Pretrial Practice and Civil Procedure Category Archives — The Virginia Business Litigation Blog Published by Virginia and Washington, D.C. Litigation & Appeals Attorney

October 23, 2024

Nonsuits May Not Be Taken as to Claims Already Submitted for Decision

As discussed previously on this blog, plaintiffs who wish to nonsuit their claims can do so at virtually any time, subject to very limited exceptions. One such exception is that a nonsuit may not be taken as to any claim that has been submitted to the judge for a decision. Some lawyers seem to be of the mistaken belief that if a court has not formally dismissed a claim with prejudice, a nonsuit may be taken as to that claim. The Fairfax County Circuit Court issued a letter opinion a few months ago explaining that such is not the case. Nonsuits may only be taken as to active, unresolved claims that have not yet been submitted for final resolution.

In Brian Morrison v. George Mason University, the plaintiff filed a variety of claims (including whistleblower retaliation, fraud, defamation, and common law conspiracy to defame and retaliate) against a number of different defendants. Demurrers and pleas in bar followed, some of which were sustained with leave to amend, some of which were sustained without leave to amend, and at least one of which was overruled. Prior to the court-ordered deadline for filing an amended complaint, the plaintiff sought to nonsuit the entire action, including the claims that had been the subject of the demurrers and pleas. His reasoning was that the court had not formally ordered the dismissal of any claims. The court refused to allow the nonsuit as to the claims that had already been eliminated from the case.

September 25, 2024

The Mootness Doctrine Requires a Live Controversy

by Lee E. Berlik

Virginia courts exist to resolve disputes between litigants. They’re there to apply the law to a set of facts established by the evidence and declare and enforce the parties’ respective legal rights. Courts aren’t required to offer advisory opinions on abstract legal questions when there isn’t an actual controversy between the parties. Under the mootness doctrine, if the issues under a court’s consideration cease to be “live,” or the parties before it “lack a legally cognizable interest in the outcome,” the case becomes moot and the court will dismiss it. (See McCarthy Holdings LLC v. Burgher, 282 Va. 267, 275 (2011)). There are some exceptions to the rule, but as demonstrated by an opinion issued last month in Doe v. Fairfax County School Board, the mootness doctrine is applied stringently.

Anonymous petitioner “Jane Doe,” a high-school senior at the time, sued the school board for various alleged civil rights violations, claiming she was subjected to religious discrimination, sex discrimination, and viewpoint discrimination while attending school. She asked the court to award both declaratory and injunctive relief. Shortly after filing the lawsuit, however, she graduated.

August 28, 2024

Substantially Similar Claims Can (and Should) Be Tried Together

by Lee E. Berlik

In theory, Virginia follows a “one plaintiff per suit” rule: even if two plaintiffs are similarly situated, they should file their lawsuits separately and not jointly. There’s an exception for when there are at least six plaintiffs. The Multiple Claimant Litigation Act allows six or more plaintiffs to join together for purposes of filing a lawsuit if their claims involve common issues of fact and arise out of the same transaction or occurrence. (See Va. Code § 8.01-267.5). As a practical matter, however, multiple plaintiffs with similar claims often end up having their claims tried together regardless of the number of plaintiffs involved. If two cases are substantially similar and involve common issues of law or fact, trial courts can consolidate them for discovery and/or trial irrespective of the requirements of the Multiple Claimant Litigation Act.

Many trial courts take a pragmatic approach to litigation and will consolidate cases that involve identical claims and overlapping evidence. In the recent case of Rejuvenation Clinic, LLC v. Thang Van Dang, for example, two separate plaintiffs filed a lawsuit together in violation of the “one plaintiff per suit” rule. Having fewer than six plaintiffs, they did not meet the requirements of the Multiple Claimant Litigation Act that would have permitted them to file jointly. The Fairfax County Circuit Court acknowledged the procedural impropriety and severed the two cases, but immediately consolidated them for discovery and trial, recognizing the practicality and efficiency of trying these cases together.

April 9, 2024

Suing the Wrong Entity

by Lee E. Berlik

If you’re going to file a lawsuit, it’s always a good idea to first do the necessary research to determine the correct identity of the person or corporate entity you’re suing. Failure to do so could result in permanent dismissal. The likelihood of this happening depends largely on the nature of the mistaken identity. The term “misnomer” refers to the situation where a plaintiff has used the wrong name to refer to an otherwise correctly identified party. In these situations, courts typically allow the plaintiff to amend the pleadings to correct the mistake. The term “misjoinder,” on the other hand, refers to the situation where a plaintiff names a completely incorrect party. In this situation, the plaintiff has filed a lawsuit against a person or entity who should not have been included in the lawsuit. This is the more serious mistake that often results in dismissal.

