A demurrer is used solely to make “the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted.” Va. Code §8.01-273(A). “Because a demurrer goes to a whole pleading to which it is addressed, it should be overruled if any part of the pleading states a cause of action upon which relief may be granted.” Doe v. Zwelling, 270 Va. 594, 599 (2005)(emphasis added). Kitchen v. City of Newport News, 275 Va. 378, 385 (2008)(Demurrer only “can be sustained if the pleading, considered in the light most favorable to the plaintiff, fails to state a valid cause of action [i.e., considering] as admitted the facts expressly alleged and those which fairly can be viewed as impliedly alleged or reasonably inferred from the facts alleged”)(emphasis added).
On demurrer, the issue simply is whether the Complaint alleges “sufficient facts to constitute a foundation in law for the judgment sought, and not merely conclusions of law.” Kitchen v. City of Newport News, 275 Va. 378, 385 (2008). “[I]t is unnecessary for the pleader to descend into statements giving the details of the proof in order to withstand demurrer” if the complaint informs the defendant of the nature and character of the claim. Catercorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 24 (1993)(emphasis added).
It is hornbook that Virginia is a “notice” pleading state: “Every pleading shall state facts on which the party relied in numbered paragraphs, and it shall be sufficient if it clearly informs the opposite party of the true nature of the claim or defense.” Va. Sup. Ct. Rule 1:4(d). “Rule 1:4 and correlative statutes represent ‘a radical departure’ from rules of common-law pleading”. Balzer and Assocs., Inc. v. The Lakes on 360, Inc., 250 Va. 527, 530 (1995)(emphasis added).
“As Virginia is a notice pleading state, even a flawed complaint will survive demurrer if it is drafted so that the defendant is on notice of the nature of the claim.” Lodal v. Verizon Va., Inc., 74 Va. Cir. 110, 112 (Fairfax Aug. 22, 2007). See, Strategic Enter. Solutions, Inc. v. Ikuma, 2008 Va. Cir. LEXIS 144, 2008 WL 8201356 (Fairfax Oct. 7, 2008)(denying Demurrer re certain allegations, observing Virginia “is a notice pleading jurisdiction”). “In order to withstand demurrer, notice pleading requires only allegations sufficient to inform defendants of the nature and character of the claim being made without the necessity of having to provide details.” Boy Blue, Inc. v. Brown, 74 Va. Cir. 4, 14 (Essex Feb. 13, 2007).
Recent decisions correctly overrule Demurrers and deny Motions for Bills of Particulars to Complaints that make only general allegations of negligence. See, Ex. 1, Cherrie v. Virginia Health Services, Inc., No. CL14-340, Order (Gloucester Mar. 18, 2016)(Demurrer and Bill of Particulars); Panth v. Ashouripour, No. CL15-1108, Order (Alexandria Feb. 10, 2016)(Bill of Particulars); Morgan v. Lin, No. CL15-972, Order (Chesapeake Sep. 24, 2015)(Demurrer); Doe v. Virginia Wesleyan College, 90 Va. Cir. 345, 347-48, 366, 367 (Norfolk Jun. 20, 2015)(Bill of Particulars); Locasio v. Raley, No. 2013-1956, Order (Stafford Jun 18, 2015)(Demurrer and Bill of Particulars); Sekulich v. Bond, No. CL13-3444, Order (Chesterfield Jun. 23, 2014)(Bill of Particulars); Wyche v. Petersburg Hosp., Co., LLC, No. 730CL12000824-00 (Petersburg Mar. 21, 2013)(Demurrer and Bill of Particulars); Abdulrahim v. Kabiri, No. CL2011-10298 (Fairfax Jan. 2012)(Demurrer and Bill of Particulars); Switzer v. The Pediatric Group, P.C., No. CL2011-14462, Order (Fairfax Dec. 16, 2011)(Demurrer and Motion for Bill of Particulars); Martin v. Bhat, No. CL11-271, Orders (Arlington Nov. 18 & Dec. 2, 2011)(Demurrer and Motion for Bill of Particulars); Lee v. Cantor, No. CL2010-04102, Order (Oct. 21, 2011)(Demurrer and Motion for Bill of Particulars); Lewis v. Webb, No. CL11-2277, Order (Richmond Sep. 1, 2011)(Demurrer and Motion for Bill of Particulars); Wilks v. Cope, No. 10-2838, Order (Apr. 13, 2011)(Demurrer and Motion for Bill of Particulars); Marrs v. Alshkaki, No. 2011-04238 (Fairfax 2011)(Bill of Particulars); McCarty v. Allen, No. 09-12407, Order (Fairfax Jul. 16, 2010)(Demurrer); Marshall v. Moniz, No. CL08-2018 (York Mar. 4, 2010)(Demurrer); Taylor v. Dorn, No. CL09-113, Order (Mecklenberg Jan. 22, 2010)(Demurrer); Taylor v. Winchester Womancare, P.C., No. 09-CL-290 (Winchester Jul. 30, 2009)(Demurrer and Motion for Bill of Particulars); Belay v. Dixon, No. 08002445, Order (Alexandria Jan. 2, 2009)(Demurrer); Nance v. Bon Secours, 70 Va. Cir. 52, 55 (Henrico Oct. 7, 2005)(Bill of Particulars); Atkinson v. Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc., 23 Va. Cir. 532, 538 (Fairfax Jan. 19, 1989)(Bill of Particulars). Indeed, some recent decisions even predicate granting amendment of Complaints on “catch-all” allegations of negligence. See, e.g., Ex. 2, Morel v. Mary Immaculate Nursing Ctr., Inc., No. 0703005P-03, Order (Newport News Sep. 2, 2008)(Pugh, J.); Licare v. Riverside Health Sys., No. 0702452T-01, Order (Newport News. Feb. 1, 2008)(Tench, J.).
