March 2, 2023
Psychic Voodoo and Similar Civil Litigation Defense Topics
[i]
It is a warm, late winter morning, the kind of Virginia winter morning that marks either Third Fake Spring or First False Summer. You enter your workspace, fire up your outlook inbox (348 unread messages), and are greeted with a most welcome missive at the top of the pile: your client has been sued (see attached complaint)! After you move to suppress your maniacal cackling at the thought of all the “0.2” and “2.7” and “6.3” entries filling future timesheets (motion granted), you recall that “it is for the public good that there be an end of litigation.” Patterson v. Saunders, 194 Va. 607, 612 (1953). You also remember that it is for your client’s good to end the hemorrhaging of their expense account, and for your own good to have an additional responsive pleading victory blurb in the “representative cases” section of your firm website. You open the scanned .pdf containing the complaint and summons and train your eye to discover evidence of weakness in the pleading. Here are some things to look for:
Standing
A preliminary question you should ask is: did the right person or entity initiate the lawsuit? To obtain any remedy in our judicial system, the plaintiff must possess the requisite legal standing. The concept of standing requires that “the person who asserts a position has a substantial legal right to do so and that his rights will be affected by the disposition of the case.” Cupp v. Board of Supervisors, 227 Va. 580, 589 (1984). At the demurrer stage, “a plaintiff has no legal standing to proceed in the case if its factual allegations fail to show that it actually has a ‘substantial legal right’ to assert.” Deerfield v. City of Hampton, 283 Va. 759, 764 (2012).
Standing is not merely just another tool for attacking the complaint. It is a powerful concept implicating the court’s potential jurisdiction[ii] to hear the subject matter of the action in the first place. Smith v. Commonwealth, 281 Va. 464, 467 (2011). Indeed, the court may terminate the case for lack of standing sua sponte “at any time during the proceeding”. Virginian-Pilot Media Cos., LLC v. Dow Jones & Co., 280 Va. 464, 469 (2010). If you believe there is a standing issue, bring it up at every possible opportunity. Even on appeal! Such a defect “cannot be cured by reissuance of process, passage of time, or pleading amendment.” Morrison v. Bestler, 239 Va. 166, 169-70 (1990). If the plaintiff lacks standing, then clearly the complaint has no legs.
Service
Was the right human being served process? Check the following statutes: domestic corporations and LLCs (Virginia Code § 8.01-299), local governments (Virginia Code § 8.01-300), foreign corporations (Virginia Code § 8.01-301).
In the case of corporate defendants where the right registered agent was served, but in the name of the wrong corporate entity, apply the brutal but effective reasoning of Sauder v. Ferguson, 289 Va. 449 (2015).
If you dispute service, be careful not to commit one of the cardinal sins constituting waiver of your objection to personal jurisdiction or defective process. See Virginia Code § 8.01-277.1.
If service was effective and righteous, the defendant has 21 days to file a responsive pleading, which includes the following: answer, demurrer, plea, motion to dismiss, motion for a bill of particulars, and motion craving oyer. Don’t play with fire, file your responsive pleadings on time and ensure that your chosen method of transporting the pieces of paper constituting your responsive pleadings to the clerk’s office is airtight. Hopes and prayers are not effective advocacy.
Misjoinder/Misnomer
Did the plaintiff properly name your client as a defendant? If not, rejoice, you have a misjoinder or misnomer issue. A misnomer exists when the plaintiff incorrectly names the right person, while a misjoinder occurs when the wrong person altogether is named. Ray v. Ready, 296 Va. 553, 558 (2018). Defendants want to argue that the mistake is a misjoinder, because in that instance “[t]he only resolution, in the absence of a statute of limitations bar, is to commence a new action against the proper party.” Id. at 559. Note the limitations language – corrections of a misnomer “relate back” to the original pleading, while the new complaint naming the proper defendant does not enjoy the tolling of the limitations period. One pleading sin begets another.
Nonjoinder
Some actions require the proponent to name certain parties as defendants. For instance:
- Appeals from boards of zoning appeals to the circuit court require the appellant to name the governing body of the local government, the landowner, and the applicant. Virginia Code § 15.2-2314.
- The transferee of a fraudulent conveyance of land is a necessary party to a suit to set aside the deed. Thornton v. Gaar, 87 Va. 315 (1891).
