Articles Posted in Pretrial Practice and Civil Procedure

Federal Rule of Civil Procedure 8(a) requires a complaint to contain a short and plain statement of the claim showing that the pleader is entitled to relief so as to give the defendant fair notice of the claim and the ground upon which it rests. The Supreme Court has interpreted this rule to require factual allegations sufficient to demonstrate that a claim is plausible on its face. Rule 9(c), on the other hand, allows plaintiffs to plead contractual conditions precedent “generally.” In Chesapeake Square Hotel v. Logan’s Roadhouse, Inc., the court was faced with the question of whether Rule 9(c) permits a lesser pleading standard than Rule 8, permitting plaintiffs in such cases to avoid the plausibility requirement. While the court did not answer the question directly since it found the plaintiff had presented a plausible claim anyway, the court’s discussion suggests that Rule 8’s plausibility requirement cannot be avoided by pointing to a provision in the Rules permitting a “general” pleading.

Chesapeake Square involved a contract for the sale of commercial real estate to Logan’s Roadhouse. The contract imposed conditions on both parties to be performed prior to closing. Defendant allegedly terminated the contract claiming that plaintiff failed to satisfy contractual preconditions. Plaintiff alleged breach of contract and sought specific performance. Defendant moved to dismiss, arguing that the complaint failed to adequately allege that plaintiff satisfied contractual conditions precedent that would entitle it to specific performance of the contract.

The court noted that when the Rule 9(c) general pleading requirement for conditions precedent is read without restriction, it allows parties to allege generally that all conditions precedent have occurred. In this case, the plaintiff alleged generally that it satisfied all of the preconditions to defendant’s obligations under the contract and therefore met the Rule 9(c) pleading requirement when read without restriction.

Federal courts have jurisdiction over civil actions that arise under the Constitution, laws or treaties of the United States (“federal question” jurisdiction) and in civil actions where the amount in controversy exceeds $75,000 and the matter is between citizens of different states (“diversity” jurisdiction). Parties must be completely diverse for diversity jurisdiction to apply, meaning that no party may share common citizenship with any party on the opposite side. A defendant may “remove” a case from state to federal court if the federal court has either federal question or diversity jurisdiction. The party seeking removal must establish that jurisdiction is proper, and if federal jurisdiction is doubtful, removal is not appropriate. In Terry Phillips Sales, Inc. v. Suntrust Bank, on a motion to remand due to failure of service on nondiverse defendants, the United States District Court for the Eastern District of Virginia retained jurisdiction of the case and ordered plaintiffs to properly serve the nondiverse defendants.

The plaintiffs in Sales were Virginia residents and employees of Suntrust Bank. They filed a complaint in a Richmond circuit court alleging multiple tort claims arising from an Employee Stock Ownership Plan. The complaint named Suntrust and three of its employees who plaintiffs alleged were Virginia citizens. Defendants contended that Suntrust is a citizen of Georgia with its principal place of business in Atlanta and that plaintiffs fraudulently joined the individual Virginia defendants to destroy diversity. Defendants removed the case based on diversity jurisdiction, and plaintiffs moved to remand the case back to state court.

Plaintiffs apparently had not properly served the nondiverse individual defendants but argued that their failure to do so was not evidence of fraudulent joinder as that those defendants were aware that plaintiffs intended to pursue their claims. Plaintiffs submitted an exhibit indicating that two of the defendants received at least some indication that they were being sued in the Richmond circuit court, but they did not provide any evidence that the third individual defendant had any notice.

Virginia Code § 19.2-266 governs media coverage of judicial proceedings and provides that a court “may solely in its discretion” permit photographs and broadcasting. Elsewhere, the statute specifies that “for good cause shown,” the presiding judge may prohibit or restrict coverage. Yesterday, the Supreme Court of Virginia clarified the seemingly ambiguous language of this statute in Virginia Broadcasting Co. v. Commonwealth.

The trial of George Huguely V for the murder of his on-again off-again girlfriend Yeardly Love was sensational news. Huguely and Love were young, attractive student athletes at the University of Virginia, with privileged pasts and bright futures engaged in a volatile relationship. The case was covered extensively in the media, but the court did not allow cameras in the courtroom during the trial. The court also refused to allow Virginia Broadcasting Company (“VBC”) to have a camera in the courtroom during Huguely’s sentencing hearing, and VBC appealed the decision.

The trial court, the Circuit Court of the City of Charlottesville, held a hearing on VBC’s request to record the sentencing proceedings. VBC argued that concerns about the impact of cameras on jurors and witnesses were not implicated in a sentencing hearing and that neither the Commonwealth nor Huguely had offered evidence of prejudice or established good cause for keeping a camera out of the hearing. Both the Commonwealth and Huguely opposed VBC’s request, arguing that cameras would have a detrimental impact on witnesses testifying at the hearing. Huguely asserted that VBC had not articulated any change in circumstances that would warrant the trial court’s reconsideration of its previous ruling to keep cameras out of the courtroom. Concerned about the effects of cameras on the witnesses and the effect of coverage on witnesses and jurors in a pending civil case that Love’s family had filed against Huguely, the trial court denied VBC’s request.

Upon a showing of a change in circumstances since the suit was originally filed, a plaintiff can successfully move for a change of venue to a district where the case might have originally been brought if such a transfer would be convenient to parties and witnesses and would serve the interests of justice. A federal court in Hawaii engaged in a balancing test to determine whether a plaintiff could successfully transfer venue in Reyes v. Schuttenberg.

Lidinila Reyes sued her cousin, sister and niece for libel and slander in Hawaii. Reyes’ cousin lives in New York, and her sister and niece live in Hawaii. Reyes lived with her sister in Hawaii from 2007 until 2012, when Reyes moved to Nevada. During the years Reyes lived in Hawaii, defendants allegedly made defamatory statements to relatives and acquaintances outside of Hawaii which Reyes contends injured her relationships with her children and other relatives and harmed her professional reputation, livelihood, and health. Reyes asserts that defendants delivered much of the defamatory matter to her daughter in Nevada via telephone, Facebook, email and in person. Comments also were allegedly communicated to other parties in Nevada as well as to parties in California and North Carolina.

Reyes asserts that when she learned of defendants’ actions, she moved out of her sister’s house and suffered emotional and physical setbacks to her already fragile health. Due to health concerns, Reyes could not travel to her home in Nevada, so she filed the lawsuit in Hawaii. Three months after filing in Hawaii, the court denied Reyes’ Motion to Transfer Venue to Nevada but did so without prejudice and granted Reyes leave to re-file a Motion to Transfer Venue should facts change. Two months later, Reyes renewed her Motion to Transfer Venue.