VA Civil Procedure

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Anonymous
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160430
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VA Civil Procedure
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2012-06-28 19:44:25
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Civil Procedure
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Civil Procedure
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  1. Statutory Grounds for Personal Jurisdiction in VA?
    • 1. Served in VA or residing there - can be sued on a claim arising anywhere
    • 2. Non-resident caused tortious injury instate by act/omission instate
    • 3. Non-resident caused tortious injury instate by act/omission out of state if
    •   1. Regularly does business in VA
    •   2. Gets substantial revenue from VA due to a persistent course of conduct
    • 4. Contracts to supply good/services in VA
    • 5. Owns, uses or possesses real property in Va
    • 6. Transacts any business in VA
    • 7. Divorce when there was a matrimonial domicile in VA at separation or filing
    •  
  2. Constitutional Grounds for Personal Jursidiction?
    • CONTACT
    • 1. Purposeful availment by D (reaching out to the jurisdiction)
    • 2. D must be able to foresee getting sued in the forum
    • RELATEDNESS
    • 1. Must satisfy long arm, or D must be domiciled in jursidiction
    • FAIRNESS factors
    • 1. Convenience for witnesses and parties
    • 2. States interest in providing a forum for its citizens
    • 3. P's interest in a convenient forum 
  3. Subject Matter Jurisdiction of General District Court
    • 1. Exclusive for $4,500 or less
    • 2. Available for $25,000 or less
    • 3. No injunctions 
  4. Subject Matter Jurisdiction of Circuit Court
    • 1. Available for more that $4,500
    • 2. Exclusive for more than $25,000
    • 3. Appeals from GDC de novo for more than $50 
  5. Process for appeal from GDC to Circuit Court
    • 1. File written notcie with GDC within 10 days of judgment
    • 2. Post bond and pay writ tax in GDC within 30 days of judgment 
  6. Where venue lies in VA
    • 1. Land actions where the land is
    • 2. Where D resides or has principal place of employment
    • 3. Where cause of action arose in whole or in part
    • 4. Where D has a registered office/agent, or regularly conducts substantial business
    • 5. Where a will could be or was probated
    • 6. Where a writ or injunction would require or prevent action
    • 7. Where the personal property to be recovered is
    • 8. Where the court-ordered fiduciary being sued was qualified 
    • 9. If D is non-resident, P's residence 
  7. Process for seeking venue transfer
    • 1. Motion must be made within 21 days after service
    • 2. No mailbox rule; must be filed
    • 3. If a dismissal of one D makes venue improper, motion must be filed within 10 days of dismissal and D must show the dismissed D was joined improperly or to create venue 
  8. Factors in Fourm in Non-Convenions Transfer
    • 1. Whee cause of action arose
    • 2. Convenience of parties and witnesses
    • 3. Any delay in a party's seeking transfer 
  9. Requirements for a court to have discretion to make a Forum non convenions dismissal
    • 1. Cause of action accrued out of state
    • 2. P is a non-resident
    • 3. A more convenient venue would have jurisdiction 
  10. What a Summons is called 
    • 1. Circuit Court = Summons
    • 2. GDC = Warrant (printed form) or Notice of Motion for Judgment (individually drafted) 
  11. Who can serve process
    • 1. Adult civilian uninterested in the case
    • 2. Sheriff or Deputy 
  12. Acceptable methods of Service
    • In order:
    • 1. Personal Service
    • 2. Substituted Service
    • 3. Posted Service 
  13. Requirements for Substituted Service
    • 1. Served at D's usual abode
    • 2. To a member of D's family at least 16
    • 3. Who is not a guest or temporary sojourner
    • 4. And who is told of the purpose of the process 
  14. Requirements for Posted Service
    • 1. Post a copy of process on D's front door
    • 2. Mail process to D
    • 3. Certify to clerk that mailing took place
    • 4. Wait at least 10 days before taking default judgment 
  15. Service under the Long Arm
    • 1. Serve Secretary of the Commonwealth
    • 2. Make affidavit setting forth:
    •  - D is non-resident or cannot be found with due diligence
    •  - D's last known address
    • 3. File affidavit in court and send copy to Secretary of the Commonwealth
    • 4. Secretary of the Commonwealth mails process to D
    • 5. Secretary sends Certificate of Mailing to the court and service is complete when it is filed
  16. What attorney must certify on all pleadings
    • 1. She has read it
    • 2. To the best of her knowledge, information and belief, it is grounded in fact and law
