Civil Procedure (Virginia)

Front 1

What is in personam jurisdiction?

Back 1

Juris over the defendant (not her property)

Front 2

In Va, when does the court have general in personam jurisdiction over a defendant?

Back 2

Statute says you have general in personam juris over (1) people served with process in state, or (2) people who reside in state.

Front 3

What is does Virginia's Non-Resident Motorist Act (NRMA) do?

Back 3

It gives jurisdiction over the owner or operator of a motor vehicle involved in an accident instate

Front 4

In Va, under what circumstances can a def who causes tortuous injury instate by an act or omission out-of-state be subject to personal jurisdiction in the Commonwealth?

Back 4

Whenever the def (1) regularly does/solicits business in Va or (2) engages in other persistent course of conduct from which he derives substantial revenue from goods consumed/used instate.

Front 5

In Va, can a foreign defendant be sued civilly instate if he made a contract with a Virginian?

Back 5

PJ is possible based on contracts to supply goods/services in Virginia, but the claim must arise FROM the contract.

Front 6

In Va, how many business transactions must a foreign entity do in Virginia to be subject to PJ here?

Back 6

Va is a “single transaction” state (one business contact is enough)

Front 7

In Va, does the court have PJ over a civil defendant who merely has an <i>interest</i> in real property instate, or is ownership required?

Back 7

A mere interest is enough. Ownership is not required.

Front 8

In Va, if a defendant sells a product out of state, can the court take PJ over the def on a breach of warranty claim?

Back 8

Yes. PJ is possible for a breach of warranty claim, even if sale is out of state

Front 9

What are the two circumstances under which a Va court can take PJ over a defendant in the context of a domestic relations case?

Back 9

a) Juris where maintaining a matrimonial domicile instate (whether at time of divorce or separation)
b) Juris for supplemental spousal/child support orders where orig juris was in personam

Front 10

What is the general constitutional test for personal jurisdiction?

Back 10

Does the def have “such minimum contacts with the forum that exercise of juris does not offend traditional notions of fair play and substantial justice”?

Front 11

What are the 3 "easy" cases for personal jurisdiction under the constitutional test?

Back 11

These all pass the test: domicile, consent, and presence in forum when served with process

Front 12

Under the constitutional test for personal jurisdiction, what factors must a court consider for the "hard" cases?

Back 12

<i>[My Parents Frequently Forgot to Read Children’s Stories]</i>
i) Minimum contacts = purposeful availment + foreseeability
ii) Fair play & substantial justice = relatedness + convenience + state’s interest

Front 13

In the constitutional test for personal jurisdiction, what is meant by "minimum contacts"? Be as complete as possible.

Back 13

Minimum contacts = purposeful availment + foreseeability
a) Purposeful availment: contacts must arise from def’s voluntary act
b) Foreseeability that def could be sued in this forum

Front 14

In the constitutional test for personal jurisdiction, what is meant by "fair play and substantial justice"? Be as complete as possible.

Back 14

Fair play & substantial justice = relatedness + convenience + state’s interest
a) Relatedness between this contact and the claim. (“Does the pl’s claim arise from the def’s contact with the forum?”)
--Sliding scale: relatedness can make up for a lack of contacts
--Relatedness not needed if there is general personal juris.
b) Convenience for witnesses and parties (def must show severe disadvantage to challenge)
c) State’s interest (e.g. in providing a forum for its citizens)

Front 15

In a Va case, if a court has jurisdiction under the state's long-arm statute, what must you still check to make sure personal jurisdiction is proper?

Back 15

The constitutional standard!
(minimum contacts with the forum that exercise of juris does not offend traditional notions of fair play and substantial justice)

Front 16

In a Va case, if a court has jurisdiction under a state's statutes, what must you still check to make sure personal jurisdiction is proper?

Back 16

The constitutional standard!
(minimum contacts with the forum that exercise of juris does not offend traditional notions of fair play and substantial justice)

Front 17

If asked whether the suit is filed in the "right court," what three things must you always check?

Back 17

PJ, SMJ, and Venue

Front 18

What is the SMJ of Va's circuit courts?

Back 18

a. General SMJ
b. Can hear any civil action except those where exclusive juris is vested in another ct
--E.g., claims to money/property ≤$4500 are exclusive to GDC
--E.g., administrative courts get some cases, like the Workers Comp Commission

Front 19

In Va, which trial court or courts can hear equitable claims?

Back 19

Circuit courts only

Front 20

In Va, in which could may you file a civil suit for monetary recovery or personal property worth ≤ $4,500?

Back 20

GDC <b>only</b> (exclusive juris)

Front 21

In Va, what is the cap on monetary claims in GDC?

Back 21

≤ $4,500

Front 22

In Virginia, in what court can you file a monetary claim for $4500?

Back 22

GDC only. ($4500 is the cap in GDC, and jurisdiction is exclusive for $4500 or less)

Front 23

In Va, what is the cap on tort claims brought in GDC?

Back 23

≤ $15k

Front 24

In Va, what is the cap on contract claims brought in GDC?

Back 24

≤ $15k

Front 25

In Va, what is the cap on detinue claims brought in GDC?

Back 25

≤ $15k

Front 26

What is detinue?

Back 26

Detinue: recovery of personal property or value thereof

Front 27

In Va, what is an action called for recovery of personal property or its value?

Back 27

Detinue

Front 28

In Va, what is the cap on unlawful detainer claims brought in GDC?

Back 28

≤ $15k (profits, back rent, & damages)
--Exception: no amount requirement if property used for commercial/agricultural purpose

Front 29

Hypo: In Va, if a pl has an unlawful detainer claim worth $30,000, where the subject of the claim is a grocery store, in which court can the claim be brought?

Back 29

Either circuit court <b>or</b> GDC. (Usually the GDC cap for unlawful detainer is $15k, but there is NO cap if the property is used for commercial/agricultural purpose)

Front 30

What is unlawful detainer?

Back 30

Unlawful detainer: wrongful entry of pl’s realty or tenant staying in possession after right has expired

Front 31

In Va, what is an action called for wrongful entry of pl’s realty or tenant staying in possession after right has expired?

Back 31

Unlawful detainer

Front 32

What is a distress warrant?

Back 32

An action in Virginia for a creditor’s right to seize property

Front 33

In Va, what is the cap on an action for attachment of personal property in GDC?

Back 33

Value must be ≤$15k

Front 34

In Va, what is the cap on an action for attachment of real property in GDC?

Back 34

Trick question: If it’s realty, it must go to circuit court regardless of amount
(For personal property, it must be ≤$15k to stay in GDC)

Front 35

In Va, can interpleader cases be brought in GDC?

Back 35

Yes, if stake is ≤$15k

Front 36

In Va, under what circumstances is a case appealable as a matter of right from GDC to circuit court?

Back 36

Appeal is an absolute right if “amount involved” for either party is >$50

Front 37

In Va, if a pl in GDC wins $4800 of a $5000 claim, which party can potentially appeal the case?

Back 37

Either party can appeal (“amount involved” for either party is >$50)

Front 38

In Va, if a pl in GDC wins $50, can the def appeal to circuit court as a matter of right?

Back 38

No.

Appeal is an absolute right ONLY if “amount involved” for either party is >$50

Front 39

In Va, what is the procedure for appealing a case from GDC to circuit court?

