Virginia Civil Procedure

Question 1

Who must sign a pleading filed in a Virginia court?

Answer 1

The pleading must be signed by:
(i) An attorney of record admitted to practice in Virginia and in good standing; or
(ii) A pro se litigant.

Question 2

What three certifications are made by a lawyer or unrepresented party signing a pleading, written motion, or other paper?

Answer 2

Every party filing a pleading or making a motion certifies that:
(i) He has read the pleading, motion, or other paper;
(ii) To the best of his knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and
(iii) It is not interposed for any improper purpose.

Question 3

The general initial pleading filed by the plaintiff?

Answer 3

Complaint

Question 4

The general responsive pleading filed by the defendant?

Answer 4

Answer

Question 5

A claim by a defendant against a plaintiff?

Answer 5

Counterclaim

Question 6

A claim by a defendant against a co-defendant?

Answer 6

Cross-claim

Question 7

A claim by a defendant against a third-party that the third-party is liable to the defendant for all or a part of any liability that defendant has to the plaintiff?

Answer 7

Third-party claim

Question 8

What pleading is used to challenge the sufficiency of an aggressive pleading?

Answer 8

Demurrer

Question 9

When does a demurree who has amended a pleading retain the right to stand upon his original pleading?

Answer 9

When
(i) the order of the court shows that the demurree objected to the ruling of the court sustaining the demurrer; and
(ii) the amended pleading incorporates or refers to the earlier pleading.

Question 10

Name five affirmative defenses.

Answer 10

Possible answers: Statute of limitations, laches, res judicata, collateral estoppel, contributory negligence, Statute of Frauds, accord and satisfaction, assumption of risk, discharge in bankruptcy, duress, undue influence, fraud, illegality, infancy, failure of consideration, release, self-defense, usury, workers’ compensation, tender of payment or performance, estoppel, mistake, arbitration, adequacy of common-law remedy, unclean hands

Question 11

In a circuit court action, when is a defendant in default?

Answer 11

A defendant in default in circuit court when the defendant fails to timely file a responsive pleading.

Question 12

What are the consequences for a defendant in default?

Answer 12

(i) Loss of the right to any notice of further proceedings

(ii) Waiver of trial by jury on all issues

(iii) In claims for a liquidated amount, judgment against the defendant for the amount appearing to be due

(iv) In claims for an unliquidated amount, the court will hear evidence and fix the amount of damages (unless plaintiff demands a jury trial to fix the amount of damages)

(v) Loss of the right at a hearing for damages to offer proof or argument on the issues of liability or demand trial by jury as to damages (unless default is vacated and late responsive pleadings are permitted)

Question 13

May a party plead alternative or inconsistent theories of its claim or defense?

Answer 13

Yes, if the alternative or inconsistent theories all arise out of the same transaction.

Question 14

What standard of review applies to a trial court’s decision to grant a party additional time in which to file a pleading?

Answer 14

Abuse-of-discretion

Question 16

How can a party give notice that a suit is pending which may affect title to real property?

Answer 16

The party may file a lis pendens with the real property records office where the real property is located.

Question 17

When may laches be pled as an affirmative defense to bar a claim?

Answer 17

Laches may be pled when the plaintiff delays in bringing an equitable claims to which no statute of limitations applies, and the delay (i) has worked to the disadvantage of the defendant or (ii) warrants the presumption that the plaintiff has waived his right to bring the claim.

Question 19

What is the statute of limitations for personal injury?

Answer 19

Two years, regardless of the recovery theory

Question 21

What is the statute of limitations for an action for products liability seeking
(1) damages to property that was the subject of a UCC contract,
(2) injury to other property, or
(3) injury to the person?

Answer 21

(1) Four years
(2) Five years
(3) Two years

Question 22

What is the statute of limitations for an ejectment action to oust an adverse possessor of real property?

Answer 22

Fifteen years

Question 24

What is the statute of limitations for an action to thwart the creation of an easement by prescription?

Answer 24

Twenty years

Question 25

What is the burden of proof for a fraud claim?

Answer 25

Clear and convincing evidence

Question 26

What is the statute of limitations for a (1) UCC contract, (2) non-UCC signed, written contract, or (3) non-UCC oral contract?

Answer 26

(1) Four years (2) Five years (3) Three years

Question 27

Timing of PJ Challenge

Answer 27

Although FRCP 12(b) states that a motion asserting the defense of lack of personal jurisdiction must be made before pleading if a responsive pleading is allowed, FRCP 12(h) provides that this defense is waived if a party fails to make it by a motion under this rule or include it in a responsive pleading (i.e., answer). Consequently, **courts have concluded that, despite the language of FRCP 12(b), a motion to dismiss based on the lack of personal jurisdiction may be filed after an answer is filed when the answer pleads this defense. **

Question 28

Time to respond to Complaint (Fed. Ct.)

Answer 28

A defendant must respond to a complaint either by an answer or by a pre-answer motion within 21 days of service of the complaint, unless the defendant seeks and is granted additional time in which to respond.

Question 29

PJ Federal General

Answer 29

A federal court must generally determine personal jurisdiction as if it were a court of the state in which it is situated. Thus, a federal court will generally look to state jurisdictional statutes to determine if it has personal jurisdiction over the parties before it.

Question 30

PJ over out-of-state ∆

Answer 30

In determining whether a federal court has personal jurisdiction over an out-of-state defendant, the court must first determine whether there is a statute or rule that authorizes the court to exercise personal jurisdiction over the defendant and then, if so, whether the defendant had the type of purposeful contacts with Virginia that constitutionally makes it fair (i.e., satisfies due process) to be sued in Virginia.

Question 31

Virginia Long-Arm Statute

Answer 31

* Transact business in Virginia * Contract to supply goods or services in Virginia * Cause tortious injury in Virginia * Cause tortious injury in Virginia by an act outside the state, **if they regularly do business or earn substantial revenue from Virginia** * Cause injury in Virginia by breach of warranty from an out-of-state sale, expecting the goods to be used in Virginia, and they regularly do business or earn revenue there * Own, use, or possess real property in Virginia * Contract to insure a person, property, or risk located in Virginia * They: a) Sign a support agreement in Virginia b) Are ordered by a Virginia court to pay support c) Conceive or father a child in Virginia * Maintain a marital home in Virginia at separation or suit commencement if the other spouse resides there * Incur tax or financial liabilities to a Virginia government entity * Use a computer or network located in Virginia

Question 32

General Personal Jurisdiction

Answer 32

For a defendant to have the type of purposeful contacts with Virginia that constitutionally makes it fair (i.e., satisfies due process) to be sued in Virginia, which often is referred to as the “minimum contacts” requirement, the inquiry focuses on whether those contacts are such that the court would have general jurisdiction over the defendant to hear any matter involving the defendant or specific jurisdiction to hear the matter in question.

Question 33

Specific Personal Jurisdiction

Answer 33

When a cause of action arises out of or closely relates to a defendant’s contact with the forum state, jurisdiction may be warranted over that action even if that contact is the defendant’s only contact with the forum state.