Articles Posted in Pretrial Practice and Civil Procedure

If you get sued in an inconvenient, far-away forum and want the court to consider moving the case to a court closer to home–and you want to flex your Latin proficiency–file a motion for “forum non conveniens.” This common law doctrine allows a court to dismiss or transfer a case, even one filed properly in a permissible venue, if an alternative forum is available and would be more convenient to the parties and witnesses. The doctrine is codified at 28 U.S.C. § 1404 (applicable in federal court) and Va. Code § 8.01-265 (applicable in state court). When bringing such a motion, however, keep in mind that the court is going to want to look at the totality of the circumstances and not just what’s most convenient to the moving party.

A party seeking to dismiss a case for forum non conveniens must show that an alternative forum is (1) available; (2) adequate; and (3) more convenient in light of the public and private interests involved. (See Jiali Tang v. Synutra Int’l, Inc., 656 F.3d 242, 248 (4th Cir. 2011)). The party seeking dismissal or transfer has the burden of persuading the trial court that considerations of convenience, fairness, and judicial economy warrant invoking forum non conveniens. (See Galustian v. Peter, 591 F.3d 724, 731 (4th Cir. 2010); Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 432 (2007)). In examining the convenience of parties and the interests of justice, courts will typically consider one or more of the following factors:

  1. the plaintiff’s choice of forum;
  2. the state that is most familiar with the governing law;
  3. the location where agreements were negotiated and executed;
  4. the parties’ contacts with the forum;
  5. the contacts relating to plaintiff’s cause of action in the chosen forum;
  6. the cost of litigation in the competing forums;
  7. the location of witnesses;
  8. the availability of compulsory process to compel attendance of unwilling non-party witnesses;
  9. the ease of access to sources of proof; and
  10. the existence of a valid forum-selection clause in a contract between the parties.

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In both federal and state court, the rules give the court discretion to order a case to be divided into two or more parts, each to be tried separately. See Va. Code 8.01-272 (“The court, in its discretion, may order a separate trial for any claim”); Fed. R. Civ. P. 42 (“the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims”). The term “bifurcation” normally refers to the separation of certain issues in the case, while “severance” normally refers to the removal of claims or parties. When issues are bifurcated, the issues typically remain part of the same case; they are just tried separately. For example, when a party has a claim that allows for the recovery of reasonable attorneys’ fees, the decision might be made to bifurcate the attorneys’ fees issue so that the main issues in the case don’t get muddied by lengthy arguments about the reasonableness of attorneys’ fees. If the court orders the fee issue to be tried separately, the issue would still be decided as part of the same case, resulting in a single judgment. Severance, on the other hand, normally involves severing a claim from the lawsuit such that any separate trial on the severed action would be independent of the original action.

Fed. R. Civ. P. 42 permits a court to order severance “[f]or convenience, to avoid prejudice, or to expedite and economize” trial. Relevant considerations include (1) whether the issues are significantly different from one another in the two cases; (2) whether the severable issues require different witnesses and documentary proof; (3) any prejudice to the non-moving party if the motion is granted; and (4) any prejudice to the moving party if the motion is denied. (See Chmura Economics & Analytics, LLC v. Lombardo, Civ. Action 3:19cv813 (E.D. Va. Dec. 18, 2020)). Similarly, bifurcation of issues in state court “is a matter for the trial court’s discretion and requires consideration of whether any party would be prejudiced by granting or not granting such request, as well as the impact on judicial resources, expense, and unnecessary delay.” (Allstate Ins. Co. v. Wade, 265 Va. 383, 393 (2003)).

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When specific and identifiable litigation becomes reasonably foreseeable, those likely to be involved in the litigation and with awareness of their likely involvement have a duty to preserve potentially relevant evidence. Failure of such a party to take reasonable steps to preserve the evidence–or intentional alteration, concealment, or destruction of evidence–is known as “spoliation of evidence” (often misspelled as “spoilation of evidence,” which is not a thing) and can result in severe sanctions if other litigants are prejudiced by their inability to use the missing evidence at trial. (See Va. Code § 8.01-379.2:1) Typically, the court will instruct the jury that it may (or must) presume that the evidence–had it been preserved–would have been unfavorable to the party who failed to preserve it. Sometimes, however, in particularly egregious circumstances, the court can dismiss the action (if the plaintiff is guilty of spoliation) or enter a default judgment (if spoliation was committed by the defendant).