Back 39

1) File written notice of appeal with <u>GDC clerk</u> within <u>10 days</u> of judgment
2) Post <u>bond</u> and pay <u>writ tax</u> in GDC with <u>30 days</u> of judgment

Front 40

Timing: In Va, how long do you have to file notice of appeal when appealing a case from GDC to circuit court?

Back 40

10 days

Front 41

Timing: In Va, how long do you have to post bond and pay writ tax in GDC when appealing a case from GDC to circuit court?

Back 41

30 days
--Exception: 10 days if an unlawful detainer case

Front 42

In Va, can a pl, after a case is appealed from GDC to circuit court, increase the value of the claim?

Back 42

Yes!

Front 43

In Va, are forum selection clauses n contracts valid?

Back 43

Yes, if (1) fair and (2) reasonable

Front 44

Strategy: For the two categories of venue in Va, which category (A or B) trumps the other?

Back 44

A trumps B

Front 45

In Va, what are the types of venue that we (in barbri only) call "Category A" venue, and where must cases be brought in each these cases?

Back 45

1) Local actions: must be brought in the locality where some part of the land is located
2) Wills: brought where the will was probated (or could have been offered for probate if not yet probated)
3) Writs: venue is wherever the proceeding is that the writs relate to

Front 46

In Va, what are the three types of trial court writs?

Back 46

i) Mandamus: forcing an officer to perform a ministerial act
ii) Prohibition: stopping a lower ct from exercising juris
iii) Certiorari: review of zoning decisions

Front 47

In Va, what is a writ of certiorari for in a trial court?

Back 47

Review of zoning decisions

Front 48

In Va, what are the types of cases that we refer to as having Category B venue?
(barbri-only term)

Back 48

Anything not in Category A (i.e., NOT local actions, wills, and writs)

Front 49

In Va, for what we call (in barbri) Category B venue cases, where can the cases be brought?

Back 49

Any of the following choices would be appropriate for venue:
i) Where def resides or has her principal place of employment
ii) Where the cause of action (or any part) arose
iii) Where def has registered office or appointed agent
iv) Where def regularly conduct substantial business activity
v) For recovery of personal property: place where property is located
vi) For cases against fiduciaries appointed by a court: the place where the fid was appointed

Front 50

In Va, if an action is not an action on real property, a will, or a writ, is venue proper anywhere the defendant resides? How about where the def has his principle place of employment?

Back 50

yes and yes

Front 51

Timing: In Va, when must you make an objection to venue in circuit court?

Back 51

You must file a motion objecting to venue within 21 days of service of process (no mailbox rule)

Front 52

Timing: In Va, when must you make an objection to venue in GDC?

Back 52

Anytime, even the day of trial

Front 53

In Va, if venue is improper, what must a court find to DECLINE to have the case transferred?

Back 53

Good cause

Front 54

In Va, if venue is proper, what must a court find to have the case transferred to another venue?

Back 54

Good cause. Ct has <b>discretion</b>
--Factors: agreement of parties, avoidance of substantial inconvenience to parties/witnesses, delay in seeking transfer, etc.

Front 55

In Va, if a pl brings a claim against multiple defendants, where can the pl lay venue?

Back 55

Wherever venue is good for at least one defendant. (If venue is good for one defendant, it is good for all.)

Front 56

In Va, if a pl brings a claim against multiple defendants, all of whom are NON-residents, where can the pl lay venue?

Back 56

Pl’s home

Front 57

Timing: In Va, if a case has multiple defendants, and one pl voluntarily dismisses such that venue is not improper, how long does a remaining def have to object?

Back 57

Within 10 days of dismissal

Front 58

In Va, if a case is proper on Category B venue, but a def objects because Category A venue would also work, should the objection be sustained?

Back 58

Yes. A trumps B

Front 59

In Va, what is forum non conveniens dismisal?

Back 59

If (1) the claim accrued out-of-state, (2) the claim is brought by a nonresident, and (3) there is a more convenient venue outside of Va --> a court may dismiss without prejudice.
--The ct must first find (1) good cause and (2) that the other ct has juris

Front 60

In Va, what documents constitute "process"?

Back 60

summons + copy of complaint
--Note: the summons is called a "warrant" in GDC

Front 61

In Va, what is a summons called in circuit court? In GDC?

Back 61

A summons is called a summons in circuit court, but it's called a warrant in GDC.

Front 62

In Va, who may serve process?

Back 62

1) Process may be served by an adult civilian who is not interested in the case or by the sheriff/deputy.
2) Officers can serve in county or contiguous counties.

Front 63

In Va, what are the three types of service allowed on instate individuals (skip the details)?

Back 63

Three ways (only move down the ladder if the higher form is impossible):
1) Personal/actual service
2) Substituted service
3) Posted service (nail & mail)

Front 64

In Va, what is proper for "substituted service"?

Back 64

Must be BOTH:
--At def’s usual place of abode
--With a member of def’s family who (a) is ≥ 16, (b) is not a guest/temp sojourner, and (c) is told of “the purpose” by server

Front 65

In Va, what constituted "posted service"?

Back 65

i) Posting a copy of process on def’s front door, AND
ii) 10 days before judgment, mail process to def and certify to clerk that mailing happened

Front 66

In Va, in the most basic terms, what are the two types of service under the long-arm statute?

Back 66

1) Option 1: use Secretary of the Commonwealth
2) Option 2: serve def out of state personally using someone authorized to serve there

Front 67

In Va, when serving the Secretary of the Commonwealth under the state's long-arm statute, what is the procedure for completing service?

Back 67

i) Serve Secretary of the Commonwealth
ii) Pl makes an affidavit to Sec of Commonwealth that (1) def is a nonresident (or can’t be found with due diligence) and (2) def’s last known address
iii) Secretary then mails copy of process by registered/certified mail
iv) Secretary then files a certificate of mailing with the ct

Front 68

In Va, if service was otherwise faulty, under what circumstances can he faulty service be cured? And what is the exception?

Back 68

It can be cured if def actually and timely received process
--E.g., service on a 10-year old, to long as it gets to Dad
--Exception: no curing ever allowed in divorce/annulment cases

Front 69

In Va, can a def waive service like in fed court?

Back 69

Yes, and the process is the same, except that the pl must mail 2 copies of notice/request for waiver

Front 70

In Va, after process is served or attempted, what does the server do next?

Back 70

File the Return (“Proof of Service”)
--Within 72 hours of service, a report must be filed with the ct indicating status of service
--If failure to serve, reason must be stated.

Front 71

In Va, does service of process have to occur before the statute of limitations runs?

Back 71

No. Filing tolls the S/L.

Front 72

Timing: In Va, how long after filing a civil case must process be served?

Back 72

Within 12 months of filing (absent a showing of due diligence)

Front 73

How do you serve process under Va's Non Resident Motorist Act?

[rarely tested]

Back 73

i) Serve the Commission of Motor Vehicles
ii) Include an affidavit of due diligence and def’s non residence (no juris if affidavit is false)

Front 74

In Va, for responsive pleadings, counterclaims, motions, and discovery, what service of process is needed?

Back 74

No service of process.
-- Just mail, fax, or hand-deliver a copy of the paper (or email, with consent of party) to all counsel of record before the filing date
-- Counsel serving the documents then certifies the fact of mailing/delivery with the ct

Front 75

Under Va procedure, is a person in state only to appear as a witness in a civil case immune from service of process? What about under federal rules?

