Joinder

Question 1

What’s the rule regarding third party beneficiaries to contracts?

Answer 1

A third-party beneficiary can sue in his own right even if he’s not mentioned in the K.

Question 2

What is the joint tortfeasor rule?

Answer 2

• P can sue one D,
• some of the Ds, or
• all of Ds at her option.
• The fact that she may be barred as to one does not affect her right to sue the others.

Question 3

What is the rule regarding settlements against one defendant when there are multiple defendants?

Answer 3

The fact that she settles with one does not affect her right to sue the others

(although judgment against others can be reduced by amount received in settlement).

Question 4

What is the rule regarding suing executors or administrators?

Answer 4

• If the case relates to acts of the decedent, you can sue or be sued in representative capacity.
• If it relates to acts by this person individually (enter contract with accountant to figure estate taxes), you can sue in either capacity but must be sued in individual capacity.

Question 5

What does the survival and revival doctrine hold?

Answer 5

1. If P dies while case pending, executor moves to substitute as P;
2. If a party has change in civil status, e.g. incompetent/jail, case is revived in representative’s name.
3. If D is incarcerated while the case is pending, P will revive the case against D’s committee.

Question 6

In Circuit Court, D must file counterclaim within __ days of service of process on her.

Answer 6

21

Question 7

Does a P need to be formally served D’s counterclaim?

Answer 7

No.

Question 8

After the counterclaim is served, P (counter-defendant) has __ days in which to respond.

Answer 8

21

Question 9

What is a nonsuit?

Answer 9

voluntary withdrawal or dismissal of a case.

Question 10

What crossclaim rules are the same as federal?

Answer 10

• 1. Permissive, never compulsory
• 2. Must be transactionally related to the underlying case
• 3. Can be asserted against one of several co-parties (different from state counterclaim).

Question 11

What crossclaim rules are different from federal?

Answer 11

• historically, you have needed to serve the cross-claim with a summons.
• This might no longer be true, so all you need is to mail it or otherwise send it as a subsequent document
• But there is no clear case law. To be safe, we should follow the old practice.

Question 12

For CC, the cross-claimant must file cross-claim within…

Answer 12

21 days of service of process on him.

Question 13

For GDC, the cross-claimant must file cross-claim…

Answer 13

anytime before trial.

Question 14

The cross-defendant has __ days in which to respond.

Answer 14

21

Question 15

When does impleader occur?

Answer 15

As in federal court, a defending party wants to join a third party from whom he will seek indemnity or contribution on the underlying claim against D.

Question 16

What is the impleading defendant’s complaint called?

Answer 16

Third-party complaint.

Question 17

As in federal practice, must serve process on third-party defendant. Here, process would consist of:

Answer 17

Third-party complaint and summons.

Question 18

Can P sue the third-party defendant and vice versa?

Answer 18

Yes, if the claims arise from the same transaction or occurrence as the underlying case.

Question 19

A defending party can implead anybody who…

Answer 19

may owe him indemnity or contribution on the underlying claim.

Question 20

What is interpleader?

Answer 20

• A holder of real property or personal property (including money) knows that there are others who claim a right to it.
• Rather than go through several suits, he wants to interplead – to force them to litigate in a single proceeding.
• Stakeholder can claim that he should be able to keep the property.

Question 21

Circuit court is the only place to go for an interpleader if…

Answer 21

the stake is worth more than $25,000. The court can enjoin parties from litigating in other proceedings.

Question 22

What are the other intervention rules?

Answer 22

• No time limits prescribed.
• Discretion of the court (watch delay and prejudice).
• Claim or defense in intervention must be related to the case. The court may be able to wrap up the entire dispute by allowing intervention.
• File petition for intervention. If granted, then the intervenor-plaintiff would file a complaint and serve it formally with process.
• Defending parties then respond as they would to any complaint. If granted, the intervenor-defendant files an answer in intervention.

Question 23

How do you sue an incompetent?

Answer 23

If he has a substantial estate, there is a formal proceeding appointing fiduciary to act for the mentally incompetent person.

Then, you sue the fiduciary that was appointed (i.e., committee - french, guardian, conservator)

Question 24

Hoe is an incompetent sued without a fiduciary?

Answer 24

Any judgment is invalid, unless both:

1. incompetent represented by a lawyer who entered an appearance for her
2. Suit is not to encumber incompetent’s land

Question 25

How does an incompetent sue?

Answer 25

Either: * Guardian sues * Incompetent sues in own name, by next friend

Question 26

What if a minor is sued without a guardian ad litem?

Answer 26

Any judgment is invalid, unless both: * Minor represented by a _lawyer_ who entered an appearance for her * Suit is not to _encumber minor's land_

Question 27

How does the class action work in Virginia?

Answer 27

It doesn't, there is no such thing in Virginia

Question 28

When P files a complaint, that tolls the statute of limitations for what?

Answer 28

* P's claim * Counterclaims arising from same T/O * Crossclaims arising from same T/O

Question 29

In what name does a minor bring suit? In what name is a minor suied?

Answer 29

She should sue in her own name, by _John Doe, her next friend_ She should be sued in her own name, but P should ask the court to appoint a _guardian ad litem_

Question 30

What is different in Virginia regarding counterclaims?

Answer 30

* They are never compulsory * Don't need to be transactionally related to original claim * Must be against P or all Ps jointly

Question 31

How does a convict sue and be sued while in custody?

Answer 31

Should be done through a committee If convict is suing, he waives committee if he does so without one

Question 32

If D filed a counterclaim or crossclaim, can P take a nonsuit?

Answer 32

Only if: * D agrees * D's claim can be adjudicated independently

Question 33

When must an impleader action be filed?

Answer 33

Circuit Court * 21 days after service GDC * Earlier of: * 10 days after service * Trial date

Question 34

What is intervention? Is it allowed in GDC? Circuit Courts?

Answer 34

When a third party wants to join a pending case Allowed in Circuit Court but not GDC Always permissive, never mandatory

Question 35

When can a tortfeasor seek contribution from joint torteasors?

Answer 35

So long as: * Tort is _negligence_ * Does not involve _moral turpitude_ * _P could have recovered_ against the tortfeasor * E.g., P cannot sue employer under worker's compensation

Question 36

If P is suing partners in the partnership, who must be named in the complaint?

Answer 36

Either: * Individual names doing business under firm name * Firm name You probably want both so you can have an alternative source for collecting judgment

Question 37

What is different in Virginia regarding necessary and indispensable parties?

Answer 37

Same as in Federal courts, except under Virginia Code: * Necessary parties include parties "as the ends of justice require" * There is no such thing as indispensable parties in Virginia

Question 38

Can the GDC hear interpleader cases?

Answer 38

Yes, but only if either: * Stake is worth _$25,000 or less_ * _Earnest money deposit_ in a land sales contract (And no injunction is available)

Question 39

Can the amount of a counterclaim exceed the amount of P's original claim?

Answer 39

Yes, but if in GDC, watch out for the jurisdictional limit (i.e., $25K)

Question 40

When can a D implead after the statute of limitations?

Answer 40

If P files within 30 days of end of SOL, D can implead within 60 days after SOL