Articles Posted in Pretrial Practice and Civil Procedure

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.

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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.

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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).

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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.

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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.

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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

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.

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The Virginia Uniform Trade Secrets Act (“VUTSA”) contains a section stating that “this chapter displaces conflicting tort, restitutionary, and other law of this Commonwealth providing civil remedies for misappropriation of a trade secret.” (See Va. Code § 59.1-341). Known as the preemption provision, it is designed to prevent inconsistent theories of relief for the same underlying harm by eliminating alternative theories of common law recovery premised on misappropriation of trade secrets. (See Smithfield Ham & Products Co., Inc. v. Portion Pac, Inc., 905 F.Supp. 346, 348 (E.D. Va. 1995)). The General Assembly has decided that if you’re going to file a lawsuit for a tort based on the unlawful taking or use of a trade secret, your sole remedy should lie in VUTSA. Any common-law claim premised entirely on a claim for misappropriation of a trade secret will be deemed preempted by the statute. To avoid preemption, a plaintiff must be able to demonstrate that the distinct theories of relief sought are supported by facts unrelated to the alleged misappropriation of the trade secret. (See Combined Ins. Co. of Am. v. Wiest, 578 F. Supp. 2d 822, 833 (W.D. Va. 2008)).

If a plaintiff sues a defendant for misappropriation of trade secrets under VUTSA but also for conversion, unjust enrichment, and tortious interference, one might suppose that the three common-law torts would be preempted and that a motion to dismiss would be in order. As noted by a recent decision in the case of Signature Flight Support, LLC v. Catherine Carroll, however, the preemption issue often cannot be decided at the outset of a case and must wait for trial to be resolved. This is primarily because the determination of whether a particular piece of confidential commercial information qualifies as a “trade secret” under VUTSA is generally a question of fact to be determined at trial. If the plaintiff can’t prove the existence of trade secrets, then preemption won’t apply and the tort claims would become viable.

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Virginia is considered a “notice pleading” jurisdiction, which means that a complaint need only contain allegations of material facts sufficient to inform a defendant (i.e., put the defendant on notice) of the true nature and character of the plaintiff’s claim. To meet this standard, though, a plaintiff must allege actual facts rather than conclusory assertions. When ruling on a motion to dismiss for failure to state a claim, courts generally must accept the plaintiff’s allegations as true for purposes of ruling on the motion, as well as all reasonable inferences arising from those facts, but courts are not required to accept “allegations that are merely conclusory, unwarranted deductions of fact,…unreasonable inferences” or “allegations that contradict matters properly subject to judicial notice or by exhibit.” (See Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)). When a plaintiff’s cause of action “is asserted in mere conclusory language” and supported only by “inferences that are not fairly and justly drawn from the facts alleged,” it is proper to sustain a defendant’s demurrer. (See Bowman v. Bank of Keysville, 229 Va. 534, 541 (1985)).

This basically means that whatever conclusion the plaintiff wants the court to draw from the alleged facts, the plaintiff must allege not just the actual desired conclusion, but specific facts that, if true, would support the accuracy of that conclusion. For example, a court wouldn’t have to accept a plaintiff’s allegation that she suffered “severe emotional distress” or “extreme emotional distress” without accompanying factual allegations demonstrating the specific forms of emotional distress experienced. (See Russo v. White, 241 Va. 23, 28 (1991)). In a defamation case, where a plaintiff must allege that a defamatory statement is “of and concerning” him, it’s not enough to just allege that a statement was indeed “of and concerning” him; he needs to include in his complaint the specific facts that would enable the trial judge to determine that the “of and concerning” characterization is indeed accurate. (See Dean v. Dearing, 263 Va. 485, 490 (2002)). In a conspiracy case, the plaintiff must allege facts showing the defendants acted with a common purpose to injure the plaintiff; it’s not enough to just say, “the defendants conspired against me.” (See Brown v. Angelone, 938 F. Supp. 340, 346 (W.D. Va. 1996)). And in a trade secrets case, the plaintiff can’t survive dismissal simply by alleging that the defendant used “improper means” to acquire its trade secrets; the plaintiff must identify the supposed trade secrets and describe the means used to acquire them that were supposedly improper. (See Preferred Systems Solutions, Inc. v. GP Consulting, LLC, 284 Va. 382 (2012)).

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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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