Back 75

--Under Va rules, the person is NOT immune.
(But there is immunity for someone summoned to appear before a grand jury or in a criminal case)
--Under the FRCP, the person IS immune.

Front 76

Under Va procedure, is a person in state only to appear as a witness in a criminal case immune from service of process?

Back 76

Yes. (But they would not be immune if it were a civil case. Note also that under the FRCP, a witness is always immune.)

Front 77

What kind of pleading is proper in a Va case? A fed case? (I.e., notice or fact?)

Back 77

Va: Fact pleading.
Fed: Notice pleading.

Front 78

What is fact pleading?

Back 78

Pleadings must:
i) Clearly inform the opposing party…
ii) …of the true nature of the claim or defense
(This is the type of pleading required in Va cases.)

Front 79

Under Va procedure, if a relevant document (like a K) form the basis of a civil suit is not attached to the pleading, what can the other party do?

Back 79

File a motion craving oyer

Front 80

In Va, are documents attached to the pleading considered part of the pleading?

Back 80

Yes

Front 81

Under Va rules, attorneys must sign all pleadings, motions, and other papers certifying <i>what</i>?

Back 81

i) Document has been read
ii) To the best of atty’s knowledge, information, and belief, the document is grounded in fact and law (or good faith belief that law should be modified)
iii) Document is not for harassment or delay

Front 82

Under Va rules, what sanction is possible for an attorney who breaches the implied certifications that the attorney makes on every signed paper?

Back 82

Attorney can be liable for costs and AFs incurred because of improper document

Front 83

Under Va rules, if a motion or pleading is not signed by an attorney, what can the opposing party request as a remedy?

Back 83

Document can be stricken if not signed

Front 84

Under Va rules, can you plead alternative facts as to alternative parties?

Back 84

Yes, you can plead alternative facts as to alternative parties IF they arose from the same T/O

Front 85

Timing: Under Va civil procedure rules, what is the <b>usual</b> deadline for most court filings?

Back 85

21 days (in other words, if you don't know, guess 21 days)

Front 86

In Va GDC, if a plaintiff wants to write his own warrant, what it is called?

Back 86

A motion for judgment

Front 87

How does service of process generally work in Va's GDC?

Back 87

Civil warrant is directed to the sheriff/deputy, who serves it on the def

Front 88

In Va GDC, what is the date called on which the defendant is told to come to GDC to defend the warrant?

Back 88

The return date

Front 89

In Va GDC, how far in advance must the return date be set on a civil warrant?
Hint: There is a minimum and a maximum.

Back 89

Between 5 and 60 days from the warrant's filing

Front 90

In Va GDC, if a defendant want to get details of the pl's case, what can he file?

Back 90

A “bill of particulars”

Front 91

In Va GDC, if a <i>plaintiff</i> wants to get details of the <i>defendant's</i> case, what can he file?

Back 91

A “motion for grounds of defense”

Front 92

In Va GDC, if a party does not respond to a bill of particulars or a motion for grounds of defense, can the court enter summary judgment?

Back 92

YES

Front 93

In Va GDC, under what circumstances can the court grant a continuance before the date of trial? What id the motion is made on the date of trial itself?

Back 93

1) The ct has discretion to grant a continuance if a motion is made before the trial date.
2) If made on the date of trial, the motion must be DENIED unless movant shows the continuance is in the “best interests of justice”

Front 94

In Va GDC, if a suit is on a written instrument, must the original instrument be tendered to the court?

Back 94

Yes (unless excused by statute or good cause)

Front 95

In Va GDC, how late can a defendant object to venue?

Back 95

Anytime, including the day of trial

Front 96

In Va, what 5 things must be included in a Circuit Court complaint?

Back 96

i) Name of court
ii) Names/addresses of parties
iii) Signature of lawyer
iv) Statement of facts
v) Prayer for relief

Front 97

In Va circuit court, what is required of the statement of facts?

Back 97

Must be in numbered paragraphs that (a) clearly inform def of the (b) true nature of the claim
--Note: you can allege negligence and proximate cause generally, but you must allege ALL elements of claims (e.g. duty).

Front 98

In Va circuit court, must the prayer for relief include a separate statement for punitive damages if requested?

Back 98

Yes

Front 99

In Va circuit court, must a complaint allege jurisdiction and venue?

Back 99

No. (Different from fed ct)

Front 100

In Va circuit court, under what circumstances can a plaintiff join multiple claims?

Back 100

Pl can join multiple claims as long as they arise from the same underlying T/O.

Front 101

In Va circuit court, how long does a def have to respond to a complaint?

Back 101

21 days

Front 102

In Va circuit court, what is a motion for a bill of particulars? What is the same motion called in federal court?

Back 102

1) Asks the ct to require the other side to amplify pleading
2) Fed rules call it “motion for a more definite statement”

Front 103

In Va circuit court, what 2 things must you do in a motion objecting to venue?

Back 103

Must state (1) why venue is improper and (2) what places would be proper

Front 104

Timing: In Va circuit court, how long do you have to object to venue?

Back 104

Must be filed (written filing) within 21 days UNLESS ct extends time to file a responsive pleading

Front 105

In Va, if a motion objecting to venue was defective, but the court still wants to transfer the case, can the court do so?

Back 105

Yes, the ct always has the power to transfer a case on its own

Front 106

In Va circuit court, if you want to challenge service as never having been made, what kind of appearance must you make?

Back 106

If you want to say service was NEVER made, you must do so by special appearance.
--Note: If you merely want to argue that service was defective, you make a motion to quash, which does not require a special appearance.

Front 107

In Va circuit court, if you want to challenge personal jurisdiction, what kind of appearance must you make?

Back 107

Special appearance

Front 108

In Va, what is the difference between a special appearance and general appearance?

Back 108

i) General appearance: any appearance other than to challenge service of process (including filing a pleading on the merits, defenses, or motion for particulars)
ii) Special appearance: challenges only PJ or service of process

Front 109

In Va, can you raise an objection to personal jurisdiction and an affirmative defense at the same time?

Back 109

No. The objection to personal jurisdiction is waived, because it must be raised by special appearance (must be raised first and stand alone).

Front 110

In Va circuit court, if you want to challenge service as defective, what kind of appearance must you make? Can you make a pleading on the merits first?

Back 110

A general appearance is fine. This is called a motion to quash, and though it is waived if you make a general appearance FIRST, you can make the motion simultaneously with a pleading on the merits.

Front 111

In the most basic terms, what is a demurrer?

Back 111

It tests sufficiency of a pleading (e.g., failure to state a claim)

Front 112

In Va, can you file a demurrer after an answer?

Back 112

No, unless the court says otherwise.

Front 113

What are the 4 possible grounds for demurrer?

Back 113

i) Misjoinder of claims
ii) Lacks of SMJ
iii) Lack of PJ
iv) Failure to state a claim (primary use)

Front 114

In a demurrer for failure to state a claim, is merely saying that the pleading was insufficient enough?

Back 114

No, you must state WHY the pleading is insufficient

Front 115

If you need additional facts to support your demurrer (that are not given by the complaint), how do you invoke them?

Back 115

You cannot add facts via demurrer, so you need to file a motion craving oyer. The documents produced in response are considered part of the pleadings, so then you can demurrer based on those new facts.

Front 116

In Va, if a demurrer is sustained, is it usually with prejudice or without?

Back 116

Usually without prejudice

Front 117

In Va, what is a "special plea"? How does it differ from a "plea in bar of recovery"?