Case in point: QueTel Corp. v. Hisham Abbas, No. 18-2334 (4th Cir. (Va.) July 16, 2020). QueTel brought this action against Hisham Abbas, Shorouk Mansour, and Finalcover, LLC, for misappropriation of trade secrets, copyright infringement, and other claims. The gist of the lawsuit was that Abbas–a former QueTel employee–allegedly stole source code from QueTel’s copyrighted software (TraQ Suite 6) and used it in a competing product (CaseGuard). QueTel sent the defendants a cease-and-desist letter in which it demanded that they:

  1. cease infringing on QueTel’s intellectual property including the source code underlying the TraQ Suite 6 software;
  2. cease all advertising, promotion, and sale of the CaseGuard software;
  3. provide an accounting of all sales of the CascGuard software made to date; and
  4. allow QueTel to copy and inspect a complete copy of all versions of the CaseGuard source code as well as any computers that Abbas used during the period from January l, 2014 to the present.

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One of the delightful aspects of practicing law in Virginia is that we still get to use antiquated legal terms that most states stopped using a century or so ago. Where a lawyer might file a motion to dismiss in some states, here we file a “demurrer” or a “plea in bar.” Rather than move for a directed verdict or judgment as a matter of law at the close of the plaintiff’s evidence at trial, we make a “motion to strike.” Until relatively recently, we weren’t even initiating lawsuits with complaints; we were filing “motions for judgment” instead. In today’s blog post, I’m going to tell you about a fun little motion we call a “motion craving oyer.”

A motion craving oyer sounds a lot more exotic than it is. To “crave oyer” is simply to demand production of a written instrument when a plaintiff files a lawsuit based on that instrument but fails to attach a copy to the complaint. It’s based on the idea that a court can’t rule intelligently on a claim without having the opportunity to see all essential documents upon which the claim is based. “When a court is asked to make a ruling on any paper or record, it is its duty to require the pleader to produce all material parts.” (Culpeper National Bank v. Morris, 168 Va. 379, 382-83 (1937)). Motions craving oyer should be granted, however, only where the missing documents are essential to the claim. (Byrne v. City of Alexandria (Va. Sup. Ct. May 28, 2020)). These motions can be useful when a defendant may have defenses to a lawsuit that aren’t apparent without examining the instrument in question. If oyer is granted, the instrument becomes part of the complaint and a defendant can proceed to file other responsive pleadings that may be appropriate.

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As a general rule, legal rights may be waived by contractual agreement. The protection afforded by statutes of limitations may be waived like other rights, but only in very narrow circumstances, due to a Virginia law that few know about. The General Assembly decided to make it a bit more difficult to waive a statute of limitations than some other rights, and enacted Virginia Code § 8.01-232, which states in pertinent part as follows:

Whenever the failure to enforce a promise, written or unwritten, not to plead the statute of limitations would operate as a fraud on the promisee, the promisor shall be estopped to plead the statute. In all other cases, an unwritten promise not to plead the statute shall be void, and a written promise not to plead such statute shall be valid when (i) it is made to avoid or defer litigation pending settlement of any case, (ii) it is not made contemporaneously with any other contract, and (iii) it is made for an additional term not longer than the applicable limitations period.

Now that’s a pile of nearly incomprehensible legalese. One of the purposes of this blog, however, is to help people understand stuff like this, so let me try to decode it for you.

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If you get sued in Virginia on a claim your lawyer tells you is likely barred by the statute of limitations, you can raise the defense by way of a so-called “plea in bar.” A plea in bar is a pleading that presents a single set of facts that, if proven true, would bar the plaintiff’s claim from going forward. For example, if you can prove that the plaintiff’s claim arose earlier than the maximum amount of time permitted under the applicable statute of limitations, you may choose to file a plea in bar at the outset of the case to ask the court to dismiss it for that reason. Are you required to make this request at the outset of the case? No. If for some strategic reason you’d rather keep the defense in your back pocket to tell the jury about at trial, you can do that.

