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Articles Posted in Pretrial Practice and Civil Procedure

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Fourth Circuit Asks Virginia Supreme Court to Clarify Business Conspiracy Statute

Sometimes a court must decide a matter that turns on the law of another jurisdiction. If the other jurisdiction’s law is unclear, the deciding court can make a formal request to its sister court asking that court to clarify an issue. The Fourth Circuit recently invoked this procedure and certified…

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Business Tort Case Moves Forward Against Virginia Company

AWP, Inc. is engaged in the business of traffic control solutions for road construction sites and emergency situations. AWP alleges that Shawn Watkins, a former employee, began his own traffic control business, Traffic Control Solutions, LLC (TCS) while still working at AWP, and that he misappropriated information he obtained from…

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Parties Cannot Stipulate to Existence of Federal Question Jurisdiction

A federal court has jurisdiction over causes of action created by federal law and over cases in which the plaintiff’s right to relief depends on the resolution of a substantial question of federal law. If a federal court lacks subject matter jurisdiction, the case must be remanded to state court,…

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Removal, Rather Than Procedural Gamesmanship, Is How to Secure Federal Forum

The Fourth Circuit clarified last week that after a case is filed in state court, a defendant desiring a federal forum should seek removal rather than file a separate declaratory judgment action in its federal district court of choice. In VRCompliance v. HomeAway, Inc., the court noted that the federal…

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Prior to Derivative Suit, Shareholder Demand Must Clearly Identify Wrong and Demand Action

A shareholder acting on behalf of a corporation may bring a “derivative suit” against corporate directors and management for fraud, mismanagement, self-dealing or dishonesty. Before bringing such a suit, the shareholder must make a written demand that clearly identifies the alleged wrong and demands the corporation take action to redress…

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Res Judicata: Double Jeopardy’s Civil-Lawsuit Cousin

When Cecil Addison was passed over for promotion, he sued Volvo Trucks North America and Ivan Mitchell in the Western District of Virginia for breach of contract and discrimination. Volvo Trucks had a contract agreement with the United Auto Workers Union. Addison alleged the defendants changed the contract’s job requirements…

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The Consequences of Destroying Evidence

Spoliation of evidence can result not only in an adverse inference instruction to the jury, but in an award of attorneys fees and expenses incurred in proving the spoliation. As demonstrated by the contentious trade secret litigation between E.I. DuPont de Nemours and Company and Kolon Industries, Inc., those fees…

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Failure to Allege Basis for Subject Matter Jurisdiction Can Result in Sanctions

If you’re going to file a lawsuit against someone, you’d better explain the basis for it. A complaint doesn’t need to include much detail, but it must at least allege facts showing that you’ve been wronged and that you are entitled to a remedy of some sort. In federal court,…

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Feeling the Effects of Out-of-State Conduct Won’t Guarantee Personal Jurisdiction Over Nonresident

When analyzing personal jurisdiction, the Fourth Circuit (which includes both Virginia and South Carolina) had held that it is proper to consider the location where the effects of the alleged wrongdoing are felt. The so-called “effects test” is applied narrowly, however, and cannot be used to supplant the minimum contacts…

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