- A person under contract to buy real property subject to a partition suit is a necessary party to the partition suit. McGraw v. McGraw, 1 Va. Cir. 113 (1971).
- Both co-executors are required to be joined in a wrongful death lawsuit. Addison v. Jurgelsky, 281 Va. 205, 209 (2011).
- The trustee of a trust is a necessary party to an action where the trust subject is in litigation. Fisher v. Dickenson, 84 Va. 318 (1888).
Generally, nonjoinder problems are solved by adding new parties on the motion of any party or by the court sua sponte. Virginia Code § 8.01-5. However, in the case of zoning appeals, circuit courts lack the discretion to allow petitioners to amend their petition to cure the failure to join a necessary party. Boasso Am. Corp. v. Zoning Adm’r of Chesapeake, 293 Va. 203, 211 (2017).
Non Suis Juris
Some organizations, or divisions thereof, are not entities that may be sued at all. For example, some divisions or departments of local governments are not proper defendants and should be dismissed from civil actions. See Calloway v. Taylor, 475 F. Supp. 3d 511, 515 (W.D. Va. 2020). The plaintiff ought to sue the parent organization and the individual actors.
Similarly, plaintiffs should not sue an estate or a trust. Instead, they should name the personal representative or trustee. Ray v. Ready, 296 Va. 553 (2018); Yonce v. Miners Memorial Hospital Ass’n., 161 F. Supp. 178 (W.D. Va. 1958).
Statute of Limitations / Timing
Sometimes your client gets invited to a litigation party that should rightfully have been thrown years ago (the cake becomes stale, the beer flat, the balloons droopy). If the alleged bad acts happened too long ago, your client might sneak out on a statute of limitations defense. The clock begins running “from the date the injury is sustained in the case of injury to the person or damage to property [or] when the breach of contract occurs in actions ex contractu”. Virginia Code § 8.01-230. This is the same moment that the cause of action accrued.
Here are the limitations periods for a few categories of rights of action:
- Personal injury – 2 years (Va. Code § 8.01-243)
- Defamation – 1 year (Va. Code § 8.01-247.1)
- Written contract – 5 years (Va. Code § 246)
- Oral contract – 3 years (Va. Code § 246)
- Implied contract – 3 years (Va. Code § 246)
- Ejectment, etc. – 15 years (Va. Code § 8.01-236)
- Inverse condemnation – 3 years (Richmeade, L.P. v. Richmond, 267 Va. 598 (2004))
If the actions complained of have not happened yet, and the plaintiff is suing under a common law right of action (rather than, e.g., a declaratory judgment action), the lawsuit may not yet be ripe for adjudication. The “common law rule [is] that no declaration of rights may be judicially adjudged until a right has been violated.” American Nat’l Bank & Trust Co. v. Kushner, 162 Va. 378, 386 (1934).
Res Judicata
Do you feel déjà vu regarding the lawsuit? Apply one of four flavors of res judicata to the affected area and wait one litigation cycle[iii]:
- Merger “occurs when a valid and final personal judgment for money is entered for plaintiff. Once judgment has been entered, the original cause of action is merged into the judgment and is extinguished and the plaintiff cannot maintain a subsequent action on the original cause of action.” Lee v. Spoden, 290 Va. 235, 245 n.6 (2015) (quoting Bates v. Devers, 214 Va. 667 (1974)).
- Bar is “[a] valid, personal judgment on the merits in favor of defendant [which] bars relitigation of the same cause of action, or any part thereof which could have been litigated, between the same parties and their privies.” Bates, 214 Va. at 670-71.
- Direct estoppel “arises when defendant has won a judgment not on the merits. Although plaintiff’s cause of action may survive the judgment, the parties are precluded in any subsequent action based upon that cause of action from relitigating any issue actually litigated and determined by the judgment.” Lee v. Spoden, 290 Va. 235, 246 n.7 (2015) (quoting Bates v. Devers, 214 Va. 667 (1974)).
- Finally, collateral estoppel precludes “a subsequent action based upon a collateral and different cause of action. In the subsequent action, the parties to the first action and their privies are precluded from litigating any issue of fact actually litigated and essential to a valid and final personal judgment in the first action.” Bates, 214 Va. at 671.
