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Special Appearance to Challenge Personal Jurisdiction and the Traps This Creates for Unwary Practitioners." the Members You Appointed to This Subcommittee Were

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Special Appearance to Challenge Personal Jurisdiction and the Traps This Creates for Unwary Practitioners. CREAGER LAW FIRM, PLLC 2800 N~}RTH PARHAM ROAD , St~t’rt~ 205A , RICHMOND, VIRGINIA 23294 ¯ PIIONE: 804 405-1450 , WW\v.CRF.AGf{RL_\W[:IF~.\I.COM August 31, 2010 B!~ E-Mail Roger W. Mullins, Esquire Roger W. Mullins, PLLC P.O. Box 647 Tazewell, VA 24651 Email: [email protected] Re: Boyd Graves Special Appearance Subcommittee Dear Roger: By e-mail dated May 13, 2010, you asked me to Chair a subcommittee to study "whether to abolish the rule requiring a special appearance to challenge personal jurisdiction and the traps this creates for unwary practitioners." The members you appointed to this subcommittee were: The Hon. Dennis J. Smith Stuart A. Raphael Joseph C. Kearfott Sandra M. Rohrstaff D. Alan Rudlin Roger T. Creager, Chairman Our subcommittee members unanimously decided to recommend enactment of a new statute which is set forth just below. This proposed new statute clarifies (and perhaps revises) some of the current law on this issue and thus, it is hoped, will serve to eliminate some of the "traps for unwary practitioners." Our proposed statute clarifies what types of litigation conduct do and do not waive an objection to personal jurisdiction or defective process, and provides as follows: [Proposed New Statute] § 8.01-277.1. Objections to personal jurisdiction or defective process; what constitutes waiver. A. Except as provided in § 8.01-277, a person waives any objection to personal jurisdiction or defective process if the person engages in conduct related to adjudicating the merits of the case, including: 1. Filing a demurrer, plea in bar, answer, counterclaim, cross-claim, or third- party claim; 2. Conducting discovery, except as provided in subsection B; 3. Seeking a ruling on the merits of the case; or 4. Actively participating in proceedings related to determining the merits of the case. [Proposed new statute continued on next page. ] Letter to Roger W. Mullins, Esq. August 31, 2010 Page 2 of 3 B. A person does not waive any objection to personal jurisdiction or defective process if the person engages in conduct unrelated to adjudicating the merits of the case, including: 1. Requesting or agreeing to an extension of time; 2. Agreeing to a scheduling order; 3. Conducting discovery authorized by the court related to adjudicating the objection; 4. Observing or attending proceedings in the case; 5. Filing a motion to transfer venue pursuant to § 8.01-264 when such motion is filed contemporaneously with the objection; or 6. Removing the case to federal court. C. The fact that a person fails to state that the appearance is a special appearance does not constitute a waiver of any objection to personal jurisdiction or defective process, provided the person’s conduct is consistent with seeking to adjudicate the objection. Since the proposed statute refers to existing Virginia Code Section 8.01-277, the Conference members will want to have that existing statute in front of them for convenient reference and so I am providing it here now. Existing Virginia Code Section 8.01-277 [which would remain unchanged] provides: § 8.01-277. Defective process; motion to quash; untimely service; motion to dismiss A. A person, upon whom process to answer any action has been served, may take advantage of any defect in the issuance, service or return thereof by a motion to quash filed prior to or simultaneously with the filing of any pleading to the merits. Upon sustaining the motion, the court may strike the proof of service or permit amendment of the process or its return as may seem just. B. A person, upon whom process has not been served within one year of commencement of the action against him, may make a special appearance, which does not constitute a general appearance, to file a motion to dismiss. Upon finding that the plaintiff did not exercise due diligence to have timely service and sustaining the motion to dismiss, the court shall dismiss the action with prejudice. Upon finding that the plaintiff did exercise due diligence to have timely service and denying the motion to dismiss, the court shall require the person filing such motion to file a responsive pleading within 21 days of such ruling. Nothing herein shall prevent the plaintiff from filing a nonsuit under § 8.01-380 before the entry of an order granting a motion to dismiss pursuant to the provisions of this section. Nothing in this subsection shall pertain to cases involving asbestos. Letter to Roger W. Mullins, Esq. August 31, 2010 Page 3 of 3 By copy of this letter, I am thanking the outstanding members of this subcommittee for their fine work on this topic. I want