- VICARIOUS LIABILITY
General generic allegations suffice for vicarious liability of Defendant, factually and legally. See, e.g., Ex. 1, Cherrie v. Virginia Health Services, Inc., No. CL14-340, Order (Gloucester Mar. 18, 2016)(“Plaintiff has given sufficient notice on the issue of vicarious liability in his Complaint.”); Panth v. Ashouripour, No. CL15-1108, Order (Alexandria Feb. 10, 2016)(unidentified employee/agent); Doe v. Virginia Wesleyan College, 90 Va. Cir. 345, 347-48, 366, 367 (Norfolk Jun. 20, 2015)(unidentified employee); Locasio v. Raley, No. 2013-1956, Order (Stafford Jun. 18, 2015)(unidentified employee/agent); Atkinson v. Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc., 23 Va. Cir. 532, 540-41 (Fairfax Jan. 19, 1989)(“individuals” and “agents” alleged).
- CATCH-ALL ALLEGATIONS
Virginia pleading expressly does not require plaintiffs to itemize details of negligence. “An allegation of negligence. . . is sufficient without specifying the particulars of the negligence.” Va. Sup. Ct. Rule 3:18(b)(emphasis added).
Russo v. White, 241 Va. 23, 28 (1991) reaffirmed the Rule 3:18 principle that “an allegation of ‘negligence’ is sufficient without specifying the particulars.” Moore v. Jefferson Hosp., Inc., 208 Va. 438, 439 (1967)(medical malpractice case reversing a supposed failure to state a claim) found sufficient plaintiff’s general pleading of negligence that defendant “proximately caused injury to the plaintiff, both mental and physical”. Ragsdale v. Jones, 202 Va. 278, 284 (1960) held that “a particular of the defendant’s negligence was not required to be specified under Rule 3:18”. The medical malpractice case of Nance v. Bon Secours – St. Mary’s Hospital, 70 Va. Cir. 52, 55 (Henrico Oct. 7, 2005) held “plaintiff is only required to allege that some negligence occurred without being required to state the particulars of the negligence”. Cunningham v. Roanoke Reg. Airport Comm’n, 70 Va. Cir. 273, 276 ( Roanoke Mar. 8, 2006) held “pleadings are not required to assert anything more than a general allegation of negligence”.
But Plaintiff cannot be pilloried – black-lined and blue-penciled – for gratuitously giving Defendants a heads-up that there may be other particulars of negligence. As stated, supra, his facts are governed by Rule 1:4(d), but his negligence allegations are governed only by Rule 3:18(b); and there is no Virginia Supreme Court authority for editing particular negligence allegations by Demurrer (or otherwise).
There are numerous recent decisions that correctly overrule such dilatory Demurrers. See, e.g., Ex. 1, Cherrie v. Virginia Health Services, Inc., No. CL14-340, Order (Gloucester Mar. 18, 2016)(“Plaintiff’s ‘catch-all’ language in Complaint Paragraphs 16(G) [‘and/or otherwise’], 16(K) [‘other tortious acts and/or omissions’] and 21 [‘other damages’] are gratuitous statements and Defendants are on notice of the cause as a whole.”)(emphasis added); Morgan v. Lin, No. CL15-972, Order (Chesapeake Sep. 24, 2015); Wyche v. Petersburg Hosp. Co., LLC, No. 730CL12000824-00, Order (Petersburg Mar. 21, 2013); Switzer v. The Pediatric Group, P.C., No. CL2011-14462, Order (Fairfax Dec. 16, 2011); Martin v. Bhat, No. 11-271, Orders (Arlington Nov. 18 and Dec. 2, 2011); Lee v. Cantor, No. CL2012-04102, Order (Fairfax Oct. 21, 2011); Lewis v. Webb, No. CL11-2277, Order (Richmond Sep. 1, 2011); Wilks v. Cope, No. CL10-2838, Order (Alexandria Apr. 13, 2011); McCarty v. Allen, No. 09-12407, Order (Fairfax Jul. 16, 2010); Marshall v. Moniz, 2010 WL 11243307, 2010 Va. Cir. LEXIS 328 (York Mar. 4, 2010)(“The catch-all allegation of negligence is gratuitous, and a Demurrer addresses the Complaint as a whole”.)(emphasis added); Taylor v. Dorn, No. CL09-113, Order (Mecklenberg Jan. 22, 2010); Taylor v. Winchester Womancare, P.C., No. 09-CL-290 (Winchester Jul. 30, 2009); Belay v. Dixon, No. 08002445, Order (Alexandria Jan. 2, 2009). Moreover, some recent local decisions predicate granting amendment of Complaints on the same “catch-all” allegations of negligence. See, e.g., Ex. 2, Morel v. Mary Immaculate Nursing Ctr., Inc., No. 0703005P-03, Order (Newport News Sep. 2, 2008)(Pugh, J.); and Licare v. Riverside Health Sys., No. 0702452T-01, Order (Newport News. Feb. 1, 2008)(Tench, J.).