File a plea in bar, pick your applicable flavor, and get out of dodge.
Counterclaims, Crossclaims, Interventions, Invitations
Would you like to sue the plaintiff even harder than they sued you? File a counterclaim pursuant to Rule 3:9.
Did the plaintiff sue you and someone else, and you want to dogpile on that very special someone else? File a crossclaim under Rule 3:10.
Was someone else sued, but you and your client are feeling some FOMO[iv]? File a motion for leave to intervene (Rule 3:14) and get in on the action.
Were you sued, and you and your client are worried a third party is feeling some FOMO? Do you want to be upgraded to defendant and third-party plaintiff? File a third-party complaint pursuant to Rule 3:13 and bring new friends to the litigation party. They’ll love the invitation.
Motion Craving Oyer
Finally confirmed as an official, full member of the prestigious Responsive Pleading Club, the motion craving oyer not only sounds cool, but it helps goose the plaintiff into providing important documents. This is most often implicated when a plaintiff sues to enforce an alleged contract or when documents are relied upon by the plaintiff in their complaint but not attached as an exhibit. File one of these bad boys to get the plaintiff on the record about what they are referencing in the complaint. I’ve also used one of these motions to get the plaintiff to admit that their contract theory is only based on x, y, z documents to the exclusion of all others.
Motion for Bill of Particulars
Like a motion craving oyer, a motion for bill of particulars asks the plaintiff to put more meat on the bones of her allegations. It requires the plaintiff to “amplify [a] pleading that does not provide notice of a claim or defense adequate to permit the [defendant] a fair opportunity to respond or prepare the case.” Rule 3:7(a).
Motion in Abatement Auter Action Pendant
This rare and fun-to-say responsive pleading is a fan favorite for Monsieur Bryson’s biggest followers. It becomes available when parties sue each other like ships in the night or one party sues the other twice regarding the same subject matter. The law wants to “prevent a party from being unnecessarily vexed with two suits when one would suffice to afford him the redress to which he is entitled.” N. & W. R. R. Co. v. Nunnally’s Adm’r., 88 Va. 546, 549 (1892). File one of these motions and the first lawsuit filed takes primacy; the second waits patiently like a dutiful eighth-year associate with a modest book of business and no family relation to any named partner.
Failure to State a Claim
The elements of a right of action must be alleged in the facts stated in the complaint. The plaintiff’s failure to allege facts that meet every element of their chosen rights of action leaves the complaint open to attack by demurrer for their failure to state a claim. The civil defense attorney should carefully consider the claims brought by the plaintiff, the elements of those claims, and the factual allegations asserted in the complaint (and the reasonable inferences drawn therefrom). If you’re on the fence but could make an argument with a straight face (and your dignity intact), put your draft answer back in the drawer and file a demurrer.
Immune Defendants
Some defendants are special. Local governments are some of these special snowflakes. When the Commonwealth breathed life into our counties, cities, and towns, Mother Virginia adorned them with the cloak and shield of the Commonwealth’s sovereign immunity. Thus, counties are immune from tort suits, full stop; they are also immune from other types of lawsuits where there is no express waiver of sovereign immunity by the Commonwealth. Mann v. Arlington County Board, 199 Va. 169 (1957). Cities and towns are immune from tort suits when the alleged injury flows from a governmental function rather than a proprietary function. City of Chesapeake v. Cunningham, 268 Va. 624 (2004). Also note, when the doctrine of sovereign immunity applies, the court lacks subject matter jurisdiction. Seabolt v. County of Albemarle, 283 Va. 717, 719 (2012). If you’re wondering whether the entity’s sovereign status protects the conduct of its employee, consider the test discussed in Messina v. Burden, 228 Va. 301, 313 (1984).
Rarer but still around: charitable immunity. I mean, who sues a charity?! If your plaintiff did, consider the test articulated in Straley v. Urbanna Chamber of Commerce, 243 Va. 32 (1992). This immunity only applies to negligence claims made by beneficiaries of the charity. Like your extended car warranty (we’ve been trying to reach you), exceptions may apply.
