4.7 Defensive Pleading

LibraryVirginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

4.7 DEFENSIVE PLEADING

4.701 Timing. Defendant must make some response within 21 days of service. 790 (Remember, generally no defensive pleading is required in general district court.)

4.702 Distinguish Three Types of Defensive Pleading.

1. Remember, the object of the exercise is to get out quickly and cheaply. The "go jump" pleadings: defendant does not touch the merits of claim made against him, and proposes reasons why he is not required to.
a. Objections to jurisdiction—in personam (can be waived) and subject matter jurisdiction (cannot be waived).
b. Objections to venue. But remember, result will be transfer, not dismissal. 791
c. Plea in suspension.
d. Demurrer.
e. Plea of statute of limitations. 792
f. Motion for summary judgment.
g. Plea bar of workers' compensation.
2. Response to plaintiff's claim on the merits. As a matter of tactics (and economics), defendant will usually prefer to delay this until he exhausts possibilities under (1) above.
3. "Offensive" defensive pleadings and "pass the buck" pleadings. Against plaintiff or other defendants. 793

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4.703 Objections to Venue and Jurisdiction.

1. By written motion. Formerly by plea in abatement, now abolished. 794
a. Venue. Motion under Va. Code §§ 8.01-264 or 8.01-265. State proper venue. 795
b. Jurisdiction:
(1) Person or subject matter.
(2) Written motion to dismiss for lack of jurisdiction.
(3) Subject matter jurisdiction can be raised at any time, either by direct or collateral attack. 796

4.704 Plea in Suspension (Rare).

1. Formerly plea in abatement; now abolished. 797
2. Grounds:
a. Plaintiff has become alien enemy.
b. Another suit pending on same cause of action.
c. Defendant adjudicated bankrupt but not discharged.
d. Failure to exhaust administrative remedies. 798
3. Result is a temporary stay in proceedings.

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4.705 Demurrer (Challenge to Legal Sufficiency).

1. Definition.
a. A pleading by which the demurrant tests the legal sufficiency of every other pleading, admitting as true all material facts well pleaded. 799
b. Cf. Fed. R. Civ. P. 12(b)(6): failure to state a claim upon which relief may be granted.
c. Plaintiff can test the sufficiency of any defensive pleading by a motion to strike. 800
d. The old "special" demurrer is abolished. 801
2. Based on Plaintiff's Pleadings.
a. Reaches only matters apparent on face of plaintiff's pleading.
(1) Plus matters made a part by oyer (motion of demurrant)—this is known as "craving oyer." 802
(2) Attempt to include more is not appropriate; "speaking demurrer."
b. Demurrant admits all material facts which are properly pleaded in the attacked pleading; but says they are not sufficient in law to justify the relief sought.
(1) Does not admit conclusions of law. 803

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(2) Does not admit inferences stated by the pleader. Walker & Laberge Co. v. First National Bank of Boston, 206 Va. 683, 146 S.E.2d 239. But does admit inferences properly drawn, namely, that may be fairly and justly drawn from the facts alleged; 804
(3) But admission is for purposes of the demurrer only.
3. Contents 805
a. Demurrant upon filing must give grounds in writing, and only those stated will be considered. 806
b. But grounds may be amended like other pleading.
c. No specific form required.
d. May file demurrer simultaneously with other pleadings. 807
4. What may be reached by demurrer
a. Failure of plaintiff to state cause of action. 808
b. Misjoinder of causes of action. 809
c. Constitutionality of a statute or municipal ordinance. 810

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d. Laches for equitable relief. 811
e Note: Expiring of statute of limitations must be raised as an affirmative defense set forth in a responsive pleading. 812
5. Consequences of a good (namely, appropriate) demurrer.
a. Can result in final judgment which is res judicata.
(1) Griffin v. Griffin, 183 Va. 443, 32 S.E.2d 700 (1945) (demurrer sustained to divorce complaint, plaintiff did not amend, decree issued and no appeal. Later alleged same facts in second action; dismissed on basis that first decree was res judicatares judicata).
(2) Baker v. Butterworth, 119 Va. 402, 89 S.E. 849 (1916) (complaint showing contributory negligence on face; judgment for D).
(3) Knight v. Fourth Buckingham Community, Inc., 179 Va. 13, 18 S.E.2d 264 (1942) (sustaining demurrer for the failure of the plaintiff to plead any actionable negligence by defendant). But sustaining a demurrer does not result in final judgment starting the 21-day period unless there is other action by the court. 813
b. May result in amendment of pleading by demurree.
(1) Amendments are freely allowed. 814 The demurrant will have "educated" the demurree.

