breach of contract, warranty, and negligence all in one suit.
How many days does D have to response to P’s complaint?
21 from service upon them.
Ways D can respond to complaint
1) Motion for Bill of particulars
2) Motion objecting to venue
3) Process Not served within one year.
4) Motion to Quash Process
4) Motion Challenging PJ
5) Demurrer
6) Special Plea
7) Answer
8) Equitable defense to legal actions.
Motion for Bill of particulars
Ask the court to require P to amplify her pleading. This motion must be made promptly.
Motion objecting to venue
Must state why venue is improper and what other venue would be proper.
Must be timely filed. W/i 21 days of service.
If D files a defective motion (ex. forgets to include what venues are proper) court still has power to transfer.
Motion - Process not served within one year
D makes a motion for special appearance. If P did not use due diligence in trying to serve D then the case is dismissed with prejudice.
If due diligence was used then motion is denied and D must respond in 21 days.
Motion Challenging PJ
If D makes a “general appearance” she waives this defense.
General appearance is any conduct that engages in the merits of the case. This includes: an answer, demurrer, special please, counterclaim, cross claim, third party claim, conducting discovery (except as allowed by court on a jurisdiction issue) seeking a ruling on the merits, participating in proceedings on the merits.
D must raise lack of PJ BEFORE doing anything that engages the merits. If they raise it at the same time or after engaging the merits, it is waived.
Ex. If defendant files an answer and in the answer they assert lack of PJ. they have waived the defense. If D is sued and they respond with a motion to transfer venue, they have waived PJ.
Motion to Quash Service of Process
Saying that service of process was improper..Same as with PJ. This defense is waived if it D makes a general appearance. However this defense can be made before or with a response to merits.
Demurrer
Tests sufficiency of pleadings that seeks affirmative relief.
Ex. It can bring up misjoinder of claims, lack of subject matter jurisdiction, failure to state a cause of action (main use)
Examples of failure to state cause of action:- in negligence claim, P fails to state duty owed by D - In suing employer for tort, P fails to state employer/employee relationship
A demurrer must specifically state why pleadings are insufficient. It cannot just say “fails to state facts showing P is entitled to relief” or “ pleading is insufficient as a matter of law.”
Demurrer cannot allege new facts. Must be filed before answer or at the same time. if not filed before or at the same time as answer then cannot be filed without court permission.
Demurrers are sustained or overruled. Not granted or denied.
Once the court has overruled all demurrers pleas and Motions then D will be ordered to file answer in 21 days or however much time court gives.
Special Plea
Affirmative defenses like res judicata or statute of limitations, or statute of frauds. May be raised separately, as a motion to dismiss, or stated like affirmative defenses in the answer.
Answer
Includes:
(a) responses to allegations of complaint (admit, deny, lack of knowledge)
(b) in numbered paragraphs
(c) affirmative defenses A general denial is one sentence long and it denies all of the allegations of the complaint.
Equitable Defenses to Legal Actions
Defenses like failure of consideration, fraud in inducement, breach of warranty, unconscionability
Special Sworn Pleading Requirement
Which Defenses must be raised in a Special Pleading?
- Lack of genuineness of handwriting
- Lack of corporate partnership or agency status
- lack of ownership or operation of property or instrumentality
If D files an unsworn pleading for one of these defenses, P can move to strike pleading within 7 days after D files.
If P does not object within 7 days, they waive objection.
Contract & Account Actions: In an action on a contract seeking payment of money, plaintiff can file with his complaint an affidavit stating the amount of his claim, that the amount is justly due and the date from which he seeks interest. - D must plead under oath that P is not entitled to money,
Does Plaintiff have to respond to Defendant’s answer?
No, generally whatever D says in their plea, motion, answer etc. is automatically deemed denied by P so plaintiff doesn’t have to do anything.
Exception: If D pleads a new matter in his response and expressly requests that P respond to the new matter then P has 21 days to admit or deny the new matter in a document called a reply.
Note: If D’s answer is insufficient legally, P cannot file a demurrer (since they only are for pleadings which assert a cause of action). Instead P would file a Motion to Strike the pleading.
Amending Pleadings
in VA you NEVER have a right to amend.
You MUST request leave from the court to amend.
if an amendment is filed without leave of court, the amendment has no legal effect. They are nullities.
Note: If you want to amend to add new parties, you must get leave to amend before the statute runs.
Amendments will be allowed liberally to further the ends of justice. The court considers whether allowing the amendment would unduly delay the proceedings, or prejudice a party, or whether the amendment would be futile.
The trial court’s decision will be upheld unless it is an abuse of discretion.
Relation Back - Amendment
Allowed if the amended document concerns the same transaction or occurrence as the original, the party seeking the amendment has been reasonably diligent and the other party is not substantially prejudiced.
Exception: When adding a new defendant, new party had to have notice within the limitations period of the action and knew or should have known that but for the a mistake concerning identity, they would have been named in the original pleadings.
General District Court
No Discovery as a general matter. Can compel a witness’s attendance at trial through subpoena or subpoena duces tecum (“bring stuff with you”) addressed to parties or non parties. Should file subpoena at least 15 days before trial. After that must show good cause.
Required Disclosures
None
Timing
21 days to respond to discovery requests
Maximum number of Interrogatories?
VA 30 ; Federal 25
Is there a rule number on depositions?
In VA No
In federal court you cannot take more than 10 or depose someone twice without court permission.