The Good Kind of Prejudice
Let’s say that you have succeeded: the judge agrees with your legal position. The Plaintiff simply can’t win, no matter what, on the pleadings as currently arranged. But you don’t just want a dismissal; you want a dismissal with prejudice. That’s because, while amended complaints “relate back” to the filing date of the original complaint, the plaintiff starts over with a brand-new limitations timeclock with the filing of a new complaint with a new case number. Two years in responsive pleading purgatory can lead to total death.
If the dismissal is “based on a plea in bar … [it] is a dismissal with prejudice.” Primov v. Serco, Inc., 296 Va. 59, 70 (2018). If the dismissal is based on a lack of potential jurisdiction (which is not waivable), the dismissal should be with prejudice because “[a]n amendment to a pleading presupposes a valid instrument as its object.” Kone v. Wilson, 272 Va. 59, 63 (2006). If the plaintiff lacks standing, there’s no do-over because “a new plaintiff may not be substituted for an original plaintiff who lacked standing to bring the suit.” Chesapeake House on the Bay, Inc. v. Virginia Nat’l Bank, 231 Va. 440, 442-43 (1986).
Additionally, you might argue that amendment of the complaint would be futile because the plaintiff would lose again in any rematch. That would waste the court’s time, your client’s money, would prolong the inevitable, and only serve to torture the plaintiff by keeping desperate hope alive. While leave to amend complaints is typically liberally granted, see Rule 1:8, such leave “ought not be granted if it would be futile.” Newman v. Freeman Homes, Inc., 89 Va. Cir. 377, 381 (Norfolk 2014); see also Brown v. Jacobs, 289 Va. 209, 218-19 (2015). So, after victory in round one, when your plaintiff moves to amend her complaint and attaches a proposed amended complaint, you might be able to defeat the amended complaint before it is ever technically filed.
A Comment About Causes and Rights of Action
I have a pet peeve. Okay, you caught me, I have many pet peeves. But one of them is the incorrect use of the phrase “cause of action”. In a selfish effort to reduce the number of times I must read a sentence that triggers me deep in my soul, here is the Supreme Court of Virginia on the difference between a “cause of action” and a “right of action”:
A “cause of action” is the set of operative facts which, under the substantive law, gives rise to a “right of action.” “Cause of action” and “right of action” are not synonymous. A “right of action” cannot arise until a cause of action exists because a right of action is a remedial right to presently enforce an existing cause of action. McKinney v. Va. Surgical Assocs., P.C., 284 Va. 455, 460 (2012) (internal citations and quotations terminated with extreme prejudice).
A cause of action is the why of litigation, while a right of action is the what of litigation. Still think my pet peeve is weird and doesn’t matter? Well, “[t]he distinction between a right of action and a cause of action should not be dismissed as an odd, rhetorical anachronism. It factors into many modern legal doctrines, including res judicata, accrual for statute-of-limitations purposes, and … a party’s right to seek judicial remedies.” Cherrie v. Va. Health Servs., 292 Va. 309, 314 (2016) (italics in the original). So, there, take that.
Filing Answers
Shout out to the civil defense attorneys who file answers when they are also filing aggressive responsive pleadings that address every right of action the plaintiff asserted. WHY? Seriously, why? E-mail me and tell me. Thanks.
The Best Medicine
Of course, the best way to get out of a lawsuit is to only represent perfect clients that only engage with perfect family members, friends, customers, and business partners. That way they avoid litigation altogether! If you can’t swing that, you might try counseling longstanding clients to avoid unpleasant interactions, write clearer contracts, and use more effective communication skills. This just might help them (and you) from tussling in the courthouse. As Benjamin Franklin and a former boss of mine (they are two different people) used to say, “an ounce of prevention is worth a pound of cure”.
[i] I reckon plaintiffs’ attorneys could read this and decide not to give civil defense attorneys any funny ideas.
[ii] “[A] court must possess both ‘potential’ and ‘active’ jurisdiction to adjudicate the merits of a case. Potential jurisdiction is the power granted by the sovereignty creating the court to hear and determine controversies of a given character, or, in other words, jurisdiction over the subject matter…[while active jurisdiction] means the authority of the court to adjudicate the merits of a case.” Whitt v. Commonwealth, 61 Va. App. 637, 649-50 (2013) (citations omitted).
[iii] Or a few. See Alexander v. Cobb, 298 Va. 380 (2020). Yikes.
[iv] For our *experienced* colleagues, FOMO means “fear of missing out”.