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VA Civil Procedure
Feb 2012 Exam
| Question | Answer | |
|---|---|---|
| Two steps to determining PJ | 1. Satisfy a statute 2. Satisfy the Const. | |
| Statutory bases for PJ in VA | Over people: 1) served w/process instate 2) Who reside here. | |
| Long arm statute in VA | Specific jursidiction. Can sue nonresident for something done or caused in VA. | |
| 7 D actions that trigger claims that arise under VA longarm statute: | 1.Cause injury instate by act or omission out of state 2.Contracts to supply servicesthings in VA 3. Interest in uses or possesses realty(land) in VA4.Transacts ANY business in VA5.Injury in VA by breachof warranty sale out of state6.Dom Rel 7. NRMA | |
| Constitutional standard for PJ | Does D have such minimum contacts w/forum so that exercise of jursdiction does not offend traditional notions of fair play and substantial justice? | |
| *What's needed for Contact in PJ? | D must purposefully avail himself of forum (voluntary act), must reach out to forum. Must be FORESEEABLE that D could be sued in forum. | |
| Fair play and substantial justice in PJ? | Relatedness b/t contact and the claim. Convenience for witnesses and parties. State's interest. | |
| What question do we ask to determine relatedness in PJ? | Does P claim arise from D's contact w/forum? Relatedness not needed if D has substantial ties w/forum (general PJ) | |
| Summary of Constitutional Test for PJ? | My (Min Con) Parents (Purp Av) Frequently (Fors) Forgot (Fair/Sub) to Read (Relat) Children's (Conv) Stories (State Int). | |
| Circuit Courts can hear which actions (SMJ)? | any civil action except those for which exclusive j is vested elsewhere. Main exception is for actions for monetary claims or claims to specific personal property of 4500 or less. These cases go to GDC | |
| GDC courts? | Courts not of record. No jury pleadings or discovery, injunctions (except FOIA). Hear actions at law in tort or contract or detinue of amounts 15,000 or less. May hear unlawful detainer, attach personal property, hear interpeleader. | |
| Detinue | action for recovery of personal property or value thereof. | |
| Where do GDC courts have exclusive J? | In cases seeking monetary recovery or claim to specific personal property of 4500 or less. | |
| Example of detinue | A buys stereo system on installment plan. A stops paying and keeps stereo system. B seeks to recover stereo or value of stereo. | |
| When does absolute right to appeal from GDC to Circuit exist? | When amount invovled is more than $50. So if P sues for 5000 and wins 4800. Either P or D can sue since both were "aggrieved" for more than $50. | |
| *What are the steps for appealing final judgment to Circuit Court? | 1. Written notice w/GDC clerk w/in 10 days of judgment. 2.Post bond and pay writ tax in GDC w/30 days of jmnt (10 in unlawful det) | |
| Circuit Court hears cases on appeal de novo T/F | T. New trial b/c GDC is court of no record. | |
| Venue tells us... | Where we should file after we've figured out which court (Circuit or GDC). | |
| Will Virginia courts enforce a contractual provision that says that a case must be filed in a particular place (forum selection clause)? | Yes if it is fair and reasonable. | |
| Category A Venues? | -Local actions, wills, writs, and injunctions | |
| *Local actions? Where filed? | Category A. Cases for the recovery, partition or judicial sale of land. Filed where the land is located. | |
| Wills? Where filed? | Category A. Cases to establish or impeach a will should be brought where the will was probated or where it could be brought for probate. | |
| Writs? Where filed? | Category A. Lay venue at place where the proceeding to which writ relates is located. | |
| Injunctions? Where filed? | Where subject proceeding or judgment is pending or was rendered or where subject act is to be done, is being done, or is apprehended to be done. | |
| *Category B Venues? | Anything not falling under Category A. | |
| Venue possibilities for Category B venue? | -Where D resides or has principal place of employment. -Where cause of action or any part arose (ie, where contract was breached) -Where D has a registered office or appointed agent -Where D regualarly conducts substantial business activity | Must be SUBSTANTIAL -In case to recover personal property where property is located -IN case against fiduciary appointed under court order where fiduciary qualified |