Back 117

These are interchangeable terms. A special plea/plea in bar of recovery is an affirmative defense (e.g., statute of limitations, res judicata, etc)

Front 118

In Va, what is the the procedure for raising a special plea?

Back 118

Special pleas may be raised separately as a motion to dismiss OR stated as affirmative defenses in the answer

Front 119

In Va, are there any special rules regarding the form of the paragraphs in a pleading?

Back 119

Yes, you must use numbered paragraphs.

Front 120

Does the content of an answer differ in Va ct than in fed ct?

Back 120

No

Front 121

What is the content of an answer in Virginia court?

Back 121

i) Respond to allegations of complaint (admit, deny, or state lack of knowledge)
ii) State affirmative defenses (special pleas) (or you can make special pleas separately)

Front 122

In Va court, can a defendant facing a legal claim on a contract plead equitable defenses?

Back 122

Yes.

Front 123

In Va, what common law recoupment? How does it differ from statutory recoupment?

Back 123

1) With legal claims on contracts, def can plead equitable defenses (e.g., failure of consideration, fraud in the inducement, breach of warranty, unconscionability, etc). This is “common law recoupment”: def can diminish the pl’s clam by as much as pl’s entire claim (but not more).
2) "Statutory recoupment": Va statute also allows a def to raise these same defenses in a damages action on a K and recover damages even in excess of pl’s claim.

Front 124

In Va, if you are a def facing a legal claim on damages, and you say the plaintiff actually owes YOU money because the contract was based on fraud, do you have to raise this by counterclaim?

Back 124

No. You can use statutory recoupment:
2) "Statutory recoupment": Va statute allows a def to raise equitable defenses in a damages action on a K and recover damages even in excess of pl’s claim. You don't need a counterclaim.

Front 125

In Va, if you are a def facing a legal claim on damages, and you want the contract rescinded because the contract was based on fraud, do you have to raise this by counterclaim?

Back 125

Yes. Statutory recoupment allows you to get <i>damages</i> based on equitable defenses to a contract claim without a counterclaim, but to get <i>reformation or rescission</i>, you do need a counterclaim.

Front 126

In Va circuit court, is a plaintiff required to present a reply to def's answer?

Back 126

Generally no.
--Exception: Def pleads a new matter and requests pl to respond. Pl then has 21 days to admit/deny in a “reply”

Front 127

In Va circuit court, must a plaintiff reply to allegations made in a def's answer in order to ensure they are denied?

Back 127

No. The pl is deemed to have automatically denied whatever a def says in a plea, motion, answer, etc.

Front 128

In Va circuit court, if a def’s pleading is defective, what can the plaintiff do?

Back 128

If def’s pleading is defective, pl can make a motion to strike the pleading. (Remember, if the def doesn't answer, then the pl's allegations are not denied, and thus they are admitted.)

Front 129

In Va circuit court, does a pl have a right to amend? What about in fed court?

Back 129

You have to ask for leave to amend in Va. In fed court, you have a right to amend.

Front 130

In Va circuit court, under what circumstances will a court allow leave to amend the pleadings?

Back 130

i) Amendment will be allowed liberally to further the ends of justice
ii) Generally a ct will consider (1) delay and (2) prejudice. Court has discretion.

Front 131

In Va circuit court, under what circumstance can a plaintiff amend the pleadings AFTER the statute of limitations has run?

Back 131

If a pl does get leave to amend before a S/L runs, then pl can file the amended pleadings after the S/L runs so long as permission was granted BEFORE it ran.

Front 132

In Va court, if a pl fails to get leave to amend the complaint but amends anyway, and the def responds, what happens?

Back 132

Both are a nullity.

Front 133

In Va circuit court, what defenses must be pled in a SWORN affidavit/pleading?

Back 133

i) Lack of genuineness of handwriting
ii) Lack of corporate/ partnership/ agency status (including employment relationship)
iii) Lack of ownership or operation of property of instrumentality

Front 134

Timing: In Va circuit court, if a defendant raised a defense that was required to be raised in a sworn pleading, but fails to do so, what can the plaintiff do? How long does the plaintiff have?

Back 134

Must move to strike within 7 days. Otherwise, objection is waived.

Front 135

Va law allows special procedures to support plaintiffs in actions seeking money payment on a contract. Describe this process.

Back 135

Pl can file with his complaint/warrant an affidavit stating:
i) Amount of claim
ii) That the amount is justly due
iii) Date from which he seeks interest
--After being served with process and the affidavit together, the def must plead under oath that the pl is not entitled to the money, or judgment for pl is entered.

Front 136

Timing: In Va GDC, how far in advance of trial must a plaintiff file subpoenas?

Back 136

Must be filed ≥15 days before trial (or show good cause why not)

Front 137

In Va GDC, if you want a nonparty to produce documents, how can you accomplish this?

Back 137

Compel the person as a witness to bring documents to trial with a subpoena duces tecum

Front 138

What disclosures are required in Va circuit court in a civil case?

Back 138

None (unlike fed ct)

Front 139

Timing: Everything that gets 30 days in fed ct generally gets how many days in Va ct?

Back 139

21 days

Front 140

How many interrogatories is a civil party limited to in fed ct? Va ct?

Back 140

25 in fed ct; 30 in Va

Front 141

What limits are placed on depositions in fed ct? Va ct?

Back 141

--Fed ct says no more than 10 and no one can be deposed twice.
--No limits in Va.

Front 142

In Va, in what conditions must documents be produced?

Back 142

They must be presented as kept in the usual course of business or organized/labeled by category of request

Front 143

Can you request production from a nonparty in Va ct? In fed ct?

Back 143

Only for parties in Va; fed ct allows for nonparties as well.
--But in Va you can do a subpoena duces tecum, so it’s basically the same.

Front 144

Is the relevance standard in discovery different in fed ct from Va ct?

Back 144

A little.
i) Fed ct: must be relevant to a claim or defense (narrower). Va: must be rel to subj matter of proceeding
ii) Definition is same for both: “reasonably calculated to lead to admissible evidence”
--E.g., info about gross earnings may be rel to punitive damages.

Front 145

Under what circumstances can a Va court limit discovery?

Back 145

Va cts have power to limit discovery if requests are (1) repetitive, (2) unduly burdensome, or (3) the info is more easily available from another source

Front 146

Are joint obligors and joint tortfeasors "necessary" parties in Va court? In fed ct?

Back 146

They are NOT "necessary parties" in either context. So pl can sue any or all of them (pl's option).

Front 147

In Va, can a third-party beneficiary on a contract sue in his own right, or must he be mentioned in the contract?

Back 147

They can sue in their own right even if not mentioned in the contract.

Front 148

In Va, can a plaintiff sue a partnership in the partners names rather than in the partnership's name? Which is the best strategic option?

Back 148

Yes. The pl will usually sue both in case the partnership itself is assetless.

Front 149

In Va, how does a minor sue someone as a plaintiff? How can a minor BE sued as a defendant?

Back 149

1) As a plaintiff, a minor can sue in own nby a “next friend”
2) As a defendant, sue the minor in his own name but ask the clerk to appoint a guardian ad litem (a lawyer will generally work too)

Front 150

In Va, if a minor fails to sue (as plaintiff) by a next friend, but wins, will the judgment stand?

Back 150

Generally yes

Front 151

In Va, if a party has a serious mental disability, how will the court proceed?

