10 Mar Virginia Pleading: Sufficiency of Allegations – a Lawyer’s Retort
Virginia defendants may cite Pulte Home, Inc. v. Parex, 265 Va. 518 (2003) for allegedly impermissible conclusory pleading, in hopes of a quick summary dismissal without addressing the merits of a suit. But Pulte Home usually is readily distinguishable on its extreme facts.
In Pulte Home, the plaintiff’s “allegation merely parroted the language of Code §8.2-313, which sets fourth several legal bases for the creation of express warranties, and amounted to no more than a legal conclusion.” 265 Va. at 523 (italics in original). Subsequently, the Virginia Supreme Court rejected a defendant attempting to rely on Pulte Home when taken out of its narrow context. “Here , unlike the pleading in Pulte Home, [plaintiff’s] pleading alleged [facts], rather than merely stating the legal bases.”Hubbard v. Dresser, 271, Va. 117, 123 (2006).
Even if arguendo plaintiffs have not pleaded enough facts, that should not be fatal. Plaintiffs should be granted leave to amend to plead additional facts in support of their theory of liability if they can legitimately. E.g., Altizer v. County of Tazewell, 2008 Va. Cir. LEXIS 13, * 2-5 (Tazewell Jan. 22, 2008)(leave to amend to plead additional facts granted sua sponte).