The issue came up recently in Ferguson Enterprises, Inc. v. F.H. Furr Plumbing, Heating and Air Conditioning, Inc., or as I like to refer to it, “Furr v. Ferguson.” Furr sued Ferguson in Prince William County on claims arising out of an alleged fraudulent-pricing scheme. Ferguson, a distributor of Trane-branded HVAC systems, had negotiated a pricing structure with Trane that allowed it to charge customers like Furr a discounted price and then receive a rebate or “claim back” from Trane. Furr entered into a contract with Ferguson back in 1995, but eventually came to believe that Ferguson was charging Furr a price above the discounted rate authorized by Trane. Furr sued in 2013 for fraud, unjust enrichment, breach of contract, and other claims.

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When you sue someone, you sometimes have a choice between filing in state court or federal court, and courts will generally defer to your preferred forum. In appropriate circumstances, however, a defendant can remove the case from state court to federal court. Under the current removal statute, 28 U.S.C. § 1441, removal is permitted by the defendant in any civil action brought in a state court of which the district courts of the United States have original jurisdiction. For those wishing to keep their cases in state court, care must be taken to ensure there are no grounds for federal-court jurisdiction. Some cases get removed to federal court before the plaintiff ever sees it coming.

The preemption doctrine can lead to such a result. Under this doctrine, a defendant may remove a cause of action that otherwise appears to lack federal question jurisdiction by asserting that federal law preempts the state law claim. This is because, under the Supremacy Clause of the Constitution, when state law and federal law conflict, federal law displaces (or preempts) state law.

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When the Virginia Supreme Court decided Assurance Data v. Malyevac a few years ago, most employment lawyers speculated that although Virginia law no longer permitted most non-compete cases to be disposed of summarily on demurrer, a procedural mechanism known as the “plea in bar” could still be used by defendants intent on challenging the enforceability of their noncompete agreements. Assurance Data held that “restraints on competition are neither enforceable nor unenforceable in a factual vacuum” and that evidence is ordinarily required to perform the analysis. Unlike demurrers, pleas in bar allow for the presentation of evidence, so it would seem that the plea in bar would be an appropriate way to dispute a noncompete. A new decision from the Circuit Court of Fairfax County agrees with this approach.

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When a Virginia court dismisses a case, the dismissal order may state that the dismissal of the case is either “with prejudice” or “without prejudice.” In this context, prejudice has nothing to do with racism or discrimination. Rather, it’s simply an indication of whether the case is permanently ended, with no possibility of finding its way back onto the court’s docket, or merely removed from the docket in such a way as to permit its refiling upon the satisfaction of certain conditions. Sometimes it will be up to the judge to decide whether to dismiss a case with or without prejudice; other times (particularly when the defect in the case cannot be fixed), the law will dictate the form of dismissal.

The Virginia Supreme Court explained the distinction in Primov v. Serco, Inc., decided just a few days ago. There, the court noted that a dismissal of a suit “without prejudice” means that the court is not deciding the controversy on its merits, and that the whole subject of litigation will remain as much open to another suit as if no suit had ever been brought. (See Newberry v. Ruffin, 102 Va. 73, 76 (1903)). In other words, dismissing a case without prejudice terminates the action but does not prohibit its refiling.

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Nobody likes to get sued. It can be an expensive and soul-draining proposition, even if you win. Under the so-called “American Rule,” litigants are responsible for paying their own legal fees, regardless of which party wins the case. Obviously, this system engenders some abuse, as crafty, litigious plaintiffs can file frivolous lawsuits knowing that–at the very least–they will cause the defendant to incur large sums of attorneys’ fees. As a defendant in American litigation, a victory at trial merely means you don’t have to pay the plaintiff any money. But you do you have to pay your own attorneys for their time and effort. So even a “win” is often viewed as a net loss in financial terms. One common way to turn the tables on plaintiffs is to file a counterclaim. Assuming the counterclaim itself isn’t completely groundless, it can put the parties on equal footing: if both parties have claims against the other, then both parties have something to lose beyond mere legal fees. Now, even the plaintiff can be liable for a money judgment.

If you file a counterclaim, however, you better mean it. The court may not allow you to withdraw it later if you decide your claims should have been brought as a separate action in a different jurisdiction. If the case has progressed to the point where trial is imminent, you may be forced to litigate the claim or lose it forever.

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