VA Themis Handout Flashcards
(208 cards)
1
Q
Two main trial court for ordinary civil cases
A
General District courts
Circuit courts
2
Q
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 ________
A
25,000
25,000
25,001
Circuit Court
3
Q
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 _____
A
50, 000
50,000
50,001
Circuit Court
4
Q
GDC JX over unlawful detainer actions
o More easily understood as _________________________ disputes
o Jurisdiction _______ of the amount in controversy
A
Landlord-tenant
regardless
ALWAYS HAS JX
5
Q
GDC cannot issue ________ relief
A
injunctive
6
Q
GDC and CC have _______ jurisdiction
A
concurrent
7
Q
The circuit court has jurisdiction over claims that are valued OVER _______
A
4,500
so 4,501 and up
8
Q
The GDC has concurrent jurisdiction with the CC if the claim is between ______ to _________ or __________ if it is a personal injury action
A
4501 to 25,000 or 50,000 if personal injury action
9
Q
If the claim is for 4500 or less than the _______ has exclusive jurisdiction
A
general district court
10
Q
The general district court always has concurrent jurisdiction over _________ regardless of the amount
A
unlawful detainer claims
11
Q
When there is concurrent jurisdiction, the plaintiff can _____
A
decide which court to go to
12
Q
Virginia trial courts have PJ to the _________________________ permitted by the Due Process Clause
A
full extent
13
Q
Two questions to ask regarding personal jurisdiction
A
- Is the assertion of PJ consistent with Virginia Law
- Is the assertion of PJ consistent with Federal Law
14
Q
To assert PJ in Virginia over a non-resident you must:
A
identify a series of contacts with VA that are sufficient to give the court jurisdiction
15
Q
What are some contacts that would give VA personal jurisdiction over a non-resident?
A
- Contract based contacts
- Tort Base contacts
- Property based contacts
- family based contacts
16
Q
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 ____________________
A
business in VA or sells goods or services
arises from the defendant’s contacts within the state
17
Q
Contract Based Contacts:
A
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
18
Q
If a D acts in VA, causing _____ injury in the state, VA will have PJ over that particular claim
A
tortious
19
Q
If a D acts outside of VA, causing tortious injury in the state, VA will have PJ over the D provided that:
i.
ii.
A
The D has systemic contacts with the state; and
The claim arises from those contacts
20
Q
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 ________
A
real property
arises
interest
21
Q
Family based contacts
Divorce action: ______
Support action: _______
A
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
22
Q
“Subject to service of process” triggers a ______________
A
personal jurisdiction issue
23
Q
Personal jurisdiction is about predictable places you can be sued.
What are the non-random places you can be sued?
A
- Where you are domiciled
- Where you have minimum contacts
- Where you have given consent
- Where you can be served with process “Tag Jurisdiction”
- Where you are essentially at home (mostly applies to companies operating in state but not domiciled there)
24
Q
PJ Federal
Domicile means:
o Human: _______
o Entity: _________
A
The state in which he resides and intends to remain
The state of its principal place of business and its state of organization
25
PJ Federal
Minimum Contacts:
Contacts that are ________________________________________
A D can be sued in a state where it has _____ and _____
purposefully established
minimum contacts and there is a relationship between the claim and those contacts
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
person; resident of the state;
does not mean;
is enough
substantial ongoing
but-for
rarely dispositive
27
What situations could you consent to personal jurisdiction?
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
28
Venue in VA
Preferred (Mandatory) or Category A Venue
o C _____
o R____
o A___________________
o W ____________
o I ___________
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
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
resides
works
principal place of business
substantial
registered agent resides
CEO Resides
arose
30
venue in VA
Multiple Defendants: A venue that is lawful for any ____ defendant is lawful for ____ defendants
one
all
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, ____________________
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.
32
Forum Non Conveniens (FNC)
A dismissal (not transfer) of a case because it cannot be conveniently brought anywhere in the Virginia court system
33
A Virginia state court will dismiss an action under FNC if:
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
34
Complaint in GDC
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”)
35
Complaints in the circuit court must:
-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
36
Can a plaintiff recover more than is stated in the complaint?