By way of example, take a look at the case of Dawn Monroe v. Mary Washington Healthcare. Ms. Monroe suffered a fall and injury while on the premises of the Tompkins-Martin Medical Plaza in Fredericksburg, Virginia. She filed a lawsuit against two defendants: Mary Washington Hospital, Inc., and Mary Washington Healthcare, both of which she believed were the owners of the Medical Plaza. She was wrong about that. The defendants were able to show (by directing the court’s attention to publicly available information online) that the Medical Plaza was actually owned by Tompkins-Martin Medical Plaza LLP, a separate corporate entity. Ms. Monroe then moved to simply substitute the correct defendant for the incorrectly named defendant and move on with the case. The trial court wouldn’t allow the amendment and dismissed the case with prejudice. On appeal, the Court of Appeals affirmed this decision.

February 15, 2024

Business Tort Claims Dismissed as Untimely in Dispute Between Wildlife Removal Companies

by Lee E. Berlik

In this patent and trade-secret dispute between Safe Haven Wildlife Removal and Property Management Experts and Meridian Wildlife Services, the defendant tried to raise the stakes by inserting a number of business torts (including breach of fiduciary duty, tortious interference with contract and business expectancies, and business conspiracy) but the court dismissed these claims as time-barred and ordered that the case proceed only on the patent and trade-secret claims.

Those of you preparing for the Great Backyard Bird Count (which starts tomorrow!) and who spend much of your leisure time doing everything in your power to attract birds to your property may be surprised to hear that “bird removal” is big business. The plaintiff in this case, Safe Haven, “specializes in the safe, effective, and humane bird and wildlife removal solutions for facilities.” (See para. 19 of its Amended Complaint). Meridian, the defendant, describes itself as “an innovator and industry leader in [bird removal and wildlife management] services with extensive experience assisting commercial clients throughout the United States with interior bird removal, exterior bird population reduction, wildlife relocation, nest removal and full facility inspection services.” (See para. 9 of Meridian’s Answer). I guess it’s safe to assume these companies won’t be participating in the popular annual birding event.

January 9, 2024

Declaratory Judgments Intended to Guide Future Conduct, Not Remedy Past Disputes

by Lee E. Berlik

Declaratory judgments are court decisions that clarify the legal relationship between parties and their rights in a situation. Unlike traditional judgments, which might involve the awarding of damages or the enforcement of rights, declaratory judgments simply declare the rights, duties, or obligations of each party. (See Virginia Code § 8.01-184, giving the courts the power to make “binding adjudications of right” in “cases of actual controversy”). This type of judgment is often sought when a party seeks an official determination of the legal status or interpretation of a law or contractual obligation. As the Fairfax Circuit Court recently held, however, declaratory judgments are not appropriate in all circumstances. They are designed to help parties understand legal rights and obligations without engaging in full-blown litigation. The key aspect of declaratory judgments is that they are preventive and aim to resolve legal uncertainty rather than to provide a remedy for a wrong already done.

Prior to the Declaratory Judgment Act (Virginia Code §§ 8.01-184 to -191), the common law usually precluded judicial resolution of contractual disputes unless they encompassed a fully formed, prima facie claim (consisting of an enforceable contract, an unexcused breach, and resulting damages). The Declaratory Judgment Act introduced a nuanced judicial approach, creating an intermediary tier between fully matured claims and those deemed insufficient under traditional common law. (See Ames Ctr., L.C. v. Soho Arlington, LLC, 301 Va. 246, 253 (2022)). Declaratory judgments cannot be used as a means of issuing advisory opinions or deciding moot or speculative matters, but they can be used to adjudicate actual conflicting assertions of rights, even absent immediate consequential harm. The Act’s purpose “is to afford relief from the uncertainty and insecurity attendant upon controversies over legal rights, without requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordinary action therefor.” (See Va. Code 8.01-191).

October 27, 2023

Distinguishing Pleas in Bar from Pleas of the General Issue

by Lee E. Berlik

In Virginia, a defendant can file a “plea in bar” if a single issue or state of facts creates a bar to the plaintiff’s recovery. A defendant who raises a plea in bar has the burden of proof to prove that particular issue or state of facts. An evidentiary hearing–with or without a jury–may be permitted to allow the defendant to present that evidence. (See Hawthorne v. VanMarter, 279 Va. 566, 577–78 (2010)). Virginia practice previously allowed defendants to file a “plea of the general issue,” which was a general denial of the plaintiff’s whole declaration or an attack upon some fact the plaintiff would be required to prove in order to prevail on the merits. Such pleas are no longer permitted. (See Va. Sup. Ct. R. 3:8(a)). If a defendant files a pleading labeled as a “plea in bar” but which essentially just challenges the plaintiff to prove his case at trial, the court may find that the issue should be resolved at trial rather than at the outset of the case.