in particular to thank Stuart A. Raphael for the outstandin~ Committee Report to the Conference which he researched and wrote, a copy of which is provided as Attachment A to this letter. Stuart’s report and the in-depth research it includes is an excellent example of why we all find our Conference books to be a valuable research source long after each year’s Conference. Please note that for the convenience of the Conference in discussing our proposed new statute a draft copy of the new statute (Section 8.01-277.1) which is unanimously recommended to the Conference by our Committee is attached as Attachment 1 in "bill" format so that it contains numbered lines. This should facilitate discussion of any particular provisions of the statute since Conference members will be able to refer to particular language by the line numbers assigned in the left margin. Roger, as always I look forward to seeing you and the other Conference members at our annual meeting in Williamsburg on October 22-23, 2010. Please let me know if I can be of any further assistance. Sincerely yours, /s/ Roger T. Creager Cc: Committee Members (listed above) (by e-mail) Attachment A MEMORANDUM TO: Boyd-Graves Conference FROM: Committee to Study Special Appearance Rule [Committee.Report Researched and Written by Smart A. Raphael] DATE: August 16, 2010 Our committee was asked to study "whether to abolish the rule requiring a special appearance to challenge personal jurisdiction and the traps this creates for unwary practitioners." We concluded that, while the special appearance rule should not be entirely abrogated, it should be modified by statute to eliminate several traps for practitioners. We propose a new statute- Code § 8.01-277.1 (Attachment 1)- to clarify what actions constitute a general appearance and what actions do not waive a party’s objection to personal jurisdiction or defective process. I. Virginia’s "Special Appearance" Rule. A "special appearance" is a defensive "pleading that either claims that the court lacks personal jurisdiction over the defendant or objects to improper service of process." Black’s Law Dictionary 114 (9th ed. 2009). It can also refer to a "defendant’s showing up in court for the sole purpose of contesting the court’s assertion of personal jurisdiction over the defendant." Id. Virginia courts construe the rule strictly and apply it quite rigidly. As the Supreme Court put it in Gilpin v. Joyce, 257 Va. 579, 515 S.E.2d 124 (1999): "An appearance for any other purpose than questioning the jurisdiction of the court - because there was no service of process, or the process was defective, or the action was commenced in the wrong county, or the like - is general and not special, although accompanied by the claim that the appearance is only special." Norfolk and Ocean View Railway Co. v. Consolidated Turnpike Co., 111 Va. 131, 136, 68 S.E. 346, 348 (1910) .... A general appearance "is a waiver of process, equivalent to personal service of process, and confers jurisdiction of the person on the court." Nixon v. Rowland, 192 Va. 47, 50, 63 S.E.2d 757, 759 (1951). Id. at 581,515 S.E.2d at 125 (emphasis altered). "Virginia steadfastly adheres to the traditional general and special appearance doctrine.’’I As one circuit court has observed, "practically any activity that is not a direct challenge to the I Xyrous Commc ’ns, LLC v. Bulgarian Telecomm. Co., No. 1:09-cv-396, 2009 WL 2877084 (E.D. Va. Sept. 4, 2009). jurisdiction of the court is a general appearance.’’2 Some actions that constitute a general appearance are obvious; others are less so. The less obvious ones create procedural traps for practitioners. A. Actions that Obviously Constitute a General Appearance. Actions that fairly obviously constitute a general appearance include: ¯ filing a pleading that goes to the merits of the case, including a demurrer or answer3, or even answering a co-defendant’s cross-claim4; ¯ entering a general appearance without objecting to jurisdiction;5 and ¯ conducting general discovery.6 2 Gilmore v. Wise Co., 72 Va. Cir. 353,354 (Portsmouth, 2006). 3 E.g., Lyren v. Ohr, 271 Va. 155,623 S.E.2d 883 (2006) (holding that defendant who filed an answer and grounds of defense, in reliance on plaintiff’s representation that service was timely, nonetheless waived his objection to untimely service); Kiser v. Amalgamated Clothing Workers, 169 Va. 574, 591,194 S.E. 727, 734 (1938) ("Of course pleading the general issue, demurring, or filing an affidavit of substantial defense amount to a general appearance.") (quoting Burks’ Pleading and Practice (3d Ed.), sec. 51, p. 107); Norfolk & Ocean View Ry. v. Consolidated Turnpike Co., 111 Va. 131,136-37, 68 S.E. 346, 348 (1910) ("When the plaintiff in error appeared and moved the court to vacate the proceedings had in the cause and to dismiss it, it did so upon grounds which went to the sufficiency of the petition of the receivers.
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