No
37
Can you plead alternative facts or theories of liability in complaint?
yes
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 _________________________
attach
craving oyer
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 ______
signed
a licensed attorney or an unrepresented party
read the complaint
supported by sufficient facts and law
not offered by an improper purpose
stricken
40
Joinder for minors:
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
41
joinder; incapacity
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
42
Joinder; imprisonment
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
43
Joinder; deceased person
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
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 ____________
legal right
cannot join together
45
A plaintiff can sue multiple defendants, the claims must _______________________
arise out of the same transaction or occurrence
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:
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)
47
How do you determine if a party is necessary to the action?
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
48
What is misjoinder?
When a party has been inappropriately joined to a lawsuit
49
What is non-joinder?
When a necessary party should have been joined but was not
50
What is interpleader?
One party is stuck between two other competing parties
Ex. insurance company doesn't know who to pay out between two parties
51
Are multiple claims allowed by claimant?
Does it matter whether they are related to the original claim?
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.
52
A counterclaim may be brought whether it is _______ or ________ to the P’s underlying claim
related or unrelated
53
Does virginia have a compulsory counter claim rule?
No
54
Do the federal courts have a compulsory counter claim rule?
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
55
What is a cross-claim?
A claim brought by one party against a co-party—most often a D against a co-D
56
Do cross-claims have to relate to the same transaction or occurrence underlying one of the claims in the original action?
Yes always
57
Are cross claims permissive or compulsory?
Permissive, NEVER compulsory
58
What is a third party claim? (impleader)
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)
59
What must a third party claim allege?
Claim must allege that the new party is responsible for all or part of the original D’s liability
60
Is the SOL an affirmative defense?
Yes, it must be raised or it is waived
61
What is the defense of laches? What do they apply to? What is its relationship to the SOL?
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
62
What is the statutes of repose? What is its relationship to SOL?
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
63
Three questions for every SOL issue:
1. How long will the clock tick for?
2. Accrual—When does the clock start ticking?
3. Tolling—When does the clock stop ticking?
64
SOL for defamation and libel
1 year
65
SOL for Personal injury and fraud
2 years
66
SOL for injury to property
5 years
67
SOL for oral contract; equitable estoppel, unjust enrichment
3 years
68
SOL for UCC Art 2 contracts for sales of goods
4 years
69
SOL for written contract not covered by UCC Art 2
5 years
70
When does the clock for SOL start ticking?
Accrual occurs when the injury actually occurs—not when the injury is discovered
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 _________________________
SOL begins to run when the fraud or mistake is discovered or reasonably should've been discovered, whichever is earlier
diagnosis
1 year
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
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
73
A P who nonsuits her case has _________________________ or the remainder ________, whichever is _________________________
6 months to refile
of the SOL
longer
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 _____________________________________
start counting on the day after
triggering
injury
same day
next business day
75
What is Process?
What is Summons?
* 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
76
Who can serve process?
sheriff in their jx or adjacent jx
disinterested person (non-party + non-family member+18 yrs old)
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
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
78
How is process served in VA to a natural person?
1.
2.
3.
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.)
79
How is process served on entities in VA?
1. Service on officer, director, or registered agent
if there is no registered agent, service is allowed on ANY agent of entity
80
After serving process, the server has __________________ to file proof of service with the court
72 hours
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
the server acted in good faith
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
the serve acted in good faith
83
Where the D agrees to acknowledge the lawsuit without formal service of process
waiver
84
Once served with process, the defendant has _____ days to respond to complaint
21
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
60 days
date of waiver
90 days
86
Optional pre-answer responses to complaint: You can file one of these motions (8)
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
87
What does a Motion to Dismiss for Lack of SMJ challenge?
Argues that P has filed in wrong court
88
What does a Motion to Quash Service of Process challenge?
Challenges the court’s personal jurisdiction
89
What does a Motion to Dismiss for Failure to Serve Process challenge
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
90
What does a Motion Objecting to Venue argue?
Argues that the P filed in the wrong venue
91
What does a Motion for Bill of Particulars argue?
Argues that the D cannot respond to the complaint without more information
92
What does a Motion Craving Oyer argue?
Asks the P to provide a document referred to in the complaint, and which is essential to the P’s claim
93
What does a demurrer argue?
Argues that P’s allegations fail to state a claim upon which relief can be granted
94
When does a defendant submit a plea in bar?
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
95
If the court denies a D’s pre-answer motion, the D has __________________ from the denial to file an answer
21 days
96
Answers typically contain _________________________, _____________________, and ________________________________________
admissions
denials
affirmative defenses
97
For each allegation in the complaint, the D must
admit or deny allegations
98
Failure to deny an allegation is treated as
an admission
99
When must affirmative defenses be raised?