    • 3. It is not for harassment or delay 
  17. What to do if a document is not annexed to a pleading when it should be
    Make a motion craving oyer
  18. Time limit for filing pleadings and motions
    21 days
  19. When can the return date be on a GDC warrant?
    Not more than 60 days or fewer than 5 days from service of process
  20. What motions are used to force further pleadings in GDC?
    • 1. D wants more details about P's case = Motion for a Bill of Particulars
    • 2. P wants a responsive pleading from D = Motion for Grounds of  Defense 
  21. What must be in a Circuit Court Complaint?
    • 1. Name of Court
    • 2. Names/Addresses of parties
    • 3. Signature of Lawyer
    • 4. Facts in numbered paragraphs
    • 5. Prayer for relief 
  22. Order of pleadings in Circuit Court
    • 1. Complaint
    • 2. D can make "special appearance" to challenge PJ
    • 3. If not, D files a response and waives PJ
    • 4. If D pleads new matter and requests a response, P responds
    • 5. If D's response is inadequate, P moves to strike the pleading 
  23. Forms of Response Pleading
    • 1. Motion for Bill of Particulars = P's complaint was inadequate
    • 2. Motion Objecting to Venue = Venue is bad and venue would be proper elsewhere
    • 3. Motion to Quash Process = Problem with service (must be in first general appearnce)
    • 4. Demurror = Misjoinder, bad SMJ, failure to state cause of action
    • 5. Special Plea = Affirmative defenses
    • 6. Answer = Basic response 
  24. Amount of time to respond in discovery
    21 days
  25. Maximum number of interrogatories
    30 including subparts
  26. Who/what can be joined to a suit?
    • 1. Any claim arising from the same T/O
    • 2. Any or all joint obligors or tortfeasors
    • 3. Partners individually or as a partnership
    • 4. Executor/Administrator in respresentative capacity 
    • 5. Minor (court appoints guardian ad litum)
    • 6. Disabled person (court appoints guardian ad litum)
    • 7. Convicts (court appoints a committee) 
  27. Who can file suit?
    • 1.Third party beneficiary of a contract
    • 2. Minor by next friend
    • 3. Disabled person by fiduciary or next friend
    • 4. Convicts in their own name 
  28. Types of Joinder
    • 1. Counterclaim = D claim against P
    • 2. Crossclaim = Claim against co-party
    • 3. Impleader = third party complaint = D joins third party
    • 4. Necessary parties
    • 5. Interpleader = Third party forcing a dispute into court
    • 6. Intervention = Third party seeking to join a pending case 
  29. Counterclaim requirements
    • 1. File within 21 days of service in Circuit Court
    • 2. File before trial in GDC
    • 3. Must be within SMJ
    • 4. Can be for any claim, transactionally related or not
    • 5. Must be against all Ps
    • 6. Never compulsory
    • 7. D (original P) has 21 days to respond 
  30. Crossclaim requirements
    • 1. File within 21 days of service at Circuit Court
    • 2. File before trial at GDC
    • 3. Historically had to be served formally
    • 4. D has 21 days to respond
    • 5. Must be transactionally related
    • 6. Can be asserted against any number of co-parties
    • 7. Never compulsory 
  31. Impleader requirements
    • 1. File within 21 days after last responsive pleading in Circuit Court
    • 2. Or with leave of court
    • 3. File within 10 days after service in GDC, unless trial date is sooner
    • 4. Must serve process
    • 5. P can then file claims against new D if transactionally related
    • 6. D can implead anyone who may owe indemnity or contribution on the underlying claim 
  32. Joinder of necessary parties
    • 1. Can be joined by parties
    • 2. Can be joined by court
    • 3. No dismissal for non-joinder 
  33. Intervention requirements
    • 1. No time limit
    • 2. Requires permission of court (denied for delay or prejudice)
    • 3.  Claim must be germane to case
    • 4. File petition for intervention
    • 5. If granted, file complaint and serve process
    • 6. Responses as normal