Indeed, dilatory Demurrers like that of Defendant increasingly have come under intense Bench-Bar scrutiny and criticism. For notable example, a demurrer statute study committee of judges and lawyers of the Bond-Graves Conference condemned such would-be “housekeeping” Demurrers as a “misuse of the statute”! See, Ex. 6, 10/1/12 2012 Boyd-Graves Committee Report.
What are Defendants really trying to achieve by this dilatory Demurrer in the matter sub judice? Their inequitable impractical gambit is to limit Plaintiff only to the particulars of negligence enumerated gratuitously long before expert disclosures and without the benefit of any discovery – and to cry foul if Plaintiff subsequently identifies any other particulars of negligence – which should not be countenanced by this Court.
Although the Virginia Supreme Court has not expounded on Va. S. Ct. Rule 3:7(a)’s legal test for Bill of Particulars, United States District Court for the Western District of Virginia has declared that analogous Fed. R. Civ. P. 12(e) is a “disfavored remedy” and no “substitute for discovery”:
It is clear from the relevant case law that motions for more definite statement under Rule 12(e) are intended for situations where pleadings are so unclear that drafting a response to them is practically impossible. As a disfavored remedy, motions for more definite statement shall only be granted where the pleading is unintelligible or pleading is unclear. . . . Rule 12(e) motions are not a substitute for discovery, and ordinarily will not be granted where the information sought could be obtained in discovery.
The Collection, LLC v. Valley Bank, 2009 U.S. Dist. LEXIS 66157 at * 15 (W.D. Va. 2009). Uniformly to the same effect are decisions from eleven (11) other states. See, e.g., Thompson v. Catskill Logistics, LLC, 2015 U.S. Dist. LEXIS 155358 at * 3 (S.D. Tex. 2015); Williams v. Omainsky, 2015 U.S. Dist. LEXIS 86418 at * 5 (S.D. Ala. 2015); Galey v. Walters, 2015 U.S. Dist. LEXIS 60718 at * 5 (S.D. Miss. 2015); Metropolitan St. Louis Equal Housing and Opportunity Council v. Jezewak; 2015 U.S. Dist LEXIS 33358 at * 7 (E.D. Mo. 2015); Foster v. Dead River Causeway, LLC, 2014 U.S. Dist. LEXIS 113613 at * 6-7 (M.D. Fla. 2014); Streets v. Putnam, Inc., 2013 U.S. Dist. LEXIS 170987 at * 3-4 (S.D. Ohio 2013); CNH America, LLC v. Equipment Direct USA, LLC, 2010 U.S. Dist. LEXIS 42633 at * 6 (C.D. Ill. 2010); Pickering v. Walker, 2008 U.S. Dist. LEXIS 76545 at * 4-5 (W.D. Ark. 2008); Whiteway v. FedEx Kinko’s Office and Print Services, Inc., 2005 U.S. Dist. LEXIS 30879 at * 7 (M.D. Cal. 2005); U.S. v. Dekhrad, 672 F.Supp. 1529, 1531 (S.D. Iowa 1987); Jenner v. Board of Trustees of the Village of East Troy, 389 F.Supp. 430, 433 (E.D. Wis. 1974).
Hence Virginia Circuit Courts routinely have denied dilatory Motions for Bill of Particulars based on “catch-all” allegations in a Complaint. See, e.g., Ex. 1, Cherrie v. Virginia Health Services, Inc., No. CL14-340, Order (Gloucester Mar. 18, 2016); Wyche v. Petersburg Hosp., Co., LLC, No. 730CL12000824-00 (Petersburg Mar. 21, 2013); Switzer v. The Pediatric Group, P.C., No. CL2011-14462, Order (Fairfax Dec. 16, 2011); Martin v. Bhat, No. CL11-271, Orders (Arlington Nov. 18 & Dec. 2, 2011); Lee v. Cantor, No. CL2010-04102, Order (Oct. 21, 2011). Discovery is the appropriate defense remedy for unknown factual details.
Rules and Pre-Trial Orders governing discovery, expert disclosures, etc. are the appropriate protections already afforded Defendant. This Court should impose sanctions against Defendants and counsel for their clock-ticking “misuse of the statute,” not eviscerate Plaintiff’s pleading and discovery by rejection of modern “notice” practices.
