Articles Posted in Pretrial Practice and Civil Procedure

Fewer aspects of civil litigation make me groan louder than attempting to obtain a subpoena in a foreign jurisdiction to obtain testimony or documents for a case pending in Virginia state court. Reading about getting a “commission” or dealing with a “letter rogatory” makes me want to run and hide (or at least remove the case to federal court, where practitioners enjoy nationwide subpoena power). Over the years, we’ve obtained subpoenas from California, Pennsylvania, Illinois, the District of Columbia, and Maryland. Despite the passage in each of these states of some form of the Uniform Interstate Depositions and Discovery Act–which is supposed to streamline the procurement of foreign subpoenas–obtaining a foreign subpoena remains a complicated and contradictory matter, confusing attorneys and jurisdictions alike. So let me save you a bit of trouble and share with you some key things you’ll want to know in order to get your subpoenas issued with a minimum of delay and hassle.

First, a few preliminary considerations: my best rule of thumb is to pick up the phone and call the clerk of the court located in the jurisdiction in which you need a subpoena, and be as nice, warm, and polite to that person as you’re capable of being. Clerks are people too, and much of the day, they have demanding attorneys barking at them, ignorant parties asking questions they can’t answer, and too much to do with not enough time to do it. Establishing some rapport with the clerk can go a long way if you’re trying to extract information and obtain what you need promptly.

Next, if you’re issuing a witness subpoena, call or email the deponent to see if the date you’ve chosen is convenient for the witness. Witnesses tend to be more cooperative when you consider their schedule. You are not the only one with a busy workweek.
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Suppose you lose a motion you thought you would almost certainly win. “The court got it wrong,” you tell yourself, perhaps even sincerely. Do you file a follow-up motion asking the court to change its mind? Or do you file it away in the “grounds for appeal” category? Motions for reconsideration are disfavored in every jurisdiction and you’ve already lost once–so the odds are against you–but if the court made a clear mistake of law, it can make sense to inform the court of the mistake. The permissible grounds for seeking reconsideration depend on whether you’re in federal court or state court.

The Federal Rules of Civil Procedure do not expressly allow motions for reconsideration, but district courts generally treat them as being filed under Rule 59 or 60. Still, reconsideration of a judgment is considered an extraordinary remedy which will be granted only sparingly. Rule 60(b) allows for “relief from a final judgment, order, or proceeding” in certain circumstances. Those circumstances include mistake, excusable neglect, newly discovered evidence, fraud by an opposing party, and “any other reason that justifies relief.” That catch-all is not as broad as it sounds, however. The Fourth Circuit has held that Rule 60(b) “does not authorize a motion merely for reconsideration of a legal issue” and that Rule 60 cannot be used to make a motion simply asking the court to change its mind. In federal courts sitting in Virginia, motions for reconsideration cannot be granted where the moving party simply seeks to have the court rethink what it has already thought through–regardless of whether its decision is right or wrong.
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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.