| D-1 resides in County A, D-2 resides in County B, where is venue proper? | Where cause of action arose, or County A OR County B. | If venue is ok for 1 d it is good for all. |
| For D nonresident where may P lay venue? | Normal venue choices PLUS where P resides. | |
| If case originally placed in proper venue it can be transferred on motion of any party to anotehr venue in VA. What must court find before ordering transfer? Factors? | Good cause to transfer. Forum non conveniens transfer | Agreement of parties, avoidance of substantial inconvenience to parties/witnesses, delay- all subject to court's discretion. |
| 3 requirements for Forum non conveniens dismissal | 1) cause of action accrued out of state 2) brought by non-resident of VA 3) more convenient venue outside of VA | Court must find 1) good cause 2) other court has jurisdiction. |
| Service: What is summons called? GDC? Circ | In GDC warrant or notice of motion for judgment | In Circuit Court- summons |
| 3 Ways to effect service on individuals? | Personal "actual"- Deliver process directly to D. MUST BE TRIED AND UNAVAIALBLE BEFORE TRYING OTHER FORMS OF SERVICE. Substituted Service- 1.D's usual abode 2.Must serve member of D's family whois at least age 16 & not a guest3. Tell her of the contents | Posted Service- If personal and sub service not possible post copy of process on D's FRONT DOOR and at least 10 days before taking default judgment mail process to D and certify to clerk mailing took place. |
| Curing statute | Even if D improperly served (say underage child receives substitute service) process still counts if D actually AND TIMELY received it | Never applies in cases of divorce & annulment. |
| Can P request by mail D waive formal service of process? | Yes. Done the same as in fed court. 2 copies, waiver form, SASE. | |
| Immunity from service of process same as in Fed Court? | No. If D in VA to be witness for civil case she is not immune from service of process. | |
| Does Statute of Limitations toll with filing of a case or serving process? | Filing. But P must serve process w/in 12 months of filing. | |
| All pleadings must state in numbered paragraphs what? | Facts! Documents that are basis of a claim may be annexed as an exhibit. | |
| Suppose a document that should be annexed to a pleading is not. What can the other party do? | Motion craving oyer- order that other party produce the document. | |
| What is an Alternative Pleading and is it permissive? | Plead alternative facts as to alternative parties if they arise from same T/O. | |
| What is the exception to the court using its discretion to extend time in which pleadings and motions may be filed? | Posting bond. | |
| What is the one motion for which time cannot be extended by the court? | Venue- unless court extends time to file a responsive pleading. | |
| When can a D object to venue? | Anytime on or before day of trial. | |
| What does Virginia call cases "at law"? "At equity"? | all civil cases are called "civil actions regardless of whether they involve legal or equitable causes of action. However, distinction b/t law and equity is still meaningful. | |
| How does P start a case? | By filing a complaint. | |
| What must complaint contain? | Name of court, names and addresses of parties, statement of FACTS in numbered paragraphs and must clearly inform D of the nature of the claim. | |
| What is statement of relief in P's complaint called? | "Prayer" sets forth what you want, damages, injunction, etc. | |
| Statement of relief for damages also called what? | Ad Damnum | |
| What must be identified separately in the prayer for relief? | Punitive damages | |
| How specific must you be in complaint? | You may allege for example, negligence & proximate cause generally, but must still allege all elements of a cause of action for negligence: duty, breach, etc. | |
| Can you join claims arising from the same T/O? | Yes. If you join unrelated claim that is "misjoinder" of claims. | |
| How long does D have to respond to the complaint? | 21 days of service of process. | |
| The magic number in VA procedure? | 21 | |
| How may D respond to the complaint? | Motion for bill of particulars- asks court to require other side to amplify pleading. Must be made promptly. -Motion to quash process- service was improper. Waived if D makes general appearance. | Motion objecting to venue- Must state: 1)why venue is improper 2) what places would be proper |
| Can challenge personal jurisdiction at any time? | No. Must make "special appearance" asserting lack of PJ. Must be raised 1st and by itself or else is WAIVED. If you join this w/another response it counts as a general appearance and waives PJ. | |
