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

August 12, 2026

Think You’re Entitled to Attorney Fees? Explain Yourself.

A party with an ironclad statutory or contractual right to attorney fees can still lose that right by failing to plead it correctly. That is the lesson of Pinnacle Flooring Solutions, LLC v. Premier Homes Group, LLC, Record No. 250618 (Va. July 30, 2026), in which the Supreme Court of Virginia held that Virginia Rule 3:25’s requirement that parties “identify the basis upon which the party relies in requesting attorney fees” is satisfied only by affirmatively identifying the basis for a fee request in the pleading itself, regardless of whether the other party is aware of the basis for requesting legal fees. Reversing the Court of Appeals, the Court reinforced that Rule 3:25 is a pleading requirement, not a notice requirement, and that the distinction is dispositive.

Premier Homes Group had subcontracted with Pinnacle Flooring Solutions to install flooring in three homes Premier was constructing. Each of the three nearly identical subcontracts contained a Section 8(b) providing that if Pinnacle defaulted and failed to cure after notice, Premier could take whatever corrective steps it deemed necessary at Pinnacle’s cost, with Pinnacle liable for that cost plus Premier’s reasonable overhead, profit, and attorney fees. When the relationship broke down, Pinnacle sued for nonpayment, attaching the subcontracts as exhibits to its complaint. Premier counterclaimed, alleging that Pinnacle’s work was defective and below industry standards and requesting that the court award it the attorney fees it incurred in prosecuting the matter. Premier incorporated various paragraphs from the subcontracts into its pleading—including the paragraph authorizing recovery of attorney fees—but did not expressly state a basis for its request for attorney fees.

December 17, 2025

Filing a Responsive Pleading After the Deadline? You’ll Need a Good Reason

by Lee E. Berlik

A common mistake many lawyers make is to assume that deadlines can be missed without consequence. Judges want to hear cases on the merits, the thinking goes, so as long as you file a motion after the missed deadline and just explain why your pleading is late, the judge will almost certainly grant your motion “in the interests of justice” and allow the late filing. This way of thinking isn’t entirely faulty but misses an important caveat: the explanation needs to be a good one. Deadlines exist for a reason. Sure, courts prefer to adjudicate cases on the merits, but such adjudication is only possible for parties who show respect for the rules. Lawsuits are serious business; if you get served with one, you have an obligation to respond promptly. The rules will allow you to avoid a default judgment for good cause, but “good cause” requires more than just having a meritorious defense and lack of prejudice by the other side. Good cause means good cause.

Under Rule 3:8(a), defendants must file responsive pleadings within 21 days after service of process. Failure to do that results in default under Rule 3:19. Under Rule 3:19(b) provides that “[p]rior to the entry of judgment, for good cause shown the court may grant leave to a defendant who is in default to file a late responsive pleading.” (Emphasis added). The Virginia Supreme Court has found good cause to exist in circumstances involving (1) lack of prejudice to the opposing party; (2) good faith of the moving party; (3) promptness of the moving party in responding to the opposing party’s decision to progress with the case; (4) the existence of a meritorious claim or substantial defense; (5) the existence of legitimate extenuating circumstances, and (6) a justified belief that the suit has been abandoned or will be allowed to remain dormant on the docket. (See Westfall v. Westfall, 196 Va. 97, 103 (1954); Eagle Lodge, Inc. v. Hofmeyer, 193 Va. 864, 870 (1952); Worsham v. Nadon, 156 Va. 438, 443 (1931)). Ultimately, trial courts have discretion to rule as they see fit; this list of justifiable circumstances is not exhaustive or necessarily determinative, and the trial judge may decide to refuse leave to file late responsive pleadings even if good cause is shown. (See AME Fin. Corp. v. Kiritsis, 281 Va. 384, 392-393 (2011)).

August 19, 2025

Continuing Breach vs. Recurring Breach

by Lee E. Berlik

In civil litigation, there is a time limit for taking legal action, as determined by the statute of limitations applicable to the claim. To determine whether the deadline has passed, it becomes necessary to identify the date from which the time period (typically 2-5 years) should be measured. In most breach-of-contract actions, for example, the limitations period would start to run from the date the contract was breached. In cases where the wrong is continuous and ongoing, however, it can be difficult to identify a specific start date for the statute of limitations. Some states will postpone the expiration of the statute of limitations until the continous wrong comes to an end, though Virginia will usually look only to the date the continuous activity commenced. On the other hand, when wrongful acts are not continuous but occur only at recurring intervals, each occurrence is considered a separate wrong and starts the clock on a new limitations period. Sometimes a judge can rule as a matter of law as to whether a particular breach should be regarded as continuous or recurring; other times, however, such as when material facts are in dispute, juries must make the determination. Whether particular activity can be properly characterized as “continuing” or “recurring” will often make or break the case.

December 11, 2024

Enforceable Restrictive Covenant Deemed Insufficient for Injunctive Relief

by Lee E. Berlik

Restrictive covenants in employment agreements (like non-compete and non-soliciation provisions) are disfavored in Virginia and only enforced when narrowly crafted so that the restrictions are no broader than necessary to protect the employer’s legitimate business interests. Even when the contract is well written and enforceable, however, there’s no guarantee the employer will be able to obtain an injunction to prevent a former employee from violating its terms. Injunctive relief is considered an “extraordinary” remedy in Virginia and is never automatic. I highlighted a Fairfax County case illustrating this principle a few years ago. Today, let’s examine how the Eastern District of Virginia ruled when presented with a similar scenario.

The basic facts of Tactical Rehabilitation, Inc. v. Youssef go like this: Tactical Rehabilitation, a Florida-based company selling durable medical equipment, employed Alaina Youssef under an agreement that included non-compete, non-solicitation, and confidentiality clauses. After Youssef’s termination, Tactical alleged that she breached these agreements by soliciting its clients and diverting business to her new employer, a direct competitor. Tactical sought injunctive relief to prevent Youssef from continuing these activities, citing significant revenue losses and harm to its business relationships.

October 23, 2024

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

by Lee E. Berlik

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).