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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
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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
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Subject Matter Jurisdiction of General District Court
- 1. Exclusive for $4,500 or less
- 2. Available for $25,000 or less
- 3. No injunctions
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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
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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
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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
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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
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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
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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
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What a Summons is called
- 1. Circuit Court = Summons
- 2. GDC = Warrant (printed form) or Notice of Motion for Judgment (individually drafted)
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Who can serve process
- 1. Adult civilian uninterested in the case
- 2. Sheriff or Deputy
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Acceptable methods of Service
- In order:
- 1. Personal Service
- 2. Substituted Service
- 3. Posted Service
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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
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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
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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
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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
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What to do if a document is not annexed to a pleading when it should be
Make a motion craving oyer
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Time limit for filing pleadings and motions
21 days
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When can the return date be on a GDC warrant?
Not more than 60 days or fewer than 5 days from service of process
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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
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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
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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
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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
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Amount of time to respond in discovery
21 days
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Maximum number of interrogatories
30 including subparts
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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)
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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
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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
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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
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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
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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
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Joinder of necessary parties
- 1. Can be joined by parties
- 2. Can be joined by court
- 3. No dismissal for non-joinder
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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
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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
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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
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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
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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
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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
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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
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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
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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
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How to raise Statute of Limitations
- 1. Raise in special plea
- 2. D has burden of proof
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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)
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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)
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When is a party in default
If he fails to respond to an affirmative pleading with the allowed time
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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
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What does the nondefaulting party do after default?
Move for entry of default judgment
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How do you get a jury trial?
File written demand within ten days of the pleading raising a jury triable issue
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Number of Members on a Jury
- 1. More than $25,000 = 7
- 2. Less than $25,000 = 5
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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
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When can a Commissioner be used
- 1. All parties and the Court agree, or
- 2. The court finds good cause
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How long do parties have to object to a Commissioner's Report
Ten days after filing
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How does a matter get sent to a Commissioner
Judge issues a "decree of reference"
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What is a motion for JMOL called
Motion to Strike the Evidence
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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
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Final Judgment or Decree in Circuit Court Remains Under Court's Control for How Long
21 calendar days ("in the breast of the court"}
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VA Equivalent of Renewed motion for JMOL
Motion to Set Aside Verdict as Contrary to Evidence
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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
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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
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What court can do if damages are excessive
Remittitur
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What court can do if damages are inadequate
Additur
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What judgments are appealable from GDC to Circuit Court
Final judgments for more than $50.00
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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
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On appeal from GDC, can addemnon amount be raised
Yes
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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
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Appealable from Circuit Court to Court of Appeals
Domestic relations cases
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Appeals from Circuit Court to Supreme Court allowed when
Allowed in general civil cases if they involve at least $500.00 on appeal
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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)
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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
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What Appellant can do if Supreme Court rejects Petition for Appeal
Appellant may request rehearing within 14 days after notice of denial
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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
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Preclusive effect of judgment while on appeal
- Fed = preclusive
- VA = none
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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
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Res Judicata employed offensively by claimant is called
Merger
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Res Judicata employed defensively by a D is called
Bar
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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
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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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