In the first defensive pleading or it is waived
100
A pleading is the ______ or _________
complaint or answer
101
How do you amend a pleading in Virginia?
You must file a motion seeking leave to amend and include the amended pleading
102
In federal court, there are some opportunities to amend ___________
as of right
103
Leave to amend in VA should be _________ granted in furtherance of the ends of _________
liberally
justice
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
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
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
arises from the same transaction or occurrence
relates back
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
relate back
actual
SOL + 1 year
Mistake in identity
107
A misnomer is
a mistake in the name, not the identification of the party
This is not a SOL issue
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
1. Relevance
2. Work product
3. Privilege
4. Undue Burden
5. Experts
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 ___________________
dispute
likely to be true
punitive damages
universally
expedites resolution of cases
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
documents
tangible
party
attorney
not discoverable
Own
crucial
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 _______
public policy
communications
legal
waiver
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?
cumulative
benefits
EFFICIENCY - concept that unifies these
limits wasteful discovery
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
testifying
final report
compensation
data
114
Do virginia courts have initial disclosures?
No
115
Virginia limits interrogatories to __
30
116
VA courts limit requests for admission to __
30
117
Can a party respond to a request for admission by stating “whether or not X happened is up the jury to determine”
No obviously
118
Requests for physical or mental examination must be ______ and they require _____________ first
relevant
judicial approval
119
Do VA courts have limits on depositions?
No
120
DO federal courts have limits on depositions?
Yes, 10 without leave of court
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
reasonable
present
any purpose
impeach
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?
yes
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
a claim
defense
production
deposition
Object
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 ________
21 days
30 days
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: _______
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
126
does failure to respond automatically entitle P to a judgment against D?
No
127
What happens when a D fails to respond to service of process?
1.
2.
3.
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
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
motion for leave
responsive
good cause
accepting responsibility
costs
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 ______)
motion to set aside
21 days
fraudulent
jurisdiction
130
First nonsuit is as of ___________________
Subsequent nonsuits require _________________________
When determining whether to allow nonsuit, court may award _______ to opposing parties
right
leave of court
fees and costs
131
P can file nonsuit:
Before the case is submitted to the _________________________ _______
Before a motion to ____________ has been _________________________
fact finder for resolution
strike the evidence
sustained
132
If suit involves related counterclaims, _________________________, or impleader claims, no party involved in those claims can ______ without ______ of the opposing party
cross claims
nonsuit
permission
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 _________________________
nonsuit
permission
with prejudice
134
o If P wishes to refile in state court after nonsuiting, must file in same ___________________ to prevent judge shopping
venue
135
NON SUIT: SOL: Must refile within _________________ or the remainder of the SOL, whichever is
___________________
six months
longer
136
Is summary judgment common in virginia compared to other jx?
no, it is uncommon compared to other jx
137
Court’s only job in a summary judgment motion is to determine
(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
138
In summary judgment, the Court does not weigh parties’ evidence; must construe evidence in the light most favorable to _________________________
non-movant
139
On SJ motion, evidence presented to the court in _________________________ form rather than live testimony
documentary
140
What do parties typically use to support or oppose a motion for summary judgment?
I:
R:
D:
Parties typically use interrogatories, requests for admission, and documents produced during discovery to support/oppose motion for SJ
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
deposition
non-movants
punitive
50k or more
agree
142
In circuit courts, either party has a right to a jury in an _________________________
action at law
143
No right to a jury in _______________________________ courts or in __________________ actions
general district
equitable actions:
Actions seeking equitable relief (e.g., injunctions, specific performance, reformation of a contract)
144
what is an equitable action?
Actions seeking equitable relief (e.g., injunctions, specific performance, reformation of a contract)
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
assert
complaint
commencement
10 days
146
Even if neither party demands trial by jury, the ____ may decide on its own to have a jury trial
court
147
Personal injury case involves more than _______________, or non-personal injury case involves more than ________________: Jury composed of _____________ persons
50k
25k
7
148
Personal injury case involves ___________________ or less, or non-personal injury case involves ____________________ or less: Jury composed of ________________ persons
50k
4500
5
149
If parties agree: Jury of ______________ persons is permissible
3
150
How many peremptory strikes does each side have in jury selection?