Back 151

Usually there is a formal incompetency hearing where a fiduciary is appointed. The fiduciary might be a “committee”/”guardian”/”conservator”

Front 152

In Va, what happens if a mentally incompetent party has no fiduciary but sues as a plaintiff? What if the person is sued as a defendant?

Back 152

i) If the person is a pl, the guardian sues, or if none, the pl sues in his own name through a next friend.
ii) If the person is a def, treat it like a minor as a def (appoint GAL or lawyer)

Front 153

In Va, how can you sue a convict? How can a convict sue as a plaintiff?

Back 153

1) While in custody, a convict CANNOT be sued individually. You'll wan to get a "committee" appointed.
2) Technically, convicts can sue as pl without a committee, but filing a suit waives the need for a committee.

Front 154

In Va, what is the difference between "survival" and "revival" of claims?

Back 154

1) In Va, all claims "survive" death of any pl or def. If pl dies, pl’s executor must make a motion to substitute himself as pl.
2) If a party changes status in some other way (e.g., insane, convict), the case survives but must be “revived” in the representative’s name.

Front 155

In Va, must counterclaims be served formally with a summons?

Back 155

NO

Front 156

In Va, how long does a def have to file counterclaim in GDC? Circuit court?

Back 156

i) Circuit court: Def must file within 21 days of service of process.
ii) GDC: file anytime before trial

Front 157

In Va, how long does a counter-defendant (i.e., the plaintiff) have to respond to a counterclaim?

Back 157

21 days

Front 158

In Va, what counterclaims are compulsory?

Back 158

None! No such thing in Va courts, even if same T/O (unlike fed ct)

Front 159

How does the scope of available counterclaims differ in Va than in fed ct?

Back 159

Unlike fed ct, counterclaims are NOT limited to same T/O
--But still check to make sure SMJ is met! (e.g., watch amount limits in GDC)

Front 160

In Va, if there is more than one plaintiff, can the defendant counterclaim against just one of them?

Back 160

No, the counterclaim must apply to all (jointly).

Front 161

In Va, are cross claims permissive or compulsory? Must they related to the same transaction/occurrence?

Back 161

Like fed ct, they are always permissive. And yes, they must related to the same T/O, like fed ct.

Front 162

In Va, under what circumstances can a tortfeasor can seek contribution from joint tortfeasor?

Back 162

a) Like fed ct, if the tort is (1) negligence and (2) involves no moral turpitude
b) BUT def cannot implead joint tortfeasor if the pl could not recover against him. (unlike fed ct)

Front 163

In Va, what is the official name for what might be called the impleader complaint?

Back 163

The “third party complaint”

Front 164

In Va, must cross claims against a third party defendant be related to the same T/O?

Back 164

Yes, just like fed ct

Front 165

In Va, can you file an interpleader claim in GDC? In circuit court?

Back 165

Can file in GDC or CC, with some catches:
1) GDC: can order interpleader if value of money/property is ≤$15k
--But a GDC cannot issue an injunction against parties from other proceedings!
2) Circuit ct: no cap on how much money need be at issue, plus the court can enjoin related matters in other proceedings.

Front 166

In Va, can a plaintiff intervene in a GDC case? In a circuit court case? What is the filing called?

Back 166

1) File in circuit court only
2) Form: “petition for intervention”

Front 167

In Va, once a person files a petition for intervention and it is granted, what happens next to complete the intervention?

Back 167

i) If granted, the intervenor pl would then file a compl and serve it formally with process.
ii) Defending parties respond as they would for any compl (i.e. file an “answer in intervention”)

Front 168

In Va, is there any intervention as a matter of right?

Back 168

No. It is all permissive and <b>discretionary</b>.

Front 169

In Va, what is the time limit on intervention?

Back 169

None (it's discretionary in light of (1) delay and (2) prejudice)

Front 170

In Va, is there any requirement that an intervention have sufficient relevance to the existing case?

Back 170

Claim or defense in intervention must be “germane” (i.e., related to the case)

Front 171

In Va, how does the standard for a "necessary" party differ from the standard in fed ct? What about that of an "indispensable" party?

Back 171

a. “Necessary” is defined the same as in fed ct
b. “Indispensable” parties: no such thing in Va
--
<i>Federal court: A party is necessary if (any)
i) Without the absentee, the ct cannot accord complete relief (prevent multiple litigation)
ii) The absentee’s interest will be harmed if not joined (harm to absentee), or
iii) The absentee claims an interest which subjects a party (usually the def) to multiple obligations (harm to party)</i>

Front 172

In Va, what is the hierarchy for beneficiaries in a wrongful death action?

Back 172

1) Spouse + kids/grandkids
2) No kids/grandkids? --> Spouse + parents
3) No kids/grandkids & no spouse? --> parents + siblings
4) ^ Award can include another person if (a) relative (b) who was part of decedent’s household and (c) dependent on decedent for support
5) If no beneficiaries --> benefits go to intestate takers

Front 173

In Va, ehen can a person be a beneficiary for the purposes of a wrongful death action despite NOT being a spouse, child, grandparent, or parent of the deceased?

Back 173

Award can include another person if (a) relative (b) who was part of decedent’s household and (c) dependent on decedent for support

Front 174

In Va, in a wrongful death action, how is it decided how big a share of the recovery each beneficiary will get?

Back 174

Jury decides how much each beneficiary gets

Front 175

In Va, what damages are recoverable in a wrongful death action?

Back 175

“Fair and just” damages, including:
1) Sorrow, anguish, and lost companionship of decedent
2) Services and income of decedent
3) Medical and funeral expenses*
4) Punitive damages IF wanton/willful misconduct* (unless def dies before judgment)
<i>Note: No pain and suffering!</i>
--
* must be stated separately in verdict

Front 176

In Va, if a victim brings action for personal injury but then dies shortly thereafter, how is the action transformed into a wrongful death action? If the suit included a request for pain and suffering, is that still recoverable as a wrongful death action?

Back 176

1) Personal representative can substitute as pl and sue for wrongful death.
2) No pain and suffering for the modified suit

Front 177

In Va, can a plaintiff recover damages for pain and suffering in a wrongful death suit?

Back 177

No.

Front 178

In Va, in what court can a plaintiff seek a declaratory judgment?

Back 178

Circuit court only

Front 179

In Va, can a plaintiff also recover damages on a declaratory judgment action? Can the plaintiff get an injunction?

Back 179

Yes, pl can seek consequential relief (damages or an injunction) in THAT action OR a separate proceeding

Front 180

In Va, if a plaintiff shares land with others in common and wants to get rid of the others, what action should be brought?

Back 180

An action for partition of realty. Could be either for division in kind, partition by allotment, or partition by sale

Front 181

In Va, under what circumstances will a court allow partition by sale?

Back 181

(Partition in kind = court orders sale of land and co-owners split the proceeds.)
--Rule: Court must make a finding that (1) division in kind is "not convenient" and (2) by sale would promote the best interests of the parties

Front 182

In Va, is the fact that a piece of land is more valuable if kept as a single tract is enough to make division in kind “infeasible”?

Back 182

No.

Front 183

In Va, what can the plaintiff expect to recover in an action for detinue?

Back 183

(1) Personal property or its value and (2) damages for detention

Front 184

In Va, must a plaintiff have an immediate right to possession of the property in question to bring an action for detinue?

Back 184

Yes

Front 185

In Va, how can a party bringing an action for detinue get <i>immediate</i> possession of the property (i.e., before judgment)?