    • 7. Only allowed at Circuit Court 
  34. Beneficiaries of Wrongful Death Action
    • 1. Spouse, children, grandchildren
    • 2. If no children or grandchildren, spouse and parents
    • 3. If no spouse, children or grandchildren, parents and siblings 
  35. Categoried of damages in Wrongful Death Action
    • 1. Sorrow, anguish and lost companionship
    • 2. Services and income provided by decedent
    • 3. Medical and funeral expenses
    • 4. Punitive damages if wanton ot wilful misconduct 
  36. Methods for Partition of realty
    • 1. Division in kind = Property divided among interest holders
    • 2. Partition by allotment = One or more co-owners get the land and pay the other co-holders
    • 3. Partition by sale = If it is the ONLY feasible option, sell and split the proceeds
  37. Process for Pre-trial Seizure in Detinue Cases
    • 1.  File verified (sworn) petition
    •       1. Describing the property
    •       2. Showing right to it
    •       3. Showing risk property will be damaged, hidden, or removed
    • 2. Post bond for twice the value
    • 3. Sheriff cannot enter D's house forcibly to seize property
    • 4. D can get the property back by posting a bond for twice the value 
  38. Special Causes of Action
    • 1. Wrongful death
    • 2. Declaratory judgments = Can be followed with consequential action
    • 3. Partition of Realty = Co-owners who do not want to be co-owners
    • 4. Detinue (also available in GDC with SMJ)= Recovery of personal property
    • 5. Action to establish boundaries
    • 6. Ejectment = P, out of possession of realty, wants to eject possessor
    • 7. Unlawful detainer (also available in GDC) = Landlord ousting tenant
    • 8. Medical malpractice
    • 9. Enforcement of Arbitration Agreement & Awards 
  39. Medical malpractice Review panels
    • 1. Within 30 days of a responsive pleading, either party can request a review
    • 2. Findings are evidence, but not conclusive 
  40. Statutes of Limitations
    • 1. Personal injury = two years
    • 2. Non-physical personal tort = two years
    • 3. Fraud = Two years
    • 4. Wrongful death = Two years
    • 5. Defamation = One year
    • 6. Property damage = Five yearsa
    • 7. Written contracts = Five years
    • 8. Property damage for sales covered by UCC = Four years
    • 9. Unwritten contracts = Three years
    • 10. Unlawful detainer = Three years from detention 
  41. When Statute of Limitations Starts and Tolls
    • 1. Begin at date of injury or breach (accrual)
    •      Fraud = when P discovered
    •      Malicious Prosecution = when case ended
    •      Contribution = when someone pays more than their share
    •      Malpractice = when continuous treatment ends
    • 2. Tolls for
    •      Minority
    •      Under age 8 in malpractice 
  42. How to raise Statute of Limitations
    • 1.  Raise in special plea
    • 2. D has burden of proof 
  43. When P cannot take a nonsuit
    • 1. Jury is retired from the bar
    • 2. Non jury case is submitted to the court for decision'
    • 3. Demurrer or special pleas is fully argued and awaiting decision
    • 4. Motion to strike the evidence is granted
    • 5. D filed a counter claim and does not consent (unless the claim can be adjudicated independently) 
  44. Requirement for Refiling After a Non-Suit
    • 1. Must be within six months, or the limitations period, whichever is longer
    • 2. Must be in the same court, unless
    •      1. It lacks jurisdiction or venue
    •      2. Good cause is shown
    • 3. Must be first nonsuit (unless court approves) 
  45. When is a party in default
    If he fails to respond to an affirmative pleading with the allowed time
  46. What does the defaulting party waive?
    • 1. Notice of further proceedings (unless there is a counsel of record, in which case he gets notice)
    • 2. Jury trial at further proceedings
    • 3. Right to litigate liability 
  47. What does the nondefaulting party do after default?
    Move for entry of default judgment
  48. How do you get a jury trial?
     