The most common applications of the plea in bar are to raise affirmative defenses like the statute of limitations, statute of frauds, res judicata, collateral estoppel, and accord and satisfaction. Another common application, however, has recently come under attack as potentially invalid as a disguised plea of the general issue. For the past ten years, Virginia courts have seen a lot of pleas in bar being raised by litigants defending against non-compete and non-solicitation clauses. Restrictive covenants like these are enforceable in Virginia only if “narrowly drawn to protect the employer’s legitimate business interest,…not unduly burdensome on the employee’s ability to earn a living, and…not against public policy.” (See Home Paramount Pest Control Companies, Inc. v. Shaffer, 282 Va. 412, 415 (2011)). Defendants used to try to get out of their non-competes by filing demurrers, claiming their noncompetes were unenforceable as a matter of law. Since the Virginia Supreme Court’s decision in Assurance Data, Inc. v. Malyevac, 286 Va. 137 (2013), defendants have been asserting pleas in bar instead. This is because the court held in Assurance Data that a factual inquiry was necessary to determine reasonableness. Defendants can present evidence on a plea in bar; they cannot on a demurrer.

September 19, 2023

The Pros and Cons of Jury Trials

by Lee E. Berlik

The right to have disputed facts determined by a jury, rather than a judge, is protected by both the United States Constitution as well as the Virginia Constitution. Litigants retain the option, however, of submitting their dispute to a judge, in what we call a “bench trial.” The court will schedule a jury trial if either party requests one. But should you? There’s no one-size-fits-all answer to this question. Some cases are better suited to juries and others better suited to experienced judges. Below are some of the relevant considerations as you decide whether to seek a jury in your case.

1. Does the case have emotional appeal?

Juries aren’t supposed to make decisions based on passion, prejudice, or gut feelings, but they often do. Perhaps the law is not entirely on your side but you have a very sympathetic case. Although judges are human, too, judges are more likely than juries to be able to dispassionately apply the law and not rely on raw emotion as a basis for making a decision. Juries may do what they feel is right regardless of what the jury instructions direct them to do based on the applicable law.

July 14, 2023

Virginia State Court vs. Virginia Federal Court

by Lee E. Berlik

Due to rules governing subject-matter jurisdiction, plaintiffs often don’t have a choice between filing their lawsuit in Virginia state court or federal court. Federal courts possess exclusive jurisdiction over certain types of claims and often lack jurisdiction to hear cases involving claims arising under state law. In many situations, though, plaintiffs have the option to pursue their claims in either state court or federal court. Neither forum is necessarily more advantageous than the other. To help prospective litigants weigh the pros and cons of state court vs. federal court, I’ve summarized some of the key differences below.

1. For fast-paced litigation, choose federal court.

The Eastern District of Virginia is known around the country as the “Rocket Docket” due to how quickly the proceedings move. The average Rocket Docket case is scheduled for trial just 8-10 months after the filing of the complaint. By comparison, trials in Fairfax Circuit Court typically are scheduled close to a year after filing. Litigants in federal court may only have 90 days in which to complete discovery, something unheard of in state court. Continuances are rarely granted in either court, but are even more difficult to get in federal court, where you should just assume the trial date is carved in stone. Basically, if you file your lawsuit in federal court, at least up here in Northern Virginia, expect a whirlwind of litigation from beginning to end. This may be overwhelming to some, but desirable to others. Continue reading

September 14, 2022

Forum Selection Clause Enforceable if Not Induced by Fraud

by Lee E. Berlik

Fraudulent inducement is a defense to a breach-of-contract action. Enforceable contracts require a meeting of the minds as to the subject matter. If one of the contracting parties agreed to the contract terms only because of the other party’s trickery and deceit, there hasn’t really been a true meeting of the minds and the defrauded party can sometimes get out of the deal. For the defense to work, there must be a showing of fraud. One party must make an intentional misrepresentation of fact, material to the purpose of the agreement, which causes the defrauded party to agree to the terms of the contract in reliance on the false statement (believing it to be true). Although a contract induced by fraud is voidable and may be rescinded, there are limits to the defense. A recent case from Fairfax County explains that a forum-selection clause contained within a contract allegedly procured by fraud will still be enforced unless the alleged fraud relates specifically to the forum-selection clause itself.

The case is Boxer Advisors, LLC v. Success Business, Inc. As presented in the opinion, Boxer Advisors was a prime contractor on a government contract and had entered into a subcontract with Success Business (“SBI”). The subcontract contained a forum-selection clause specifying Maryland as the sole venue for any litigation between the parties arising under the agreement. A dispute arose and Boxer sued SBI for fraud, misappropriation of trade secrets, and tortious interference. It filed the lawsuit in Virginia rather than Maryland. SBI objected, pointing to the forum-selection clause. Boxer argued that it wasn’t required to honor the terms of the forum-selection clause because, as alleged in its complaint, the subcontract with SBI had been fraudulently induced.