Back 185

1) Pl can get immediate possession ex parte by verified petition that (1) describes the property, (2) shows pl’s right to it, and (3) shows risk that property will be damaged/hidden/removed. Pl must also (4) post bond of double the value of the property.
--Note: Sheriff cannot forcibly enter def’s house to recover property.

Front 186

In Va, if a plaintiff bringing an action for detinue lawfully gets immediate possession of the property, how can the defendant get it back (i.e., before judgment)?

Back 186

Defendant can get property back if he (1) gives notice to pl and (2) posts a bond of double the value of the property

Front 187

In Va, what is an action "to establish boundaries"? What damages are recoverable in such an action?

Back 187

a. For establishing boundaries between contiguous adjoining lands.
b. Damages: none (it is non-tortious; similar to a declaratory judgment)

Front 188

In Va, in what court can a person bring an action to establish boundaries?

Back 188

Circuit court only

Front 189

In Va, what is the purpose of an action for ejectment?

Back 189

To get title and obtain possession
Context: Pl has been ousted of possession of realty and def is in possession

Front 190

In Va, what must a plaintiff show in an action for ejectment?

Back 190

Pl must show he was ousted and show superior right to possession

Front 191

In Va, what damages are recoverable in an action for ejectment?

Back 191

1) Pl may seek rents and profits in the same action
2) Def can get offset for improvements made

Front 192

In Va, what is the purpose of an action for unlawful detainer?

Back 192

For a landlord to oust tenant and recover possession of reality

Front 193

In Va, in an action for unlawful detainer, can the landlord recover for back rent? For damage to property?

Back 193

Yes and yes (these are the 2 primary kinds of damages in actions for unlawful detainer)

Front 194

In Va, can an action for unlawful detainer be brought in GDC?

Back 194

No. Circuit court only

Front 195

[RARELY TESTED]

<u>Info on medical malpractice actions in Virginia:</u>
--Within 30 days after responsive pleading is filed, either side can request review by a medical malpractice review panel
1) Filing stays the tort action
2) The panel consists of judges, lawyers, and health care providers
3) Established by Va Sup Ct
--Panel’s decision is nonbinding but may be admitted in the tort action

[There is no back to this card.]

Back 195

[Information on front of card is rarely tested, so just read it over.]

Front 196

In Va, what is laches?

Back 196

Equitable doctrine barring the pl who has delayed unreasonably in bringing suit, where delay has caused prejudice to def.

Front 197

In Va, when does the statute of limitations on a claim <b>generally</b> begin to run: on the date of injury or date of discovery?

Back 197

Statute runs from “accrual” of claim (date of injury/breach), NOT when pl learned of injury/breach.

Front 198

In Va, what 4 types of cases are the exceptions to the general rule that a statute of limitations begins to run on the accrual of the claim?

Back 198

1) Fraud, mistake, and undue influence: S/L runs from when pl discovered harm (or when a reas person would have)
2) Malicious prosecution: from when the underlying case ends
3) Contribution: from when one actually pays more than fair share
4) Malpractice from continuous treatment/service: If treatment/service is continuous, the claim accrues at the end of the related course of treatment

Front 199

In Va, in calculating the statute of limitations, if the claim accrues today, is today "day 1" or is tomorrow "day 1"? I.e., if injured on May 1 with a 30 day S/L, what is the last possible filing day?

Back 199

Tomorrow is day 1. The last filing day would by May 31.

Front 200

In Va, what is the S/L for actions for property damage?

Back 200

5 years

Front 201

In Va, what is the S/L for actions for breach of a written contract? An oral contract?

Back 201

Written contracts: 5 yrs
Unwritten contracts: 3 yrs

Front 202

In Va, what is the S/L for actions for unlawful detainer?

Back 202

3 years

Front 203

In Va, what is the S/L for actions for personal injury?

Back 203

2 years (whether battery, neg, etc, is irrel)

Front 204

In Va, what is the S/L for actions for fraud?

Back 204

2 years

Front 205

In Va, what is the S/L for actions for wrongful death?

Back 205

2 years

Front 206

In Va, what is the S/L for actions for defamation?

Back 206

1 year

Front 207

In Va, must the statute of limitations be raised as a special plea?

Back 207

Yes, or it's waived

Front 208

In Va, must the statute of limitations be raised as a special plea?

Back 208

Yes, or it's waived

Front 209

In Va, must the statute of limitations be pled by citing a specific statute, or is it enough to just say it was violated?

Back 209

It's enough just to say it was violated

Front 210

In Va, how long is a statute of limitations tolled when a person is a minor?

Back 210

Until the person is 18
--Exception: med-mal is only tolled until age 8!

Front 211

In Va, how long is a statute of limitations for a medical malpractice action tolled when the plaintiff is a minor?

Back 211

Only until age 8

Front 212

In Va, does filing toll the statute of limitations, or is service needed before the S/L runs as well?

Back 212

Filing tolls it

Front 213

In Va, if a person files a suit before the statute of limitations runs but takes nonsuit, and the statute runs, can the suit be refiled?

Back 213

Yes. Assuming case was filed within S/L, the pl can refile within 6 months or S/L, whichever is LONGER.

Front 214

In Va, will a plaintiff's filing of a claim toll the statute of limitations on <i>crossclaims and counterclaims</i>?

Back 214

Pl’s underlying filing tolls the S/L for counterclaims & crossclaims ONLY if they arise from same T/O as pl’s claim

Front 215

In Va, is a promise to waive a S/L enforceable?

[rarely tested]

Back 215

Yes, it's is enforceable if (1) in writing (2) in furtherance of settlement, (3) not made along with another K, and (4) not made for a longer term than original S/L
[rarely tested]

Front 216

What is a nonsuit?

Back 216

A voluntary dismissal in Virginia

Front 217

When does a plaintiff have the right to take a nonsuit in Va? What are the exceptions?

Back 217

b. Pl has the right to nonsuit once UNLESS any of the following are true:
1) Jury “is” retired from the bar (currently deliberating, so you could after it returns hung)
2) Nonjury case is submitted for decision
3) Motion to strike the evidence has been granted
4) Demurrer or special plea is (1) fully argued and (2) awaiting decision

Front 218

In Va, can a pl take a nonsuit if there are counterclaims?

Back 218

Pl can still take nonsuit IF either (1) def agrees or (2) def’s case can be adjudicated independently

Front 219

In Va, after taking nonsuit, in what court must a pl refile?

Back 219

Pl must refile in the SAME court UNLESS (1) ct lacks juris/venue OR (2) good cause

Front 220

In Va, after taking nonsuit, can the pl refile in fed ct?

Back 220

Yes. (State law cannot prevent this, so it's an exclusion to the usual Va rule that you have to refile in the same court.)

Front 221

In Va, when is a party in default?

Back 221

Party is in default if he fails to respond to an affirmative pleading within the allowed time

Front 222

In Va, is default automatic?

Back 222

Yes. Default is automatic in Va (unlike fed ct), but of course translating that into a default <i>judgment</i> requires court action.

Front 223

In Va, does a party in default have a right to future notice regarding the case?

Back 223

No, unless he has a counsel of record. This is waived when in default.

Front 224

In Va, does a party in default have a right to a jury trial?

Back 224

No. This is waived by defaulting.

Front 225

In Va, if the defendant is in default and plaintiff wants to collect, what must the plaintiff do? Assume it is an action for money damages.