| What is a general appearance? | D makes any appearance for purpose other than to challenge service of process/assert PJ, etc. | |
| Does a general appearance including filing motion for bill of particulars? Pleading going to merits? Asserting defenses? | Yes. | |
| Is it ok to file the motion to quash process simultaneously w/pleading responding to the merits? | Yes. | |
| *What is a demurrer? | Tests sufficiency of a pleading that seeks affirmative relief. | |
| *Can demurrer be used to challenge 1)misjoinder of claims? 2)lack of smj? 3) lack of PJ? 4)failure to state a cause of action? | 1)Yes. 2)Yes. 3)No. Must raise by "Special Appearance" 4) Yes. | |
| Demurrer result? Negligence action P fails to allege D owed any duty to P. Fails to state cause of action. | Demurrer sustained. | |
| In suing employer for tort of employee, P fails to allege employment relationship and that employee acted w/in scope of employment when he injured P. Fails to state cause of action. If demurrer says P 's pleading is insufficient as a matter of law? | Must state specifically why pleading is insufficient. | |
| Can demurrer allege new facts? What if D thinks case should be arbitrated b/c of clause in contract but P failed in complaint to mention clause or annex contract? | Demurrer can't allege new facts. Cannot be used in this case. D must file motion craving oyer. | |
| What does court do if demurrer is sustained? | usually sustains w/o prejudice and sets time for amendment. | |
| What happens if D files answer before she demurs? | Cannot demurr unless court allows. Demurrer can be filed before D's answer or at the same time. | |
| What is a special plea? | "Plea in bar of recovery" Affirmative defenses in fed. court. Ie, statute of lim, res judicata. | |
| Special plea may be raised as? | Separately, as motion to dismiss or stated like affirmative defenses in answer. Present single set of facts which if true obviate need to proceed further with action. | |
| P sues D. D wants to raise defense of statute of frauds(contract should have been in writing). How can D raise? | As a special plea. Raise it or risk wavier. In Motion or answer. | |
| What is an answer? Contains? | Basic responsive pleading. Contains i)responses to allegations of complaint (admit, deny, state lack of knowledge) ii) affirmative defenses. | |
| What happens after court has overruled all demurrers, pleas and motions? | D will be ordered to file answer w/in 21 days or such time as court directs. | |
| W/legal causes of action on contracts can D plead equitable defenses (eg failure of consideration, fraud in inducement)? | Yes. Can diminish P's claim. Called COMMON LAW RECOUPMENT. | |
| What kinds of defenses require D to file SWORN pleadings or affidavits (verified)? When must P object to lack of verification? | Lack of genuineness of handwriting, lack of corportate partnership or agency, lack of ownership or operation of prperty or instrumentality. | P can object to unsworn answer but must do so w/in 7 days of D's filing or else waives objection. |
| Special statutes help vendors collect on Ks. P files affidavit stating i)amount of claim ii) amount justly due and iii)date from which he seeks interest. What happens if D fails to plead under oath that P is not entitled to the money? if D pleads? | Judgment entered for D. | P is entitled to continuance if he moves for it. |
| Generally does P have to respond to D's pleas, motions or answers,etc? | No. Automatically denied. Exception: if D pleas new matter and expressly requests P respond then P has 21 days in wchich to admit or deny in a doc called a reply. | |
| If D's answer is insufficient legally, what does the P file? | Motion to strike the pleading | |
| What is a major difference in VA practice vs Federal practice when it comes to amending pleadings? | NEVER a right to amend in VA. | |
| If P files amended complaint w/out court permission and D answers what is effect? | No legal effect. They are a nullity. | |
| Venue Hypo: Case filed in Richmond, improper venue, D's lawyer drafts/mails motion objecting to venue on 21st day after D served w/process. Motion received in clerk's office two days later. Is objection timely? | No. In Circuit Court. Must file w/in 21 days after service of process unless court extends time to file a responsive pleading. | In GDC ok to object to venue on or before the day of trial. |
Created by:
25502542