    File written demand within ten days of the pleading raising a jury triable issue
  49. Number of Members on a Jury
    • 1. More than $25,000 = 7
    • 2. Less than $25,000 = 5 
  50. How is evidence taken?
    • 1. GDC = Oral, written medical reports allowed
    • 2. Circuit Court Legal = Mostly oral, can be deposition
    • 3. Circuit Court Equitable = Mostly deposition, can be oral 
  51. When can a Commissioner be used
    • 1. All parties and the Court agree, or
    • 2. The court finds good cause 
  52. How long do parties have to object to a Commissioner's Report
    Ten days after filing
  53. How does a matter get sent to a Commissioner
    Judge issues a "decree of reference"
  54. What is a motion for JMOL called
    Motion to Strike the Evidence
  55. Post-trial Motions in GDC
    • 1. Seek rehearing 30 days or less after entry of judgment
    • 2. Court must rule 45 days or less after entry of judgment 
  56. Final Judgment or Decree in Circuit Court Remains Under Court's Control for How Long
    21 calendar days ("in the breast of the court"}
  57. VA Equivalent of Renewed motion for JMOL
    Motion to Set Aside Verdict as Contrary to Evidence
  58. Grounds for new trial
    • 1. Prejudicial error by Court
    • 2. Misconduct or party, counsel, juror or 3rd Party
    • 3. New evidence discovered
    • 4. Unfair surprise by evidence that has a material effect
    • 5. Excessive or inadequate damages 
  59. Time for motion for a new trial
    • 1. Motion 21 days after entry of judgment or decree
    • 2. Court must rule within 21 days after entry as well 
  60. What court can do if damages are excessive
    Remittitur
  61. What court can do if damages are inadequate
    Additur
  62. What judgments are appealable from GDC to Circuit Court
    Final judgments for more than $50.00
  63. Timimg for Appeal from GDC to Circuit Court
    • 1. File Notice of APpeal in GDC no later than 10 days after entry of judgment
    • 2. Post bond and paywrit tax in GDC no later than 30 days after entry of judgment 
  64. On appeal from GDC, can addemnon amount be raised
    Yes
  65. On Appeal from GDC to Circuit Court, can you add a claim for personal injury for more than GDC jurisdictional amount
    Yes, but only with leave of court, which is to be liberally granted
  66. Appealable from Circuit Court to Court of Appeals
    Domestic relations cases
  67. Appeals from Circuit Court to Supreme Court allowed when
    Allowed in general civil cases if they involve at least $500.00 on appeal
  68. Timing of Petition for Appeal to VA Supreme Court
    • 1. File Notice of Appeal with Clerk of Circuit Court no later than 30 days after the judgment or decree
    • 2. mail or deliver copy of notice to other parties' counsel
    • 3. Notice states whether you will file a transcript or written summary of thetrial and, if transcript certify that it has been ordered
    • 4. Appealing party must file a transcript within 60 days or a summary within 55 with the Circuit Court. Other parties can object to errors or omissions
    • 5. Within 3 months of final judgment, file 7 copies of Petition for Review with Supreme Court
    • 6. Appellee may file brief in opposition within 21 days of appellant's filing (7 copies) 
  69. Contents of Petition for Appeal to VA Supreme Court
    • 1. Parties
    • 2. Assignments of error with particularity
    • 3. Certificate re whether oral hearing on petitionis desired
    • 4. $50.00 filing fee 
  70. What Appellant can do if Supreme Court rejects Petition for Appeal
    Appellant may request rehearing within 14 days after notice of denial
  71. Process if Supreme Court grants Petition for Appeal
    • 1. Supreme Court sends Certificate of Appeal to all parties
    • 2. Appellan must file Appeal Bond within 15 days
    • 3. If bond is in improper amount, other party may object within 21 days
    • 4. Appellant's brief (15 copies + PDF) is due within 40 days
    • 5. 15 copies of Appellee's brief are due 14 days Appellant's brief filed
    • 6. Reply brief due 14 days after filing of Appellant's brief 
  72. Preclusive effect of judgment while on appeal
    • Fed = preclusive
    • VA = none 
  73. Requirements for Res Judicata
    • 1. Same claimant against same D in both cases
    • 2. Case 1 ended in valid final judgment on the merits
    • 3. Case 1 and 2 are transactionally related
    • 4. The two cases don't involve personal injury and property damage respectively 
  74. Res Judicata employed offensively by claimant is called
    Merger
  75. Res Judicata employed defensively by a D is called
    Bar
  76. Requirements for Collateral Estoppel
    • 1. Case 1 ended in a final judgment on the merits
    • 2. Any issue presented in Case 2 was actually litigated and determined in Case 1
    • 3. Issue was essential to the Judgment in Case 1
    • 4.Both asserting party& party asserted against were partiesin Case 1 
  77. Grounds for refusing to enforce an arbitration agreement
     
    • 1. Corruption, fraud or undue means
    • 2. Partiality by an Arbitrator
    • 3. Arbitrator exceeded powers
    • 4. Refusal to postpone upon sufficient grounds
    • 5. No arbitration agreement 

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