Back 225

1) Pl moves for entry of default judgment
2) Pl then asks for a hearing on damages UNLESS damages are liquidated (if so, judgment is entered)

Front 226

In Va, if a defendant is in default, will the plaintiff be entitled to the full amount of damages requested in the complaint?

Back 226

No. The pl must move for default judgment and then ask for a hearing on damages UNLESS damages are liquidated (if so, judgment is entered)

Front 227

If a defendant defaults, can he still show up to the damages hearing and put on evidence?

Back 227

At damages hearing, def can put on evidence but ONLY as to damages.

Front 228

How does federal court differ from Va court on the use of affidavits at summary judgment?

Back 228

You cannot automatically use affidavits in Va, but you can in fed ct

Front 229

How does federal court differ from Va court on the use of depositions at summary judgment?

Back 229

You cannot automatically use depositions in Va, but you can in fed ct. (In Va, you can use deps if all parties agree.)

Front 230

How does federal court differ from Va court on the use of pleadings at summary judgment?

Back 230

You cannot automatically use pleadings in Va, but you can in fed ct.

Front 231

Timing: In Va, how long does the plaintiff have to demand a jury trial?

Back 231

Pl must file demand within 10 days or service of last pleading raising jury issue

Front 232

How many preemptory jur challenges to you get in Va?

Back 232

3, just like fed ct

Front 233

In Va, how many jurors will sit on a jury? Hint: depends on the amount in controversy.

Back 233

Amt > $15k: 7 jurors
Amt ≤ $15k: 5 jurors

Front 234

In Va, can the parties consent to having a jury of only 3 members?

Back 234

Yes.
--Selection: each side chooses 1 and the 2 choose the 3rd together

Front 235

In Va, can you object to a jury instruction after it is read?

Back 235

No. Objections must be made before the instructions are read or they are waived

Front 236

In Va, can a trial judge allow exhibits into the jury room for deliberations?

Back 236

Yes (ct’s discretion)

Front 237

In Va, can a trial judge sequetser witnesses?

Back 237

Yes (ct’s discretion) but nonparties only

Front 238

In Va, can a trial judge allow the pleadings into the jury room for deliberations?

Back 238

NO

Front 239

In Va, can a court refer an issue “out of chancery” (out of equity) for an evidentiary finding? If so, is the result binding

Back 239

Yes a judge can, but the result is NOT binding

Front 240

In Va, can a judge impanel a jury for equitable issues?

Back 240

Yes

Front 241

Do parties have the right to demand a jury to decide facts regarding special plea? If such a jury is impaneled, is the result binding on the judge?

Back 241

Yes and yes. The parties have a right to such a jury, and the result is binding.

Front 242

In GDC, under what circumstances can a party introduce a report of medical expenses?

Back 242

May be admitted if accompanied by a sworn statement of the custodian that the copies are true and accurate.

Front 243

In Va, can you admit a report of expenses from a mechanic?

Back 243

Yes, you can admit an itemized estimate or appraisal by the person who repaired the vehicle, if accompanied by a sworn statement from the repairer

Front 244

For an equitable claim being heard in Va circuit court as a bench trial, in what form will the court hear testimony?

Back 244

By deposition only. (no live testimony unless court desires)

Front 245

For an equitable claim being heard in Va circuit court as a jury trial, in what form will the court hear testimony?

Back 245

Live testimony (but if it were a bench trial, the testimony would be by deposition by default)

Front 246

What is "ore tenus"?

Back 246

“oral presentation of testimony” (the term is used in Va to distinguish the use of depositions in trial from the use of live testimony)

Front 247

In Va, what is a "commissioner" and for what kind of claims is one used?

Back 247

Commissioners assist the judge in deciding the case (both fact and law issues). But this is only for equitable claims originating in circuit court.

Front 248

In Va, under what circumstances an an issue from a circuit court in equity be referred to a commissioner?

Back 248

Commissioners may ONLY be used if either (1) all parties and the ct agree, OR (2) ct finds good cause on the facts.

Front 249

In Va, if a circuit judge decides that a commissioner would be useful in deciding an issue, e.g., whether partition in kind is feasible, what does the judge do?

Back 249

Matters are sent to a Commissioner by “decree of reference,” which spells out what the Commissioner is to do.

Front 250

In Va, does a commissioner have the power to subpoena witnesses and hear testimony?

Back 250

Yes

Front 251

In Va, what deference do judges give factual findings of commissioners? Legal findings?

Back 251

Not binding generally.
(1) Fact issues: judge may be reversed for abuse of discretion if he ignores findings supported by the evidence
(2) Legal issues: Commissioner gets NO deference

Front 252

In Va, when a commissioner is ready to make a finding, what does he do to communicate his decision?

Back 252

Files report with the ct clerk and notifies counsel of record of filing

Front 253

In Va, can the parties object to a commissioner's report?

Back 253

Yes. They have 10 days to do so.

Front 254

In Va, what is a motion to strike the evidence?

Back 254

Functional equivalent of motion for judgment as a matter of law (JMOL) in fed ct
--Note: don’t just call this a “motion to strike” (add ‘the evidence’)

Front 255

In Va, if a judge grants a motion to strike the evidence, does that terminate the case?

Back 255

No. A judge who grants the motion must then enter summary judgment. (There is no direct motion for summary judgment in Va.)

Front 256

In Va, must a jury be unanimous?

Back 256

Yes (unless it's a 3-person jury, in which case majority rules)

Front 257

In Va, can a jury award more in damages than demanded in the complaint? What about in fed ct?

Back 257

In Va, the award is limited by the complaint. Not true in fed ct.

Front 258

In Va, can a jury give a "quotient verdict," where jurors calculate their own award and average?

Back 258

No

Front 259

In Va, can jurors be questioned about juror misconduct? About their subjective thought process?

Back 259

With “great caution,” jurors can be asked about misconduct, but NOT subjective thought process.

Front 260

In Va, what is proper term for a "judgment" on a legal claim? An equitable claim? (I.e., is it really called a "judgment," or something else?)

Back 260

“Judgment” = legal claims
“Decree” = equitable claims

Front 261

How long does a party have to seek rehearing of a case in Va GDC?

Back 261

Seek rehearing ≤ 30 days after entry of judgment.
--Note that the court must rule within 45 days of <i>entry of judgment</i> (not motion).

Front 262

In Va circuit court, how long does the court have to vacate, suspend, or modify a judgment? What is this period called? What happens after this period expires?

Back 262

The judgment remains “in the breast of the court” for 21 days.
i) Ct can suspend, vacate, or modify judgment during this period
ii) Otherwise the ct loses jurisdiction (even if under advisement)

Front 263

What is the Va equivalent of the federal motion for judgment as a matter of law?

Back 263

Motion to Set Aside Verdict as Contrary to Evidence

Front 264

In Va, must a party moving to set aside the verdict as contrary to the evidence have moved to strike the evidence earlier in the trial? With regard to federal counterparts, would such a motion have been required in fed court?

Back 264

a) In Va, you don't need to move to strike the evidence to later move to set aside the verdict as contrary to evidence.
b) In fed court, you DO need to have moved for JMOL to move for RJMOL after the verdict.

Front 265

Timing: In Va, how long does a party have to move for a new trial?

Back 265

21 days

Front 266

In Va, what are the 5 grounds to move for a new trial?