3
*Peremptory strikes may not be used to discriminate on basis of race or gender
151
Parties must object to proposed jury instructions _____ case is submitted to jury to preserve the issue for appeal
before
152
Judge cannot share the judge’s own _________________________ of the case
opinion
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
instructions
pleadings
exhibits
may
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
general
winner
sub-issues
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
JMOL
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
either
defendant
plaintiff
conclusion
157
What standard is applied to a motion to strike the evidence?
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
158
courts retain power to reconsider, modify, or vacate judgment
for ___ days
21
159
What are options for post-judgment relief sought within 21 days?
Motion to set aside default judgment
Motion to set aside judgment as contrary to evidence
Motion for a new trial
160
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
Justice
21
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
reasonable jury
strike the evidence
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
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
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
fraud
void
2 years
165
Appeals from GDC to circuit court require:
A _________________________ judgment
An amount in controversy of more than _________________________
final
20$
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
10
general district
167
What is the standard of review in circuit court?
de novo on all issues
168
On appeal to CC, If the _______________________ is the appellant, the court may permit the P to increase her ad damnum
defendant
169
What must there be when appealing to Court of appeals from CC?
Final Judgment
Partial Final judgement
Certain interlocutory orders
Objection in lower court
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
disposes
resolved
171
Can there be an appeal to the court of appeals with only a partial final judgment?
May apply in multi-party case
Must find that decision on appeal won't affect remaining trial proceedings (and vice versa)
172
What must there be when appealing to Court of appeals from CC?
Final Judgment
Partial Final judgement
Certain interlocutory orders
Objection in lower court
173
What interlocutory orders can you appeal to the court of appeals from the CC?
Orders regarding preliminary injunctive relief
Certified orders
Collateral orders
174
What is an interlocutory order?
(order issued during the pendancy of a suit, rather than at the end of the suit)
Interlocutory orders are immediately appealable
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
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
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
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.
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
may not
objected
good cause
178
What must there be when appealing to Court of appeals from CC?
Final Judgment
Partial Final judgement
Certain interlocutory orders
Objection in lower court
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
30 days
jurisdiction
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
30 days
181
What is the standard of review in the VA court of appeals?
De novo for all issues of law
High deference for all issues of fact
182
How do you appeal to the VA Supreme Court?
An appeal may only be had if the Court grants the putative appellant the opportunity to appeal
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
30 days
30 days
184
What is the standard of review at the VA Supreme Court?
De Novo for all issues of law
High Deference to the original fact finder for all issues of fact
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 _________________________
rights
controversy
available
186
What is the forum for seeking declaratory judgment?
Must be filed in the circuit court
187
Is a written agreement to arbitrate a dispute valid and enforceable?
Yes
188
If party obligated to arbitrate refuses to do so, court must order arbitration unless party denies the _________________________ of the agreement to arbitrate
existence
189
If party obligated to arbitrate refuses to do so, court must order arbitration unless party denies the _________________________ of the agreement to arbitrate
existence
190
In Va, Plaintiff with ____________________ and _________________________ injury claims arising from the same transaction or occurrence need not bring those in the same suit
personal
property
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
transaction
parties
final
merits
jurisdiction
venue
192
Does Virginia permit non-mutual issue preclusion?
No
193
Issue Preclusion (Collateral Estoppel) requirements:
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
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
personal
ex parte
description
sold
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
owners
creditors
common
survivorship
sold
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 ___________________
possession and title
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
adjacent
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
landlord-tenant
title
199
Virginia Torts Claims Act (VTCA) does what?
waives state’s immunity from tort claims (does not
waive local government immunity); can be filed in CC or GDC
200
Land actions that must be brought in CC
ejectment
quiet title action
partition
action to set boundary line
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
mandamus
Prohibition
Quo warranto
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
5
next
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.
personal representative
spouse, children, grandchildren
parents and siblings
medical and funeral
203
Post judgment relief if sought after 21 days?
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
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 _________________________________
commonwealth
employment
serve notice one year
bars
6 months
6 months
18 months
100k
not allowed
not allowed
admin remedies
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
expert
breached
30 days
stayed
205
What is the proper venue for land actions?
must be brought in the district where the real property is located
206
What is the proper forum for detinue action?
permissive venue districts (e.g., where defendant lives or works and where the property is located)