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(2) Correctness of trial court in sustaining demurrer may be argued on appeal if demurree has made timely objection and the amended pleading incorporates or refers to the earlier pleading. 815
(3) When court overrules demurrer, motions, or other pleas, the defendant shall file an answer within 21 days unless the court orders a shorter or longer time.
6.

Consequences of a bad (inappropriate) demurrer. Case goes on. Defendant may be able to make other preliminary motions, for example, motion to strike, see paragraph 4.1105(B) below.

4.706 Motion for Bill of Particulars. 816

1. Can be used by plaintiff in relation to Defendant's pleadings, but more likely vice versa.
2. Object: to inform adverse party of the cause of action (or defense), to enable preparation to meet the pleading. 817
3. Court has discretion, 818 but it may be error to refuse. 819
4. Sanctions.
a. Party has two chances; if second bill of particulars fails to inform adverse party of true nature of case, bill of particulars and original pleading may be stricken. 820

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5. Negligence.
a. Plaintiff need not specify particulars in original pleading. 821
b. But defendant may request in a bill of particulars the basis for allegation of negligence (or contributory negligence).

4.707 Pleas in Bar or Special Pleas.

1. Affirmative Defenses: May be included in answer, 822 or separately.
2. Usually will be confined to those which, if established, will end the proceeding, for example:
a. statute of limitations
b. Res judicata
c. Collateral estoppel by judgment
d. Statute of Frauds
e. Bankruptcy
f. Accord and satisfaction
g. Contributory negligence is a complete defense; 823 Virginia has no comparative negligence law.
h. Usury. 824
3. Special Pleas in Equity (Where Only Equitable Relief is Sought). 825

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a. Special Plea in Equity: Single issue of fact likely to be determinative of the cause.
b. If a "special plea in equity" is filed, and plaintiff takes issue, either party may demand a trial by jury. And verdict is binding in same manner as at law; not advisory. 826
c. A special plea is not just a denial. 827
4. On equitable claim, the court on its own motion, or on motion of party, where a case is doubtful by conflicting evidence, directs an issue to be tried before an advisory jury; but jury verdict not binding on judge. 828

4.708 Pleadings to the Merits.

1. "Answer." 829
2. Due within 21 days of service or within time set by court after disposition of preliminary pleas. 830
a. Failure by defendant to plead puts him in default. 831
b. Consequences of default: 832
(1) Defendant waives trial by jury
(2) Defendant is not entitled to notice of any further proceeding, including notice to take depositions, except notice must be given to counsel of record, if any, who has made an appearance , and except

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notice required under Va. Code § 8.01-296(2)(b) where service is by posting.
(3) On motion of plaintiff, court enters judgment for relief appearing to the court to be due unless the plaintiff demands a jury trial. If a defendant participates in a hearing (whether jury trial or not) to determine damages, defendant may not offer proof or argue the issue of liability but may (i) object to plaintiff's evidence of damages, (ii) offer evidence of quantum of damages, (iii) participate in jury selections, (iv) submit instructions regarding damages, and (v) make oral argument on issue of damages.
c. Prior to entry of a default judgment by the court, for good cause shown the court may grant to defendant leave to file a late responsive pleading and condition relief from default on conditions, including costs, plaintiff's attorney's fees. The court may also grant relief from a default judgment within 21 days after the default judgment is entered, but may not do so after 21 days except under the provisions of Va. Code § 8.01-428 and Va. Code § 8.01-623. See Rule 3:19(b) -(d). 833
d. There can be no default judgment in divorce or annulment suits, but where the defendant has been served as required by law, defendant has failed to file an answer or otherwise appear, no further notice to take depositions or conduct an ore tenus hearing is required to be served on the defendant, and the court may enter any order or final decree without further notice to the defendant. 834

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3. If motion or affirmative defense sets up new matter and requests a reply, the adverse party must file a reply within 21 days. If motion or pleading does not request a reply, the allegations of the new matter shall be taken as denied. 835
4. Parties at issue when all pleadings filed, or time for
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