Back 266

1) Prejudicial error (not harmless) by court (e.g. bad jury instruction)
2) Misconduct by anyone (attorney, party, juror, even 3rd party)
3) New evidence that was not found despite due diligence
4) Unfair surprise by evidence that has a material outcome at trial
5) Excessive/inadequate damages (shock the conscience)

Front 267

In Va, what is remittitur? Is there such a thing in federal court?

Back 267

a. Ordered by court when damages are excessive but not so much that it shows bias. Ct tells pl he can accept a reduced award or take a new trial
b. Yes, this is possible in fed ct too.

Front 268

In Va, what is additur? Is there such a thing in federal court?

Back 268

a. Ordered by court when damages are “clearly inadequate.” Ct tells def he can pay a higher award or take a new trial
b. No, this is NOT allowed in Fed Ct (7th Am)

Front 269

In Va, if either party rejects additur, will there be a new trial?

Back 269

Yes. If either party rejects, there will have to be a new trial.

Front 270

What is a bill of review? In what kind of claims can such a bill be sought?

Back 270

Virginia only:
a. Party seeks review of final decree
b. Equity claims only

Front 271

Timing: How long does a party have to seek a bill of review?

Back 271

Equitable claims only:
Can seek ≤ 6 months after entry (trumps 21 day “breast of the court” period

Front 272

Is the final judgment rule the same in Va as in fed court?

Back 272

Yes

Front 273

In Va, what cases can be appealed from the circuit court to the Court of Appeals?

Back 273

ONLY for (a) domestic relations cases (divorce, adoption, custody, and support) and (b) some administrative matters

Front 274

Timing and Procedure: In Va, what is the procedure for appeal a case from circuit court to the Court of Appeals? How long do you have?

Back 274

File notice of appeal in circuit court within 30 days after entry of appealable decision

Front 275

In Va, how much money must be at issue to appeal a civil case from circuit court to the Supreme Court?

Back 275

≥ $500

Front 276

In Va, is appeal to the Supreme Court ever a matter of right?

Back 276

Only death penalty cases

Front 277

In Va, do you have a duty to bring adverse controlling authority to the court's attention on appeal? What if the case depends on another state's laws--must you bring controlling law from that jurisdiction to the court's attention as well?

Back 277

Yes and yes. You have a duty to bring adverse controlling authority, which could be non-Va law if that law controls the case.

Front 278

How long do you have to file notice of appeal in Va circuit court to appeal the case to the Supreme Court of Virginia?

Back 278

30 days

Front 279

In Va, if you are appealing a case from circuit court to the Virginia Supreme Court, who prepares and transmits the record?

Back 279

Clerk of the Circuit Court prepares a record for transmission to the Supreme Court.
--Notes:
i) Transcript only becomes part of record if it is filed with the Circuit Court ≤60 days from entry of judgment. The judge corrects any error and signs it.
ii) In lieu of a transcript, appellant can prepare a written statement of facts

Front 280

In Va, in addition to filing a notice of appeal, what else must a party file to appeal the case to the Supreme Court?

Back 280

File petition for appeal with Supreme Court (within 3 months of judgment/decree)

Front 281

In Va, how long do you have to file the petition for appeal with the Va Supreme Court?

Back 281

3 months from the judgment/decree

Front 282

In Va, after one party files a petition for appeal with the Va Supreme Court, can the other party file a brief in opposition? Can they state grounds for cross-appeal?

Back 282

Yes and yes

Front 283

If the Va Supreme Court grants the petition for appeal, must appellant post an appeal bond?

Back 283

Yes, within 15 days

Front 284

If a judgment is on appeal to the Va Supreme Court, can the plaintiff still execute the judgment? If so, can the defendant stop execution?

Back 284

Pl can still execute the judgment unless def posts a suspending (aka supersedeas) bond (this is in addition to the appeal bond the def posts)

Front 285

What is the procedure in Va for getting an interlocutory appeal from circuit court to the Va Supreme Court?

Back 285

(1) Request interlocutory appeal order from circuit court, (2) file petition with Supreme Court (within 10 days of certification by the Circuit Court)

Front 286

Timing: How long do you have to file a petition for interlocutory appeal with the Virginia Supreme Court?

Back 286

Within 10 days of certification of interlocutory appeal by the circuit court.

Front 287

In Va, what four things are required for a circuit court to certify an issue for interlocutory appeal?

Back 287

1) There is a substantial ground for difference of opinion
2) No clear Va appellate precedent
3) The issue is material to the case
4) Ct and parties agree that interlocutory appeal is in the parties best interests

Front 288

Can one court case preclude another case if the first case has not yet been decided?

Back 288

NO. Preclusion only works when the allegedly-precluding case has been actually decided.

Front 289

If the parties argue that a case from one jurisdiction precludes a case in another, which jurisdiction's "preclusion law" will govern the preclusion question?

Back 289

Choice of law: the preclusion law of Case 1’s jurisdiction applies (i.e., the law of the allegedly-precluding case)

Front 290

In federal court, can a case have preclusive effect if it is under appeal? What about in Va?

Back 290

In Fed ct, case has preclusive effect EVEN if under appeal (not so in Va)

Front 291

What three requirements must a party demonstrate to show a case is barred by res judicata?

Back 291

a. Both cases must be brought “by the same pl against the same def” (config matters)
b. Case 1 must have ended in a valid final judgment or decree on the merits
c. Cases involve the same cause of action i.e., same T/O

Front 292

Can you use res judicata if the prior case involved the same parties, just flipped?

Back 292

No. Both cases must be brought “by the same pl against the same def” (config matters)

Front 293

Can you use res judicata if the prior case was dismissed on grounds of jurisdiction?

Back 293

No. The prior case must have ended in a valid final judgment or decree on the merits

Front 294

Can you use res judicata if the prior case was won on default judgment?

Back 294

Yes. That is a "judgment on the merits" for res judicata purposes.

Front 295

Terminology: What is the use of res judicata called if the plaintiff won the prior case? If the defendant won?

Back 295

If pl won Case 1, res judicata is called “merger”; if def won, it’s called “bar”

Front 296

To use collateral estoppel to preclude relitigation of a particular issue, what must be true of the prior case's handling of the issue?

Back 296

a. The must have been actually litigated and determined in the prior case
b. That issue must have been essential to the judgment in the prior case

Front 297

To use collateral estoppel, must the prior case have been resolved on the merits?

Back 297

Yes

Front 298

Against whom can a person raise collateral estoppel? (I.e., what relationship must the opponent have to the proponent or to the case/issue)?

Back 298

Collateral estoppel can be asserted against one who was a party to the prior case or in privity with that person

Front 299

Can collateral estoppel be asserted against a person who was merely in privity with the opponent in the prior case?

Back 299

Yes, privity is sufficient

Front 300

Collateral estoppel:
Under what circumstances can a person who was not a party to the earlier case raise collateral estoppel against a <u>defendant</u>... in federal court? In Virginia court?

Back 300

This is called "nonmutual defensive issue preclusion"
a) Fed: Okay if opponent had full chance to litigate the issue in Case 1
b) Va: never allowed

Front 301

Collateral estoppel:
Under what circumstances can a person who was not a party to the earlier case raise collateral estoppel against a <u>plaintiff</u>... in federal court? In Virginia court?

Back 301

This is called "nonmutual offensive issue preclusion"
a) Fed: preclusion allowed if not unfair (e.g., had full & fair opp to litigate, could foresee multiple suits)
b) Va: generally not allowed